BC Supreme Court Strikes Jury So Injury Trial Can Proceed

In the wake of the Covid-19 Pandemic one of the many directions of the BC Supreme Court was that jury trials could not proceed for the time being creating a balancing of interests between trials proceeding in a timely fashion vs the right of a party to have their preferred mode of trial.

Today reasons for judgement were pronounced considering this direction and ultimately striking a civil jury desired by a Defendant in a personal injury claim.

In today’s case (Cheung v. Dhaliwal) the Plaintiff was injured in a 2016 collision.  The claim was set for trial on June 22, 2020.  Both liability and quantum were at issue.  The Defendant desired trial by jury which would have resulted in an adjournment.  The plaintiff brought an application to strike the jury notice so it could proceed on the date set.  In finding the prejudice to the Plaintiff in adjournment outweighed the prejudice to the Defendant by having a judge alone trial Master Vos provided the following reasons:

[7] The Court’s COVID-19 Notice No. 22 provided that all civil and family trials scheduled to begin on or after June 8, 2020 will resume, unless the court otherwise directs. Under that Notice, all civil jury selections are suspended and civil jury trials are cancelled up to and including September 7, 2020.

[8] The plaintiff wants this trial to proceed on June 22, 2020. The plaintiff is prepared to abandon his right to a jury trial, so the case can proceed to trial on that date.

[9] The defendants want to maintain their right to have this case proceed to trial by jury.

[10] The plaintiff’s application was brought at the trial management conference for this case, pursuant to COVID-19 Notice No. 22. It provides that in civil actions where a jury notice has been filed and served, a party wishing to proceed by judge alone may a schedule a trial management conference and apply to set aside the jury notice. A party wishing to continue with a trial by jury can oppose the application and can apply to adjourn the trial. ..

[17] The objective of securing the just, speedy and inexpensive determination of this case points to the trial proceeding before a judge alone on June 22, 2020. The accident that is the subject of this action occurred almost four years ago. If the trial is adjourned it may not get on for a while. The plaintiff is concerned that a trial with a jury may be scheduled two or three years from now. Such a delay could result in a deterioration of evidence, as memories fade over time. This may be significant as liability for the subject accident is in issue and there will be witness testimony in relation to this issue.

[18] Counsel for the plaintiff provided some information to the court about the personal circumstances of the plaintiff. He presently is 35 years old. He is single and has no children or dependants. At the time of the accident, he was employed as a financial service representative with Vancouver Credit Union. He has not returned to work since the occurrence of the accident. He lives with his parents.

[19] An adjournment of the trial would obviously be prejudicial to the plaintiff as it would delay his day in court and thereby his ability to resolve the litigation and get on with his life. His counsel also points out that if the trial is adjourned additional expert fees will likely be incurred, as some reports will need to be updated for the new trial date.

[20] On the other hand, if the trial proceeds on June 22, 2020 the only prejudice the defendants would suffer would be that the mode of trial would not be the mode they chose; trial by jury. Although the defendants may lose any tactical advantage they may believe they would have if the case is tried with a jury, they nevertheless would be assured of a just determination of the issues on the merits.

[21] An adjournment of the trial would clearly prejudice the plaintiff. The prejudice to the plaintiff outweighs any prejudice the defendants may suffer if the case is heard by a judge without a jury. In the circumstances, the defendants’ notice requiring trial by jury should be struck so the case can proceed to trial as scheduled, later this month.

[22] The plaintiff’s application is granted.