Kwok v. Abecassis and the Personal Insurance Company, 2016 ONSC 7391

This is a decision about when it is appropriate to strike a jury on the grounds of complexity.

Heard November 28, 2016 | Full Decision [OTLA Document Bank]

The Plaintiff moved to strike the jury at the end of the second week of what is anticipated to be a four-week jury trial

The action arises out of a series of motor vehicle collisions. The plaintiff is seeking approximately $8,000,000 in damages as a result of injuries sustained by him, including a traumatic brain injury.

Justice Healey set out the applicable test in Cowles v. Balac, (2006) CarswellOnt 6366, (Ont. C.A.) that the right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons. She noted that the decision to strike the jury is discretionary and must not be exercised arbitrarily or capriciously. She also noted that complexity of the case is a proper consideration in determining when a jury notice is to be struck.

In this case she noted that the nature and extent of the plaintiff’s head injury is very much in dispute. The degree of the head injury may turn on whether there is a finding that diffuse axonal injury had occurred. The symptoms alleged by the plaintiff and their causal connection to the accident is also very much in dispute. There is also a dispute about the role that pre-existing conditions, including a prior stroke, play in the plaintiffs’ current balance and mobility problems.

Justice Healey noted that she has heard evidence from the plaintiff’s rehabilitation support worker, occupational therapist, family physician, caseworker as well as expert evidence from a neuro-radiologist, a psychiatrist, a neuropsychiatrist, a neuropsychologist and a psycho-vocational psychologist. She noted that familiarity with the entirety of the evidence is essential and there is the potential for misapprehension of credibility and this is an area where the application of common sense alone may work injustice to either side.

There were also issues about liability and the client’s life expectancy due to health issues that were unrelated to the motor vehicle crash. Justice Healey held that a proper and through jury charge cannot suffice to make up for these challenges.

In the result, Justice Healey was satisfied that the plaintiff has met his burden and that the best course of action is to strike the jury notice in order to ensure that justice is done for these parties. Motion granted.


Counsel for Plaintiffs: Troy Lehman and Lara Fitzgerald-Husek

Counsel for Defendants Abecassis: Don Rogers Q.C. and David Rogers.

Counsel for the Defendant The Personal Insurance Company: Todd McCarthy

Judge: Madam Justice S. Healey

Read the full decision on the OTLA Document Bank
Written by

A partner at Oatley Vigmond, Ryan joined the firm in 2006 shortly after he was called to the bar in 2005. Ryan holds an Honours B.A. from York University, as well as a Bachelor of Laws (LL.B.) and a Master of Laws (LL.M.) (Civil Litigation and Dispute Resolution) from Osgoode Hall Law School.

When Ryan is not practicing law, he enjoys golfing and spending quality time with his wife and two young children.