IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120716

Docket: 17406

Registry:
Cranbrook

Between:

Wesley Moll

Plaintiff

And:

Narinder Singh Parmar

Defendant

Before:
The Honourable Mr. Justice Abrioux

Oral Reasons for Judgment

In
Chambers

I         INTRODUCTION

[1]            
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.

[2]            
The action arises out of a motor vehicle accident which occurred on
February 13, 2006, near Edgewater, British Columbia (the “Accident”). The
plaintiff alleges he sustained a serious closed head and orthopaedic injuries. Both
liability and quantum of damages are in issue. Following a trial management
conference before me which occurred on June 20, 2012, I was appointed the trial
judge.

[3]            
At the trial management conference, defence counsel, who had filed a
jury notice, indicated that his “present instructions” were to have a jury trial.
His trial brief was to that effect. Following the trial management conference,
plaintiff’s counsel suspected the defendant may not proceed to have the trial
before a jury.

[4]            
The plaintiff then arranged to have this application brought before me. The
30-day period for paying the jury deposit is today’s date, being July 16, 2012.
The plaintiff seeks an order that he secure a trial by jury by paying to the
sheriff the required fees or, in the alternative, that the time limited by Rule
12-6(3) for filing and serving a jury notice be extended so as to permit him to
file and serve a jury notice on the defendant. The plaintiff’s suspicion
following the trial management conference that the defendant no longer wanted
to have the trial proceed before a jury was confirmed. He opposes this
application.

II        BACKGROUND

[5]            
The relevant history includes the following. The writ and statement of
claim were filed in March 2007. The defendant’s appearance and statement of
defence were filed and served in late September 2007, as was the defendant’s
third party notice issued against Mainroad East Kootenay Contracting Ltd. (“Mainroad”),
and Her Majesty the Queen in Right of the Province of British Columbia,
Ministry of Transportation and Highways (“Provincial Crown”). Mainroad filed
and served a statement of defence on November 23, 2007. The Provincial Crown
filed and served its statement of defence on December 19, 2007. Lists of
documents were then exchanged and, in October 2008, an initial examination for
discovery of the plaintiff and the defendant occurred. On March 1, 2010, the
plaintiff through his counsel served a notice of trial setting the trial for 15
days in Cranbrook to commence on January 11, 2011. The plaintiff also served a
notice requiring a jury trial. This was the first occasion the action was set
for trial.

[6]            
The evidence before me is that the plaintiff’s filing and serving of the
jury notice was inadvertent. That is because the Provincial Crown was still a
third party. Following service of the notice of trial and jury notice on the
third parties, Mainroad, supported by the Provincial Crown, moved to set aside
the plaintiff’s jury notice on the grounds that the Provincial Crown was still
a party. The plaintiff consented to an order to that effect. In March 2010,
Mainroad’s solicitors provided notice to all parties that if the third party
proceedings against the Provincial Crown were abandoned, Mainroad would object
to the trial proceeding with a jury pursuant to one or more of the grounds
outlined in Rule 39(27) of the then Rules of Court. Its solicitor also
expressed the view the application to set aside the jury notice should await
the exchange of experts’ reports.

[7]            
On January 5, 2011, a requisition was filed adjourning the January 11,
2011, trial date generally. By consent order dated May 2, 2011, the defendant’s
third party proceedings against the Provincial Crown were dismissed without
costs to any party.

[8]            
On July 22, 2011, the plaintiff filed a notice of trial setting a new
trial date of August 13, 2012. Notwithstanding the fact the Provincial Crown
was now no longer a party, the plaintiff did not file a notice requiring a jury
trial. On July 28, 2011, the defendant filed a notice requiring a jury trial,
but it was not served on counsel for the plaintiff until August 22, 2011. That
is, it was served several days beyond the timeframe set out in Rule 12-6(3)(a).

[9]            
On August 25, 2011, Mainroad’s counsel wrote to counsel for the
plaintiff and the defendant. He reiterated Mainroad’s opposition to a jury
trial and inquired if there were any objection to Mainroad delaying its
intended motion to set aside the jury notice until the experts’ reports were
exchanged. No such objection was apparently made.

