IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110205

Docket: S78961

Registry:
New Westminster

Between:

Karmandeep Kaur
Litt, and infant, by her Litigation Guardian

Satinder Kaur Litt

Plaintiff

And

Harpal Kaul
Grewal, Tarsem Singh Grewal,

Garnet Arthur Wall
and Leigh-Ann Wall

Defendants

Before:
Master Caldwell

Reasons for Judgment

[1]            
This application deals with whether or not the trial in this action will
be heard by a judge with a jury or without a jury.

[2]            
In November of 1997 the plaintiff, an infant aged 2 months at the time,
was injured in a motor vehicle accident; the parties hold vastly different
views as to the severity of the injuries.

[3]            
The plaintiff’s litigation guardian is her mother; she retained a lawyer
to represent the plaintiff and a claim was filed sometime later.

[4]            
Defence counsel was appointed, a Statement of Defence was filed and on
February 5, 2009 defence counsel unilaterally set the matter for a 2 day trial
commencing November 4, 2009.

[5]            
The Notice of Trial was sent to plaintiff’s counsel on or about February
10, 2009 who responded 10 days later, saying that there were still concerns of
possible brain damage and that the November trial set by the defence was “not
acceptable”.

[6]            
No Notice Requiring Trial by Jury was issued by either party; no endorsement
placing the matter into Rule 66 or Rule 68 was made.

[7]            
On June 3, 2009 Mr. McDonald assumed conduct of the plaintiff’s
file from original counsel and in October of 2009 succeeded in having the trial
adjourned to September of 2012 for 5-8 days of hearing.

[8]            
In or about January of 2010 Mr. McDonald first raised with defence
counsel the possibility of a jury trial but he was rebuffed.

[9]            
In March of 2010 when it became possible to file the new Notice of Trial
for the September 2012 trial, Mr. McDonald did so; he also filed and
served a Notice Requiring Trial by Jury on defence counsel; defence counsel has
objected.

[10]        
Mr. McDonald applies for an extension of the time for filing the
jury notice; defence opposes and applies to have the jury notice declared a nullity
or alternately to have it struck such that the matter would proceed without a
jury.

[11]        
The plaintiff presents two arguments in support of her application:

1.       the plaintiff’s first lawyer was negligent and did
not inform the litigation guardian of the possibility of a jury trial; and

2.       there has been a material change in the plaintiff’s
injuries which would allow or support a re-election by or on behalf of the
plaintiff.

[12]        
Dealing first with the material change allegation, I am unable to find
that the alleged physical changes and visual field defect amount to a material
change of sufficient magnitude to support a re-election to a jury trial.

[13]        
It is clear that the discussions between counsel even before the setting
of the first trial date involved concerns about brain injury and damage; that
was made clear in writing at least as of February 20, 2009 when then
plaintiff’s counsel raised it in his correspondence about the unacceptability
of the November 2009 trial date.

[14]        
In short, this has always been a case involving a head and/or brain
injury allegation; the report of Dr. Johal and the possible but as yet
potential report of a paediatric psychologist, does nothing to materially
change that.

[15]        
The allegation of solicitor’s negligence is a more troubling matter.

[16]        
The litigation guardian says in her affidavit that she speaks very
little English and that she requires a translator to understand anything but
very simple matters. She says that she “always” uses a translator when giving
instructions to a lawyer; this included using a translator in the preparation
of the affidavit in support of this application. She says further that the
first lawyer never told her about the possibility of having a jury trial or of
preserving the right to elect trial by jury by endorsing the case into Rule 66
or 68; had she been made aware of these options, she says that she would have
chosen a trial by jury. In her affidavit at paragraph 13 she says:

“If I had known about the right
to a jury trial, I would have been certain to preserve it by telling (counsel)
to serve a jury notice. I feel better having the case heard by a jury because I
want my 13 year old daughter’s claim to be judged by people in our community. These
people also have families like mine and I believe they will have the best
knowledge of what is normal and not normal based on their own experience and
common sense.”

