CITATION: Coban v. Declare, 2020 ONSC 7537

DIVISIONAL COURT FILE NO.: DC-20-358-ML

DATE: 20201207

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JOSEF COBAN, LENKA COBANOVA and HELENA COBANOVA, Plaintiffs, (Responding Parties)

AND:

BRIAN DECLARE and ERB TRANSPORT LIMITED, Defendants (Moving Parties)

BEFORE: R. J. Smith, Lederer, Favreau JJ.

COUNSEL: Joseph Y. Obagi, for the Plaintiffs (Responding Parties))

Andrew Evangelista, and Karyn Shapira, for the Defendants (Moving Party)

HEARD at Toronto: In Writing

ENDORSEMENT

BY THE COURT

[1] Leave to appeal is refused. As acknowledged in the Reply Factum, the broad issues raised by motions to strike jury notices in the context of the Covid-19 pandemic have recently been considered by this Court (see: Louis v. Poitras, 2020 ONSC 6907). This case does not present any reason to revisit those issues so soon after.

[2] That case made clear that motions to strike juries should consider not only the immediate impact on the parties involved ("the overarching concern has been to provide justice to the parties") but also concerns for the impact on the broader administration of justice. In the interim the situation has changed. On November 21, 2020, a further Notice to the Profession was issued by the Office of the Chief Justice. In view of the public health situation, effective Monday, November 23, 2020, no new jury selection was to commence in any court location except in those in a Green Zone as defined by the Ontario Government as of the date of the Notice (November 21, 2020). Ottawa was not, and is not, a Green Zone. The Notice advised that this restriction would remain in effect until at least January 4, 2021 with an update to be issued on December 29, 2020. Thus, the uncertainty with respect to when any jury trial may be available is increased. This is more the case for civil juries. Unlike criminal cases, there is no constitutional imperative that they be provided (see: Charter of Rights and Freedoms, s. 11). Generally, the Court has recognized the greater importance in providing jury trials in criminal cases.

[3] It is in this context, set by this increased uncertainty, that any prejudice to the parties should be considered. In Louis v. Poitras there was no substantive prejudice to either side. In this case, there is. The defendants have been unable to have their experts examine and assess the plaintiff, Josef Coban. The plaintiffs, even with the assistance that has been offered by the defendants, are at significant financial risk ("assessed by his treatment team as requiring 24-hour attendant case calculated at $308,124.96 annually"). The motion judge has accommodated the first by granting an adjournment (the case is scheduled to be heard "virtually" by a judge alone beginning on May 17, 2021) and the second by striking the jury notice.

[4] The increased uncertainty in the delay for any civil jury trial, in Ottawa, in company with the prejudice, particularly to the plaintiffs, is sufficient to justify the discretion exercised by the motion judge in striking the jury notice. It was neither arbitrary nor capricious. The test set in Louis v. Poitras, namely that there be some direct evidence of the immediate circumstances that supports a request to strike a jury notice be it with respect prejudice to the parties or the administration of justice more broadly cast, is met.

[5] It may be, as the defendants submit, that this matter has come to trial in an efficient, even expedited manner. That is to the parties' credit; but it doesn't create a circumstance where that success should, necessarily, be given up in the face of the uncertainty in both time and substance confronted by the plaintiffs on the particular facts of this particular case.

[6] Costs to be paid by the moving parties (the Defendants) to the responding parties (the Plaintiffs) $5,000 all in.

Lederer, J.

I agree _______________________________

R. J. Smith, J.

I agree _______________________________

Favreau, J.

Date: December 7, 2020