By: Celine Tuncertan, Associate Lawyer
Introduction
The choice between a jury trial and judge-alone trial is a recurring strategic consideration in Ontario civil litigation, particularly in personal injury claims. Jury trials often carry a perceived advantage for defendants, as jurors are believed to be more conservative in assessing damages than judges. Plaintiffs, on the other hand, may prefer judge-alone trials seeing as judges tend to be more comfortable awarding higher damage awards for potential future losses. The choice to pursue a jury is therefore a deliberate tactical decision, weighing the nature of the evidence, the complexity of the issues, and the potential impact on the ultimate award of damages.
This strategic landscape becomes easier in actions commenced under the Simplified Procedure (Rule 76 of the Rules of Civil Procedure),1 which governs actions seeking monetary relief of $200,000 or less. Since January 1, 2020, Rule 76 has generally barred jury trials for matters within its scope. Yet personal injury claims frequently evolve during litigation, and it is not uncommon for damages to exceed the $200,000 threshold if injuries and impairments persist and/or expert reports are exchanged. This article examines the requirements for delivering a jury notice, the limitations on juries under Rule 76, and how courts have addressed late filed or revived jury notices when a case transitions between simplified and ordinary procedures.
Timing for delivery of Jury Notice
Under Rule 47.01(2), a party may deliver a jury notice (Form 47A) at any time before the close of pleadings, which is typically within ten days after service of the defence. Once pleadings close, delivery of a jury notice requires discretionary leave of the court.
Courts are generally reluctant to grant leave in the absence of compelling justification. Tactical or last-minute attempts to file a jury notice after significant procedural steps have been taken (such as the filing of the trial record) are rarely permitted, as they are seen to undermine trial fairness and efficiency. For example, In Arsenault v Baja Motorsports LLC, 2012 ONSC 247, a late attempt to serve a jury notice after pleadings had long closed and the trial record filed was denied, with prejudice to the opposing party presumed.
Simplified Procedure and the Jury Bar
A key feature of the amended Rule 76 is the elimination of jury trials (Rule 76.12(1)). This change is confirmed in Lightfoot v Hodgins, 2021 ONSC 1950, where the plaintiff amended her claim downward to fit within Rule 76. The defendant’s previously delivered jury notice was struck, with the court holding that juries are barred under the new simplified framework, subject only to narrow transitional exceptions.
The more complex question arises in the opposite scenario: What happens when a claim originally brought under Rule 76 is later amended upward, exceeding the monetary jurisdiction of the simplified procedure? If the defendant did not serve a jury notice initially, because juries were barred under Rule 76, should they be entitled to deliver one once the action shifts into ordinary procedure?
Beyond Rule 76: What Happens When a Claim Exits the Simplified Procedure
Ontario courts have recognized that the right to a civil jury trial is a substantive one, not easily displaced. The Supreme Court of Canada has repeatedly emphasized its importance, cautioning that the right should not be denied except for compelling reasons. Ontario courts apply this principle with care, balancing it against the need for efficiency and fairness.
Where pleadings are amended to move a case outside Rule 76, courts have held that pleadings may be “reopened,” thereby reviving the right to file a jury notice. This depends, however, on the nature and scope of the amendments. The governing framework asks:2
1. Were the amendments necessary?
2. Do they contain new allegations?
3. Do they change the nature of the action?
4. Will further discoveries be required as a result?
If all four questions are answered affirmatively, pleadings are generally treated as reopened for all purposes, including the delivery of a jury notice.
Two additional “qualifying” considerations also guide the court’s discretion:
• When was the intention to deliver a jury notice made known?
Where the intention to deliver a jury notice is disclosed promptly, the request is more likely to succeed. Conversely, late or tactical disclosure may be denied.3
• Is the party seeking to amend the pleadings the same party who intends to deliver a jury notice?
A party cannot rely on amendments made solely to reopen pleadings for the purpose of serving a jury notice. The court will scrutinize whether the amendment was bona fide (in good faith) or simply an “improper” litigation tactic.4
Where both the core and qualifying factors are met, courts generally recognize that the right to serve a jury notice remains intact until the pleadings, as amended, have closed again pursuant to Rule 47 as previously mentioned.
For example, in Kuzyk v Miggo, 2024 ONSC 5185, an amended statement of claim briefly reopened the right to serve a jury notice, the defendants still failed to act. In a motion brought by the defendant seeking leave to file a jury notice, leave was denied, with costs awarded to the plaintiff.
Practical Takeaways
For clients and counsel alike, the interaction between jury notices and the Simplified Procedure under Rule 76 requires careful attention and timely decision-making. This is not just a procedural issue: it can meaningfully shape the litigation strategy and the quantum of damages awarded.
For defendants, vigilance is key. If a plaintiff’s damages claim appears modest at first but may grow beyond the $200,000 threshold after discoveries or expert reports, you should be prepared to act quickly. The window to deliver a jury notice can reopen if pleadings are amended, but only for a limited period. Delay or tactical hesitation will almost always result in losing the right to a jury trial. Therefore, some practical advice is to disclose your intention to seek a jury trial early and serve jury notice immediately if the pleadings are reopened.
For plaintiffs, amending a claim upward can increase potential damages but also reopens the door to a jury trial. Before making such amendments, plaintiffs should carefully weigh whether the added value outweighs the strategic risk of potentially losing a trial by judge alone.
For both sides, the key takeaway is that the right to a civil jury trial in Ontario remains robust but procedurally sensitive. Courts will enforce strict compliance with rules on timing and disclosure, and they scrutinize amendments for bona fides. As mentioned, tactical or last-minute maneuvers are rarely rewarded.
At the outset of litigation, parties should make jury strategy part of their overall case plan, not an afterthought. If the availability of a jury trial could affect your damages exposure (or recovery) this issue should be flagged early and revisited at each procedural stage. Where there is uncertainty, proactive legal advice is critical to avoid missed opportunities or unnecessary risk.
Our team at MBBM Lawyers LLP has extensive experience guiding clients through these nuanced procedural choices, ensuring their rights are protected and their claims are positioned for the best possible result.