[10]        
When the jury notice was served on counsel for the plaintiff, he
objected to it on the basis it had not been served in time. On August 30, 2011,
counsel for the defendant advised counsel for the plaintiff that he had been on
vacation at the time of service of the jury notice and the late service was due
to inadvertence. He also indicated he did not know if his ultimate instructions
would be to proceed before a jury. He asked for an extension of time for
serving his jury notice. For the reasons I shall detail below, plaintiff’s
counsel consented to an order to that effect.

[11]        
In March 2012, the parties were advised by Supreme Court Scheduling that
it was highly unlikely a judge would be available to preside over a four-week
trial commencing August 13, 2012, in Cranbrook. The plaintiff, for reasons I
shall also refer to below, applied to adjourn the trial. That application was
opposed by the defendant. Mainland took no position. The adjournment
application proceeded before Master Scarth on May 3, 2012. Following partial
submissions it was then adjourned and completed on May 22, 2012.

[12]        
On May 17, 2012, that is, in the interim before the continuation of the
adjournment application, the plaintiff filed another notice of application
returnable on May 22, 2012. He sought an adjournment of his application to
adjourn the trial, the appointment of a litigation guardian for the plaintiff,
and the scheduling of a case management conference. This application was
supported by a further affidavit which included a medical report. The plaintiff
also requested priority for the August 13, 2012, trial list.

[13]        
On May 22, 2012, Master Scarth inter alia ordered priority for
the August 13, 2012 trial list. The estimate of time and mode of
trial remained at four weeks with a jury. A trial management conference was
ordered and scheduled for June 20, 2012, in Cranbrook. On June 13, 2012, the
third party proceedings against Mainland were abandoned. At paragraphs 2 and 3
above, I refer to what transpired at the trial management conference of June
20, 2012.

III        PAYMENT OF THE JURY FEES BY THE PLAINTIFF

[14]        
The plaintiff’s first submission is that he can rely on the defendant’s
notice requiring trial by jury filed on July 28, 2011 and maintain the jury
trial pursuant to Rule 12-6(3)(b) by paying to the sheriff at least 30 days
before trial, a sum sufficient for the jury and the jury process. His position
is the present Rule 12-6(3)(b) permits the party who did not file the jury
notice to pay the required fees and preserve the jury. As will be seen below, prior
to the amended Rule 39(26) which is the predecessor to Rule 12-6(3) and which
came into effect in 1998, the law on this issue was said to be “unsettled”. The
defendant’s position is that Rule 12‑6(3)(b) is clear and is to the
same effect as Rule 39(26). Only the party who filed and served the jury notice
is entitled to pay the required fees.

DISCUSSION

[15]        
The history of the predecessors to the amended Rule 39(26) which came
into effect in 1998 and continued in force until Supreme Court Rule 12-6(3), is
summarized by Williams J. in Folk v. Halcrow, 2004 BCSC 1623, and need
not be repeated here.

[16]        
The 1998 amended Rule 39(26) provided:

39(26)  Subject to subrules (25) and (26.1) [the rules
regarding the types of cases that may not be heard by a jury, and the rule
permitting transfers to the Provincial Court where a Jury Notice has been
filed], a party may require that the trial of an action be heard by the
court with a jury by:

(a)  filing and delivering to all parties of record, within
21 days after delivery of the notice of trial and not later than 30 days before
trial, a notice in Form 38, and

(b)  paying to the sheriff, not less than 30 days before
trial, a sum sufficient to pay for the jury and the jury process.

