Today’s article will focus on a recent application referenced as Chapman-Fluker v. Gustavson, 2019 BCSC 1022 in which the Defendant seeks an Order for an extension of time in filing a Notice Requiring Trial by Jury.  It was discovered quite late during the litigation process that a jury notice was inadvertently not filed.  We will likely start seeing more and more jury trials in BC if our tort system starts to follow the Ontario model.  Therefore, reviewing these cases are worthwhile.

Take note of two additional articles published on Case Law Corner:

1. Striking a Jury Notice

An application by the Plaintiff seeking an order that a jury notice filed by the defendants be struck.  Dismissed with costs. 

• Always intended to proceed by judge and jury
• All steps have been taken to defend the action, eg:
• Collection of documents
• Timing and the manner of the Plaintiff’s discovery
• Defendants selection of Experts

2.Successful Arguments that a trial should be heard by Judge alone

Plaintiff’s application that the trial proceed by Judge alone on the basis that 45-day trial involves a scientific investigation that cannot conveniently be made by a jury, and that the issues are complex such that they are not suitable for a trial with a jury.Application successful.

Today’s article:  Chapman-Fluker v. Gustavson, 2019 BCSC 1022

In the current case, the Defendant’s application to seek an extension was denied.  Of note, if you intend to file a Notice Requiring Trial By Jury, be certain that the limitation deadlines to file this document is properly diarized. You must also diarize the date in which jury fees must be paid – another limitation deadline that is sometimes missed. 

Time limits to file the Notice Requiring Trial by Jury

Rule 12-6(3) of the Supreme Court Civil Rules

(3) Subject to Rule 15-1 (10) and subrules (2) and (4) of this rule, a party may require that the trial of an action be heard by the court with a jury by doing the following:

 (a) within 21 days after service of the notice of trial but at least 45 days before trial,

 (i) filing a notice in Form 47, and

 (ii) serving a copy of the filed notice on all parties of record;

 (b) at least 45 days before trial, paying to the sheriff a sum sufficient to pay for the jury and the jury process.

It cannot be stated enough that a review of the rules should be undertaken frequently and ensure you are creating a list of limitation deadlines.  In this case, the inadvertence was caused internally by ICBC through their departments in which they “failed to ensure that a jury notice was filed in time and failed to move with due dispatch once the oversight came to their attention.” 

The Court reviewed 3 categories in this case:

The intention to have the matter proceed by way of jury;

1. Review the intention – in this case it was established that the intention to file a jury notice existed early on in the case, during the time period for the filing of a jury notice Rule 12-6(3). If you have such an intention, it is helpful that it is noted in correspondence to this effect.
2. In this case, the instructions to ICBC by counsel were clearly noted that the legal opinion was that the subject case should be tried by a jury.
3. It has been noted that subject to a finding of prejudice (which will always be assessed in these types of hearings), generally the Courts will allow extensions in cases where there has been an inadvertent failure to file a jury notice. Smith v. Vancouver General Hospital (1981), 28 B.C.L.R. 282 (C.A.), at page 287; Oberreiter v. Akmali, 2008 BCSC 1300, at para. 10.
4. The court is not bound, however, to accept ICBC’s assertion that the deadline was missed solely through the inadvertence of counsel: Loring v. Insurance Corporation of British Columbia, 1996 BCSC 1386.
5. In this case, it was difficult for ICBC to go along with an argument that it was counsel’s failure – as counsel was employed by ICBC. It is a fact that ICBC adjusters are familiar with the rules and in this case there was no evidence that there was any follow up to determine whether the jury notice was filed.  A clear oversight here.
6. The Court attributed this failure to ICBC, not the inadvertence of counsel.

Whether the Plaintiff has demonstrated prejudice;

1. Prejudice must be established by the Plaintiff (party opposing such an Order) and of course this will be disputed by the defence counsel (applicant), as was the case in this hearing. In other words, the argument is that if the Order is granted to seek an extension of time to file a jury notice, there will be resulting prejudice to the Plaintiff.  Be aware,
2. Note:  On the topic of the Affidavit evidence, I have seen this happen in other applications (unrelated) where an Affidavit is filed by the paralegal, as opposed to from a party with direct association or knowledge – and it has been argued by the opposing party that the evidence is not from an appropriate party and should not be considered.  Carefully consider whether the Affidavit evidence should come from the Plaintiff or any other party, as opposed to from a paralegal.

Prejudice – let’s review the categories of prejudice raised by the Plaintiff in this case:

