Laura Hillyer is an injury lawyer at Martin & Hillyer Associates. She is the vice-chair of the Ontario Safety League and president of the Ontario Trial Lawyers Association.
I have been practising law for long enough that I have a prepared speech for friends and family who tell me (usually while rolling their eyes) that they have been called for jury duty. Like any good lawyer, I describe the history of the jury and the vital role it has played in the development of our law. I explain the right to trial by one’s peers and the fundamental role citizens serve as jurors in a free and democratic society.
I believe all these things. But I must confess that it has become harder and harder to make the speech when the jury notice involves a civil trial, as opposed to a criminal trial. Indeed, the civil jury system in Ontario is broken. There was a significant backlog of civil cases even before COVID-19. Injury victims were routinely waiting a year, or even two years, for their trial dates. Criminal and family cases receive priority for court time. As a result, civil matters have become bogged down by delay. The length of time it takes to have a jury trial has led to an even greater backlog.
Juries are not needed for many routine civil matters. Where critical issues of justice are not at stake or where there is no public interest issue worthy of being tested, a jury is unnecessary. But for those cases which require a jury, it needs to be just, fair-minded and efficient.
In our current system, the experience of many civil claimants with a jury has been less than perfect. Why is that? First, jury trials take longer than judge-alone trials. The jurors need to be vetted, educated about the process and the law, and there is often a lengthy learning curve for complicated evidence. Second, throughout this lengthy process, jurors are pulled out of their regular lives. Unless employers cover jurors' income while serving, they are not compensated. Eventually, if the case goes on long enough, jurors will receive a paltry sum in exchange for their continued service. Given these circumstances, we should only use jurors in cases where their service is truly needed.
Ontario’s Attorney-General is reviewing the role of civil juries. This effort is to be applauded. Ontario is one of only a few remaining provinces where one party in a personal injury case can insist on a jury trial at the taxpayer’s expense. Most provinces in Canada do not have such easy access to civil juries. England, whose justice system served as the model for our own, has not had civil juries for 30 years.
Insurance companies want to keep the system as it is. Why is this? It is because they benefit from its current design. The complexities of the insurance system, combined with the complexities of the legal system, can overwhelm even the most diligent and well-intentioned juror. Unfortunately, when cases take a long time to try, frustrated jurors may develop a bias against the plaintiff for having started the claim in the first place. Insurers then have a further advantage as the jury is never told the full context in which the case is being heard and the decision is being rendered. The jury is never told that the defendant driver’s case is funded and defended by a large insurance company. The jury is further never told of the hidden $40,000 deductible that applies to the plaintiff’s general damages in motor vehicle cases. This means that the plaintiff may, in fact, end up receiving significantly lower damages than what the jury thinks it has awarded. This situation led Justice F.L. Myers of the Ontario Superior Court to comment in a 2016 decision that “… jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies. … ”
The Ontario government should take steps to effect much-needed changes to the civil jury system. It is possible to provide injury victims with timely and fair access to the civil courts, while decreasing the civil case backlog. The right to a civil jury should be reserved for a small subset of cases, such as those that trigger the public interest or where community values are at stake. Then, when friends and family receive jury notices, I will have no reservations about encouraging them to seize the opportunity to serve as a juror.
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