[Emphasis added]

[17]        
At paragraphs 30 and 31 of his reasons for judgment, Williams J.
concluded:

[30]      Under the previous statutory framework, the
procedure for requiring a trial by jury was derived from two completely
separate sources:  the Rules of Court and the Jury Act. In part
as a result of the divergence in language between the two statutes, the issue
of whether a party that did not issue a Jury Notice could opt into having a
jury trial late in the trial process by paying the required Jury Fees was
rather unsettled. In Clark the court held that a party that issued a
Jury Notice was entitled to voluntarily relinquish that right by failing to pay
the required Jury Fees. By contrast, in Berry the court found that a
non-issuing party could opt in to a jury trial, without issuing a Jury Notice,
simply by paying the required Jury Fees. Although the decision in Berry was
later followed on several occasions, the law remained unsettled until the
legislature substantially amended Rule 39(26), the rule regarding the
requesting a trial by jury, in 1998. The new Rule 39(26) provides that a party
may require that a trial be heard by a jury by first issuing a Jury Notice
shortly after issuing a Notice of Trial, and by later paying the required Jury
Fees. Having regard to all of the circumstances, I believe that the proper
construction of Rule 39(26) is that only the party that issued the Jury Notice
is entitled to pay the Jury Fees associated with that notice. This conclusion
is consistent with legislative intention and with the policy considerations of
allowing a party that issued a Jury Notice to reconsider that decision at a
later date if circumstances should prove it imprudent and reducing the risk of
prejudice to either party. Moreover, this conclusion is not inconsistent with
the decision in Berry in light of the fact that the justification for
that decision is no longer supportable in light of the amendment to Rule
39(26).

[31]      Accordingly, the
plaintiff in this case is not entitled to elect to have a jury trial simply by
paying the jury fees associated with the Jury Notice filed by the defendants.

[18]        
Rule 12-6(3) provides:

Notice requiring jury trial

(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 30 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 30 days before trial, paying to the sheriff a
sum sufficient to pay for the jury and the jury process

[Emphasis added]

[19]        
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.

[20]        
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.

[21]        
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).

[22]        
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.

IV       THE PLAINTIFF’S
APPLICATION FOR AN EXTENSION OF TIME TO FILE AND SERVE A NOTICE REQUIRING TRIAL
BY JURY

The Plaintiff’s Position

[23]        
The plaintiff acknowledges he did not file and serve a jury notice when
the second notice of trial was issued on July 22, 2011. He has also not applied
until now to do so. This application is brought approximately four weeks before
the scheduled trial date. The plaintiff submits the court should exercise its
inherent jurisdiction and grant the extension of time. He relies on the
affidavit evidence of his counsel, Mr. Robertson.

[24]        
In his affidavit number 4 sworn July 4, 2012, Mr. Robertson deposes in
part to the following. He deals with the February 2010 timeframe. He says that
by this time, the plaintiff had disclosed a significant number of medical,
educational, and employment records. Various experts had also been retained. He
then goes on to say that when the first notice of trial was issued in March of
2010, it was the plaintiff’s desire to have a trial by jury. This was clearly demonstrated
by the fact a jury notice was issued and served at that time. He also deposes
that when the second notice of trial was filed by the plaintiff on July 22,
2011, his wish for a jury trial while still strong had, in effect, been
overtaken or superseded by the desire to have the trial occur on the scheduled
trial date. In other words, while the plaintiff did want a jury trial, he
wanted the trial to proceed as scheduled even more. August 13, 2012 was the
earliest date available.

[25]        
At paragraph 23 of his affidavit, Mr. Robertson states that the
plaintiff’s wish for the earliest possible trial date was based on a number of factors.
These included emerging stressors which threatened his client’s long-time
marriage. The plaintiff’s wife had necessarily taken on much of his day-to-day
care as a result of the Accident. Mr. Robertson also deposes it can be
problematic to obtain a lengthy Supreme Court trial in Cranbrook, particularly one
that involves a jury. This was also a factor in the plaintiff’s desire to
preserve the August 13, 2012, trial date.

[26]        
At paragraph 29 of his affidavit, Mr. Robertson deposes as to what
occurred after he received the defendant’s jury notice in August of 2011, which
notice, as I have indicated, was served several days late:

I was torn as to what to do. In
any normal circumstances, an error due to solicitor inadvertence should be
fixed by consent, but by consent in this case would have the result of (a)
extending the length of trial from three to four weeks because of the jury and
(b) eliminating our local judge, Mr. Justice Melnick, from hearing the case because
he no longer sits on jury trials. The obvious consequence would be to make it
highly unlikely that an already lengthy trial would proceed on August 13, 2012,
because of summer judge availability problems. I explained my dilemma to the
defendant’s counsel. I told him that my sole objection to a jury were the
consequent risks to the August 13, 2012, trial date. I put him to a notice of
application, but on reflection, I felt I had no proper choice but to consent to
an order extending time for service of the jury notice. I did so. At about the
same time, the trial coordinator was informed by both plaintiff and defence
counsel that the trial estimate was now four weeks. The plaintiff continued to
prefer a jury, but I had not served a jury notice at that time because the
plaintiff did not want to prejudice the trial date.

