Kapoor v. Kuzmanovski, 2017 ONSC 1709

The Court is set to consider whether payors of automobile insurance premiums should be excluded from sitting on juries and intervening parties are set to weigh in to assist the Court in making a determination.

Released March 16, 2017Full Decision [Document Bank]

An interesting question was raised by Plaintiff’s counsel prior to a Trial that was set to commence in January 2017, which is now the subject of a motion: Should persons who pay for automobile insurance premiums be excluded as potential jurors? The Plaintiff’s position is that automobile insureds are in a conflict of interest in serving as jurors because they cannot act impartially given that their premiums are, theoretically, impacted by Judgments and results in favour of Plaintiffs.

The Court invited the parties to make submission as to whether other interested parties ought to be invited to intervene as friends of the Court and make submissions pursuant to Rule 13 of the Rules of Civil Procedure. The parties agreed that this case was appropriate for intervention (with the exception of the Defendant, Unifund Assurance Company, who did not oppose an intervention).

At paragraph 14 of the Endorsement, the Court summarized the factors to be weighed when considering whether to grant a non-party intervenor status. They are:

  1. The nature of the matter at bar;
  2. The nature of the issues anticipated to arise on the motion; and
  3. Whether the proposed intervenor would assist and contribute to the determination before the Court, without prejudicing any of the parties.

The Court held that the motion “raises novel and significant issues as to the rights of parties involved in motor vehicle accident cases”, and that it affects the rights of citizens to participate in civil Trials as jurors. With respect to the third factor, the Court refused the Plaintiff’s request to allow counsel for OTLA to act as a friend of the Court for fear that the essence of Rule 13 would not be achieved by inviting advocates, instead of neutral parties, to intervene.  Instead, the Court preferred counsel chosen by the Advocates’ Society to assist the Court given that its members represent both the Plaintiffs’ bar and the insurance bar and “would not be acting in the more traditional role of a neutral amicus curiae”. The Court also commented that it would be appropriate to invite Her Majesty the Queen in the Right of the Province of Ontario to assist the Court pursuant to Rule 13.

The Court struck the matter from the Trial list and ordered the Plaintiff to serve motion materials on the Advocates’ Society and the Office of the Attorney General for the Province of Ontario on behalf of Her Majesty the Queen in the Right of the Province of Ontario.

The implications of this motion are far-reaching, especially given the pattern of unfavourable jury decisions in personal injury actions in recent years. This author eagerly awaits the Court’s commentary and decision in response to what is being recognized as a novel and clever argument put forth by counsel for the Plaintiff.

Read the full decision on the OTLA Document Bank
Steven Glowinsky
Written by

Steven Arie Glowinsky was called to the Ontario Bar in 2010 and is an associate at Pace Law Firm in Toronto, ON.