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Application to Strike the Jury

December 5, 2017

If a party to a proceeding has been served with a notice requiring a trial by jury, that party may apply to have the jury struck within 7 days after service of the notice.  Rule 12-6(5)(a) of the Supreme Court Civil Rules provides the grounds on which a party may apply for an order that the trial be heard without a jury:

 

            (i)       the issues require prolonged examination of documents or accounts or a scientific                            or local investigation that cannot be made conveniently with a jury;

 

            (ii)      the issues are of an intricate or complex character; or

 

            (iii)     the extra time and cost involved in requiring that the trial be heard by the court                               with a jury would be disproportionate to the amount involved in the action.

 

A trial must also be heard without a jury if it relates to a fast-track action or, pursuant to Rule 12-6(2), if it relates to matters including the following:

 

            (i)        the administration of the estate of a deceased person;

 

            (ii)       the dissolution of a partnership or the taking of partnership or other accounts;

 

            (iii)      the redemption or foreclosure of a mortgage;

 

            (iv)      the sale and distribution of the proceeds of property subject to any lien or charge;

 

            (v)       the execution of trusts;

 

            (vi)      the rectification, setting aside or cancellation of a deed or other written instrument;

 

            (vii)     the specific performance of a contract;

 

            (viii)    the partition or sale of real estate; or

 

            (ix)      the custody or guardianship of an infant or the care of an infant's estate.

 

In van Driesem v. Young 2016 BCSC 2279, the plaintiff successfully applied to strike the jury based on the level of complexity involved in determining the plaintiff’s income loss and lost-earning capacity.  The plaintiff had been injured in a motor-vehicle accident in February 2011.  He had practiced law for 20 years prior to the subject accident and for at least part of that time he practised law through a business model of a personal law corporation.  After the accident, he changed careers and was the president of a mining company.  He also did consulting work for WorkSafe BC claims. 

 

The court recognized that the law allows the court to analyse the three grounds together in Rule 12-6(5)(a) together and the overall question is one of trial fairness.  In doing so, the court found that the plaintiff’s income tax returns did not tell the full story of his pre-accident earnings and that they needed to be interpreted together with the annual financial statements of his personal law corporations.   There were additional layers of complexity due to liability being disputed, a complex medical history and the number of experts being called by each party.  Further, determining the plaintiff’s lost earning capacity would be difficult due to his career change after the accident and the plaintiff’s maintenance of three personal companies as well as a dispute over financials with a business colleague. 

 

Although the application to strike the jury notice was brought after the seven day period allowed by the Rules, the court found that the lapse of time would not necessarily serve to preclude the jury being struck. 

 

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/22/2016BCSC2279.htm

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