Fridays With Rogers Partners

At our weekly meeting this morning, Angie Bellehumeur discussed the case of Coban v Declare, 2020 ONSC 5580. This case deals with a motion by the plaintiff to strike the jury notice pursuant to rule 47.02, and a cross-motion to seek an adjournment of trial pursuant to rule 52.02.

The plaintiffs, Josef Coban and his wife Lanka Cobanova, were rear-ended by the defendant’s tractor-trailer on October 6, 2018. Mr. Coban sustained a spinal cord injury from the accident, rendering him a paraplegic requiring a wheelchair.

The statement of claim was issued on February 4, 2019 and the statement of defence and jury notice were delivered on March 20, 2019. The trial date was set for November 16, 2020.

The parties do not dispute Mr. Coban’s need for future care support. At issue in this action is the magnitude and quantum of the care needed by the plaintiffs.

The future care assessor retained by the defendants only became available to speak with the defendants on March 5, 2020, but was uncomfortable completing an in-person assessment during the pandemic and she advised the defendants to retain someone else in July of 2020. Plaintiff’s counsel was made aware of these developments. The defendants have not yet retained another future care assessor.

The defendants also retained a physiatrist based in Toronto. Prior to COVID-19, he was willing to travel to Ottawa to conduct Mr. Coban’s medical examination provided he had sufficient space and a medical chaperone. When the pandemic hit, he advised he would not conduct a virtual assessment and was unwilling to travel to Ottawa to assess Mr. Coban. Mr. Coban was unable to travel to Toronto due to his disability.

Plaintiff’s counsel offered to have Mr. Coban transferred to another hospital in the Ottawa region so that the physiatrist could have more options as to where he could conduct the examination. However, this option has not been put to the physiatrist. There is no evidence of any other efforts to contact alternate physiatrists since retaining this doctor.

The plaintiffs argue that a delay of the trial will put undue financial burden on the family, prejudicing them and creating a windfall to the defendants. The plaintiff’s compensation for medical rehabilitation and attendant care will soon be exhausted and they require compensation for Mr. Coban’s care needs.

The defendants submit that the plaintiffs have not met the burden of showing that justice to the parties would be better served by the discharge of a jury. They ask that the matter be adjourned for one year in order to complete defense medical examination during COVID-19.

Justice Beaudoin relies on his reasoning in Louis v Poitras, 2020 ONSC 5301 where hereviewed relevant case law for striking a jury notice in the context of COVID-19 and concluded that “unreasonable delay could, by itself, meet the burden of showing that justice to the parties will be better served by the discharge of the jury” (paragraph 44).

Justice Beaudoin notes that, in other cases, there was a considerable passage of time in deciding to strike the jury notice. However, when coupled with other prejudice, he says that even a short delay can become significant.

Justice Beaudoin strikes the jury notice in this case on the basis that the plaintiffs urgently need a decision on their entitlement to compensation, and Mr. Coban will be prejudiced in seeking damages at trial if he cannot afford the extensive treatment he claims is required. He notes that it is uncertain when a civil jury trial can be heard in Ottawa and that the plaintiffs do not need more uncertainty.

The trial was adjourned to a date after May 15, 2021. In granting the adjournment, Justice Beaudoin notes that the defendants are entitled to have Mr. Coban assessed in-person by a properly qualified expert. He also notes that they have cooperated to have the matter heard as expeditiously as possible and have demonstrated their good faith by offering an advance payment of $250,000 to alleviate financial pressures faced by the plaintiff.

Given that the trial was adjourned until at least May 15, 2021, it is surprising that a decision on striking the jury notice needed to be made at this time.