Canada: Can Motorists Be Jurors???

Last Updated: August 17 2018
Article by Julianne Brimfield

In Kapoor v. Kuzmanski, on the eve of a trial, the Plaintiff brought a novel motion to exclude potential jurors who drive and pay for automobile insurance or who have insurance premiums paid on their behalf from the jury pool. The Plaintiff suggested that an inherent conflict of interest arose for these potential jurors due to the widespread and publicly known fact that increased court awards and settlements increased automobile insurance premiums. The Plaintiff alternatively sought orders that these same residents should be excluded from the jury selection process as being ineligible or based on widespread bias in the community. In the further alternative, the Plaintiff sought to strike the jury notice.

The motion was opposed by the Defendants. Additionally, the Attorney General of Ontario and The Advocates Society were invited to make submissions and render assistance as friends of the court. The motion proceeded before Regional Senior Judge Daley. Following lengthy submissions, the Court wholly dismissed the motion.

The selection and eligibility of jurors is mandated by the Juries Act. The Court noted that section 32 to 34 of the Juries Act deals with challenges and does not permit a broad/general challenge for cause. Rather, the Juries Act only allows for challenges for cause in civil cases on two grounds: (1) for want of eligibility; and (2) for ratepayers and officers/servants of municipal corporations, where the municipal corporation is a party. The Court recognized that a broad/general challenge for cause should not be read into the legislation.

Given that none of the parties involved in this action were a municipal corporation, the only basis for a challenge for cause was want of eligibility, which is addressed in section 3 of the Juries Act. Section 3(3) states as follows:

Connection with court action at same sittings

(3) Every person who has been summoned as a witness or is likely to be called as a witness in a civil or criminal proceeding or has an interest in an action is ineligible to serve as a juror at any sittings at which the proceeding or action might be tried.

The Court noted that this provision does not automatically disqualify jurors with an interest in the action and, further, nowhere does the Juries Act expressly state that lack of impartiality is a ground to disqualify a juror based on ineligibility. The Court concluded that the proper interpretation of section 3(3) led to the conclusion that the word “interest” could only reasonably be construed contextually to refer to having a “connection” to an action. Specifically, “has an interest in an action” was limited to witnesses and prospective witnesses. As such, the Court concluded that only individuals who are or who are likely to be called as witnesses are ineligible to serve as jurors under section 3(3).

The Court held that the Canadian system presumes that jurors are capable of setting aside their views and prejudices and acting impartially upon proper instruction by the trial judge. The Court found that a number of safeguards exist to ensure the integrity of the civil jury process and trial fairness, including the ability of the Court to discharge a juror during the course of a trial on several grounds, including impartially.  Therefore, the presumption of impartiality may be overcome or displaced by calling evidence or by asking the Court to take judicial notice of facts (or both). However, a successful challenge cannot be based on speculation or assumptions.

Notably, the Plaintiff tried to rely on a survey that had been commissioned by his counsel as evidence of widespread bias. The survey was conducted over two days in January 2017 in Brampton. The Plaintiff alleged that this survey was expert evidence. The questions posed in the survey dealt with (1) the impact of higher automobile insurance premiums on the persons interviewed and (2) whether they would seek to lower their own premiums by limiting the damages awarded in a motor vehicle case or whether they would award damages regardless of the impact it would have on their insurance premiums. Notably, the survey was submitted as an attachment to an affidavit sworn by a law clerk.

A Voir Dire was held to determine whether the survey was admissible. First, the Court held that the evidence in the survey was hearsay at best and that, generally, social science and survey evidence was of uncertain quality and reliability. Second, the Court noted that opinion evidence should not be in the form of reports attached to an affidavit of a deponent who has no personal knowledge of the contents of the reports, as this essentially insulates the expert from cross-examination.

Third, the Court expressed concern that the survey did not consider whether the respondents, as prospective jurors, would be capable of setting aside bias if instructed to do so, as these types of questions were not posed. Fourth, the survey only surveyed individuals who drove and paid for auto insurance. It did not survey a random or representative sample of people. As such, it was considered to have little to no relevance or probative value.

The Court ultimately concluded that survey did not meet the minimum requirements to constitute expert evidence. Accordingly, it could not be admitted as expert evidence. The Court went on to find that there was no evidence whatsoever that would demonstrate the presence of widespread bias among Brampton citizens against the Plaintiff.

This decision is important because it confirms that jurors are always presumed impartial. Parties are not able to exclude jurors based on an allegation of bias before trial has even commenced. It is certainly difficult to believe that juries would continue to be representative of the general population if large population groups, such as people who pay auto insurance premiums, could be routinely excluded from the jury pool.

See Kapoor v. Kuzmanoski, 2018 ONSC 4770

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions