COURT FILE NO.: CV-19-79195
DATE: 20200917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEF COBAN, LENKA COBANOVA, JOSEF COBAN and HELENA COBANOVA Plaintiffs
– and –
BRIAN DECLARE AND ERB TRANSPORT LIMITED Defendants
Joseph Y. Obagi and Elizabeth Quigley for the Plaintiffs
Andrew Evangelista and Karyn Shapira for the Defendants
HEARD: August 26, 2020 by ZOOM videoconference
REASONS FOR DECISION
Beaudoin J.
[1] The COVID-19 pandemic continues to affect this court’s operations in new ways and its impact has triggered two motions before me. The plaintiffs bring a motion pursuant to Rule 47.02 to strike the jury notice in this action. The plaintiffs say that jury trials are presently impossible, and they want to avoid any postponement of their upcoming trial date. By way of cross-motion, the defendants seek an adjournment of the trial pursuant to Rule 52.02 because the pandemic has interfered with their ability to obtain responding medical reports.
[2] In Louis v. Poitras, I stuck a jury notice as a result of the delays that the pandemic will have on jury trials: 2020 ONSC 5301. At paras. 1–12 I reviewed how the COVID-19 pandemic has affected the operation of our courts and the scheduling of trials at the present time and for the foreseeable future. I repeat and rely on those observations here.
The facts of this case
[3] This is an action for personal injuries arising from a motor vehicle collision that occurred on October 6, 2018. The action is scheduled to proceed to trial the week of November 16, 2020 for five weeks before a judge and jury.
[4] The plaintiffs, Josef Coban and Lanka Cobanova, were in their vehicle when they were rear ended by the defendant, Brian Declare, who was driving a tractor trailer owned by the defendant, Erb Transport Limited. The impact caused an instant catastrophic spinal cord injury to Josef Coban, rendering him a paraplegic. Josef is currently 60 years of age.
[5] Neither liability nor causation are truly in issue in this proceeding and the primary issue will be damages. Josef has no sensation or motor function beginning just below his belly button and he can no longer control his bladder or bowel functions. Due to his injuries, Josef is now wheelchair dependent and will require future care support for the rest of his life.
[6] The need for future care support is not disputed but the precise magnitude and quantum of the necessary care is in issue between the parties.
[7] Currently, Josef has been assessed by his treatment team as requiring 24-hour care. Josef's future care report indicates that his attendant care needs are $308,124.96 annually for 24-hour Personal Support Worker care. In addition, the future care report outlines further needs of $45,286.46 annually for medical rehabilitation and other services required for Josef's care and quality of life.
[8] The defendants’ future care assessor has opined that Josef should, at some point, be able to self-transfer, at which time his needs would be reduced to 8 to 10 hours per day. The defendants will refer to Josef’s extensive medical history to argue that some of this care would have been required in any event.
[9] Josef's medical and rehabilitation care funds are capped at $1M under the applicable Statutory Accident Benefits Schedule. These funds are rapidly running out. He has utilized approximately $862,107.32 in paid and approved medical and rehabilitation expenses in less than two years. At the time of arguing this motion, only $137,892.68 remains before these benefits are exhausted.
[10] Lenka Cobanova left her employment to provide attendant care to her husband. Her economic loss was calculated by the accident benefits carrier on a net basis of $43,820.88 per annum. Once the medical and rehabilitation benefits are exhausted, Lenka will no longer receive any compensation from the accident benefits insurer.
[11] Josef currently receives a Non-Earner Benefit of $185 per week, which will cease on October 6, 2020, in accordance with the applicable Statutory Accident Benefits Schedule. Once the medical and rehabilitation limits are exhausted, the total family income will be limited to Josef’s WSIB benefit of $263.19 per week (approximately $13,722.73 per annum).
[12] The statement of claim was issued on February 4, 2019. The defendants delivered their statement of defence and jury notice on March 20, 2019 and examinations for discovery of the parties preceded on July 3rd and 4th, 2019. The trial record was delivered on or about July 18, 2019 and the November 2020 trial date was obtained.
[13] The parties agree that they have worked diligently to have this matter proceed to trial as quickly as possible, given the plaintiffs’ current circumstances.
[14] The plaintiffs’ expert reports were provided to the defendants in September 2019. The defendants waited until after the mediation on January 20, 2020 to seek in-person assessments by their future care assessor and a physiatrist. They were in the process of doing so when the COVID-19 pandemic struck.
