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Surprise Trial by Jury

How much notice should a plaintiff have that ICBC wants a jury on the case? Are there rules setting out the steps to take? If a step is missed, should that be reparable?

In yesterday’s case of Gill v. Mijatovic (2016 BCSC 239), the plaintiff was injured in a collision. He sued the defendants for the injuries he suffered. ICBC defended the at-fault driver.

In BC personal injury lawsuits, either side can elect to have the case decided by a jury. The BC Supreme Court Civil Rules require that a Jury Notice be filed and provided to the other side within 21 days of filing the Notice of Trial (which sets out the date the trial is scheduled with the court). In this case, the plaintiff filed a Jury Notice within the 21 days. ICBC did not. They filed their Jury Notice 35 days late. Plaintiff counsel immediately notified ICBC counsel that the Jury Notice was filed late, and that their position was that it was a nullity. ICBC counsel took no steps to remedy the late filing.

In addition to filing a Jury Notice, the Rules of Court require that jury fees be paid 45 days before the start of trial. Any party that has properly filed a Jury Notice can pay jury fees and secure a jury for the trial. For tactical reasons, the plaintiff opted out of having a jury by not paying jury fees. Unbeknownst to the plaintiff, ICBC paid jury fees, thus securing a jury. Upon learning that jury fees had been paid, the plaintiff’s lawyer pointed out that the Jury Notice was filed too late, and that ICBC’s failure to take further steps at that time to extend the deadline rendered their Jury Notice a nullity.

The plaintiff applied to the court to strike ICBC’s Jury Notice, which would remove the surprise jury from the plaintiff’s upcoming trial. It is important to note that the plaintiff could not point to specific prejudice occasioned by extending the time for filing the jury notice, aside from elimination of the plaintiff’s own election to opt out of a jury. Furthermore, the subject trial was in fact adjourned prior to the hearing of the application, and therefor prejudice could also not be argued in that regard. In finding for the plaintiff and striking the Jury Notice (effectively removing the jury from the trial), Mr. Justice Davies made the following comments:

[57]         I agree with that [the plaintiff’s] submission for the following reasons:

1)    The defendants’ late-filed Jury Notice is a nullity. Accordingly, without an order allowing an extension of time, the defendants’ payment of the jury fees is also a nullity.

2)    That is so because:

(a) since a late-filed Jury Notice is a nullity, an extension of time cannot revive or breathe life into that nullity;

(b) rather, the result of a successful application to extend time is that the failure to file in time is forgiven and thus allows a new Jury Notice to be filed;

(c) however, that Jury Notice only becomes effective as of the date of the order extending time;

(d) accordingly, it would only have been by applying for and obtaining an extension of time for the filing of their late-filed Jury Notice that the defendants could complete the two-stage process under Rule 12-6(3);

3)    The immediate assertion by counsel for the plaintiff that the defendants’ late-filed Jury Notice was a nullity put the defendants on notice that the plaintiff would not consent to its late filing.

4)    Counsel for the defendants’ terse response the next day saying that the defendants would not agree to withdraw their late-filed Jury Notice, was the last communication between counsel with respect to the late-filed Jury Notice until after counsel for the plaintiff learned on July 14, 2015 that the defendants had paid the jury fees on July 10, 2015.

5)    That payment of the jury fees by the defendants was not a step that the defendants were entitled to take either:

(a) in reliance upon their own late-filed Jury Notice when no extension of time had been applied for and obtained (See: Folk and Iskum), or

(b) by attempting to rely upon the plaintiff’s Jury Notice contrary to established authority (See: Folk; Iskum; Ogloff and Blaikie).

6)    If the defendants wanted to re-engage in the two-step process under Rule 12-6(3) to require a jury trial, it was incumbent upon them to move with “due dispatch” after April 16, 2014, to apply to extend the time for filing under Rule 22-4(2) as required by the Court of Appeal in Robertson at paras. 30 to 35 and 50.

[58]         The defendants’ delay in failing to apply for an extension of time for the filing of their Jury Notice for more than 14 months after being advised that the notice was a nullity is wholly unexplained and I find that the failure to provide any explanation for that lengthy delay is fatal to the defendants’ application to extend the time for filing of their Jury Notice, and their unauthorized attempt to ratify the payment of the jury fees.

[59]         In the absence of evidence from the defendants or their counsel as to why an application was not brought expeditiously to extend the time for filing of their late-filed Jury Notice when the defendants were on notice that it was a nullity requiring a successful application under Rule 22-2(4) to relieve them of the consequences of initial negligence or inadvertence, I must conclude that their failure to apply to extend the time well before July 10, 2015, was deliberate.

[62]         I find that, as in Donovan, the defendants’ failure to move expeditiously to attempt to cure the initial default, or at least explain why they did not do so, moves this case beyond one of solicitor’s negligence simpliciter where the equities do not favour the granting of the relief now sought.

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