Personal injury lawyers continue to be frustrated by jury rules

While the changes to the small claims court and the simplified procedure have been heralded for having the potential to cut wait times for trials, there is another benefit to the changes for personal injury lawyers.

“There’s been ongoing discussion on both sides of the table about the current effectiveness of the civil jury system in the personal injury sphere,” says Jan Marin, senior associate at Gluckstein Personal Injury Lawyers.

The changes to the simplified procedure, which came into effect Jan. 1, are substantial, she says. Any claim can proceed under it as long as the defendant does not object, oral discovery is now limited to three hours, up from two, and all trials will proceed by way of summary trial. They will have a fixed trial date for a maximum of five days, no direct examination instead of 10 minutes and no time limit on cross-examination or re-examination. Costs will now be limited to $50,000 and disbursements to $25,000, exclusive of HST.

The other big change is that the maximum value of a claim under the simplified rules will be doubled — making it $200,000, up from $100,000. But perhaps most significant is the fact that jury trials will no longer be permitted under the updated rules for the simplified procedure, Marin notes.

Marin says there’s been “lots of chatter” around the office about making use of simplified procedure more because there’s a perception — or frankly, more than a perception, she adds — that juries “haven’t been too friendly to plaintiffs” and don’t understand the values or know about deductibles, for example.

“We’ve certainly been talking about using the new limit, particularly the new rules around no juries,” she says, adding that the increased limit, elimination of juries, limited oral discovery and set trial dates will encourage use of the new system, while the fact that the only oral evidence permitted at trial will be cross-examinations and the hard limit on costs and disbursements may discourage some parties.

“It may actually make a big difference in the more marginal auto cases or slip-and-falls and things like that.”

It’s a common frustration for personal injury lawyers that they cannot educate the juries on the inner workings of the insurance system. Sloan Mandel, a partner at Thomson Rogers, calls it “court-mandated juror ignorance.”

Consider a scenario where a woman driving her teenage daughter swerves to miss a squirrel and ends up in an accident resulting in a fracture of her daughter’s leg. To recover compensation, the daughter makes a claim against her mom and the insurer files a jury notice, refuses to pay and takes the case to trial.

The jury isn’t allowed to know what insurance coverage is available to the mom — for example, that the Ontario government mandates every driver must have at least $200,000 in coverage and that the mom has access to a motor vehicle insurance policy of $1 million and the daughter is claiming $75,000. The jury also cannot be told that if the pain and suffering claim awarded to the daughter is $130,000 or less, the judge applies a $40,000 deductible to the amount.

“The jury has to operate out of ignorance in those two respects,” Mandel says, even though it impacts on their intended outcome.

Juries often also don’t understand why a family member would sue another family member — the jury gets upset that the daughter would sue her mother for unintentional harm. Although they recognize that the daughter was injured, they don’t want to penalize the mother too severely.

He calls these concerns legitimate, and says they are common sense, but the jury misunderstands the bearing these assumptions will have on the case. If the jury awards the daughter $45,000, the daughter — and her mother — would be left with only $5,000 once the deductible is taken off.

“It’s not what the jury intended, but it’s the result,” Mandel says. “Rhetorically, I ask, is it any wonder that insurers invariably seek to file a jury notice in every personal injury case in the province of Ontario?”

Marin says there was “a movement” from some of the plaintiff’s bar alleging the jury system is no longer working, but there’s “a lot of pushback on that” from insurance companies and defendants. She adds that there’s also a certain legacy of that system that you must respect — and there are also some plaintiff lawyers who do like a jury and it’s important to them.

“There has been a push to talk about the elimination of civil juries,” says Marin. “There’s been judicial commentary about some decisions that judges thought weren’t fair, so there’s been a bit of a backlash.”

She points to an Ontario Superior Court case in 2018, Kapoor v. Kuzmanovski, where it was argued juries could not be impartial in car accident cases.

 “At the heart of the Plaintiff’s motion is the assertion that prospective jurors in civil motor vehicle accident cases who drive motor vehicles and are insured under Ontario’s motor vehicle insurance legislation have an inherent conflict of interest that prevents them from carrying out their duties as jurors in an impartial manner,” reads the decision. “The Plaintiff alleges these prospective jurors’ financial obligation to pay motor vehicle liability insurance premiums constitutes a personal interest adverse to that of Plaintiffs in motor vehicle accident cases.”

The court excluded a document the plaintiff sought to rely on as evidence, a survey of 300 residents of Brampton, Ont., that showed that 73 per cent of those surveyed would limit damages awarded in motor vehicle accident cases in order to keep insurance premiums lower. 

The Attorney General of Ontario, an intervenor in the case, argued that civil jurors can only be challenged for want of eligibility under Ontario’s Juries Act, an assertion with which the court agreed. The court also agreed with the other intervenor in the case, The Advocates’ Society, on its argument that a challenge for cause based on bias or lack of partiality of prospective jurors shouldn’t be read into the Juries Act and is a matter best left to the legislature.

The plaintiff’s motion was ultimately dismissed, with the judge ruling that there was no evidence of widespread bias among Brampton citizens as prospective jurors, either against the plaintiff in this case specifically or generally against similar plaintiffs.

Since there “wasn’t much traction being gained in the movement to eliminate juries more generally,” Marin says, perhaps that piece of the changes in terms of the simplified rules having a no-jury option is a reflection of that concern.

While there are a lot of ways lawyers are limited with the jury, she notes, the judge knows the laws in these areas — they know about the deductible, for example — so, with a judge-alone trial, there’s “a certain expectation they’ll understand.”

“I can’t say what happened behind closed doors, but that was something that was going on within the industry — it was a conversation that was happening,” she says. “One questions whether this portion of the changes might be in response to this wider discussion that’s been happening about whether civil juries are fair.”

Mandel says an issue with the change to the rules is that it assumes the lawyer can predict in advance what case is worth $200,000 and what case is worth more than $200,000.

“A real-world problem is that a vast number of cases are worth more than $200,000 in front of a judge and less than $200,000 in front of a jury, because of these court-mandated restrictions on the jury’s understanding of the law,” he says.

Other than the changes to the simplified procedure, Mandel says, he doesn’t see any other efforts being made to change this issue. To really remedy the situation, he says lawyers should simply be able to educate the jury, which essentially operates out of ignorance, to allay the unintended biases that work to suppress the compensation an accident victim should otherwise be entitled to receive.

But despite some lingering concerns, Marin still thinks the greater ability to get a judge-only trial will “make a big difference.”

“A judge is privy to everything that’s going on, the judge can make determinations about the weight or not that should be placed upon particular evidence with experience behind him or her.”

Marin also points out that, in Canada, unlike in the United States, “we don’t know much about juries — you’re going in fairly blind in terms of who these individuals are.”

Mandel says there’s a firm in the U.S. called Morgan and Morgan whose entire ad campaign is based on “this is what the juries aren’t allowed to know.” It runs ads on what lawyers aren’t allowed to inform the jury of at trial, in the hopes that it can educate people who may be potential future jurors.

“It might be effective, but I’d be reluctant to do that because I wouldn’t want to raise the ire of the judges in Ontario saying I’m doing indirectly what I can’t do directly,” Mandel says. “But that’s how one firm dealt with it in the States.”