The pros and cons of juries in civil trials

If the Ontario government abolishes juries in civil trials, this would take away a basic protection for defendants in personal injury lawsuits, a defence lawyer suggests.

“The solution is not to abolish juries in personal injury actions. The idea being tried before a jury of one’s peers is kind of a fundamental right,” said Laura Emmett, a London, Ont.-based lawyer with Strigberger Brown Armstrong LLP.

Ontario Attorney General Doug Downey wrote this past June to several stakeholder groups asking for their views on potential changes to the Courts of Justice Act on the availability of civil juries. Part of the concern is social distancing precautions arising from the COVID-19 pandemic.

The letter asks whether civil juries should be eliminated altogether and, if so, should juries still be retained in certain categories of lawsuits.

Nathan Tischler, a personal injury lawyer with Campisi LLP, is in favour of changing Ontario law such that all civil trials in Ontario are held before a judge alone. His proposed change would only apply to civil lawsuits and not to criminal cases.

Unlike judges, juries do not have to report reasons for their decisions, Tischler told Canadian Underwriter.

But often the question before courts in personal injury cases is whether a defendant was negligent or acted reasonably under the circumstances, suggested Emmett.

“You are looking at what a reasonable person would do in the circumstances, or what is a reasonable standard. All of that goes back to what a similar person in a similar situation would or would have not done. So a jury of your peers is in a perfect position to assess those factors,” said Emmett, whose areas of practice include bodily injury lawsuits and auto accident benefits coverage disputes

Getting rid of jury trials in Ontario lawsuits would solve “quite a few issues” in the civil justice system, said Tischler.

Because of the Supreme Court of Canada’s 2016 ruling in Barrett Richard Jordan v. Her Majesty the Queen, courts are now prioritizing criminal cases to go to the front of the line and civil cases have been going to the back of the line, Tischler said.

Related: Why this trial lawyer wants to ban civil jury trials

Jordan arose from a criminal case involving drug charges. The delay from the time the charges were filed to the conclusion of the trial was nearly 50 months. So the Supreme Court of Canada overturned the defendant’s conviction on the grounds that his right to be tried within a reasonable time was violated. The top court set time frames on how soon criminal cases need to be tried.

But this should not result in a broad decision to eliminate all civil jury trials in Ontario, Emmett told Canadian Underwriter.

“There is no empirical evidence to support the fact that by saying we are not proceeding with a jury any longer, that you are going to get a case heard any quicker. There are mechanisms in place if a matter needs to be urgently heard. If the circumstances are such that there cannot be a delay, then a part can bring a motion to strike a jury and the judge can hear the various factors or the parties can consent to the matter proceeding without a jury based on the specific facts of that case.”

Quebec has eliminated civil jury trials altogether, Downey noted in his letter this past June to stakeholders. Other jurisdictions maintain juries only for certain matters — such as defamation, false imprisonment and malicious prosecution.

“The civil jury has asserted itself as a great service to our civil society in determining civil rights and liabilities in an area of law that requires a balancing act: What constitutes the ‘reasonable person’, a ‘reasonable standard’ or a ‘reasonable amount of time,’” Canadian Defence Lawyers said in its submission to the Ontario government. “These are questions that often need flexibility and that justice comes from jurors who are taken from all walks of life as they are more likely than a sitting judge to reflect the social climate in which we live our lives.”

Not all plaintiffs’ lawyers are in favour of abolishing civil juries outright, said Tischler.

“Some of them think that it should be reserved for certain cases, such as medical malpractice, or defamation. For me, I think it comes down to the fact that our province is facing a fiscal crisis right now or will be shortly with COVID-19-induced recession. We have a situation where the government revenues are going to drop because of high unemployment, tax revenues will dry up, the government will likely be spending more than ever on healthcare and social services and they will also have to retrofit the courts for jury trials.”

Feature image via iStock.com/IPGGutenbergUKLtd