IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160216

Docket: M134214

Registry:
Vancouver

Between:

Ajaypal Singh Gill

Plaintiff

And

Obren Mijatovic,
5172 Investments Ltd., and

Denwill
Enterprises Inc.

Defendants

Before:
The Honourable Mr. Justice Davies

In
Chambers

Reasons for Judgment

INTRODUCTION

[1]            
The defendants have applied to extend the time for the filing of a Notice
Requiring Trial by Jury (the “Jury Notice”) which was filed beyond the 21 day
notice period provided for in Rule 12-6(3) of the Supreme Court Civil Rules,
B.C. Reg. 168/2009.

[2]            
The defendants rely upon Rule 22-4(2) that empowers the court to grant
such an extension in appropriate circumstances. The plaintiff opposes the
defendants’ application.

[3]            
The determination of whether to allow an extension of time for the
filing of a Jury Notice requires an exercise of the court’s discretion based upon
established principles.

[4]            
The exercise of that discretion is fact-dependent and necessarily
requires consideration of the relevant background circumstances that give rise
to the application.

BACKGROUND

[5]            
The plaintiff was the driver of a vehicle involved in a collision with
the defendants’ vehicle on October 11, 2011. He alleges that the
defendants are liable for damages he suffered as a consequence of their
negligence.

[6]            
The front seat and back seat passengers in the plaintiff’s vehicle at
the time of the accident each commenced separate actions against the same
defendants. The plaintiffs in all three actions have been represented by one
law firm throughout although the lawyer having conduct of the litigation has
recently changed.

[7]            
The defendants in the three actions have also been represented by one
law firm. That firm was appointed on the defendants’ behalf by the Insurance
Corporation of British Columbia (“ICBC”).  Liability has been contested in this
action as well as in the two separate actions.

[8]            
On October 2, 2013, after the three actions had been commenced,
counsel for the defendants (not counsel on this application) wrote to counsel
for the plaintiffs (not counsel on this application) concerning the conduct of
the three actions. Most germane to the issues now before me that letter
included the following statement under the heading “Trial”:

We will be contacting your office
soon to schedule a trial. Your timely response to this letter will assist in
determining the number of days of trial. Given that liability is denied, we may
need to coordinate one liability trial in all related actions, with subsequent
separate quantum trials for each plaintiff.

[9]            
Counsel for the plaintiffs responded to that issue on October 22,
2013, writing:

With respect to trial, it is our position that consolidation
of the current action with action nos. M134216 (Karanvir Saran) and
M134215 (Kamaljeet Saran) in relation to liability is not necessary.
While liability has been formally denied in the Karanvir Saran and Kamaljeet
Saran matters, we note that both of those Plaintiffs were passengers in the
subject motor vehicle accident. Accordingly, we do not see that liability is
seriously in dispute in either of the Saran actions.

Lastly, we are presently of the
view that 10 days will be sufficient for the trial of this matter. We will be
contacting your office shortly to schedule trial.

[10]        
An exchange of email correspondence between those counsel on
January 22, 2014 establishes that counsel for the plaintiffs continued to
refuse to consent to the consolidation of the three actions. In response, counsel
for the defendants stated:

Then we will have to schedule a [Case
Planning Conference] in all 3 actions to determine the mode of trial before we
set down trial dates. I’ll have my secretary contact yours for a convenient CPC
date. Alternatively, we can wait until the examinations for discovery of all
parties are completed in June of this year before visiting the issue of the
form of trial. I welcome your response.

[11]        
Later that day counsel for the plaintiff agreed to postpone scheduling a
Case Planning Conference until after examinations for discovery.

[12]        
Subsequently, however, on February 11, 2014 counsel for the
plaintiffs wrote to counsel for the defendants stating:

We have contacted the Registry
and have been advised that currently the available trial dates are in 2016. Accordingly,
we are no longer of the view that it is appropriate to wait until after
discoveries (ie, after June 2014) to schedule the trial of this matter, as this
will only result in further delay. Therefore, we ask for your available trial
dates for a 10 day trial in this matter so that the trial of this matter can be
scheduled forthwith. If, after discoveries, your client maintains the position
that the trial of this action ought to be heard together with the trials of
Saran (Action No. M134215) and Saran (Action No. M134216), with respect to liability,
you may set this down for a Case Planning Conference or bring an Application.

[13]        
In response counsel for the defendants wrote:

Your letters of February 11, 2014
in the above actions set us back to square one regarding our deliberations
about the best strategy for setting trial dates. My position continues to be
that we must decide on the form of trial before actually booking the trial
dates. It makes no sense to do otherwise. I would therefore propose the
following as an alternative solution. We should book the trial of the Gill
action on a date before the trials of the Kamaljeet and Karanvir Saran actions.
We should book 12 days for the trial of the Gill action with the idea that the
liability issues affecting all three actions will be addressed in full during
that trial, followed immediately (ie. during the same trial date) by the trial
on Gill’s quantum issues. Are you agreeable with this strategy? If so, I’ll
prepare the requisite consent order and we can proceed to book the trials
accordingly.

[14]        
In response to that letter and a subsequent discussion counsel for the
plaintiffs wrote:

We confirm that you have refused to provide trial dates in
this matter. Accordingly, we have no choice but to set this matter down for
trial unilaterally. In this regard, we confirm that we scheduled a 10 day trial
in this matter for August 24, 2015. The filed Notice of Trial will be delivered
shortly upon receipt from the Registry.

Lastly, we confirm that our
offices are currently in the process of scheduling a Case Planning Conference
in this matter. We ask that this be scheduled for as soon as possible.

[15]        
Counsel for the plaintiff then issued a Notice of Trial in this action
on February 14, 2014 and served it together with a Jury Notice.

[16]        
Notices of Trial in the two passenger related actions were subsequently
filed by the plaintiffs and served on March 10, 2014 (the “Kamaljeet
Saran action”) and August 14, 2014 (the “Karanvir Saran action”)
respectively.

[17]        
In her affidavit, sworn in support of the plaintiff’s opposition to the
defendant’s application for an extension of time for the filing of the
defendants late-filed Jury Notice, then counsel for the plaintiff deposed that:

6. It is my invariable practice to file and serve a Notice
Requiring Trial by Jury within 21 days of filing the Notice of Trial in order
to comply with the Supreme Court Civil Rules, so as to preserve the Plaintiff’s
right to make an election as to the mode of trial.

7. It is only after the evidence and the facts become better
known that I will recommend to my client the best mode of trial for the action,
prior to the 45-day deadline for the payment of jury fees.

8. Accordingly, the filing of a
Notice Requiring Trial by Jury in this action was not a specific election made
by either my client or my office at that stage. Instead, the Notice Requiring
Trial by Jury was filed simply to preserve the right to make an election as to
the mode of trial closer to the 45-day deadline.

[18]        
Counsel for the defendants filed a Jury Notice in the Kamaljeet Saran
action within 4 days of the filing of the Notice of Trial in that action but
did not file the Jury Notice in this action until April 16, 2014, which
was 35 days later than required by Rule 12-6(3).

[19]        
Counsel for the defendants has deposed that at some point in time (not
made known to the Court) she received instructions to from her client to switch
the Karanvir Saran action to “Fast Track” because “the claims appeared
to be straight forward and relatively modest”. Accordingly, no Jury Notice was
ever filed in that action and it settled in December of 2014 “before steps were
taken to switch to Fast Track”.

[20]        
After receiving the Notice of Trial in this action on February 14, 2014,
then counsel for the defendants immediately filed a Notice of Case Planning
Conference on February 17, 2014, in order to address the “issue with
respect to the mode of trial, and specifically whether liability and quantum
should be severed in all three actions so that one joint liability trial could
be held for all actions with separate quantum trial in all actions”.

[21]        
That Case Planning Conference was held on March 17, 2014, which was
after the expiry of the time for issuing of a Jury Notice by the defendants and
at that Case Planning Conference, the presiding Judge advised the parties to address
the issue of the mode of trial in chambers.

[22]        
On April 14, 2014, after hearing submissions on that mode of trial
issue, Master Tokarek adjourned the defendants’ mode of trial, severance of
liability and quantum applications until after examinations for discovery were
held in all three actions.

