COURT CASES on JURY NOTICE STRIKING
7 DAY RULE to STRIKE JURY NOTICE NOT ABSOLUTE
Under Rule 12-6(5) of the British Columbia Supreme Court Civil Rules, you have 7 days from service of a Jury Notice on you to apply to strike the Jury Notice. As recent case law indicates, this time limit is not absolute, and applications brought beyond this time frame to strike a jury notice can indeed be granted.
In Wallman v. ICBC, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for injuries. Counsel for the Plaintiff brought an application seeking leave to extend the time within which to bring an application to strike the jury notice in the case, and also for an order to strike the jury notice. The Court granted the Plaintiff’s applications. With respect to the timing of the application to strike the jury notice, the Court commented :
 The plaintiff will have leave to apply to strike the jury notice. There has been sufficient evolution of the complexity of the case to justify the exercise of the discretion described in Rule 22-4 to extend the time within which the application may be brought. While the application could have been brought earlier, the trial is still far off. The parties could not point to any measure having been taken because the trial would be heard by judge and jury that would not otherwise have been taken. No prejudice is likely to be occasioned by the delay from April 2011 to April 2012 in bringing on this application. Once it is established there has been a significant change in the complexity of the case after the expiry of the time for bringing the application, as a rule, delay in bringing on the application to strike the jury is but one factor to consider on the application, but it is not fatal.
In Cliff v. Dahl, the Defendant brought an application to strike the Jury Notice well beyond the stipulated 7 day time period. Although the application was dismissed in this case, the Court commented that the 7 day time period is not absolute.
 Ms. Dahl acknowledges that her application to strike the jury notice is outside of the seven day time limit. However, she argues that the assigned trial judge has the authority to strike the jury notice on application regardless of whether the seven day time limit has been observed: Patterson v. Rankel, 2001 BCSC 952; Lomax v. Weins, 2003 BCSC 396; and Adamson v. Charity, 2006 BCSC 1642. See also, Rule 12-6(5)(a). Ms. Dahl maintains that Mr. Cliff has known of her intention to have the jury notice struck since September 8, 2010, when the issue was discussed at a CPC. Further, Ms. Dahl maintains this action has become more complicated since the jury notice was served by the addition of the three third parties and defendants and by the second action arising out of the July 31, 2011 motor vehicle accident.
 Mr. Cliff argues that Ms. Dahl has brought her application to strike the jury notice more than 19 months after the time period in Rule 12-6(5)(a) expired. Further, at a CPC held on February 11, 2011, the court directed Ms. Dahl to bring on her application within a reasonable period of time. While the application was scheduled for March 30, 2011, due to Ms. Dahl’s failure to serve her materials on time, the application did not go ahead. In these circumstances, Mr. Cliff argues the delay should preclude the application. Mr. Cliff notes that Ms. Dahl has not applied for an extension of the time limits pursuant to Rule 22-4(2).
 In addition, Mr. Cliff argues the action has not become more complex since the service of the jury notice on May 25, 2011. The defendants were aware of the third parties since the spring of 2009. At Mr. Cliff’s discovery on April 16, 2009, information concerning the identity of the owners of the disabled vehicles was disclosed. The nature and extent of Mr. Cliff’s injuries were known to the defendants from the outset of the proceedings. Although another action is now to be heard with this proceeding, Mr. Cliff argues that having two actions heard together does not render the case too complicated for a jury: Harder v. Nikolov, 2001 BCSC 1101.
 Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).
COMPLEXITY of PROCEEDINGS
In Moll v. Parmar, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for injuries sustained therein. ICBC’S lawyer brought an application to strike the Plaintiff’s jury notice on the grounds that the matter would be too complex for the jury. The Court agreed.
 The factors which militate in favour of the trial proceeding with a jury include the following. First of all, there is the plaintiff’s presumptive right to a trial by jury. Secondly, the issue of causation is not as complicating a factor in this case, as it was found to be on other occasions when a jury notice was struck. These would include situations where there has been more than one tort which is before the court, the existence of alleged novus actus interveniens and matters of the like. Thirdly, the interdependency claim is not by itself a valid reason for this action not proceeding before a jury. Such a claim has in the past been heard by a jury.
