Scrapping the civil jury

Critics say juries are not suited to determine damages in personal injury cases, but not everyone agrees.

Todd McCarthy got a recent reminder of Canadian society’s high regard for the jury when he received a notice to attend for duty at his local courthouse through the mail.

McCarthy, a partner in the Whitby, Ont. office of Flaherty McCarthy LLP, checked the box indicating that his profession as a lawyer would exclude him from taking part — but not before reading over the letter and its stern warning to recipients that a failure to appear could result in a fine or imprisonment.

“Voting and jury duty are the two hallmarks of citizen participation in a democratic society. Voting’s not mandatory yet, but with jury duty, you’re compelled to be there,” he says.

In McCarthy’s view, an institution first used here pre-Confederation — one that can trace its roots all the way back to Magna Carta — is one worth standing up for. And he and his fellow insurance defence lawyers have been forced into action over the last year as critics in Canada’s most populous province step up the pressure to scrap or reform the civil jury system.

“I don’t think we should be afraid to put faith in our fellow citizens as fact finders. There is no evidence that juries are any less competent than a single judge in coming to a fair and reasonable decision,” McCarthy says. “When a jury is struck, it says that they aren’t equal to a judge as fact finder. To me, that’s demeaning and smacks of bigotry. I think we should be wary of making the administration of justice a lawyers’ and judges’ club.”

One Ontario case that caused a stir last fall — Mandel v. Fakhim — involved a man who was seeking $1.2 million in damages for physical and emotional injuries following a car crash.

When the jury returned with a verdict of just $3,000 in the victim’s favour, Ontario Superior Court Justice Frederick Myers appeared to give voice to those who believe juries are hostile to plaintiffs when he commented that “jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers.”

Myers’ decision was part of the inspiration for a motion brought by the plaintiff earlier this year in another Ontario case, Kapoor v. Kuzmanovski. It seeks to exclude any person who pays for car insurance from the jury pool in civil cases due to an inherent conflict of interest caused by the risk a large damages award could boost their own premium levels.

Alternatively, the plaintiff’s lawyer, Jeff Strype, wants to be allowed to challenge and exclude unsuitable panel members after he says a series of “inexplicable” decisions cast doubt in his mind about jurors’ ability to judge a case fairly on its merits.

“This is yet another assault on the jury system by plaintiffs’ counsel who seem to believe that jurors are not as sympathetic to their clients as they would like,” says Eric Grossman, a partner at Toronto insurance defence boutique Zarek Taylor Grossman Hanrahan LLP, noting that many of the motion’s supporters have also called for a doubling of the monetary jurisdiction of the province’s simplified rules that would keep claims worth less than $200,000 out of the hands of juries.

He says those who believe the jury pool is biased have a selective memory that excludes high-value judgments for plaintiffs, and he suggests the spike in unfavourable decisions could be down to the increasingly hardnosed attitude insurers are taking to cases they see as having no merit.

When defendants refuse to offer settlements to claimants with very weak cases, Grossman says, plaintiffs’ counsel are “stuck trying cases where they would have accepted a modest sum” with inevitably disappointing results.

Despite the recent onslaught, McCarthy says civil juries have experienced a “renaissance” in the last decade in Ontario. The system effectively allows one party to force a jury over the objections of another, unless they’re able to convince a judge that the case is too complicated for laypeople to handle, he says.

In 2008, McCarthy brought a Constitutional challenge in an attempt to strip judges of their ability to strike a jury at all. The case was ultimately unsuccessful, but a series of appeal court decisions since then have narrowed the scope of a trial judge to take over, culminating in the 2015 case of Kempf v. Nguyen, in which a judicial panel ordered a new trial due to a wrongly dismissed jury and at the same time put a stop to most complexity arguments.

“Striking has become the exception rather than the rule, which is a great thing,” McCarthy says.

But the motion in Kapoor could shift the momentum in the opposite direction. A hearing is expected some time in the fall, and it will feature interventions from Ontario’s attorney general, as well as a host of other interested parties.

In the event the motion is granted, Grossman says it has the potential to wipe out the province’s civil jury pool, revolutionizing the system in one sweep.

That would suit Rhona DesRoches, a board member of FAIR, the Association of Victims for Accident Insurance Reform. She says plaintiffs currently face an uphill battle to win over jurors tainted by insurance industry propaganda about fraud in the system.

DesRoches says judges are in a far better position than a group of laypeople to navigate the way through complex legislation and conflicting expert testimony and arrive at a fair conclusion for accident victims. She says Ontario should follow the lead of jurisdictions such as Quebec and the United Kingdom, where juries are no longer allowed in motor vehicle cases.

“We’re behind the times,” DesRoches adds.

Moin Yahya, a professor on the law faculty at the University of Alberta, says small populations or language issues have made it practically difficult for Canadian provinces outside of B.C. and Ontario to take advantage of rules allowing juries in civil matters.

Last year, New Brunswick’s attorney general suggested formally abolishing the right to a jury in virtually all civil cases, pointing out that the province had held just one trial in the last 15 years.

If there are real concerns about institutional bias among jurors backed up by empirical evidence in Ontario, Yahya says they can be cured within the existing system by instructions.

“There’s a lot of evidence that jurors take instruction seriously. They look to the judge for guidance,” he says. “I’m not a fan of people knocking the system because they don’t like the verdict. If you don’t like the outcomes, change the instructions or change the substance of the law on what jurors are told about maximum and minimum damages.

“There are other ways to change than attacking the jury system or trying to get rid of it,” Yahya adds.

In B.C., Vancouver lawyer Angus Gunn says perceptions about where juries’ sympathies lie swing back and forth over time.

“Sometimes, they seem more popular with defendants, and other times plaintiffs, but I don’t think you can generalize in either direction,” he says.

Despite concerns about its cost, Gunn says support for the civil jury system is “fairly robust” in the province. And when one party requests one, he says there’s a high barrier for the jury notice to be struck.

Gunn recently acted for the defendant and respondent in Donaldson v. Dorworth, where B.C.’s appeal court upheld a case management judge’s decision to proceed with a jury over the plaintiff’s objections, despite the unusual nature of the claim, and the proliferation of medical experts called to opine on the issues in dispute.

In Gunn’s view, jurors are just as well equipped as judges to “look into the whites of the eyes of witnesses” and decide whether they are credible, as well as other non-legal questions.

“It’s also a tremendous opportunity for the public to learn about the court system from somewhere other than the TV. People I have spoken to about it come away with a new respect for what lawyers and judges do,” he says.