[23]        
During that hearing of those applications counsel for the defendants
erroneously advised Master Tokarek that the “time had not gone to decide about
a jury” when the time had in fact expired about a month earlier.

[24]        
The documentary evidence filed on this application by the plaintiffs
establishes that on April 11, 2014, three days before the hearing before Master
Tokarek, the defendants’ then counsel sent a letter to the plaintiff’s counsel
enclosing an unfiled Jury Notice (also dated April 11, 2014). That letter, together
with an identical one dated April 14, 2014, were both received by counsel
for the plaintiff by fax on April 15, 2014.

[25]        
Concerning why the Jury Notice was filed out of time in this action then
counsel for the defendants deposed at paras. 15 and 16 of her affidavit that:

15.       The Jury Notice in this action was filed late
through sheer in advertence, because our office was busy dealing with the Case
Planning Conference and the chambers application to address the issue of the
mode of the trials which was expected to affect the timing of the trials in all
three actions. At the time when the Jury Notices were due to be filed in this
and the related Saran file, I was switching from one secretary […] to a newly
hired secretary […] who was trying to get familiar with my files. [The newly
hired secretary] subsequently left our firm after only five weeks of
employment.

16. In the related action of
Kamaljeet Saran which was set for trial on September 21, 2015, the Jury Notice
was filed and served on time.

[26]        
She also deposed at para. 18 that:

18.       When my staff discussed
reserving trial dates with plaintiff’s counsel in this and the related actions
in January and February 2014, it was my intention to have the trials of this
action and Kamaljeet Saran’s action heard by judge sitting with jury. That
remained my intention throughout and I had instructions from my client to have
the actions heard by judge sitting with jury.

[27]        
The defendants have also filed and rely upon the affidavit of an ICBC
adjuster who deposed that she had “adjusted this file since September 4, 2012”
and that before February 27, 2013, she had “instructed counsel for the
defendants in this matter to issue a Notice Requiring Trial by Jury in this
matter”.

[28]        
 When counsel for the plaintiff received the defendants counsel’s
identical letters on April 15, 2014, enclosing the unfiled Jury Notice
dated April 11, 2014, she wrote to the defendants’ counsel on April 16,
2014 stating, among other things, that:

We confirm that we delivered the Notice of Trial in this
matter upon you on February 14, 2014. In the event that you have filed a Notice
Requiring Trial by Jury and intend to serve our office with same, your Notice
Requiring Trial by Jury is not in compliance with Rule 12-6(3), having
been filed out of time. Accordingly, it is our position that the said Notice
Requiring Trial by Jury is a nullity.

We would appreciate your agreement to withdraw your Notice
(if one has been filed) rather than requiring us to expend unnecessary time and
resources to address the issue when the authorities are clear.

[My emphasis.]

[29]        
On April 17, 2014, counsel for the defendants replied stating:

Further to yours of April 16, 2014, the defendants’ filed
Jury Notice is being delivered to you under separate cover today. We will
not agree to withdraw it.

[My emphasis.]

[30]        
There was no further correspondence between counsel on the Jury Notice
issue until after July 10, 2015, which was the date (45 days before trial) by
which jury fees had to be paid.

[31]        
In respect of that deadline, the plaintiff had decided not to pay the
jury fees so that the trial would proceed by judge alone.

[32]        
However, unbeknownst to counsel for the plaintiff, on July 10, 2015,
counsel for the defendants paid the jury fees.

[33]        
Counsel for the plaintiff learned that the defendants had paid the jury
fees on July 14, 2015. As to that discovery, she deposed in her affidavit that:

18.       I was surprised to
discover that the Respondents had paid the jury fees, because they had never
indicated an intention to bring an application for an order to extend the
period of time for filing their late jury notice, nor had they taken any steps
towards rectifying their later jury notice.

[34]        
 On July 15, 2015, counsel for the plaintiff wrote to counsel for the
defendants stating:

We write farther to our letter of April 16, 2014, requesting
that your office withdraw the late jury notice that was filed on behalf of the
Defendants in this matter. We have recently made inquiries with the Sheriff’s
office and have been advised that jury fees have been paid on behalf of the
Defendants.

