Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff moved to adjourn her jury trial after the Finish Date under Civil Procedure Rule 4.20.

• The trial was originally scheduled for April 7–10 and 14–17, 2025, with the Finish Date set as January 3, 2025.

• Plaintiff lacked an economic loss report, which had been identified in the DAC Outcome Report as one of three key expert reports.

• Defendant argued that the delay and lack of preparation were due to the Plaintiff’s own inaction over nearly a decade.

• The Court found that the Plaintiff was misled by her former lawyer and had not been adequately represented leading up to the trial.

• The trial was adjourned to April 19–22 and 26–29, 2027, with a new Finish Date of February 26, 2027, and no costs awarded on the motion.

Facts of the case

Jacqueline MacIntyre, the plaintiff and an Ontario resident, filed a lawsuit against 2166439 Nova Scotia Limited, carrying on business as The Halliburton House Inn, seeking damages for personal injuries sustained from a slip and fall incident at the defendant’s inn on July 18, 2014. The Notice of Action and Statement of Claim were filed on June 21, 2016, by Lisa Wagner of Wagners, acting as agent for Daniel Balena of Ajax, Ontario.

The Plaintiff alleged personal injuries and resultant damages. A Date Assignment Conference (DAC) was held on September 16, 2022, during which jury trial dates were set for April 7–10 and 14–17, 2025, and a Finish Date was established as January 3, 2025. An Order for production was issued on October 26, 2024. Subsequently, on November 28, 2024, Toronto lawyer Ian Perry provided notice of new counsel, which was filed on December 2, 2024.

The motion for adjournment

On February 18, 2025, the Plaintiff brought a motion to adjourn her jury trial, citing insufficient preparation time and the lack of a crucial economic loss report. The Plaintiff filed an affidavit sworn on February 13, 2025, detailing that she had not known her representation was in jeopardy until October 25, 2024, when she received an email from Mr. Balena stating: “To be clear, I am NOT your lawyer.” The Plaintiff subsequently retained new counsel, Mr. Perry, in late October 2024.

The Plaintiff argued that proceeding without an economic loss report would be prejudicial. This report was identified in the DAC Outcome Report as one of three expert reports to be filed. Although two medical reports were filed on December 13, 2023, the economic loss report had never been commissioned. Plaintiff’s counsel advised that such a report could not be obtained until June 2025, after the scheduled trial.

Defense counsel opposed the motion, arguing the Plaintiff had over five months to prepare since retaining new counsel in November 2024, and nearly a decade had passed since the incident. They contended that the Plaintiff’s lack of preparation was due to her own delay and that any adjournment would unfairly prejudice the Defendant through increased costs and inconvenience.

Judicial analysis and decision

Justice Chipman considered Civil Procedure Rule 4.20(3) and (4), which govern adjournments sought after the Finish Date. He weighed three factors: prejudice to the moving party, prejudice to other parties, and prejudice to the public. The Court accepted the Plaintiff’s uncontested affidavit evidence, concluding that she was misled by Mr. Balena, who failed to formally withdraw until shortly before trial.

The Court noted that the Plaintiff “honestly believed that Mr. Balena was acting on her behalf,” and “was severely let down by Mr. Balena.” The lack of an economic loss report—deemed “crucial” by both past and current counsel—was central to the Court’s decision. The Plaintiff, now in her late fifties and a nurse, claimed damages including pecuniary losses, and such a report was considered essential for quantifying her claim.

Although the Defendant was willing to proceed with a judge-alone trial, the Plaintiff declined to waive her right to a jury. The Court rejected the idea of bifurcating the trial (i.e., separating liability and damages), noting the Defendant’s objection due to increased costs. Despite acknowledging the Defendant’s frustration and the potential for public resource strain, the Court ruled that the Plaintiff's prejudice outweighed other concerns.

Outcome

Justice Chipman ordered the trial adjourned to the next available eight-day jury block: April 19, 20, 21, 22, 26, 27, 28 and 29, 2027. The new Finish Date was set for February 26, 2027. A Trial Readiness Conference was scheduled for March 26, 2027. While no costs were awarded on the motion, the Court left the door open for the Defendant to later claim costs related to the two-year adjournment.