[17]        
In support of his submissions, Mr. McDonald cites my decision in
Piso v. Thompson 2010 BCSC 1746, a case in which I granted the plaintiff leave
to withdraw a deemed admission which had arisen by counsel’s failure to respond
to a Notice to Admit. In that decision I said:

“In my respectful view Rule 7-7
does not, nor was it intended to, create a trap or add an inescapable obstacle
to ensnare or trip up sloppy or inattentive counsel to the detriment of the
parties to the litigation.”

[18]        
An important basis for that decision however, was the fact that the
lawyer who had made the mistake provided extensive affidavit evidence
acknowledging his error, confirming the client’s version of events and assuming
full and unconditional responsibility for the failure to respond to the Notice
to Admit. In the present case I have no such evidence; I do not even have
evidence before me suggesting that the first lawyer is aware of the serious
allegations which are being levelled at him.

[19]        
A similar problem arises with the plaintiff’s reliance on the Court of
Appeal’s decision in Smith v. Vancouver General Hospital, 1981 Canlii 438. In
that case the majority made up of Justices Anderson and Craig said:

“In my view, while the
explanation for the failure to elect for trial by judge and jury within the
time limited was not as clear as it might have been, the explanation given by
counsel for the plaintiffs must be construed as indicating that he did not
apply his mind to the matter of the mode of trial until after the time
prescribed in Rule 39(19) had elapsed.”

[20]        
Again I take this to mean that counsel addressed and acknowledged his
error in not applying his mind to the mode of trial and, by implication at
least, not presenting the options to the client. That is a different situation
than that before me; the evidence of the first lawyer is not “not as clear as
it might have been”, it is non‑existent. There is no evidence of the
first lawyer confirming the language barrier or of his failure to consider or
discuss the jury issues with the litigation guardian.

[21]        
The right to a jury trial is an important, even fundamental, right under
our system of justice; that having been said, it is a right which must be claimed
within fairly strict limits in terms of timing and notice of election. Those
limits are of long standing and were retained and confirmed in the new rules
which came into effect on July 1, 2010.

[22]        
While I am of the view that Rule 22-4(2) (the new version of Rule 3(2))
allows me to extend the time for the filing of a jury notice, I am also of the
view that I should only do so on the basis of the clearest and best evidence.
The extension of the time for filing a jury notice is a matter of considerable
significance; the hurdle faced by the applicant is not cleared by the
presentation of “some” evidence of the party’s intention and when that
intention was formed or, as here, when they received sufficient information to
undertake that enquiry.

[23]        
Where the allegations, as here, are based in a serious failure on the
part of counsel, the evidence of that solicitor, or at least evidence that the
solicitor is aware of the allegations and has not taken action to answer them,
is an important factor for consideration by the court. This is particularly so
given that by making such allegations against former counsel the plaintiff has
waived any claim of privilege regarding such matters.

[24]        
In all of the circumstances I am unable to find that there is sufficient
evidence before me to support the exercising of my discretion in favour of
granting an extension of the time within which the plaintiff may file her jury
notice.

[25]        
Given the importance of this issue and the fact that the plaintiff is a
young teenager the court should be particularly cautious in the exercise of its
discretion.

[26]        
The matter will be adjourned and the plaintiff will be given 60 days to
reset the matter and to file better evidence of the type discussed above in
these reasons. I will remain seized of the matter and its continuation. If the
matter is not reset on or before October 4 for hearing before me as may be
arranged through trial scheduling, the plaintiff’s application will stand
dismissed and the Notice Requiring Trial by Jury will stand struck out as being
a nullity. To be clear, the date of hearing of the continuation may be after
October 4 if necessary to coordinate with my rota, but the date must be
arranged by October 4.

[27]        
The defendants are entitled to their costs of the first hearing date in
any event of the cause.

“Master Caldwell”