The Kazblog

Chapman-Fluker v Gustavson: Successfully opposed application on jury notices

Mike Huot of KazLaw Injury Lawyers received an excellent judgment in Chapman-Fluker v Gustavson 2019 BCSC regarding a very contentious application by ICBC to extend the period for filing a jury notice. The Defendants relied on Rule 22-4 (2), which authorizes the court to extend or shorten any period of time provided for in the rules. The Plaintiff successfully opposed the application stating the following:

While a client may be relieved of the consequences of inadvertence by a solicitor, that relief should be granted sparingly where, as here, the instructing client is sophisticated and knowledgeable of the Rules, and the solicitor failed to file the notice…the party desiring a trial by jury must move with all reasonable dispatch to seek an extension, and the extension should only be granted where it would be of little or no prejudice to the opposing party.

Master Elwood concurring stated the following:

In this case, ICBC, in both its claims adjustment and litigation departments, failed to ensure that a jury notice was filed in time and failed to move with due dispatch once the oversight came to their attention. Although there is limited evidence of specific prejudice to the Plaintiff from ICBC’s delay, the general prejudice from a change in the mode of trial just two months before the scheduled trial date and the real likelihood that the trial will be adjourned are sufficient, in my view, to conclude on a balancing of the relevant factors that it is not in the interests of justice to grant an extension at this time.

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