[27]        
The plaintiff also relies on what he submits as being a significant
change in circumstances which arose in April 2012. These are outlined in
paragraphs 30 to 34 of Mr. Robertson’s affidavit. They relate to the
plaintiff’s wife suffering a breakdown, the fact Mainroad was still involved in
the action, and other factors. Counsel then explains the reason for the
adjournment application before Master Scarth and why the plaintiff then applied
to adjourn that application. After referring to the fact Master Scarth had
ordered priority for this case, Mr. Robertson concludes this section of his
affidavit as follows:

39:  Therefore, as at May 22, 2012, the relevant status of
this case was as follows:

(a)        the August 13, 2012
trial date had priority as the plaintiff wanted, thereby all but eliminating
the potential stressors and costs of a last-minute adjournment due to a judge
not being available;

(b)        the trial remained
before a jury which the plaintiff had also wanted and was expecting;

(c)        delivery of experts’ reports was largely
complete.

[28]        
On June 13, 2012, the third party proceedings against Mainroad were
abandoned.

The Defendant’s Position

[29]        
The defendant’s position is that the plaintiff has not shown a clear and
continuing desire to have the action tried by a jury. Although that intention
may originally have been present as shown by the filing of the jury notice in
March 2010, the plaintiff thereafter must be seen to have resiled from that
initial position. This, according to the defendant, is demonstrated by failure
to file a jury notice at the time the second trial date was obtained and then
initially opposing the defendant’s application to extend the time for serving
the jury notice filed July 28, 2011. Accordingly, the defendant submits it
cannot be said the failure to file a jury notice was due to inadvertence or
neglect on the part of his counsel.

[30]        
The defendant also submits the plaintiff’s circumstances which arose in
April 2012 and the fact a trial judge has now been assigned such that the trial
will be proceeding as scheduled in August 2012, do not amount to a material or
fundamental change in the character of the action such that the court should
exercise its discretion in the plaintiff’s favour.

DISCUSSION

[31]        
In Coulson v. Sra, 2001 BCSC 914, Master Brine, as he then was, stated:

[18]  In summary, I conclude that the law with respect to
Jury Notices which are filed outside the time contemplated by Rule 39(26) is as
follows:

1. A Jury Notice that is not filed
within twenty-one days of the delivery of the Notice of Trial is a nullity and
cannot be cured by the application of Rule 2.

2. In order to file a Jury Notice
beyond the time permitted to do so, leave of the Court must be obtained.

3. The grounds for considering such
an application will be:

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 that failure to have done so was due to
inadvertence or neglect on the part of the applicant or the solicitor;

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 clearly was not during the time allowed
for filing a Jury Notice; or,

c) that the parties have consented to the late filing.

[32]        
Coulson v. Sra has been cited with approval by Koenigsberg J. in Penner
v. Great-West Life Assurance Co., 2002 BCSC 1131, and by Bennett J., as she
then was, in On v. Venittelli, 2006 BCSC 1987. I refer to these
authorities in that the defendant’s submission appeared to be that the grounds
set out in Coulson are restricted to these identified. I do not agree. That
is because in Coulson at paragraph 6, reference is made to the decision
of Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241, a
decision of the British Columbia Court of Appeal in which Taylor J.A. writing
for the court stated:

While there is not a great deal of authority on the point in
this province, the existence of a discretion in some circumstances to extend
the time limited for filing a jury notice in order to permit a party to
re-elect is supported by two decisions of our Supreme Court: Guenette v.
British Columbia Electric Railway Company Limited (1944), 60 B.C.R. 261
(S.C.) and Gombar v. British Columbia Electric Railway Company Limited
(1951), 3 W.W.R. (N.S.) 276 (B.C.S.C.).

