Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether the plaintiffs' late-filed jury notice could still be deemed valid.

• Plaintiffs' prior communications demonstrated a consistent intention to pursue a jury trial.

• Procedural delay was attributed to inadvertence by counsel rather than strategic delay.

• Lack of prejudice to the defendants played a critical role in the court’s decision.

• Court considered whether parties were fully informed and trial readiness was not compromised.

• Judicial discretion was exercised to uphold procedural fairness under Rule 22-4(2).

Facts of the Case

Jodean Batiste and Andre Henry brought a civil action against WestJet Airlines Ltd., operating as Swoop Inc., and two individual defendants following an incident that occurred on August 10, 2024. The plaintiffs were ticketed passengers on a Swoop flight from Toronto to Kelowna. During boarding, a disagreement arose about their seating. The aircraft, already prepared for takeoff, returned to the gate where the plaintiffs were asked to disembark. After refusing, police were called and they were forcibly removed from the aircraft and escorted through the airport.

Following the incident, the plaintiffs alleged that defamatory and racially charged statements were made by airline staff and shared on social media and with news outlets. The plaintiffs claimed damages for defamation, breach of contract, and intentional infliction of mental suffering, citing the emotional harm, reputational damage, and financial losses they incurred as a result of the incident.

In terms of procedure, the plaintiffs filed a notice of trial in September 2024 but failed to submit the required jury notice within the 21-day window mandated by the Supreme Court Civil Rules. They eventually filed and served the jury notice in November, outside the required timeframe. The defendants opposed the late filing and treated the jury notice as a nullity. The plaintiffs subsequently filed an application seeking leave of the court to validate the late filing.

Legal Analysis and Outcome

The court had to determine whether to grant the plaintiffs an extension of time to file and serve their jury notice under Rule 22-4(2). Justice Hardwick considered several factors, including whether the plaintiffs had shown a clear intention to proceed with a jury trial during the prescribed period, the cause of the delay, whether the nature of the case had materially changed, and whether the defendants would suffer prejudice.

Evidence presented by the plaintiffs’ counsel indicated that the intention to proceed with a jury trial had been consistently communicated to opposing counsel. The delay in filing was found to be due to inadvertence, and there was no evidence of prejudice to the defendants. All pre-trial preparations, including discovery, had been completed before trial dates were set, and both parties had operated with the understanding that the trial would be by jury.

Justice Hardwick ruled in favor of the plaintiffs, granting an extension of time and allowing them to file and serve the jury notice by April 15, 2025. The court emphasized the importance of procedural fairness and ensuring that the litigation proceeds on its merits.