Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules
Unreported reasons for judgement recently came to my attention addressing, for what I believe is the first time since the New Rules came into force, the issue of whether a party can elect trial by jury when a new Notice of Trial is issued if they failed to so elect in the fist instance. In short the Court held this is not permitted.
In the recent case (Hung v. Sellars, BC Supreme Court Duncan Registry) the Plaintiff was injured in a motor vehicle collision. The case was set for trial and neither party filed a notice requiring trial by jury. The trial was adjourned by consent. The Plaintiff filed a new notice of trial (as is required by BC Supreme Court Practice Direction 25). The Defendant then filed a notice requiring trial by jury.
The Plaintiff brought an application to strike the Jury Notice. Mr. Justice Bracken granted the application noting that the Rules only allow a jury notice to by filed with the initial notice of trial. In doing so the Court provided the following reasons:
[13] As noted, the authorities have held the election whether the trial be by judge alone or by judge sitting with a jury contemplates that the election will be made promptly after the first notice of trial. Some latitude is possible where a party seeks to make an election outside the tie limited by the rules in certain restricted circumstances.
[14] In some cases, such as removal from the fast track process where there is no right of jury trial, the parties can make the eelction upon a new notice of tiral being filed…
[15] In this case, a jury notice, in accordance with the principle in Hoare v. Firestone and Pelech v. Pelech, could have been filed and served after the first notice of trial that was issued in this action. The jury notice should have been filed and delivered within the rules after the date of the first notice of trial…Therefore the notice requiring trial by jury in this case…is struck as being filed outside the tine allowed by Rule 12-6.
As of today’s date this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.