Those cases suggest, however, that a party seeking to elect
for jury trial after expiry of the period limited by the rules must satisfy the
court either that the wish, or intention, to do so existed during the period so
limited, or that it was prompted in fact by a fundamental change in
circumstances.

It would not appear, according to
the reasoning in those cases, to be enough that a party allow the period
limited by the rules to pass without considering the matter of mode of trial,
and sometime thereafter seek to elect for trial by jury on the basis of a
first-time consideration of the matter. In Gombar, Wilson J. (as he then
was), says that litigants cannot be allowed “to revive lapsed rights on the
sole ground that they have, since they allowed their rights to lapse, changed
their minds."  I think it implicit in that view that a party who had no
interest at the appropriate time in having the action tried by jury cannot rely
on a later change in circumstances as a grounds for re-election. But, in any
event, the change in circumstances relied on would, in my view, have to be one
which so materially altered the character of the proceedings as to render an
action clearly appropriate for trial by jury which, as originally brought
clearly was not.

[33]        
As is seen by the third point in Coulson and the excerpt from Hoare
to which I have referred, the change of circumstances relates to the character
of the acts and the action changing from being inappropriate when the jury
notice could have been filed to becoming appropriate at a later date. To this
extent, I agree with the defendant this is not the case here. From the
plaintiff’s perspective, the action was always appropriate for a jury trial.

[34]        
When one considers the first aspect of the considerations set out in Hoare,
it is clear on the facts of this case there was an initial intent to have the
trial proceed before a jury and the plaintiff has not resiled from that position
unless it could be shown the trial date would be placed in jeopardy.

[35]        
In my view, both Penner v. Great-West Life and On v.
Venittelli establish that other factors can be taken into account such that
the court’s discretion is based on the circumstances before it. This includes
whether the opposing party can point to any prejudice.

[36]        
I conclude it is proper for me to exercise my discretion and grant the
plaintiff an extension of time for the filing and serving of the notice
requiring a jury trial. The plaintiff’s intent, as at March 2010 at the latest,
was to have the trial proceed with a jury. He only deviated from this intent
due to a concern the trial would not proceed as scheduled.

[37]        
Furthermore, from the time the plaintiff agreed to an extension of time
for service of the defendant’s jury notice in late August 2011 until the trial
management conference of June 20, 2012, both parties were proceeding on the basis
the trial would be with a jury. The plaintiff was preparing for a trial on that
basis. Additionally, the defendant has not pointed to any prejudice except that
the four weeks reserved may now not be sufficient. I agree some additional time
may be required, but that is not a factor of and by itself which militates
against the exercising of my discretion in the plaintiff’s favour.

[38]        
Although the context was different in that the defendant had paid the
jury fees and then wished to revoke his election, what was said by Griffin J.
in Iskum v. Badali, 2009 BCSC 1669, does have some bearing on the
decision I have made. There, it was said:

[35] The mode of trial is very
relevant to how the parties will prepare for trial and is also relevant to
settlement discussions before trial. The Rules of Court as a whole
recognize that it is not efficient to conduct civil trials by ambush. Civil
trials are more efficient and settlement is more likely if parties have advance
notice of not just the case they have to meet, but the mode of trial. The
30-day notice period in Rule 39(26) is there to provide parties with some
certainty as to the mode of trial with a goal of efficient resolution of
disputes.

[39]        
Although the defendant in this case did not pay the jury fees, as
recently as the trial management conference of June 20, 2012, the parties
appeared to be preparing on the basis there was going to be a jury trial. The
plaintiff, since March 2010, had the intention to have the action tried with a
jury if that could occur in a reasonable timeframe. With my appointment as the
trial judge, that can now occur on the date set out in the notice of trial
issued on July 22, 2011, being August 13, 2012.

[40]        
Accordingly, the plaintiff’s motion is granted and the trial will
proceed with a jury on the condition the requisite notice is filed and served
by fax on the defendant by 5:00 p.m. today. The jury fees must also be paid
today.

[41]        
Costs of this application will be in the cause.

“Abrioux
J.”