An Ontario court let Economical Insurance file a jury notice nearly five years late, rejecting arguments that delay alone caused prejudice.
The dispute traces to a collision between a motor vehicle operator and a cyclist, with a claim issued on November 13, 2020. Economical Insurance retained counsel in January 2021 and instructed him to file a jury notice on its behalf. Through inadvertence, the notice was never filed. Neither Economical nor the plaintiff discovered the gap until May 8, 2025, when plaintiff's counsel was assembling the trial record and asked Economical whether a jury notice had been filed.
The plaintiff opposed the motion, arguing that the four years and 9.5 months since the close of pleadings amounted to prejudice on its own. Associate Justice Jolley disagreed, citing Nikore v Proper, which holds that delay does not presumptively cause prejudice, though a logical inference can arise in the right case. She found this case unlike Sanabria v Nizam - the authority the plaintiff relied on - since it was uncontroverted that Economical had instructed its lawyer to file a jury notice, with the failure discovered only once the trial record was being prepared. The plaintiff also conceded he had not shaped his discovery or trial preparation around an assumption the case would proceed without a jury, leaving no basis for an inference of prejudice.
A separate objection concerned complexity. The plaintiff argued the case, which raises questions of statutory accident benefits, tort law, priority rules and several statutes, was too complex for a jury. Jolley found no authority supporting complexity as a factor on a motion for leave to file a jury notice, noting the cases the plaintiff cited all concerned motions to strike a jury notice, a different question decided later at trial. Citing Kempf v Nguyen, she held that granting leave only restored the position Economical would have held had the notice been filed as instructed, without binding the trial judge, who retains discretion to strike the notice if the issues prove unmanageable. She found the dispute was not "inherently inappropriate for a jury trial," noting juries routinely decide motor vehicle accident claims involving negligence and damages, while statutory interpretation questions would go to the trial judge regardless of whether a jury sat.
On the added cost and length a jury trial could bring, Jolley cited Nikore's holding that this is a feature of every jury trial, not prejudice flowing from the delay itself, and found Sanabria's contrary suggestion unpersuasive since it did not explain its departure from that reasoning.
Jolley granted Economical's motion, permitting it to file the jury notice out of time. The parties had agreed that the unsuccessful party would pay the successful party $4,000 in costs within 30 days, and the court so ordered.
