IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140717

Docket: M59213

Registry:
Nanaimo

Between:

Holly Blaikie, Dr. Holly
Blaikie Inc., and Blaikie Family Trust

Plaintiffs

And

Julie Frances
Penafiel and Jeff Manney

Defendants

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application by the plaintiff for an order
that the jury notice filed by the defendants on January 3, 2014, be
declared a nullity and that the trial proceed by judge alone.

[2]            
The basic facts are that the plaintiff was injured in a motor vehicle
accident on March 15, 2008. Liability has been admitted by the defendants.
The trial was first set to proceed on December 2, 2013, and jury notices
were filed by both the plaintiff and the defendants. On October 18, 2013,
jury fees were due and payable. Neither the plaintiff nor the defendants paid
the jury fees. On November 22, 2013 the defendants applied to adjourn the
trial, and it was ultimately adjourned by consent and rescheduled to September 29,
2014. On January 3, 2014, the defendants purported to file a new jury
notice.

[3]            
It is my conclusion that the application of the plaintiff should be
allowed. In my view, the law is clear that, having failed to perfect their
right to a jury by both issuing the jury notice in time and paying the fees as
required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”),
the defendants have relinquished voluntarily the right to a trial with a jury.

[4]            
I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd.
(1992), 75 B.C.L.R. (2d) 133, where the Court concluded:

In this case, the Plaintiffs
voluntarily chose to relinquish their right to a trial with a jury by not
paying the jury fees. The provisions of the Jury Act clearly provide that
a party can maintain their right to a trial with a jury provided that the jury
fees are paid. The right to a trial with a jury is exercised when the jury
notice is filed and served and belongs to the party filing and serving that
notice. That right will be maintained, as long as the court does not order
otherwise, or as long as the jury fees are paid.

[5]            
The respondent here says that in fact the jury fees will be paid. They
will be paid in advance of the new trial date, as provided for under the Rules.

[6]            
The defendants relied upon the decision of the Supreme Court of Canada
in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co.,
[1994] 2 S.C.R. 490. In my view that decision is completely inapplicable to a
right that is extinguished in accordance with the time limits set out in the Rules.
In my view, their voluntary relinquishment of the right to a jury was not and
cannot be bound by the law of waiver.

[7]            
In the circumstances, it is my view that, having failed to pay the jury
fees in a timely fashion, the defendant is restrained from filing a new jury
notice or paying the fees now.

[8]            
I am confirmed in that view by the decision in Hoare v. Firestone
Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para.
21:

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.

[9]            
All right, are there any submissions on costs?

[SUBMISSIONS RE COSTS]

[10]        
THE COURT: Regardless, you were unsuccessful, and the plaintiffs will
have their costs. Given that liability has been admitted, those costs will be
in the cause.

___________ “Muir
M.”___________
Muir M.