 What militates against the action proceeding before a jury is the sheer volume of medical reports, and in many instances, the scientific aspect of the evidence. I have reviewed many of the medical and other experts’ reports which were provided to me in October 2012. As I noted above, they comprise approximately 475 pages. The reports refer to other reports and assessments. The neuropsychological reports deal with many different tests, as do the vocational and functional capacity evaluations.
 I emphasize that what is in the record before me are experts’ reports, that is, evidence which, depending on admissibility issues, will be before the trier of fact. In that regard they are to be distinguished from, as I have noted, hospital and other records which may well have much less significance or importance to the trier of fact.
 In my view, there can be little doubt that the issues in this case will require a prolonged examination of documents or accounts or a scientific or local investigation. The plaintiff presents two alternative theories, the first being whether the accident caused an organic brain injury, which is scientifically complex.
 I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii) have been met. First this case does involve a scientific investigation which will include a prolonged examination of documents, in particular experts’ reports, that cannot conveniently be heard by a jury. Secondly, the issues are sufficiently intricate and complex that the trial should not proceed with a jury. Justice would not be done if that were to take place. Accordingly, I direct that the trial be heard by the trial judge without a jury.
In Campbell v. McDougall, the Plaintiff was involved in two separate motor vehicle accidents, and brought ICBC claims for damages arising from both accidents. In total, there were 30 expert reports that were to be adduced at trial, 20 by the Plaintiff, and 10 by ICBC’S lawyer. The Plaintiff challenged the Jury Notice previously issued on the basis that the ICBC claims were too complex for the jury. The Court agreed, commenting that:
 The plaintiff has served approximately 20 expert reports authored by 16 different experts. In reply, the defendants have served 10 expert reports prepared by seven experts. Combined, these reports amount to approximately 700 pages. The jury is therefore facing the prospect of examining, considering, digesting, and retaining information from approximately 30 reports authored by 23 experts. The range of expert evidence is as broad as it is long, and it includes: general medicine, physiatry, psychiatry, neuropsychology, psychology, anaesthesiology, neurology, plastic surgery, occupational therapy, physiotherapy, forensic engineering and economic actuarial analysis.
 In addition to these expert reports, there are also over 1,200 pages of clinical records relating to the plaintiff’s condition and treatment. Many of these records will be used in cross-examination of the plaintiff and consequently the jury will need to be instructed on the proper use of such records.
 The defendants acknowledge that due to the number of treatments the plaintiff has sought and undergone over the years, this litigation involves more than the usual number of clinical records. The defendants also agree that there is a vast amount of neuropsychological raw data that may need to be presented and explained to the jury. However, the defendants point out that the nature and contents of these records has not been disclosed to the court. The defendants maintain that most if not all of the documents in question are not so complex that their examination and analysis by the jury would be unduly taxing for them.
 Having reviewed the materials submitted on these applications and having considered the submissions of counsel, I am satisfied that there is a vast amount of documentary evidence that will likely be presented to the jury in this trial. I accept what the plaintiff says on this point, and I also accept that many, if not most, of the documents in question will relate to scientific or other expert areas of evidence and will be of a complex nature.
 In my opinion, because of the nature of the issues in play at this trial, the immense quantity and variety of material that is likely to be presented into evidence, the real potential for differing uses of this material, and the complex nature of much of the material, the jurors in this case will be called on to engage in a prolonged examination of documents or accounts.
 I find that the issues that will be addressed at the joint trial of these matters will require the trier of fact to engage in a prolonged examination of documents, as well as a scientific investigation. I also find that the issues in dispute between the parties are of an intricate or complex nature.
In Mohammend v Farenholtz, the Plaintiff made an application to strike the Jury Notice filed by the lawyer for ICBC, claiming that all of the medical documentation spanning four motor vehicle accidents would be too complex for the jury. The Court dismissed the Plaintiff’s application.
 One could almost infer from that that there really wasn’t any significant concern as to the appropriateness of a jury, as frankly it would be difficult to imagine why, if there was a concern, neither of two plaintiff’s counsels would have taken any steps to set it aside within the time limitations prescribed by the rules.
 Nevertheless, I am now presented with a circumstance that requires a decision and I am told that at present, in light of all of the available reports, this matter is too complex and intricate for a jury to deal with. I have not read all of the reports during the course of this chambers application, and I do not intend to. I have read the portions of the reports referred to in counsels’ outline and submissions and have read beyond that through some of the reports that were contained in the two thick binders that I was presented.
