In response to the health concerns from Covid 19, the BC Supreme Court cancelled all jury trials up to and including September 7, 2020. What this means is that if a jury trial is scheduled to take place during this time period, then the trial will be adjourned and rescheduled to a new date. Given the extreme backlog of trials, there is a significant delay of several years in rescheduling trials.
When trials are scheduled, the parties have a choice to elect to a jury trial or a trial without a jury (before a judge alone). If one party has elected a trial by jury and the other party has elected for a trial without a jury, then the Rules of Court direct that the trial will proceed with a jury.
ICBC trials are typically not scheduled for several years following the motor vehicle accident. Most ICBC trials that are scheduled for trial in 2020 relate to motor vehicle accidents which occurred 4-6 years ago or longer. If these trials are adjourned due to covid and ICBC’s persistence for a jury trial, the delay in rescheduling the trial can be particularly devastating to injured claimants. This is particularly so for injured claimants who have suffered serious injuries causing financial distress as a result of being unable to work due to their injuries and/or their inability to afford treatment to manage pain.
In these unprecedented times with covid where jury trials can no longer go ahead as scheduled, trials can still take place as scheduled if both parties simply agree on a trial without a jury. In this regard, the BC Supreme Court has directed that a party wanting to save a trial date can apply for an order setting aside jury notice which would allow the trial to go ahead without a jury.
In Cheung v. Dhaliwal 2020 BCSC 911, the injured claimant was injured in a 2016 motor vehicle accident. Trial was scheduled to start on June 22, 2020 with a jury as elected by ICBC. After the direction to cancel all jury trial until September 2020, ICBC refused to keep the trial date by agreeing that the trial could proceed without a jury. In order to save the trial date and avoid an adjournment, the injured claimant applied for an order directing that the trial proceed without a jury.
In arguing for the adjournment of the trial, the court considered the prejudice to ICBC if the trial proceeded without a jury and the prejudice to the injured claimant if the trial was adjourned to a new date several years from now. The master noted that the only prejudice to ICBC would be losing its choice of a jury trial which was simply considered a tactical advantage over the injured claimant. The prejudice to the injured claimant would be the delay of several years to reschedule the trial coupled with his personal circumstances of financial strain due to his injuries disabling from returning to work. The injured claimant furthermore argued that rescheduling the trial would result in the deterioration of evidence and increased expenses in having to obtain updated expert evidence for the new trial date.
In granting the order against ICBC in allowing the trial to proceed as scheduled without a jury, the master held that the prejudice to the injured claimant outweighed any prejudice to ICBC if the case was heard without a jury:
[15] The trial of this matter is scheduled to start less than three weeks from today. The plaintiff argues that requiring the trial to proceed without a jury in June 2020 would avoid extra time and cost that would be incurred if the trial is adjourned. He submits that the delay and uncertainty inherent in rescheduling the 14-day trial, coupled with the extra cost of preparing again for a future trial, runs contrary to the “just, speedy and inexpensive determination” of this case on its merits. He says that if the trial is adjourned it would likely be reset for hearing at least two years from now. He points out that uncertainty with respect to the COVID-19 pandemic means there is no guarantee the case could proceed with a jury if it is rescheduled. A new date could be set, only to find out that jury trials are still suspended because of health concerns.
[16] The defendants argue that their right to have the case tried by a jury should not be taken away. As their position embodies an adjournment of the trial, the law applied on applications to adjourn must be considered. It is well settled law. The interests of justice govern whether the court should grant an adjournment of a trial; Sidoroff v. Joe, [1992] B.C.J. No. 2776. When determining whether the interests of justice require an adjournment of a trial, the paramount consideration is whether an adjournment is needed to ensure that there would be a fair trial on the merits of the action; Navarro v. Doig River First Nation, 2015 BCSC 2173, at para. 19. Prejudice to be suffered by either side if an adjournment is or is not granted must be weighed and balanced; Navarro, at para. 25.
[17] The objective of securing the just, speedy and inexpensive determination of this case points to the trial proceeding before a judge alone on June 22, 2020. The accident that is the subject of this action occurred almost four years ago. If the trial is adjourned it may not get on for a while. The plaintiff is concerned that a trial with a jury may be scheduled two or three years from now. Such a delay could result in a deterioration of evidence, as memories fade over time. This may be significant as liability for the subject accident is in issue and there will be witness testimony in relation to this issue.
[18] Counsel for the plaintiff provided some information to the court about the personal circumstances of the plaintiff. He presently is 35 years old. He is single and has no children or dependants. At the time of the accident, he was employed as a financial service representative with Vancouver Credit Union. He has not returned to work since the occurrence of the accident. He lives with his parents.
[19] An adjournment of the trial would obviously be prejudicial to the plaintiff as it would delay his day in court and thereby his ability to resolve the litigation and get on with his life. His counsel also points out that if the trial is adjourned additional expert fees will likely be incurred, as some reports will need to be updated for the new trial date.
[20] On the other hand, if the trial proceeds on June 22, 2020 the only prejudice the defendants would suffer would be that the mode of trial would not be the mode they chose; trial by jury. Although the defendants may lose any tactical advantage they may believe they would have if the case is tried with a jury, they nevertheless would be assured of a just determination of the issues on the merits.
[21] An adjournment of the trial would clearly prejudice the plaintiff. The prejudice to the plaintiff outweighs any prejudice the defendants may suffer if the case is heard by a judge without a jury. In the circumstances, the defendants’ notice requiring trial by jury should be struck so the case can proceed to trial as scheduled, later this month.
[22] The plaintiff’s application is granted.