Coban v. Declare, 2020 ONSC 5580

Full Decision

In this case, Justice Beaudoin struck the jury notice again during the COVID-19 pandemic.

The plaintiffs brought a motion to strike the jury notice because jury trials are presently impossible in Ottawa, and the defendants brought a cross-motion to adjourn the trial because the pandemic has interfered with their ability to obtain responding medical reports.

This action arose from a 2018 motor vehicle accident in which the plaintiff, Josef Coban, sustained a spinal cord injury, rendering him a paraplegic requiring a wheelchair. The trial was scheduled to proceed the week of November 16, 2020 for five weeks before a judge and jury.

The plaintiff’s position was civil jury trials are indefinitely suspended and judge alone trials are resuming in Ottawa. Second, the Insurance Act limits past income losses to 70 per cent, and the longer the trial is delayed, the percentage of the past income loss increases. Third, the defendants have not shown they will suffer prejudice if the jury notice is struck. Finally, the financial benefits provided to the plaintiffs through their accident benefits insurer will soon be exhausted.

The defendant’s position was that there are genuine issues in completing defence medical examinations due to COVID-19 that warrant a trial adjournment. Second, the defendants have a substantive right to a jury trial. Third, the motor vehicle accident occurred less than two years ago, and the parties have worked diligently in moving this matter toward trial. Since liability is not significantly in dispute, the deterioration of evidence is not a significant issue. Finally, the plaintiff’s accident benefits have yet to run out and the defendants are prepared to make advance payments to the plaintiffs to alleviate any potential financial prejudice they may experience as a result of an adjournment of the trial.

After a review of the relevant case law regarding a party’s substantive right to a jury trial, Justice Beaudoin struck the jury notice and adjourned the trial.

Justice Beaudoin noted that, in the few COVID-19 decisions where a jury notice has been struck, there has been a lengthy passage of time between the event giving rise to the cause of action and the trial date. However, when coupled with other prejudice, he says that even a short delay can become significant.

Further, the Court did not accept the defendant’s proposed advance payments, stating:

[57] …While the defendants offer an initial prepayment of $250,000, conditional on the adjournment of the trial, this amount is 2/3 of the annual amount the plaintiffs claim is necessary. This amount does not consider their loss of income. The remaining $150,000 offered will be paid in three payments of $50,000 every six months ending in June 30, 2020.

[58] In my view, the plaintiffs need to plan for their future now and they urgently need a decision on their entitlement to compensation for this unfortunate event. If Josef cannot afford the extensive treatment he claims is required, he will be prejudiced in seeking those damages at trial.

Justice Beaudoin concluded his judgment, stating that it is unknown when a civil jury trial can be heard, and these plaintiffs do not need more uncertainty.

This action will now proceed to trial by judge alone after May 15, 2021.

Written by

Christine Sesek is an associate lawyer at Howie, Sacks & Henry LLP in Toronto, Ontario. She practices exclusively in personal injury litigation and is committed to helping seriously injured individuals and their families.

Christine is a graduate of the Canadian & American Dual J.D. program at the University of Windsor and the University of Detroit Mercy. She was called to the bar in 2019 and is a member of the Ontario Trial Lawyers Association.