IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130530

Docket: 10267

Registry:
Rossland

Between:

Kieran Pearson, by
his Guardian Ad Litem, Lesley Hutton

Plaintiff

And

Community Connections
Society of Southeast BC and Susan Rad

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff seeks:

1.         A declaration that the Notice Requiring Trial by
Jury filed by the Plaintiff in this matter on March 25, 2013, and served on the
Defendants by fax on April 4, 2013, is valid.

2.         In the alternative an
order extending the time for filing and serving a Notice Requiring Trial by
Jury to a date 2 weeks after the date of hearing of this application or such
other date as this Honourable Court may Order.

[2]            
The claim is for damages as a result of a fall from a trampoline on
September 28, 2005. The plaintiff alleges a want of care or supervision on the
part of the defendant.

[3]            
The plaintiff is an infant with profound pre-existing cognitive and
physical disabilities. The principal injury suffered in the incident giving
rise to the claim was to the plaintiff’s knee.

[4]            
On November 12, 2012, counsel for the plaintiff set the matter down for
trial for seven days beginning April 15, 2013.

[5]            
The trial was adjourned at a trial management conference on March 8,
2013, at the request of the defendants.

[6]            
No Notice requiring trial by jury had been given when the matter was
first set down. After the lapse of 21 days a party is deemed to have elected
trial by judge alone.

[7]            
The parties agreed on a new trial date of August 20, 2013. The
litigation guardian, having not previously been aware that a jury trial was an
option, instructed counsel that she wished to make that election. Counsel for
the plaintiff filed a new Notice of Trial and a Notice Requiring a Trial by Jury
on March 25, 2012, and served both notices on April 4, 2013.

[8]            
Counsel for the defendant took the position that it was too late to
elect a jury trial. Counsel for the plaintiff has accordingly brought this
application.

II

[9]            
The litigation guardian deposes that when the matter was first set down she
as unaware that a jury trial was possible.

11.       On November 22, 2012 [counsel] filed a Notice of
Trial setting this trial for April 15, 2013. [Counsel] did not speak to me
about the option of having the trial in front of a jury. I was not aware that
was an option available for Kieran’s case.

****

[10]        
After the April trial was adjourned at a trial management conference at
the request of the defence, the plaintiff’s litigation guardian deposes:

14.       On March 21, 2013 I met with [counsel] in person.
She discussed trial dates with me and I confirmed that I was available in
August of 2013. She advised me for the first time that Kieran’s trial could
proceed by way of judge alone or we could elect trial by jury. I was surprised
that a jury trial was an option as we had not discussed that before. [Counsel]
apologized to me and explained that it had simply not occurred to her before to
advise me of that option. She said that she had been focussed at that time on
getting a settlement proposal out and on obtaining a report from the treating
orthopaedic surgeon and that she had not given the method of trial any thought.

15.       I have been unhappy
that the Defendants have continued to maintain that they did not do anything
wrong and were not negligent in putting Kieran on a trampoline. I believed that
given the strong negative reaction that I have had from others in the community
about the fact that Kieran was put on a trampoline and about the lack of
concern for his safety that it would be in his best interests to have the case
decided by members of the community as they seemed to understand the concerns.
I therefore instructed [counsel] to take the steps needed to have the trial
heard in front of a jury.

[11]        
Counsel for the defendant has sworn an Affidavit to similar effect.

[12]        
Rule 12-6(3) provides:

(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.

[13]        
The plaintiff submits that following the adjournment of the trial and
the issue of a new Notice of Trial, it was open to them, within 21 days of that
Notice, to issue a jury notice.

[14]        
The defence submits that the Rule pertains to the first Notice of Trial
and not to subsequent notices necessitated by adjournments or matters of that
kind.

[15]        
The plaintiff submits that even if the defence is correct about that,
the court can grant relief from the application of the rule in any case. Rule
22-4(2) provides:

(2)        The court may extend
or shorten any period of time provided for in these Supreme Court 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.

[16]        
The plaintiff submits that the case of Litt (Litigation Guardian of)
v. Grewal [2012] B.C.J. No. 264 (BCSC, Master), is directly on point.
There, a Master of the court granted an extension of time for filing a Jury
Notice where the plaintiff did not know a jury trial was an option, before a Notice
of Trial had been filed, and the time had elapsed. Master Caldwell observed:

2. … it is clear to me that the litigation guardian, and
therefore the plaintiff herself, had no information at all that the election of
a trial by judge with jury was available to the plaintiff. This was due in part
to the extreme language and translation difficulties; it was also due in large
part to the failure of previous counsel to at any point discuss this option
with the guardian ad litem.

3.         The defendant cites the case of Hoare v.
Firestone Canada Inc., [1989] B.C.J. No. 2362 (B.C.C.A.) and the general
proposition that the plaintiff here must satisfy the court that the wish or
intention to have a jury trial must have existed during the period when the
election could have been made and the notice delivered.