[15] The defendants had previously retained Sandra Vellone as the future care assessor. She had conducted a paper review of the plaintiffs’ expert report. The defendants had selected Dr. Richard Berbrayer as their expert physiatrist.
[16] It was understood by both counsel that, if Ms. Vellone has an opportunity to assess Mr. Coban, she might agree with the plaintiffs’ assessor on the need for 24-hour care.
[17] Defendants’ counsel was unable to speak with Ms. Vellone until March 5, 2020. Ms. Vellone then became gravely ill and was not scheduled to return to work until the end of March. Prior to her scheduled return, the COVID-19 emergency was declared in Ontario.
[18] As the public health restrictions began to ease, defendants’ counsel reached out to Ms. Vellone on June 11. After three more calls, Ms. Vellone advised on July 9, 2020 that she was not comfortable completing an in-person assessment and suggested that the defendants retain someone else. Plaintiffs’ counsel was kept informed of these efforts.
[19] To date, the defendants have not retained anyone else and have not described their efforts to find an alternate assessor. There is no evidence as to when an alternate assessor would be able to complete an assessment and prepare a report.
[20] Dr. Berbrayer works in Toronto. Due to Josef’s hospitalization at the Ottawa Hospital and the Ottawa Hospital Rehabilitation Centre, the defendants were not prepared to proceed with a medical examination conducted by a physiatrist affiliated with either of those facilities.
[21] When initially contacted on January 27, 2020, Dr. Berbrayer was willing to come to Ottawa so long as he was provided with sufficient examination space and a medical chaperone.
[22] Due to the COVID-19 pandemic, plans to complete the assessment were delayed. Dr. Berbrayer advised on June 26, 2020 that he was only seeing acute patients in-hospital at that time. When seeing patients in-person, Dr. Berbrayer was required to wear complete personal protective gear. He advised that he could not complete an assessment of Mr. Coban by virtual means.
[23] After Toronto entered stage 3 of the provincial reopening framework, Dr. Berbrayer was once again contacted on August 4, 2020. He was unwilling to come to Ottawa to assess Josef and expressed concerns about the implications for his practice if he would have to self-quarantine post-travel. He has not conducted any medical assessments since the onset of the pandemic. Once again, Plaintiffs’ counsel was advised of these developments.
[24] Josef is unable to travel to Toronto due to his disability. Plaintiffs’ counsel advises that solo transfers and ordinary washroom facilities are simply not accessible to him given his size and the assistance he requires every single time he must transfer.
[25] Plaintiffs’ counsel has offered to have Josef travel to the Ottawa Hospital or to any other hospital in the region so that Dr. Berbrayer could conduct his assessment at the hospital of his choice.
[26] That option has not been put to Dr. Berbrayer. There is no evidence of any other efforts to contact alternate physiatrists who would be able or competent to conduct an assessment. Prior to retaining Dr. Berbrayer, the defendants had contacted two other physiatrists located in Eastern Ontario, but they were unable to complete an assessment of Mr. Coban. No reason was provided for their inability to conduct the assessment and it is unknown if that inability continues at this time.
[27] On August 14, 2020 the defendants advised that they were prepared to make an advance payment of $250,000 to the plaintiff, pursuant to section 256 of the Insurance Act, within thirty days of any order adjourning the November 16 trial date. This payment would alleviate the plaintiffs’ financial concerns regarding payment of Mr. Coban’s medical, rehabilitation and daily living expenses.
[28] In recognition of the potential delay in obtaining a new trial date, the defendants agreed to make additional advance payments of $50,000 on June 30, 2021, December 31, 2021, and June 30, 2022.
Leave to bring this motion
[29] Under Rule 48.04(1) a party who sets an action down for trial may not initiate any motion without leave. This point was not seriously argued. The ongoing pandemic presents a substantial and unexpected change of circumstances since the filing of the trial record. The present circumstances require a more flexible approach to granting leave. With this need for flexibility in mind, leave is granted.
Position of the Parties
The Plaintiffs
[30] The plaintiffs argue that the ongoing global pandemic has made jury trials impossible for the foreseeable future. In these unique circumstances, they ask me to exercise my discretion and strike the jury notice in this action.
