ICBC Law

Reasons for judgement were transcribed yesterday and released on the BC Court’s website dealing with an interesting issue, specifically can a party who elected trial by jury change their mind once the trial starts.

In this case (Chapelski v. Bhatt) the Plaintiff was involved in a 2004 BC Car Crash.  In the course of the lawsuit the defence lawyer filed a Jury Notice and paid the Jury Fees.  On the first day of Trial the Jury was empaneled and the Plaintiff’s lawyer made his opening statement.  The next day the Defence Lawyer advised the Court that he intended to proceed with the trial without the Jury.

Mr. Justice Hinkson ruled that once the Jury was empanelled it was too late for the Defendant to re-elect the mode of trial to that of Judge alone and that the Defendant would have to continue to pay the Jury Fees for the duration of the trial.

Mr. Justice Hinkson’s reasoning was set out in paragraphs 17-20 which I reproduce below:

[17] The reference by Williams J. to Rule 39(26) is significant.  Based upon his reasoning, a party who has served a Notice Requiring Trial by Jury can elect not to proceed with that mode of trial at least until the required jury fees are paid.  But that reasoning does not address a point in time past the point of payment of the required fees.  The reasoning implies that once the point has been passed “the issue of whether a trial is going to be heard by a jury would be conclusively settled”.

[18] I do not take the reference by Williams J., to “late in the day”, to extend past the empanelment of the jury nor the commencement of trial, nor do I accept that it should.  Once empanelled, a civil jury are the triers of fact.

[19] I conclude that absent misconduct of a party, a witness, or a juror once a civil trial has begun without the consent of the opposing party, it is not open to a party who has filed a Notice Requiring Trial by Jury pay the required fees pursuant thereto and participate in the selection of the jury to opt out thereafter for trial by judge alone.

[20] To permit such a re-election smacks a forum shopping and cannot be permitted.  I need not and I do not decide if a jury on a civil trial can be discharged absent misconduct of a party, a witness, or a juror once a civil trial has begun even with the consent of all parties.