4.         This same thread was approved by Neilson J. in Ngai
v. Cho et al, 2001 BCSC 333 where she said that it was not enough for the
party to show negligence on the part of the solicitor and that the other
parties have not suffered prejudice, it was also necessary to prove that the
party wished or intended to elect a jury trial during the 21 day period
following the delivery of the Notice of Trial.

5.         The question arises
however, how can someone be required to form a wish or intention to elect a
thing which that person does not know exists or is available to him or her?

[17]        
The Master then went on to consider A.D. v. Tadros [2004] B.C.J.
No. 2218, a case in which Macaulay J. noted that the determinative factor was
the formation of an intention to seek trial by jury within the time limited.
The Master quoted the following passage from para. 22 of Macaulay J.’s
judgment:

The time period in this case ran
from May 15 to June 5, 2003. Mr. Tadros cannot show that he had any wish or
intention to seek a trial by jury during this period because he did not know of
his right to do so. … At best, in order to succeed, Mr. Tadros would have to
fit within a narrow category of exceptions to the Hoare test arising out of
solicitor’s negligence.

[18]        
The Master noted that in Tadros, following an adjournment of the
trial, the defendant reapplied to the court before Fraser J. alleging that
there was no longer any prejudice to setting the matter down with a jury. Fraser
J. rejected this contention on the basis that Macaulay J. had not distinguished
the Court of Appeal decision in Ngai (guardian ad litem of) v. Cho
2001 BCSC 333, 7 C.P.C. (5^th) 90. Fraser J. indicated that he felt
bound by it:

It is implicit in the reasons of Macaulay J. that he saw no
distinction between Ngai and this case.

Had these contentions been put
before me as ones of first impression, I would have had to consider whether Mr.
Tadros’ lack of knowledge made a difference. But it is not a matter of first
impression: Macaulay J. has already held that the ignorance of Mr. Tadros does not
help him.

[19]        
The Master noted that he was bound by the Tadros and Ngai decisions,
unless they were distinguishable. He found a way to do so on the following
basis:

9.         In Ngai the plaintiff was an infant, suing
by way of his guardian ad litem; that is precisely the situation before me.

10.       In Tadros, the evidence was clear that the
reason for the defendant’s failure to file and serve a jury notice was that his
lawyers had never told him that such an option was available to him; again that
is precisely the situation before me.

11.       In Ngai the court commented on the fact that
the evidence as to the plaintiff’s intention at the relevant time was poor at
best and found it insufficient to establish such intention. In the present
case, that cannot be said. The guardian ad litem herself swore an affidavit
saying that previous counsel never advised her that the plaintiff was entitled
to a jury trial and that had she known that such an option existed she would
most certainly have made the election. The evidence of the original lawyer for
the plaintiff confirms that he never advised the guardian ad litem of the
plaintiff’s right to a jury trial.

12.       The result is that we are left to speculate as to
what Neilson J. might have done in the case of an infant plaintiff, being a
person under a legal disability and represented by a guardian ad litem, where
there was clear and unequivocal evidence that counsel had never provided any
information as to the right to a jury trial.

III

[20]        
The defendant, not surprisingly, relies, in part, on the cases the Master
distinguished. Hoare v. Firestone Canada Inc. (1989 42 B.C.L.R. (2d) 237
(BCCA), a case mentioned by Macaulay J. in Tadros, includes the
following observations of Taylor J.A.:

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.

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 the 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 later change in circumstances as
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.

I believe this to be the proper approach to the matter under
our present Rules of Court.

In the context of this action this means the court would have
to be satisfied that the plaintiff or his solicitor considered the merits of
jury trial before expiry of the time limited following issuance of the first
notice of trial, and decided not to elect for jury trial because the action was
unsuited for trial by that mode. It would not be enough that the possibility of
jury trial was first addressed following the events now said to constitute a
change in circumstances.

The learned
judge below was, in my view, quite correct in concluding that the opportunity
to issue a new notice of trial, when a trial has been adjourned from the
original trial date, cannot automatically carry with it a renewed right to
issue a jury notice. Adjournments are granted for such reasons, of course, as
sickness of witnesses or counsel, or non-availability of a judge, and it would
make no sense that whenever an adjournment is granted generally a party should
thereafter have the right, by issuing a new notice of trial, to re-elect.

[emphasis
added]

[21]        
I have underlined the most pertinent passage which appear to make it
clear that failure to consider electing a jury is no excuse. I do not
think the following sentence in the reasons which speaks of a “change of mind”,
qualifies the first, but simply provides an example of a circumstance
justifying the earlier observation. The only exception Hoare appears to
admit would be in the case of a “material alteration in the character of the
proceedings.” The limited exceptions to this test for solicitors’ negligence,
alluded to by Macaulay J. would appear to apply where a clear intention to
proceed with a jury was frustrated by a solicitors’ failure to implement that
intention by filing a notice on time.

