Striking a Jury Notice

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Wee v Fowler, 2017 BCSC 815 (CanLII)

This is an application by the Plaintiff for an order that a jury notice filed by the defendants be struck and the trial of this proceeding as well as the other action should be heard by the court without a jury, and that the time for this application to be brought is to be extended, and for costs.

Plaintiff’s Arguments

  • complex factual matrix
  • complex legal issues as it pertains to assessment of damages
  • difficult case for the jury to apply and decide the case

Facts

  • 2 MVA’s
  • One is a rear end collision and liability is denied
  • Second collision the Plaintiff is a passenger and liability is admitted
  • Trial is scheduled on July 10, 2017 for 24 days
  • Both the Plaintiff and the Defendant filed jury notices
  • The Plaintiff applies to strike the jury notice

BCSC Civil Rules:

Rule 12-6 provides a party may require a trial to be heard by a jury by filing and serving a jury notice. Rule 12-6(5) describes the basis upon which an application may be brought to strike a jury notice. Subsection 5 reads as the follows:

Court may refuse jury trial

(5) Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply

(a) within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that

(i) the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,

(ii) the issues are of an intricate or complex character, or

(iii) the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action,

 …

[65]        Rule 22-4(2) provides that the court may exercise its discretion to extend the time within which this or any application may be brought:

(2) The court may extend or shorten any period of time provided for in these Supreme Court Civil Rules or in an order of the court, even though the application for the extension or the order granting the extension is made after the period of time has expired.

The timeline:

Feb 4, 2016                 The Defendant files a Jury Notice

Feb 12, 2016               The Plaintiff files a Jury Notice

March 22, 2016         Consent Order entered to have both claims heard at the same time

April 24, 2016             Notice of Trial is filed with a Notice Requiring Trial by Jury by the Plaintiff

April 25, 2016             Plaintiff files a Requisition to extend the trial date from 15 to 24 days

April 27, 2016             Defendant files Notice Requiring Trial by Jury

“by letter dated February 20, 2017, plaintiff’s counsel wrote to defendants’ counsel in both actions as follows:

It appears that all parties have filed Jury Notices in these actions. In light of recent developments, it has become apparent to me that this matter could not reasonably be heard by a jury. Therefore, the plaintiff will not be seeking a jury. Can you each please let me know if you are in agreement with having this matter heard by judge alone. I would appreciate if you would each advise of your position as soon as possible as the plaintiff will bring applications to have the jury notice struck.

The applications to strike the jury notices were filed on April 24, 2017.”

Defendant’s Position:

  • 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

 

All steps of which were taken prior to Feb 4, 2016, prior to the filing of the Notice Requiring Trial by Jury with the intention that the trial was proceeding by judge and jury.

Courts Analysis

“On this application, the Court must consider whether the prejudice to the applicant of the matter proceeding before a jury outweighs the prejudice to the respondent of being deprived of an elected jury more   than one year after the parties, having already both filed jury notices, agreed to join the matters for trial and extend the trial to 24 days. This raises three questions:

a)          When did the facts substantially change so that this matter could no longer be heard by a jury?

b)          Has the applicant delayed in bringing on this application?

c)          Were the facts upon which the application is brought always in the knowledge of, or reasonably accessible to, the party bringing the application?

[76]        The right to a trial by jury is a prima facie substantive right of great importance. A party shall not be deprived of its presumptive right to a jury without cogent reasons: King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, as cited at para. 20 of Cliff v. Dahl, 2012 BCSC 276 (CanLII).

[77]        The onus is heavy on a party bringing an application to proceed without a jury and to deprive a party of that prima facie right. Only where a court is satisfied, on consideration of the Supreme Court Civil Rules, that the issues cannot be tried fairly by a jury should the court exercise discretion to strike the jury: Stewart v. Chen, 2002 BCSC 1478 (CanLII) at para. 14; Henshall v. Plona, 2012 BCSC 1852 (CanLII); Williams v. Sadler (October 19, 2009) Doc. Victoria 06-4927 (B.C.S.C.). As per the B.C. Court of Appeal decision in MacPherson v. Czaban, 2008 BCCA 518 (CanLII) at para. 17, “The focus of the court’s analysis is whether in the opinion of the judge the jury is capable of understanding and retaining that understanding of the evidence for the length of the trial.”

[78]        As I proceed, it is to be noted that counsel in the Norton action agrees with and adopts the submissions by counsel in the Fowler application regarding the facts, timeliness, and merits of the plaintiff’s application.

[79]        Both defendants submit that the plaintiff has not met the burden imposed by R. 12-6(5).

“there is a presumptive right to a trial by jury, and parties should not be deprived of that right unless there are cogent reasons to do so. The onus rests with the applicant to clearly satisfy this heavy burden. As Arnold-Bailey J. concluded in Gulamani v. Chandra, 2009 BCSC 1042 (CanLII) at para. 43:

In my view, the point to be drawn from Reischer is clear: juries in this province are held to be informed and intelligent and capable of assessing expert evidence where it is properly presented. In other words, the threshold for determining whether a prolonged examination of documents or a scientific investigation is necessary and whether it can be conveniently done by a jury (Rule 39(27)(a)(i)), or whether the issues are of a complex or intricate nature (Rule 39(27)(a)(ii)), is relatively high even in the context of a long trial with many difficult legal questions.”

“…the plaintiff points out that the defendants’ psychiatric expert, Dr. Zoffmann, appears to agree with Doctor Anderson and Dr. Jung that the plaintiff developed significant psychiatric disorders due to the motor vehicle accidents. However, given Dr. Hirsch’s opinion that the collisions the plaintiff was involved in were insignificant and the plaintiff likely suffered no physical injury, the jury would have to be charged on the law respecting pure psychological injury. As well, the plaintiff says the jury would have to do the remoteness analysis set out in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 S.C.R. 114.

[89]        As MacKenzie J. said in MacKinnon v. Ebner, [1997] B.C.J. 364 (S.C.):

24        … A reasonably informed and intelligent jury is as capable of assessing expert evidence as is a single judge. It is up to counsel to ensure it is presented so that a jury can understand it. Indeed, the very purpose of expert evidence is to assist lay people to understand technical evidence. After all, a judge is not an expert in such matters and would experience the same difficulties. The evidence anticipated in this case is not so complex that a jury could not understand and absorb it.

…

26        Juries are sophisticated enough today that, with the assistance of counsel and instructions of the trial judge, they will not find this evidence beyond their abilities to comprehend, retain and apply to the case before it.

27        Neither the expectation of lengthy medical testimony nor actuarial evidence about loss of future earnings is too difficult for a jury and is not sufficient to deny a trial by jury: Kelly v. Vanhelvoirt (25 August 1978), Vancouver 38047/75 (B.C.S.C.).”

Court’s Decision

“Taking all together, in view of the fact that I have not been provided with any evidence of change of circumstances, or reasons why the plaintiff changed her mind having filed jury notices, and after extending the length of trial to accommodate a jury trial, and where no evidence has been provided to me as to the change of mind of the plaintiff or otherwise, I am not satisfied that the jury notice should be struck in these circumstances.

In summary, the application to extend the time to bring the application is allowed; however, the application to strike the jury notice is dismissed, with costs.”

 

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