As set out in our letter of April 16, 2014, we confirm that
we delivered the Notice of Trial upon you on February 14, 2014. The 21-day
deadline pursuant to Rule 12-6(3) for filing a Notice Requiring Trial by
Jury in this matter was March 7, 2014. Accordingly, your Notice Requiring by
Trial by Jury was filed over a month late. In the circumstances, it was
incumbent upon you to bring an application to extend the deadline for filing
the Defendants’ Notice Requiring Trial by Jury. To date, you have not done so.

As discussed in our letter of
April 16, 2014, we maintain our position that the said Notice Requiring Trial
by Jury is a nullity. Accordingly, we would appreciate your agreement to
withdraw your Notice.

[35]        
When she received no response to that letter, counsel for the plaintiff
advised the Court at a Trial Management Conference on August 5, 2015, that the
plaintiff would be seeking an order that the trial proceed by judge alone on
the ground that the defendants’ Jury Notice was a nullity. On that same day
counsel for the plaintiff sought the defendant’s consent to have that issue and
an issue concerning the deposition of a witness heard on short leave.

[36]        
That short leave request was refused by the defendants’ counsel who
cited the lack of availability of the ICBC adjuster.

[37]        
Plaintiff’s counsel then filed the material relied upon in support of
the application to have the Jury Notice declared a nullity on August 6,
2015, served it on August 7, 2015, and also applied for short leave that
day.

[38]        
After the defendants opposed that short leave application, the
plaintiff’s application was set for hearing on August 14, 2015, and on
August 12, 2015, the defendants filed a cross-application seeking to extend the
time for the filing of their Jury Notice also made returnable on August 14,
2015.

[39]        
Since there was insufficient time available to hear those applications
fully on August 14, 2015, they were adjourned generally.

[40]        
On August 17, 2015, for reasons unrelated to these issues, the
trial then set for August 25, 2015 was adjourned and is no longer
imminent.

[41]        
The issues that are the subject of these reasons remained unresolved
until January 5, 2016 when the defendants’ application to extend the time
for filing of the Jury Notice proceeded before me.

ANALYSIS AND DISCUSSION

[42]        
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 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.

[43]        
Rule 22-4(2) provides:

Extending
or shortening time

(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.

[44]        
Because the question of whether an extension of time for the filing of a
Jury Notice requires an exercise of discretion and also because there have been
significant changes to the Rules of Court since the leading case on the
subject, Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237
(C.A.) [Hoare] was decided, the issue of whether the time to file should
be extended has been judicially considered on many occasions since 1989.

[45]        
My review of the authorities after and including Hoare leads me
to conclude that the following principles emerge:

1)    A Jury Notice
that is not filed within 21 days of the delivery of the Notice of Trial is a
nullity, not a mere irregularity: See: Lanci v. Marpole Transport Ltd.,
2000 BCSC 1227 at para. 35 [Lanci]; Coulson v. Sra, 2001 BCSC 914
[Coulson]; Penner v. Great -West Life Assurance Co, 2002 BCSC 1131
[Penner]; and Moll v. Parmar, 2012 BCSC 1373 [Moll].

2)    In order to file
a Jury Notice outside the 21 day notice period leave of the court under Rule
22-4(2) must be obtained. See: Lanci; Coulson; and On v. Venittelli,
2006 BCSC 1987 [On] (at para. 33).

3)    Consideration of
an application to extend the time for the filing of a Jury Notice will include,
but is not limited to the following:

(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 (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; Penner; and
Robertson v. Canadian Imperial Bank of Commerce (1994), 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).

[46]        
In 1998 the Rules were significantly amended to establish a
bifurcated two-step process by which a party may require a trial by jury in
requiring not only that the Jury Notice be filed within the time limited, but
also that the jury fees be paid within the time limited.

[47]        
Prior to those amendments the Jury Notice was perfected by its filing as
required. It was a one-time election required to be made early in the
litigation. In Hoare (at 241) Taylor J.A. for the Court explained why
that was the case stating:

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.

[48]        
After considering existing jurisprudence on the question of whether the
court had discretion to allow an extension of time Taylor J.A. then said (at 241)
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

[49]        
Those considerations remain important to the court’s determination as to
whether to extend the time for filing of a Jury Notice under the present Rules.

