Over the past year, in two unrelated personal injury actions, defendants sought leave to deliver jury notices well after the close of pleadings.
The cases had several important similarities. Both were personal injury actions, both were at roughly the same stage of litigation, and in both cases approximately four years had passed since the close of pleadings. Yet the motions produced different results: leave was refused in Sanabria and granted in Wolford.
The differing outcomes provide a useful illustration of how Ontario courts approach late jury notices and, in particular, the importance of the evidence addressing the reason for the delay and any prejudice to the responding party.
Ontario’s Rules for Delivering a Jury Notice
The right to a civil jury trial is a substantive right, but it is not absolute.
Rule 47.01 of the Rules of Civil Procedure permits a party to deliver a jury notice at any time before the close of pleadings. There are also circumstances in which a jury trial is unavailable, including those prescribed by s. 108(2) of the Courts of Justice Act and s. 20 of the Crown Liability and Proceedings Act.
Rule 47.02(b) gives the court discretion to strike out a jury notice on the ground that it was not delivered before the close of pleadings. Conversely, a party seeking to deliver a jury notice after that deadline must obtain leave of the court.
What Do Ontario Courts Consider When Deciding Whether to Allow a Late Jury Notice?
The Divisional Court’s decision in Nikore v. Proper is the starting point. The court provides two “key factors” for the court’s consideration when determining whether to permit service of a jury notice after the close of pleadings:
1. Circumstances of Delay: Why Was the Jury Notice Late?
Sanabria: Inadvertence Was Not Enough
In Sanabria, pleadings closed in December 2021. Between the commencement of the action and March 2025, three different lawyers from the same firm represented the defendants. None delivered a jury notice or sought leave to do so. A fourth lawyer eventually identified the omission and obtained instructions to seek leave to deliver the notice.
The defendants argued that the failure to deliver the jury notice was the result of inadvertence. The Court did not accept that explanation as sufficient.
Three features of the evidence were important.
First, there was no evidence that the defendants had instructed their lawyers at the outset of the litigation to deliver a jury notice.
Second, the Court rejected the defendants’ submission that delivering jury notices in personal injury actions was effectively an industry standard or invariable practice from which the defendants’ original intention could be inferred.
Third, there had been no unforeseen development in the litigation that explained or justified the late request.
Against that evidentiary background, and given the significant passage of time since pleadings had closed, the Court concluded that the delay had become unconscionable and refused leave.
Wolford: Evidence of an Original Intention to Have a Jury Trial
The evidence in Wolford was similar in some respects, but critically different in one.
There was evidence that defence counsel had been instructed at the outset of the action to deliver a jury notice but had inadvertently failed to do so. The oversight was discovered only when the plaintiff was assembling the trial record and asked whether a jury notice had been delivered.
Associate Justice Jolley accepted that explanation and found that the circumstances of the delay satisfied the first branch of the Nikore analysis.
The distinction is important. Mere inadvertence may not be enough. Evidence showing that a jury trial was actually intended from the beginning of the litigation can materially affect the result.
2. Prejudice: Would a Late Jury Notice Disadvantage the Other Party?
The courts also reached different conclusions on prejudice.
Sanabria: Litigation Decisions Had Been Made on the Expectation of a Judge-Alone Trial
In Sanabria, the Court accepted that the plaintiff would suffer prejudice if the late jury notice were permitted.
The plaintiff had conducted the litigation on the understanding that the action would proceed as a judge-alone trial. That understanding had informed litigation decisions, including the plaintiff’s settlement position at mediation, which had been influenced by the anticipated length and expense of a judge-alone trial.
The Court also accepted that converting the matter to a jury trial at that stage would require additional preparation, with corresponding additional time and expense.
Wolford: No Evidence That the Absence of a Jury Notice Affected Litigation Strategy
The evidentiary record in Wolford was different.
The plaintiff did not argue that his litigation strategy had been shaped by an expectation that the matter would proceed without a jury. He acknowledged that discoveries and trial preparation had not been conducted differently based on whether the matter would ultimately be tried by a judge alone or by a jury.
Instead, the plaintiff argued that the bicycle-versus-motor-vehicle personal injury action was too complex to be tried by a jury.
The Court rejected that argument for two principal reasons. First, the trial judge retained the discretion to strike the jury if the case ultimately proved unsuitable for a jury because of its complexity. The issue therefore did not need to be determined on the motion for leave to deliver the jury notice. Second, cases of a similar nature are regularly tried before juries.
The Court also declined to give significant weight to the proposition accepted in Sanabria that a jury trial would necessarily be longer and more expensive.
Practical Lessons for Late Jury Notice Motions in Ontario
Motions for leave to deliver a jury notice after the close of pleadings are highly fact specific. Nikore v. Proper remains the appropriate starting point, with the analysis focused on:
- the circumstances surrounding the delay; and
- prejudice to the opposing party.
For a moving party, the evidence explaining the delay is critical. Inadvertence is not necessarily fatal, but the moving party will be in a much stronger position where there is a clear evidentiary trail showing that a jury trial was intended from the outset. Documents that may otherwise be privileged may need to be disclosed. Evidence like contemporaneous instructions, correspondence, file notes, or other steps consistent with that intention are important.
For the Responding Party: Prejudice Should Be Concrete
For a responding party, prejudice should be concrete rather than abstract. An argument based solely on the complexity of the case may carry limited weight, particularly because the trial judge retains the ability to strike the jury. More persuasive evidence may demonstrate that the absence of a jury notice actually affected litigation strategy, settlement decisions, trial preparation, or the costs already incurred.
Will Additional Trial Time and Expense Constitute Prejudice?
The differing treatment of the anticipated additional length and expense of a jury trial in Sanabria and Wolford warrants caution. Neither decision should be relied upon in isolation for the proposition that additional trial time or expense will/will not constitute sufficient prejudice. The weight assigned to that consideration will depend on the particular evidentiary record before the court.
The broader lesson from the two decisions is straightforward: where a jury notice is sought years after the close of pleadings, the outcome is likely to turn less on the passage of time itself than on the evidence explaining how the omission occurred and what practical consequences the late notice would have for the opposing party.
