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BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Rule 12-2(9)(ab)’

BC Court of Appeal Discusses Two Routes of Challenging Jury Notices

March 22nd, 2013

Last year I discussed the fact that the BC Supreme Court can deal with Jury Strike applications both under Rule 12-6(5) and also as part of the trial management process.  Reasons for judgement were released last week by the BC Court of Appeal (Wallman v. Gill) addressing this reality but also providing comments on the limits of when the trial management process is an appropriate forum for such an application.   The Court provided the following feedback:

23]         By analogy, although the application to strike the jury in this case was heard by the judge who had been appointed to manage the action, he did not hear it in the course of a trial management conference under R. 12-2(9), but in regular chambers under R. 12-6(5). Indeed, he could not have heard it at a case management conference since it is evident the parties filed affidavits on the application, and this would not have been permitted under R. 12-2(11)(a). Thus, the order striking the jury is not a limited appeal order.

[24]         I would be sympathetic to the plaintiff’s argument that the Legislature did not intend to create a “two-tier” system for appealing orders directing the mode of trial if I were satisfied that was the practical effect of this ruling. However, I am not convinced that this is the case. This argument fails to recognize the unique role of the case management conference. It is held late in the proceeding, when the trial is sufficiently imminent that the parties have been able to prepare a comprehensive trial brief, and meet in person with the judge to make informed decisions about how the trial will proceed. In this limited context, R. 12-2(9)(b) permits a trial management judge to decide whether the trial should be heard with or without a jury, either on application by one of the parties or on his or her own initiative, and without affidavit evidence. I venture the view that this power will be exercised rarely. If the parties have been unable to agree on the mode of trial, it seems most unlikely they would leave this to be determined late in the day at a case management conference, without the benefit of affidavit evidence. It is reasonable to assume that, instead, there will have been an earlier application under R. 12-6(5) to determine this issue. Further, it seems unlikely a trial management judge would then consider revisiting an earlier order dealing with mode of trial or, if no earlier application had been brought, alter the mode of trial in a summary manner late in the day.

 


The Flexibility of the 7 Day Rule for Jury Strike Applications

February 28th, 2012

Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference.  With the overhaul of the civil rules does this exception still apply?  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.

In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely injured‘ in a 2007 collision.   The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice.  The Defendant brought an application to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).

The Defendant’s application was ultimately dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules:

[12] Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).