1. Prep time for trial was on the basis that the matter would be heard by Judge alone. This is a solid argument and we have seen this argument in other applications and may be the compelling factor that denies such an application (based on my review of multiple other cases);
2. Late stage of filing of the application creates the inference of prejudice. It is relevant to note the date of the filing of the application, in this case it was 8 months prior to trial.  Note: that although the application was filed in Jan of 2019, it wasn’t heard until April of 2019, and the judgment would not be rendered until 2 months prior to trial – not much time prior to trial.  This was the key factor in this particular case.
3. Some of the preparation time for trial took place before the deadline to file the jury notice, while there was evidence that some of the preparation time came after the limitation deadline. The Court will review the process of review and the time frame of when this review occurred.  One key factor is that the selection of experts and the instructions to experts will depend on whether the matter is proceeding by judge or jury, which is why there is such a requirement that the Jury Notice be filed early.
4. Days of trial – 8 days were selected. If the matter proceeds by jury, the argument raised by the Plaintiff is that 8 days is simply not enough.  Therefore, the argument is that if an extension of time is granted, this will result in an adjournment of the trial.
5. It is noted that additional steps are required when preparing for trial and a Jury is involved.  This has not always been a compelling reason to the Courts to deny an extension of time to file a jury notice, but may be included in your materials as an argument.
6. There was evidence in this case that ICBC was of the view that 12 to 15 days would be required if the matter was to proceed by jury. Of course, this was good evidence in favour of the Plaintiff’s arguments that an extension of time should not be granted in this case.
7. Jury trials are more expensive and the Plaintiff would bear the risk of these higher costs at the end of the case.

Whether the application was brought by the applicant in a timely manner.

1. Once it has been determined that a missed limitation deadline has occurred, prompt action should be taken to correct this.
2. Determine when was it first observed that there was a missed filing of the notice requiring trial by jury, and when was the application scheduled to seek the extension.  The timeline is important.
3. Delays, if any, in the conduct of the file will be noted by the Court.
4. The explanation for the delay in this case was that counsel had been assigned 140 files, a high workload.
5. The file was assigned to another counsel which created further delays.

CONCLUSION

Application to extend the time period in which to file a Notice Requiring Trial by Jury is denied.

[65]         This is not a case in which a client’s intention within the time limit to have the case tried by a jury was simply frustrated by the inadvertence of counsel. In this case, ICBC, in both its claims adjustment and litigation departments, failed to ensure that a jury notice was filed in time and failed to move with due dispatch once the oversight came to their attention. Although there is limited evidence of specific prejudice to the plaintiff from ICBC’s delay, the general prejudice from a change in the mode of trial just two months before the scheduled trial date and the real likelihood that the trial will be adjourned are sufficient, in my view, to conclude on a balancing of the relevant factors that it is not in the interests of justice to grant an extension of time.

[66]         For these reasons, the defendants’ application to extend the time to file a jury notice is dismissed. Costs of this application will be in the cause.

Referenced Case Law

To prepare for such an application, you should also be aware of some of the key principles, I will quote from the decision as they are important cases you may wish to reference in your materials should you find yourself in a similar situation (always ensure you seek legal advice on any legal matter):

[27]         Prior to 1998, the Rules required litigants to pay the jury fees at the time of delivering the jury notice. In a leading authority decided under the previous Rule, Hoare v. Firestone (1989), 42 B.C.L.R. (2d) 237 (C.A.), the Court of Appeal explained the importance of electing trial by jury at an early stage in the proceedings, at page 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.

[28]         In Gill v. Mijatovic, 2016 BCSC 239, Mr. Justice Davies found that these considerations remain important to the court’s determination whether to extend the time for filing a jury notice, recognizing, however, that a party who files a jury notice may now unilaterally “opt out” of a jury trial by not paying the jury fees. 

[29]         Mr. Justice Davies extracted from the authorities before and after the rule change the following non-exhaustive list of the factors to be considered on an application to extend the time for filing a jury notice, at paragraph 45(3) of Gill:

(a)  Whether the party applying had a clear intention or desire to have the action tried by a jury during the time allowed for filing a Jury Notice and whether the failure to do so was due to inadvertence or neglect on the part of the applicant or their solicitor. In that regard:

(i)   Evidence of intention, inadvertence or neglect must be established by the clearest and best evidence. See: Litt v. Grewall, 2011 BCSC 1071 (at para. 22);

(ii)   Generally speaking, the evidence required will be that of the solicitor and the client, however, in some circumstances the evidence of the solicitor alone may be sufficient.  See:Narang v. Bhatthal, 2006 BCSC 513 (at para. 28) and Moll v. Parmar, 2012 BCSC 1373 (at paras. 23-26 and 36); and

(iii)   The affidavit of a paralegal alone or evidence comprised of double hearsay will not suffice. See: Ngai v. Cho et al, 2001 BCSC 333 (at paras. 23-25 and 31) [Ngai];

(b)  Whether the character of the action has so materially or fundamentally changed that it is now clearly appropriate for a jury trial when it was clearly not during the time allowed for the filing of a Jury Notice. See:  Hoare; Coulson v. Syra, 2001 BCSC 914; Penner v. Great-West Life Assurance Co., 2002 BCSC 1131,; and Robertson v. Canadian Imperial Bank of Commerce (1994), 1994 CanLII 1752 (BC CA), 99 B.C.L.R. (2d) 246 (C.A.) [Robertson];

(c)  Whether the parties have consented to the late filing. See: Coulson and Penner;

(d)  Whether the party opposing the extension of time to file and serve a Jury Notice can point to any prejudice that would arise if an extension of time is allowed. See: Moll; Penner; and On; and

(e)  Whether the application to extend the time for the filing of a Jury Notice has been brought in a timely manner. See: Coulson; Penner; Ngai (at para. 25); Robertson (at paras. 33 to 35 and 50); and Donovan v. Vat, 1996 CanLII 8519 (B.C.S.C.) [Donovan] (at paras. 24 and 26).

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