Failure to Pay Jury Fees Nullifies Jury Notice In Rescheduled Trial

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Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, confirming that failure to pay jury fees nullifies  jury notice even when a trial is adjourned.
In today’s case (Blaikie v. Penafiel) the Plaintiff was injured in a collision and sued for damages.  The Defendant filed a jury notice but did not pay the fees in the required time frame prior to the initial trial being adjourned by consent.  The Defendant sought to rely on the jury notice in the subsequent trial and the Plaintiff objected.  The Court found that the initial failure to pay the fees nullified the jury notice.  In reaching this conclusion the Court provided the following reasons:
[2]             The basic facts are that the plaintiff was injured in a motor vehicle accident on March 15, 2008. Liability has been admitted by the defendants. The trial was first set to proceed on December 2, 2013, and jury notices were filed by both the plaintiff and the defendants. On October 18, 2013, jury fees were due and payable. Neither the plaintiff nor the defendants paid the jury fees. On November 22, 2013 the defendants applied to adjourn the trial, and it was ultimately adjourned by consent and rescheduled to September 29, 2014. On January 3, 2014, the defendants purported to file a new jury notice.
[3]             It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.
[4]             I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded:
In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.
[5]             The respondent here says that in fact the jury fees will be paid. They will be paid in advance of the new trial date, as provided for under the Rules.
[6]             The defendants relied upon the decision of the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490. In my view that decision is completely inapplicable to a right that is extinguished in accordance with the time limits set out in the Rules. In my view, their voluntary relinquishment of the right to a jury was not and cannot be bound by the law of waiver.
[7]             In the circumstances, it is my view that, having failed to pay the jury fees in a timely fashion, the defendant is restrained from filing a new jury notice or paying the fees now.
[8]             I am confirmed in that view by the decision in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para. 21:
The learned judge below was, in my view, quite correct in concluding that the opportunity to issue a new notice of trial, when a trial has been adjourned from the original trial date, cannot automatically carry with it a renewed right to issue a jury notice. …

bc injury law, Blaikie v. Penafiel, Master Muir, striking an icbc jury notice

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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