[22]        
Ngai was that kind of case. There, the plaintiff and his
guardian-ad-litem had always intended to have a jury trial but counsel failed
to act on that intention. The plaintiff cited Smith et al v. Vancouver
General Hospital et al (1981), 28 B.C.L.R. (C.A.), where Anderson J.A. observed:

In summary, this is a case where by reason of the negligence
of the solicitor for the plaintiffs the plaintiffs failed to elect for trial by
judge and jury within the time prescribed by the rules. In such cases, where
there has been no prejudice to the opposing parties (as here) the authorities
indicate that an extension of time will be granted.

[23]        
The Court in Ngai, per Neilson J.A. addressed the apparent
inconsistency in the cases as follows:

19 The statement relied
on by the plaintiff from Smith et al v. Vancouver General Hospital et al
suggests that he must simply show that his solicitor was negligent in filing
the jury notice beyond the prescribed time, and that the defendants have
suffered no prejudice from the late delivery of the notice. However, in my
view, two subsequent decisions of the Court of Appeal have added significant
qualifications to that statement.

20 In Hoare v. Firestone
Canada Inc. (1989), 65 D.L.R. (4th) 455 (B.C.C.A) Mr. Justice Taylor
at pp. 459-461 summarized the import of earlier decisions extending the time
limit for filing a jury notice:

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.

21 The majority in
Robertson v. Canadian Imperial Bank of Commerce approved these comments from
Hoare at pp. 257-258.

22 The decision in Smith was
not referred to in Hoare or Robertson. Nor did Smith deal with either the
intention of the parties seeking the jury trial, or a fundamental change in
circumstances. In my view, the broad statement from Smith relied on by the
plaintiff has been qualified by the additional requirements set out in the
latter decisions of Hoare and Robertson.

23
I accordingly find that it is not enough for the plaintiff to establish
that his solicitor was negligent, and that the other parties have suffered no
prejudice from the late delivery of the notice. He must also prove either that
he wished or intended to elect a jury trial during the 21-day period following
delivery of the Notice of Trial, or that there has been a fundamental change in
circumstances which justifies the issuance of a Notice Requiring Trial by Jury
after the expiry of that period. The plaintiff does not allege any fundamental
change in circumstances. He must therefore demonstrate that between February 2
and 23, 1999, he intended to elect a jury trial.

[24]        
In Litt the Master considered it a matter of speculation as to
whether Neilson J.A., might have qualified her statement of the law if, in fact,
the solicitors negligence was not in the failure to execute the plaintiff’s
express wishes, but a failure to advise the plaintiff that there was a choice
in the matter.

IV

[25]        
Having set out this much of the argument, I think it is clear that the
law on the subject is quite restrictive: the election of a jury trial must be
made when the trial is first set down. The plaintiff’s first argument, that she
is in time because she has taken out a jury notice within the time relative to
a subsequent trial notice cannot succeed. As Hoare makes clear, the
parties are entitled to order their preparations on an assumption that the mode
of trial will not change. Counsel for the defendant in the present case has
submitted that choices of witnesses to be called, particularly experts, and the
manner in which evidence is presented may well vary depending on the mode of
trial. It can be prejudicial to the party not selecting a jury to proceed on
that expectation, and to subsequently have the premises of the litigation
change.

[26]        
I do not think it necessary on the facts of this case to reconcile the
distinction identified by the Master respecting a solicitor’s failure to draw
the possibility of a jury trial to the attention of the plaintiff. The rule set
down by Ngai explicitly requires proof of the very thing the plaintiff
submits she cannot supply, which is an intention to elect a jury trial at the
time the matter was set down. The failure of counsel to act on instructions, may,
in any event, be a want of care of a different order than the failure to advise
the plaintiff of something she is deemed to know. One thinks at once of the
expression, “ignorance of the law is no excuse”. Working this out definitively will
have to await a different case.

[27]        
I say so because the jury notice here comes at a very late stage in the
proceedings, with a trial of a matter a few months away. I do not think that in
such circumstances the burden falls on the defendant to show actual prejudice.
To require that at this point would, almost inevitably, amount to a requirement
disclose matters of strategy or judgment that are not the business of the other
party or of the court. Prejudice may be inferred.

[28]        
I should add that the plaintiff has not shown a material change in circumstances
in her favour within the meaning of the test set out in Hoare.

[29]        
In summary, I do not rule on the Master’s distinction in Litt because,
in any event, the balance of interests as between the plaintiff and the
defendant would have to favour the plaintiff more convincingly than they do in
this case. Even if I were to accept that the failure to advise of the right to
a jury is a form of solicitors’ negligence not contemplated by the principle in
Ngai, I would not exercise such a discretion in favour of the plaintiff
in the circumstances of this case, given the timing of the intended re-election
relative to the date of trial.

[30]        
The application is accordingly dismissed and the trial shall proceed
before a judge alone.

 “T.
M. McEwan”