The Flexibility of the 7 Day Rule for Jury Strike Applications

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).