Time to Eliminate Most Civil Juries

Guest Author: Mary-Anne Strong, Beckett Personal Injury Lawyers

Recently, Ontario’s Attorney General, the Honourable Doug Downey, notified Ontario lawyers that his office is considering eliminating juries for most civil matters. This notice to the profession has been hotly debated in the legal community, but this issue should be important to every citizen in Ontario who one day may rely on our justice system.

Civil litigation involves many types of disputes but a large portion of those disputes arise from injury claims and mainly involve insurance companies. Claimants are often unable to work and in desperate need of healthcare not funded by OHIP. Some have no choice but to rely on social assistance as they wait for their case to come to trial, with the hope of obtaining compensation for their injuries, lost income, and medical needs. The longer they wait, the longer they rely on the public system.

Timely access to our court system is important to help ease financial burdens for injured members of the public and our social systems. Timely access to justice and efficient trials with just results should be our goal.

As a personal injury lawyer I have watched my clients’ wait times for trial dates grow. Personal injury matters take years to work through the system. When parties are ready for a trial date, year long waits or more are not unusual. The delay in accessing justice is only growing worse due to the necessary Covid -19 restrictions.

In Canada, there is no constitutional right to a jury trial in civil matters. Ontario is one of the last Canadian jurisdictions to grant parties the right to choose jury trials for most civil matters. In most provinces, civil trials proceed by Judge alone. Even in Ontario, civil juries were eliminated for matters where a claimant seeks $200,000 or less. The distinction between claims worth $200,000 or $200,000 plus one dollar seems arbitrary.

The reality is that civil jury cases require far more time than judge-alone trials, they are costly, and demand greater resources from our judicial system. Lawyers spend extra time preparing and presenting evidence for a jury trial. Coordinating the logistics of a jury itself takes time. The court must find a block of weeks, or months, in order to allow a jury trial to proceed in a smooth, uninterrupted fashion. Opening and closing statements take longer, and have to be carefully worded. Numerous interruptions occur throughout jury trials as the jury is excused from the courtroom so that the lawyers can address points of law with the Judge, or determine how evidence will be dealt with in front of the jury. Judges need to clarify legal concepts in their final instructions to the jury. At the end of the trial the Judge reviews all the evidence that was heard for weeks with the jury. Jury cases simply require more time and are consequently more difficult to fit into a system with limited resources.

Long and costly trials are not the only problems with our civil jury system. In motor vehicle cases, the law is complex. Juries are asked to quantify losses for claimants and yet they are not told about several laws and deductibles under the Insurance Act, which will reduce those awards after they have made their final decision. Afterwards, the Judge will apply laws, so at times, the original verdict by the jury looks very different in the end. Claimants are even prevented from telling the jury that there will be an insurance company that pays the award at the end of the trial.

Finally, we should also consider the burden of jury duty on the individual. For many people this is an unwelcome obligation. It often interferes with employment, parenting, business operations, schooling and other important aspects of daily life. Jurors are paid nothing for their first 10 days of service and a mere $40 a day up to day 49, and $100 a day at 50 days of service. They are not compensated for their lost wages or extra expenses like childcare. Employers are not required to pay their employees while they serve on a jury. Until recently, counselling was not provided for jurors who suffered trauma by viewing and hearing evidence in disturbing trials. It remains unknown how we will safely conduct jury trials during the pandemic and, at what cost.

Eliminating juries for most civil matters will: eliminate personal and financial burdens on jurors; free up court time; allow timely access to justice; and result in substantial cost savings for the judicial system, social systems, and for claimants seeking justice.

Civil juries may be important to retain in some cases. Exceptions could include cases that trigger public interest and engage community values. This is similar to other jurisdictions. This could include cases like defamation, sexual abuse litigation, negligence in healthcare, as well as cases in which awards of punitive damages are at issue.

Ontario has an opportunity to improve our civil justice system and dramatically reduce juries in our civil courts. As a community, we should embrace this change.

Read the full OTLA submission here.

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