This Op-Ed by Duncan Macgillivray was originally published in the Chronicle Journal on July 31, 2020.
The Ontario Government is considering eliminating juries for new civil lawsuits. Eliminating most civil juries makes sense.
Civil jury trials should be reserved only for exceptional situations which trigger a public interest and engage community values or a person’s character. The exceptions should include cases involving things like defamation, intentional torts (or wrongs), professional and institutional malpractice in healthcare, and assessment of punitive damages (to punish defendants).
For most civil cases, juries are not needed. Jury trials are longer and more expensive than judge-alone trials. Extra time is spent selecting the jury, lawyers arguing in front of the jury in absence of the jury, and then with the judge instructing the jury.
Jury trials are also more difficult to schedule. For example, in Thunder Bay, there are civil jury sittings only a handful of times a year.
Right now, the most common type of civil jury trial are motor vehicle collision cases. There is no need for a jury in these cases. They do not engage any sort of public interest.
With a jury, motor vehicle collision cases take longer and are more expensive. It is a complex area of law. In my Insurance Law class at the Bora Laskin Faculty of Law, I show my students quotes from judges who have criticized the messy complexity of motor vehicle cases and automobile insurance law. To paraphrase one judge, woe be to the injured person caught up in that system of law.
Perhaps more importantly, the motor vehicle collision case jury is left in the dark about some very important facts. The jury is not made aware of the $40,000 secret deductible on pain and suffering damages in motor vehicle collision cases. So, when a jury decides that an injury victim’s pain and suffering is worth$45,000 , the jury is unaware that the damages are automatically reduced to $5,000 because of the deductible.
In addition to that secret $40,000 deductible, the jury is not told that the defendant’s case is funded and run by a large insurance company. And, that all damages are paid by the defendant’s insurance company.
These secrets are part of the reason why defence lawyers in motor vehicle collision cases almost always ask for a jury.
Rich automobile insurance companies will say “Keep juries! It is an Access to Justice issue”. If it was an Access to Justice issue, then these same insurers would allow the jury to be told about the deductible and about how insurance companies run the defendants’ cases. And, where is the Access to Justice when you have a massive backlog of cases (as they do especially in Southern Ontario)?
The combination of these secrets plus the extra cost and time that is required to run a jury trial leads to the conclusion that juries should be eliminated for most cases and with some exceptions as noted above.. By eliminating civil jury trials in new cases, the Ontario Government would be taking a much needed step in the right direction.