ICBC applied unsuccessfully in this multiple car accident injury case (Gill v. Mijatovic,2016 BCSC 239) to extend the time for the filing of a Notice Requiring Trial by Jury. The Jury Notice was filed beyond the 21 day notice period provided for and ICBC paid the jury fees despite the late filing.
The defendants in all three car accident lawsuits had been represented by the same law firm. That firm was appointed on the defendants’ behalf by the Insurance Corporation of British Columbia (“ICBC”). ICBC contested Liability in all the lawsuits despite the claimant being a passenger in two of the the three Vancouver car accidents.
The defendants relied on the affidavit of an ICBC adjuster who deposed that she had “instructed counsel for the defendants in this matter to issue a Notice Requiring Trial by Jury in this matter”. Yet the ICBC adjuster could not be made available for short leave to be heard about the matter of the late filing.
In rejecting ICBC’s request for a jury in this matter, Judge Davies provided us with an excellent review of the current law regarding late Jury Notice filing:
 My review of the authorities after and including Hoare leads me to conclude that the following principles emerge:
- 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…
- 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…
- 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…
(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….
(c) Whether the parties have consented to the late filing…
(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… 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).
The evidence of the ICBC adjuster 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 was sufficient to establish a desire to have the action tried by a jury during the time allowed for filing the Jury Notice.
However, the delay in applying 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 was wholly unexplained and was fatal to the defendants’ application.
It was clear that ICBC made an unauthorized attempt to ratify the payment of the jury fees and in the absence of evidence as to why an application was not brought expeditiously the judge concluded that their failure to apply to extend the time well before was deliberate.
The defendants’ application to extend the time for the filing of the Notice Requiring Trial was dismissed with costs being awarded to the claimant.