[31] As civil jury trials are indefinitely suspended and judge alone trials are resuming in Ottawa, the plaintiffs submit that the most just and expeditious, and least expensive, manner of proceeding to trial is by judge alone. They submit that the defendants have not provided any evidence of any prejudice resulting from the conversion of this trial from a jury trial to a judge alone trial.
[32] Josef’s annual gross income loss is calculated by his expert at $50,448.00 per annum. The Insurance Act limits plaintiffs’ recovery to 70% of their gross income for all income and losses of earning capacity suffered before the trial of the action. With the passage of time the sum of Josef’s income lost to this 70% restriction continues to rise. The plaintiffs maintain that this conversion of future losses into past losses—and the pursuant 30% reduction in the plaintiffs’ possible recovery—results in an unfair windfall to the defendants.
[33] The plaintiffs further argue that the compensation, which they are receiving for medical, rehabilitation and attendant care expenses, will shortly be exhausted and that they are not being compensated for Josef's actual care needs. Lanka has left her employment to provide for Josef’s 24-hour attendant care. Once the insurance benefits are exhausted, she will not receive any compensation for the care she is providing. Any delay of the trial will put undue financial burden on the family.
[34] The plaintiffs argue that this delay and the resulting limitations of expenditures for attendant care treatment would prejudice them and could create a windfall to the defendants. They express concerns that the defendants will argue at trial that the plaintiffs are not entitled to be fully compensated for past care and rehabilitation claims in the same manner as the future claims because they have not actually incurred those costs and since attendant care is provided by Lenka.
[35] The plaintiffs point to their dire financial circumstances. After October 6, 2020 Josef's non-earner benefits will cease and the family’s income will be reduced to $13,170 per year.
[36] They submit that the defendants’ proposed advance payment of $250,000 amounts to approximately 2/3 of Josef’s annual care costs and stress that the three additional payments of $50,000 are spread out by six-month periods ending in June of 2022. They submit that these sums are not enough to pay for Josef’s reasonable and appropriate attendant care and treatment and do not meet the basic needs of his family.
[37] They argue that the defendants have not put forward any evidence of their attempts to locate alternate assessors or to ascertain their availability.
The Defendants
[38] The defendants rely on their substantive right to a jury trial and they argue that the plaintiffs have not met the burden of showing that justice to the parties would be better served by the discharge of the jury.
[39] They note that the motor vehicle collision occurred less than two years ago and that 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.
[40] They submit that the parties have not incurred significant costs in preparation for trial that would be thrown away if the trial is adjourned.
[41] The defendants submit that there are genuine issues in completing defense medical examinations due to COVID-19 that warrant a trial adjournment.
[42] The defendants note that, as of the hearing of this motion, Josef’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 the adjournment of the trial.
[43] They say that past income losses arise through the operation of the Insurance Act and this affects all plaintiffs injured in motor vehicle collisions. They ask that the matter be adjourned for one year, to the Fall of 2021.
The Law
Striking a jury notice
[44] In Louis v. Poitras, I reviewed the relevant case law and stated that it had to be reconsidered in the light of the present exceptional circumstances. I 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. In that case, all parties were ready to proceed to trial and the delay of seven years was considered too great to warrant any further postponement to an unknown date.
Adjournment of a trial
[45] Rule 52.02 of the Rules of Civil Procedure allows a judge the discretion to adjourn a trial to such a time and place, and on such terms as are just.
[46] In Khimji v. Dhamani, Laskin J.A. succinctly summarized the operative legal principles in considering an adjournment request: 69 O.R. (3d) 790, 2004 Can LII 12037 (ON CA) at para. 14. Although Laskin J.A. was in dissent, the majority accepted his articulation of the following statement of principles:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.
[47] Laskin J.A went on to identify the factors that a court should consider when considering a request for an adjournment:
i) The overall objective of civil proceedings: a just determination of the real matters in dispute;
ii) Prejudice caused by refusing or granting an adjournment;
iii) A party’s explanation for not being ready for trial; and
iv) The length of the adjournment requested and disruption to the court's trial schedule.
[48] These factors have been applied in subsequent cases. The case law reveals the Court’s need to weigh the need to obtain a just determination of a dispute on its merits while avoiding undue prejudice to the party resisting an adjournment.[^1]
[49] More recently, Strathy C.J.O. wrote as follows: Turbo Logistics Canada Inc. v. HSBC Bank Canada, 401 D.L.R. (4th) 187, 2016 ONCA 222 at para. 23:
That list (of factors) includes not simply factors of immediate concern to the parties, but factors affecting the broader public interest, including the objective of determining the matter on its merits, the appearance of justice and the needs of the administration of justice in the orderly processing of trials.
