Jury Notice Struck So Judge Alone Trial Can Proceed Amidst Covid-19 Pandemic

Reasons were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice so a trial could proceed without the need for a lengthy adjournment.

In today’s case (Vacchiano v. Chen) the Plaintiff was injured in a 2015 collision.  Both liability and damages were contested.  ICBC elected trial by jury which was scheduled in July, 2020.  Due to Covid-19 all civil jury selections were suspended and jury trials cancelled up to and including September 7, 2020 everywhere in the province.  As a result the trial would face a lengthy adjournment, about 2 years, if the matter was to proceed with a jury.

The Plaintiff brought an application for the jury notice to be struck.  The Court agreed that doing so would be fair as a 2 year adjournment would be more prejudicial to the parties than the Defendant losing their prefered mode of trial.  In reaching this decision Master Muir provided the following reasons:

[27]         The Rules were not formulated with a pandemic in mind. They must be looked at in a purposive manner in the present circumstances.

[28]         The purpose must be consistent with the ultimate object of the rules of a “just, speedy and inexpensive determination of a proceeding on its merits”. The analysis seems to me to be similar to many others the court embarks on, and incorporates factors of balancing prejudice to achieve a just result.

[29]         Although not a “right” (see, e.g., Waymark v. Barnes (1995), 3 B.C.L.R. (3d) 354 (C.A) and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2017 BCCA 324), the importance of the availability of a jury trial in civil cases has been echoed in many decisions in our courts.

[30]         The importance of a jury to a defendant, however, cannot and does not outweigh all other considerations.

[31]         Looking at the strict wording of subrule 12-6(5)(a)(iii), the extra time and cost here involves likely at least a two-year adjournment, additional costs for updated expert examinations and reports, and additional examinations for discovery. That trial may well be conducted under new rules for expert reports, which could prejudice the plaintiff in that she would be unable to recover costs for some of the experts she presently relies upon.

[32]         As the defendants deny liability, a two-year delay for a trial involving a motor vehicle collision that is already five years in the past runs the obvious risk of decaying memories. Thus, a two-year delay runs the risk of affecting the ability of the parties to have a “just” proceeding on the merits.

[33]         I also note that the psychological and financial condition of the plaintiff indicates that a significant “cost” might be inflicted upon her by such a delay.

[34]         Although it is argued that the amount involved here is substantial given the amount of time that the plaintiff has been off work, in my view, that is outweighed by the additional time and cost of awaiting a jury trial.

[35]         The application to strike the jury notice is granted and the application for an adjournment of the trial set for July 20, 2020 is denied.