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.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether parties to an action joining a matter already set for trial can elect the mode of trial.
In this week’s case (Catalano v. Ogloff) the Plaintiff was injured in two collisions. The Plaintiff started an action for the first collision, set the matter for trial and filed a jury notice. The Defendant did not. A separate action was started for the second collision and all parties filed a consent order providing that the cases be head together on the date already scheduled. The Defendants in the second action then filed a jury notice. The Court found this was a nullity. In striking the Defendant’s jury notice Master MacNaughton provided the following reasons:  For the following reasons, I have concluded that the defendant’s jury notice is a nullity.  First, under Rule 12-6(3) of the Supreme Court Civil Rules it is clear that the election of a jury trial is a two-step process. The right is preserved by serving a jury notice but the matter will not be heard by a jury unless and until the jury fees are paid. A jury trial occurs only if both steps are completed. Thus, the defendant to the second action could not presume that the first action was proceeding to a jury trial. It is for that reason that all parties to an action independently preserve their election of a jury trial by serving their own jury notice.  Second, the early cases which established the principal that it is only the first notice of trial which matters, with respect to the election of a jury, arose in the context of trial adjournments. However, that principal has been expanded. I agree with the conclusion of Master Groves (as he then was) in Bumen v. BC Transit, 2001 BCSC 443: … when a notice of trial has previously been given in one action, without a jury notice being filed, a subsequent consent by the parties to having other actions tried at the same time ought to be treated as an election to have a trial by judge alone in all the actions. In other words, when parties consent to the consolidation of multiple actions they are bound by the mode of trial specified in the notice of trial filed with respect to the first action. …(para. 20) Master Groves’ reasoning mirrors that of Master Barber in Wright v. Rose (1995), 32 C.P.C. (3d) 319 where he said: …there is no valid jury notice issued in the first action…it could be argued that the jury notice is valid for the second and third action. Of course, when actions are tried at the same time they should either be all heard with a jury, or herd by a judge alone. In my opinion, when the defendants consented…to all three actions being tried at the same time, that was an election to have trial by judge alone. … (para 17)  In my view, the fact that the plaintiff had delivered a jury notice in the first action does not change the result. The defendant in the second action could not rely on the plaintiff’s jury notice as that was merely the first stage of the election process and did not guarantee a jury trial (I note that it has since been withdrawn). The defendants to the first action had not delivered such a notice. To ensure his right to a jury trial, the defendant in the second action should have made it a term of his consent to having the matters tried together or, if no consent was forthcoming, he could have delivered a jury notice and then applied in chambers to have the matters heard together with a jury.  By proceeding the way he did, the defendant to the second action was not at liberty to deliver the jury notice. It is a nullity.
Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, concluding that under the New Rules a Plaintiff “is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the Defendant“.
In this week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision. The case had a complex pre-trial history that cannot easily be summarized but in short the matter was set for trial with only one live jury notice in place which was filed by the Defendant. As trial neared the Defendant elected not to rely on the Jury Notice. The Plaintiff brought an application allowing him to piggy-back on the Defendant’s Jury Notice. Mr. Justice Abrioux held that this was not allowed and dismissed the application. The court did, however, grant the Plaintiff leave to file a jury notice of their own.
In concluding that one party cannot rely on another’s Jury Notice under the New Rules the Court provided the following reasons:  The plaintiff seeks to have the trial of this action heard by the court with a jury. The application was heard on July 12, 2012. It raises the issue as to whether under the Supreme Court Civil Rules, which came into effect on July 1, 2010, a party which did not file a jury notice may, nonetheless, rely on a jury notice filed by another party and secure a trial by jury by paying the required fees. In light of the pending trial date being August 13, 2012, I am delivering these oral reasons for judgment today. I reserve the right to edit these reasons although that process will not involve a change in the decision or in the reasoning…  The plaintiff’s submission is predicated on the word “and” at the conclusion of Rule 39(26)(a) not being present at the end of Rule 12-6(3)(a)(ii). The plaintiff submits the inclusion of “and” at the end of Rule 39(26)(a) formed the basis of William J.’s conclusion in Folk. It was only the party that issued the jury notice who was entitled to pay the jury fees associated with that notice.  I agree with the plaintiff that the word “and” at the end of Rule 39(26)(a) was an important factor in Folk. I do not agree, however, that its omission in Rule 12-6(3)(a)(ii) changes the state of the law. Rule 12-6(3) states, “a party may require that the trial of an action be heard by the court with a jury by doing the following”. Although “and” is not present, the words “by doing the following” were added in the introductory wording of the present subrule.  In accordance with Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, I read the subrule in its entire context “in its grammatical and ordinary sense harmoniously” with the Supreme Court Civil Rules. In doing so, I am of the view the words “by doing the following” had the effect of replacing the word “and” which appeared in Rule 39(26)(a).  Accordingly, as would have been the case under Rule 39(26), the plaintiff in this case is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the defendant.
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:  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.  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…  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.
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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