In what circumstances will a plaintiff be granted leave to file a jury notice after discovery?

In another decision on this issue, Safi v. Doctor's Hospital, [See Note 12 below] Master MacLeod granted the plaintiff leave to file a jury notice based on a determination that there was no prejudice to the defendants beyond what would be the case if the jury notice had been served in time. In that case, examinations for discovery of the defendants had been completed and one day of examination of the plaintiff had been completed when counsel for the plaintiff discovered that, due to inadvertence, he had neglected to file a jury notice. I fully agree with the Master's reasoning with respect to the impact of examinations for discovery on this analysis. He stated, at para. 12: To hold that discovery is a dividing line would have the benefit of certainty. It would also, however, have the effect of rewriting the rules of practice. If extensions of time are always given prior to discovery and always refused after discovery, Rule 47.01 would be read as if "close of pleadings" really meant "discovery." The plaintiff seeks an exercise of discretion to remedy a missed time limit. In a case of inadvertence, such discretion should be exercised to extend the time if to do so will not unduly prejudice the defendants. The closer one gets to trial, the more likely that prejudice will be inferred and less likely that an indulgence will be granted. Requests to file a jury notice after (or during) discovery must be particularly scrutinized because there us danger of taking the other party by surprise and obtaining an unfair advantage.

I do not see the completion of discoveries as a factor particularly relevant to the issue of prejudice. Discoveries are merely exercises in fact-finding. The facts are no less and no more important in a jury trial than in a judge alone trial. The jury never sees the actual examination for discovery, so the manner in which it is conducted will never have an impact. The transcript of the discovery is used in the same way before a judge as before a jury. In my view, the only real relevance of the completion of discoveries as a benchmark is as a timing issue. The fact that discoveries are complete is an indication that the action is nearing the trial stage at which point counsel will begin the actual preparation for trial, which may be quite different based on whether or not there is a jury. In this regard, [page478] I echo the following observations of Perrell J. in Doe v. Bragg, [See Note 13 below] at para. 31: In my view, while there are differences in how to conduct the trial of an action depending on whether there is to be a judge and jury or a judge alone, that difference does not justify refusals to answer questions on an examination for discovery. The pursuit of truth promoted by the discovery process should not be influenced by the mode of trial. If the questions regarding past relationships and a prior sexual assault were proper for a judge alone trial then they ought to have been proper for a judge and jury trial. Answering questions should not be governed by tactical considerations. See Wilkinson v. Holtby, supra. Similarly, the production of documents should be no different in a jury trial and in a non-jury trial.