Canada: Ontario Judge Admits: Jury Trials Exist To Keep Damage Awards Low For Insurance Companies

Last Updated: January 13 2017
Article by Marc G. Spivak

A recent decision of the Ontario Superior Court is making waves in the legal circles because of the trial judge's bold statements about the role of civil jury trials in our justice system—specifically in car accident litigation.

In the Mandel v Fahkim decision, Justice Frederick Myers explicitly vented his frustration with the civil jury system. He remarked that "Jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies".

The injured person in this case, Alan Mandel, suffered injuries from a car accident that occurred in 2009. While contact between the vehicles was found to be slight, the injured person claimed he suffered substantial physical and emotional injuries including severe and chronic pain.

The trial of this action was heard by a six-member jury over 12 days. Following deliberations, the jury awarded the plaintiff only $3,000 for general damages (pain and suffering) and nothing for past or future income loss, medical care, and housekeeping costs.

"It is perfectly clear that the jury believed that the minor contact between the vehicles caused Mr. Mandel only very minor injuries and it awarded him very modest damages accordingly", Justice Myers said.

Despite this modest award, the plaintiff will receive nothing to compensate him for his injuries. This is because of the statutory regime that governs damages awards in car accident cases. In Ontario, non-pecuniary damage awards (damages that compensate for pain and suffering and loss of enjoyment of life) that arise from car accidents are subject to a deductible of at least $30,000 (something personal injury lawyers at trial are not allowed to tell the jury about!).

The bold statements made by Justice Myers came about because the judge was asked to make findings of law that would conflict with the facts as they were decided by the jury. The role of juries in Canada is to assess the evidence and decide on the facts of the case as they are presented at trial. The role of the judge, on the other hand, is to act as a legal advisor to the jury and decide on matters of law.

In his decision not to disturb the findings of the jury, Justice Myers stressed the importance of respecting the findings of fact that juries are asked to make. "What does it say about what I told the jury and about the legitimacy of the jury's role, if the judge may not only ignore their findings, but may make binding pronouncements that fly in the face of the jury's findings?", he remarked.

Justice Myers went on to say, "If a judge can find facts that are inconsistent with the jury's findings and that have legal effect, what justification is there to summon people away from their lives to compel them to attend court?"

The current law in Ontario allows for a jury trial if it is requested by either party. Therefore, once the request is made, the only way to have a trial without a jury is to prove to a judge that there is good reason that it should not be tried by a jury—for example, because the issues are too complex for a jury. This is difficult to do in car accident cases, and is rarely done.

If Ontario were to abolish the civil jury trial, it would not be the first jurisdiction in Canada to do so. Quebec and the Federal Court of Canada have already gone this route. Even England, the country that has provided the foundation for our Canadian legal system, has abolished the use of civil jury trials in personal injury litigation. Some states and territories in Australia have also followed suit.

According to the civil justice reform project report published in 2007, the "flaws" of civil jury trials tend to disproportionately affect plaintiffs that are injured in motor vehicle accidents. The project reports that between 2005 and 2006, there were 6,839 civil trials heard in Ontario. Of these trials heard, 23% were jury trials. The vast majority of these jury trials involved litigation arising from car accidents.

A recent Law Times article advocating the elimination of civil jury trials in Ontario raised many of the flaws of the civil jury system in car accident cases.

As a personal injury lawyer, I can tell you that it is difficult for the average injured person to get a fair personal injury trial in Ontario—mainly because juries are wary of injured plaintiffs from the outset of the trial. They are kept from their family and jobs for weeks and blame the injured person for this. Juries usually have a much more difficult time with highly complex technical evidence—about accident reconstruction, injuries and loss of income, than a trained and experienced judge.

Jury trials compared to judge alone trials are much longer and more expensive for the over taxed courts and for accident victims. Insurance companies use this as a tactical advantage to try to force injured victims to settle for less than what their injuries should be worth.

Regretfully, civil jury trials are here to stay for the foreseeable future so make sure you have a lawyer that understands how a jury might respond to your or your family's personal injury case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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