August 19, 2020 by Greg Meckbach
Motor vehicle accident lawsuits in Ontario are often decided by juries, and one personal injury lawyer would like to change this.
“I don’t see a valid cause as to why juries should be retained at all in civil trials,” said Nathan Tischler, a lawyer with Campisi LLP, who frequently represents claimants before the courts and the Licence Appeal Tribunal.
Tischler 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.
This puts Tischler at odds with the Insurance Bureau of Canada.
“Experience shows that cases decided by juries are less susceptible to appeal because the jury is typically granted great deference in its findings,” an IBC spokesperson told Canadian Underwriter.
Quoting a 1996 report from the Ontario Law Reform Commission, IBC says jury notices tend to promote out-of-court settlements.
Both IBC and Tischler agree that the Ontario Trial Lawyers Association is not calling for a ban on jury trials.
But Tischler has several issues with juries. Unlike judges, juries do not have to report reasons for their decisions. In fact, juries are not allowed to discuss the case after it is over, said Tischler.
In Ontario, a judge can rule that a case will not go before a jury, but there has to be a very good reason, suggests Tischler.
Though he is in favour of abolishing juries for all categories of lawsuits, juries in motor vehicle accidents put injured clients at a particular disadvantage, suggests Tischler.
“Juries seem to be less generous in awarding damages for personal injury, in general, over the last decade or so. It’s an interesting reversal of what historically was the case. In the ’60s and ’70s, juries were actually thought by insurance companies to be more generous than judges were as far as personal injury awards [go]. Now we have the opposite, but no one is sure exactly why.”
Tischler also takes issue with the interplay between juries and the statutory deductible for non-pecuniary damages, or pain and suffering, for tort awards. That deductible is currently at $39,556.53 and indexed to inflation. This means if a jury awards a client $40,000 for pain and suffering in a motor vehicle tort case, that client would only get $443.47 once the deductible is factored in.
Tischler and other personal injury lawyers dispute the practice that juries are not supposed to know about the deductible, even though the deductible is part of the law in Ontario.
“If I was the plaintiff lawyer, I would not be allowed to tell [juries about the statutory deductible for pain and suffering] or else it is likely to result in a mistrial. The jury is blind as to what they area really awarding. The jury thinks $30,000 or $20,000 is a lot of money for pain and suffering in some cases, and they don’t realize that the victim is getting nothing, even if they are not at fault for the accident,” said Tischler.
He explains the rationale for juries in criminal cases.
“In criminal trials, there is this justification that they are a necessary check in order to secure the liberty of the citizen against a zealous state that wishes to prosecute them. But that doesn’t exist in a civil case. In a civil case, you are just talking about a monetary dispute between two different parities.”
Feature image via iStock.com/RichLegg