ICBC Jury Trial Request Denied Where In House Counsel Failed to File Jury Notice in Time

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to lengthen the applicable time frame to file a jury notice.

In today’s case (Chapman-Fluker v. Gustavson) the Plaintiff was injured in a collision and sued for damages.  The Defendants, insured by ICBC and initially represented by in house counsel, failed to file a jury notice in the applicable time frame.

Months before trial the Defendants applied to allow them to file their jury notice beyond the specified time limits. 

In dismissing the application the Court noted that the late change of mode of trial would likely lead to adjournment prejudicing the plaintiff and further that it is difficult to blame the failure on ‘inadvertance of counsel’ where counsel was an in house employee of ICBC’s litigation team.  In dismissing the application Master Elwood provided the following reasons:

[35]         The court is not bound, however, to accept ICBC’s assertion that the deadline was missed solely through the inadvertence of counsel: Loring v. Insurance Corporation of British Columbia, 1996 BCSC 1386.

[36]         ICBC adjusters are familiar with the procedural rules that govern the right to elect a trial by jury. Mr. Miller and Mr. Sandrin both demonstrated an understanding of those rules in this case, yet there is no evidence that either followed up to confirm that a jury notice had in fact been filed. Moreover, counsel at the relevant time was an employee of ICBC’s own litigation department, making it difficult, in my view, for ICBC as the interested party to separate itself from counsel’s failure to file the jury notice.

[37]         Mr. Sandrin’s e-mail on the last day establishes ICBC’s intent to preserve the right to a jury trial within the time limit; however, in my view, the failure to file the required notice in time is one that should be attributed to ICBC as the applicant for an extension, and not simply the inadvertence of counsel….

[65]         This is not a case in which a client’s intention within the time limit to have the case tried by a jury was simply frustrated by the inadvertence of counsel. In this case, ICBC, in both its claims adjustment and litigation departments, failed to ensure that a jury notice was filed in time and failed to move with due dispatch once the oversight came to their attention. Although there is limited evidence of specific prejudice to the plaintiff from ICBC’s delay, the general prejudice from a change in the mode of trial just two months before the scheduled trial date and the real likelihood that the trial will be adjourned are sufficient, in my view, to conclude on a balancing of the relevant factors that it is not in the interests of justice to grant an extension of time.

[66]         For these reasons, the defendants’ application to extend the time to file a jury notice is dismissed. Costs of this application will be in the cause.