Analysis and Conclusion
The Adjournment
[50] For the following reasons, I will grant the adjournment, but I limit the trial adjournment to a period of six months from the original date trial date.
[51] The defendants have cooperated with the plaintiffs’ counsel and have worked diligently to have this matter heard as expeditiously as possible. No one anticipated the pandemic and its impact. The defendants continue to demonstrate good faith in their offer of a prepayment of $250,000 to alleviate the financial pressures that the plaintiffs are facing.
[52] The plaintiffs concede that an in-home assessment is necessary so that the defendants can properly evaluate Mr. Coban’s future care needs. Given the nature of Mr. Coban’s injury, the defendants are entitled to have a properly qualified expert assess his condition in-person. This evidence will further the just determination of the matters in issue.
[53] Regrettably, there is no evidence as to the defendants’ inability to find equally competent experts to complete their assessments in a timely manner. There is no evidence that Dr. Berbrayer or some other physiatrist could not assess Mr. Coban at a hospital location in this area.
[54] While the record before me supports the defendants’ request for an adjournment, the defendants are asking the plaintiffs to accept two unknowns: i) when their matter might be tried by a judge and jury, and ii) when the defendants might be ready to proceed.
Striking the jury notice
[55] In the few COVID-19 decisions where a jury notice has been struck[^2], there has been a lengthy passage of time between the event giving rise to the cause of action and the trial date. In this case, the defendants forcefully argue that the delay is less than 2 years and that there are no concerns over the deterioration of the evidence.
[56] Even so, delay is a relative term. In some cases, a claim could take years to “ripen” before the full extent of an injury can be known and properly assessed. In others, the damage done is quickly ascertained and the only issue is its quantification. Such is the case here. Even then, a short delay can become more significant if it is coupled with other prejudice.
[57] In this action, the financial benefits provided to the plaintiffs through their accident benefits insurer will soon be exhausted. 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, 2022.
[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.
[59] The plaintiffs should not be forced to compromise their claims because of their pressing financial needs. It is unknown when a civil jury trial can be heard in Ottawa. These plaintiffs do not need more uncertainty. The jury notice is struck.
[60] As a result, the trial is adjourned to a date after May 15, 2021 for a period of three weeks before a juge alone.
[61] In granting the adjournment, I rely on Rule 1.05 of the Rules of Civil Procedure to order such terms as may be necessary and just. These terms are as follows:
- The defendants will make their first prepayment of $250,000 within 30 days of this order.
- The parties are to attend the next trial management court to obtain a trial date.
- The parties are directed to develop a trial management plan that will, to the fullest extent possible, permit the conduct of a virtual trial. A trial management conference should be held following any future pre-trial conference.
- The defendants have leave for late service of their expert reports. Leave is granted to the plaintiffs for late service of any responding reports.
- This trial will involve the competing evidence of expert witnesses. Since there is a reasonable prospect for agreement on some issues with respect to Mr. Coban’s future care needs, the parties are encouraged to seek a pre-trial order requiring the future care assessors or other experts engaged by them to meet on a without prejudice basis, as contemplated by Rule 20.05(2)(k).
Costs
[61] Having regard to the results of these motions, costs are reserved to the trial judge.
Mr. Justice Robert N. Beaudoin
Released: September 17, 2020
COURT FILE NO.: CV-19-79195
DATE: 20200917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEF COBAN, LENKA COBANOVA, JOSEF COBAN and HELENA COBANOVA Plaintiffs
– and –
BRIAN DECLARE AND ERB TRANSPORT LIMITED Defendants
REASONS FOR decision
Beaudoin J.
Released: September 17, 2020
[^1]: See Ariston Realty Corp. v. Elcarim Inc., [2007] O.J. No. 1497, 2007 CanLII 13360 (ON SC) at para. 34; Toronto-Dominion Bank v. Hylton, 270 O.A.C. 98, 2010 ONCA 752 at para. 38. [^2]: 10 Belton v. Spencer, 2020 ONSC 5327; Higashi v. Shariot - Court File No. 14 -61439 (Unreported)