Canadian Lawyer

6 www.canadianlawyermag.com UPFRONT ONTARIO UPDATE Andrew Monkhouse Founder MONKHOUSE LAW Practices employment, human resources, long-term disability and employment insurance law. In Mahadeo v. Blue Cross Life Insurance Co., 2019 ONSC 6611, the defendant served a jury notice more than four months after pleadings for a statement of claim. The day he received the jury notice, one of the lawyers for the plaintiff wrote to the defendant's counsel. "Barry, I got your jury notice, but there is nothing else in the covering letter," wrote the plaintiff's lawyer. "Since plead- ings are closed it would seem that you are out of time, are you trying to indicate that you are going to bring a motion to change this to be a jury matter?" Three days later, the defendant's lawyer responded: "I would prefer that you could agree to late service rather than requiring a motion for leave. I look forward to hear- ing from you." In a motion to strike jury notice, plaintiff lawyers Andrew Monkhouse and Miguel Mangalindan argued that they had object- 'Polite' Canadian idiom in lawyers' emails adds confusion Q&A ed to the validity of the jury notice since the outset, since it was served after the close of pleadings. One of the defendant's lawyers, Andrew Cottreau, meanwhile ar- gued that Monkhouse and Mangalindan's "lack of objection represents agreement" and that the email exchange "was not an objection, but was merely an inquiry," since it ended in a question mark. Q: The judge sort of opens [the decision, Mahadeo v. Blue Cross Life Insurance Co., 2019 ONSC 6611] this idea of, 'When is the question a question?' And when is it sort of a directive? Is that sort of like symptomatic of wanting to be civil or polite or sort of the way that human communication could get lost over email? A: "As I read it, [the judge] found it all very Shakespearean. Perhaps that's a liberal interpretation, just because he quotes Shakespeare so many times. . . . You know, you don't necessarily expect to see [your emails] in the motion record, or to be fighting about whether or not some- thing's a question, but I think his honour certainly sided with our interpretation," says Monkhouse. "It's certainly signifi- cantly more polite to say, 'Are you able to close the window?' rather than 'Close the window.'" Q: I just thought this case was sort of a little reminder of how a judge may read a correspondence between lawyers differently than — or similarly, in this instance — than they themselves might read it. What was your reaction to the way the judge interpreted the jury request? A: "Emails can sometimes be too abrupt as a medium. That causes, frankly, often more issues than people being too polite in them, unfortunately. . . . I think it's good to have judges writing decisions that make these sorts of references because I think they reach a wider audience and foster a more interesting discussion about the nuances of language."

• Cover