 My impression, upon reading those reports, is that although there are a great many reports to deal with, they do not strike me as being overly complex or difficult. In fact, one or more of the reports, the exact numbers of which I neglect to make a note of so I cannot refer specifically to them in these reasons, but nevertheless one or more of these reports struck me as being very impressive in the way in which the author laid out in layman’s terms some of the definitions and explanations of what the symptoms and injuries were all about.
 I do not believe that the context of those reports, the terminology in those reports or the description of the plaintiff’s injuries is complex enough to warrant dispensing with a jury. I say that bearing in mind that the onus is upon the plaintiff to establish that proposition.
 However that then takes us to the issue of even if the reports in and of themselves don’t present that degree of complexity, perhaps it would be too complex to expect a jury to ascribe the symptoms and injuries complained of by the plaintiff to the respective accidents. Now, that might well present a difficult task. Frankly, that aspect was the most concerning to me as I listened to submissions.
 A further factor to consider is that defence counsel takes the position that there are significant issues of credibility with respect to this plaintiff and that a jury is ideally suited to deal with that issue. Counsel also asserts that with the help of schematics or good counsel’s work who could make things clear, it is not at all as difficult as one would expect to be able to ascribe various injuries to the respective accidents.
 The submission was that two of the accidents were very minor and that competent counsel could easily deal with this issue with respect to assisting a jury in understanding what injuries relate to what accident. On balance then, considering all of these matters, I conclude that the plaintiff has not met the onus of establishing that this is an inappropriate case for a jury.
 There is in British Columbia, as plaintiff’s counsel candidly admitted, a very strong right to a party to choose a trial by jury, subject to the restrictions imposed by legislation, and therefore the onus does fall to the plaintiff to make its case that the defendant ought not to have its right to a jury trial. As I have said, I believe that the plaintiff has fallen short of satisfying that onus in this particular case.
In McIntosh v Carr, the Plaintiff applied to strike the Jury Notice, claiming the trial would be too complex for a jury. The Court granted the application.
 A 25 day trial requires a significant commitment by jurors. Experience tells us that juries are capable of understanding the expert medical evidence typically heard in cases involving an alleged brain injury but experience also indicates that juries have more difficulty retaining that understanding throughout longer trials. This affects my consideration whether it is convenient for a jury to undertake the medical, or “scientific” investigation required in this case.
 A 25 day trial involving intricate medical, psychological and behavioural issues involving a young person who was not yet fully developed at the material time, presents such a risk. That risk is compounded by a number of complications that the evidence must address. Taken together, these factors also render the issues too complex for a jury.
 It is now about ten years post-accidents. Over that period, the plaintiff has undergone extensive treatment and a variety of testing including cognitive or psychological testing. The outcome of testing as it relates to the diagnosis or proof otherwise of the alleged brain injury is complicated by factors such as the identification and effect of a pre-existing learning disability as well as other social, scholastic and family stressors already present in the plaintiff’s life before the accidents. There are live issues as to whether these factors explain or at least materially contributed to the plaintiff’s ongoing difficulties. The factors also impact the application of any expert evidence respecting future pecuniary losses.
 The defendants contend that the evidence is not too complicated for a jury. They point out that the court refused to strike the jury notice in Forde v. Interior Health Authority (c.o.b. Royal Inland Hospital), 2009 BCSC 254 (CanLII), 2009 BCSC 254, a medical negligence claim involving 19 experts and 26 detailed expert reports and summaries of evidence. The medical evidence covered some of the same areas as in the case at bar as well as others, including neurosurgery, radiology, neuroradiology and kinesiology. The trial in that case was scheduled for 15 days. In another case, Furukawa v. Allan, 2007 BCSC 283 (CanLII), 2007 BCSC 283, the court also declined to strike the jury notice. The plaintiff claimed a brain injury in that case and the trial, as here, was scheduled for 25 days.
 Each case is necessarily fact dependent but the results in Forde and Furukawa may be taken as confirmation that factors such as the length of trial, the extensive number of medical experts and complex medical issues do not automatically remove the right of a party to a trial with a jury.