[50]        
However, under the bifurcated two-step process established in 1998 the
need for a one-time election at the outset of the litigation has been
significantly modified in two important ways. Those are that:

(1)  A party who files and serves
a Jury Notice within the prescribed time has only conditionally reserved the
right to a jury trial. That party may “opt out” of the requirement for a jury
trial by not paying the jury fees 45 days before the trial is scheduled to
commence.  See: Folk v. Halcrow, 2004 BCSC 1623 [Folk] and Iskum
v. Badali, 2009 BCSC 1669 [Iskum].

(2)  A party who has not filed a Jury
Notice within the prescribed time cannot require a trial by jury by paying the
jury fees that would have been payable by the party who filed a valid Jury
Notice had that party not “opted out” before the requirement for a jury trial
was crystalized. See: Folk; Iskum; Catalano v. Ogloff, 2013 BCSC 2257 [Ogloff]
and Blaikie v. Penafiel, 2014 BCSC 1470 [Blaikie].

[51]        
With those principles and comments in mind and in the context of the
factual circumstances that inform my decision I will now determine whether I
should extend the time for the filing of the defendants’ Jury Notice and by so
doing validate the payment of the jury fees on July 10, 2015.

[52]        
The evidence of the ICBC adjuster and of the defendants’ counsel as to
the intention of the defendants to file a Jury Notice within the 21 day time
limit and the inadvertence which caused the late filing by 14 days is
sufficient to establish a clear intention or desire to have the action tried by
a jury during the time allowed for filing the Jury Notice.

[53]        
Although the defendants’ desire and attempts to have this action joined
for trial with the Kamaljeet Saran action and the Karanvir Saran
action and then sever liability and quantum in all three actions for separate
determination postulates a position that would be untenable for a jury trial,
that position would not preclude the filing of a Jury Notice (because of the
principles established by Folk and Iskum as well as other cases
to which I have referred) as a first step in the process in one or more of the
actions.

[54]        
That is so because by application of the two-step process under Rule
12-6(3) the defendants could have preserved the option for a jury trial by
filing a Jury Notice in time and then later could have “opted out” of the
process as developments in the litigation occurred.

[55]        
I am also satisfied that the plaintiff cannot point to any specific prejudice
that would be occasioned by an extension of time to file the defendants’ Jury
Notice other than the loss of the plaintiff’s own election to opt out of the
process under Rule 12-6(3) and be denied his preference for a judge alone
trial. Indeed, prejudice was not asserted by the plaintiff’s counsel in
opposing the defendants’ application given that the trial that was previously
set for August 25, 2015 has been adjourned.

[56]        
The plaintiff does, however, assert that the defendants’ unexplained
delay in bringing the application from April 15, 2014 until August 25,
2015, and doing so only then in response to the plaintiff’s own application to
strike the Jury Notice should weigh heavily against the relief sought by the
defendants.

[57]        
I agree with that 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.

[60]        
Similar, but not identical, circumstances were considered by Master
Chamberlist (as he then was) in Donovan in which he said at para. 26:

Once these new conscious steps
were taken in light of the slip-up that had occurred in 1994 the case is no
longer one of solicitor’s negligence simpliciter. Rather, it becomes a case
where the court must look to all the circumstances before it. Therefore, in all
the circumstances, given the inactivity of the defendants for some 6 months
following the December 5, 1994 memorandum and then the conscious decision after
receiving the second notice of trial to file a second jury notice rather than
follow the instructions of the pre-trial judge gives rise to the conclusion
that the defendants intended to abandon their notice requiring trial by jury.
In making this finding, I am of the view that I do no[t] have to move on to
consider the issue of prejudice. The equities do not lie with the defendants.
The application is therefore dismissed with costs to the plaintiff.

[61]        
While the defendants in this case did not seek to rely upon a second Jury
Notice, they were aware that the one they filed on April 14, 2014 was a
nullity, was being treated by the plaintiff as such, and yet contrary to
authority attempted to rely upon it.

[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.

CONCLUSION

[63]        
The defendants’ application to extend the time for the filing of the
Notice Requiring Trial by Jury filed April 16, 2014, is accordingly dismissed
with costs to the plaintiff in any event of the cause.

“Davies J.”