Canadian Underwriter

Ontario court delves into the timing of threshold motions during jury trials

October 13, 2010   by Canadian Underwriter

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Ontario’s courts seem to be in a quandary about the timing of hearing a threshold motion in a jury trial.
A threshold motion under s. 276.5(15) of the Insurance Act determines whether an auto injury is “serious or permanent.”
The quandary is this: If the threshold motion is heard and decided before a jury renders a verdict, then it could be argued the jury’s work is for naught. On the other hand, if the judge waits until the jury reaches a verdict on damages, will the jury’s decision influence the judge’s decision on the threshold motion?
In Clark v. Zigrossi, released in October 2010, Ontario Superior Court Justice David M. Brown argued in favour of refraining from hearing a threshold motion until the jury had returned with its verdict.
As it happened, the jury came back with a verdict of $5,000 in damages to the plaintiff, which was reduced to zero by the $15,000 deductible automatically subtracted from trial awards.
“I do not regard a threshold motion…as an opportunity to take an indirect run at the jury’s verdict,” Brown wrote.
“To decide a threshold motion before a jury returns with its verdict risks undermining the important role played by civil juries in this province,” Brown wrote elsewhere in the reasons. “To decide a threshold motion before the jury delivers its verdict strikes me as inconsistent with such an exhortation [to the juries to approach their jobs with diligence and care] and as disrespectful of the place of juries in our civil trial system.”