If I go to trial, do I have to prove my case to a jury? Is there always a jury in personal injury cases? What if my counsel thinks a jury isn’t appropriate for my case?
In the recent British Columbia Supreme Court case Zerkee v Grelish (2016 BCSC 750), the court dealt with an application by the plaintiff to move a matter into ‘fast track’ litigation – a move that would have the effect of striking an otherwise valid jury notice filed by the defendant. The use of juries in personal injury cases is one counsel often spend some time considering. While judges are (theoretically) steeped in their professional responsibility to remain neutral decide a case on its merits, juries are made up of average individuals who – like any of us – are subject to liking or disliking other people and making decisions and judgments based on those likes and dislikes. Simple common sense dictates that a very likeable plaintiff will earn the jury’s sympathies more readily than an irritating or otherwise unlikeable plaintiff. It’s for this reason that occasionally, one party will push for a jury while the other opposes with all their might. It’s possible that it was exactly this kind of situation that brought the parties to chambers in Zerkee.
Master MacNaughton reviewed the issues involved before concluding that the matter was properly a fast track case, and therefore should remain in fast track litigation and not proceed to a jury trial:
[36] The issues involved, and the number of witnesses, make this a straightforward personal injury action to determine quantum of damages. It is the type of trial for which the fast track procedures were, in fact, intended.
[37] There has been no consent or acquiescence to fast track procedures. The defendant submits that she will suffer prejudice because she cannot have trial by jury, which has always been her intention. I accept that the effect of a decision to have this matter remain in fast track will result in the defendant being denied a jury trial. I also accept that the court should guard against the strategic use of fast track notices by either a plaintiff or a defendant to avoid a jury trial.
[38] Both counsel acknowledged the longstanding tradition in our law which protects the right to a trial by jury. However, in this jurisdiction the right to trial by jury has been abrogated in cases to which Rule 15 applies. The rules recognize that for reasons set out in Rule 1‑3, and in Rule 15‑1(10), there are certain cases that involve lesser amounts, are less complex and deal with less important issues which should be dealt with in a manner that is proportional to those cases. If they are Rule 15 cases, they should be heard without a jury.
[39] Rule 15 does not set a timeframe in which a notice must be delivered, and in my view, it is in accordance with the object of the Rules for counsel to assess and reassess their positions as to the suitability of a matter for fast track as it progresses.
[40] I am satisfied that this is such a case. There are personal injury actions which are less complex than this, but, in all respects, this is a straightforward case in which liability has been admitted. Judicial involvement in pre‑trial procedures has been minimal. The claimant makes no claim for past, present or future loss of income or capacity. There are only two medical experts who will testify and there are a limited number of lay witnesses. This case is ideally suited to Rule 15‑1.
[41] The defendant also submits that, as a result of the late delivery of the fast track notice, the parties have not had the benefit of any of the streamlined procedures and economic advantages of a fast track action. This was a significant factor in some of the decisions relied on by the defendant, but, in this case, those streamlined procedures would have made very little difference. This action has proceeded without involving the court in any pre‑trial processes. Apart from this application, no other chambers applications have been heard. The examination for discovery of the plaintiff slightly exceeded the two‑hour limit available in fast track cases, but the defence cannot have been prejudiced by having more discovery time than they would otherwise have been entitled to.
[42] Each party is proceeding to trial with one expert. The plaintiff has four lay witnesses, and the defence has one, who was at the scene, and a police officer who, in fact, did not attend the scene.
[43] As to the defendant’s argument that she will be prejudiced in costs, I was not persuaded by it. A trial which will take at least an extra day and a half because of a jury will increase the costs to both of these parties. Costs are not intended to indemnify a winning litigant for all legal expenses, and, in this liability-admitted case, absent consideration of offers to settle, the cost of the trial would usually be borne by the defendant.
[44] Perhaps the most persuasive of the defendant’s arguments is the concern that this plaintiff delivered a fast track notice to avoid a jury trial when the time for applying to strike the defendant’s jury notice had long since passed. In fact, the test for striking a jury notice would be a more stringent one. No such application would have been brought in this case. The plaintiff would not have applied to strike because when such an application was required by our Rules, the plaintiff had delivered her own jury notice.
[45] As I have said, the court must guard against misuse of the fast track rule for this purpose. That concern implicitly distinguishes some of the cases relied on by the defendant from the circumstances here.
[46] In this case, I am persuaded that the plaintiff’s decision to deliver a fast track notice was not a strategy to avoid a jury trial. The evidence establishes that the plaintiff’s case has, in fact, evolved over time. Most importantly, liability which was initially denied has now been admitted and the plaintiff’s injuries and her resulting damage claims have been re‑evaluated based on the expert medical reports. I cannot conclude that it would be in accordance with the object of the Rules, or the interests of justice, to have a personal injury case in which liability is admitted and which on the plaintiff’s best‑case scenario is worth $70,000, exclusive of interest and costs, proceed to a seven‑ or eight‑day jury trial.
[47] In all these circumstances, this matter will remain in fast track and will not proceed to a jury trial. The late delivery of the fast track notice in this case, however, meant that the issue was determined after the defendant has paid the $1,500 jury fee for the first day of trial. The plaintiff should be responsible for that disbursement.
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