Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.
In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions. The Plaintiff sued and both cases were set for trial. The defence lawyers in each lawsuit filed Jury Notices within the time frames required. The Defendants paid the Jury fees as required by the Rules of Court. Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury. The Plaintiff objected arguing that it was too late for the defendant to change their mind.
Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:
 Here, the plaintiff did not exercise any right to trial by jury. The plaintiff simply did not contest the defendants’ election of trial by jury.
 Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial. The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…
 I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.
 The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury. They suggest that s. 19 indicates that the trial judge has discretion to allow this.
 I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury. Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just. This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.
 Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury. I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial. I find that the defendants had no authority to do so under theRules of Court.
 It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process. This election must be made within strict time limits set out in Rule 39(26).
 The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial. The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush. Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial. The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.
 As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:
The learned judge very properly emphasized the importance of the right to elect for jury trial. But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason. If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel. It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.
 As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone. I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial. There is no such provision.
 Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.
 On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice. However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27). In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).
 This brings me back to the B.C. Court of Appeal decision in Molnar. I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).
 Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27). It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial. I have found that the Rules of Court do not permit this.
This is the first case that I am aware of dealing with these specific facts making this case a useful precedent. Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?
The answer appears to be yes. This case turned on the Court’s interpretation and application of Rule 39(26). This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical). If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.
To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.