Time for a change to the civil jury trial

By Bergeron Clifford, Joe Dart, Guest Column. Kingston Whig-Standard posted in Editorial on September 17, 2020

Civil jury trials have a longstanding tradition in Ontario. However, times change. Civil trials are much different in 2020 than they were in 1920. They are longer, use more resources and are much more expensive. Timely access to justice is fundamental to all Ontarians. Unfortunately, it now takes too long to get a civil jury case to trial. Too often, I must tell clients that there will be a three-, four- or even five-plus-year delay to get their case to trial.

When COVID-19 struck, the concern over court delays amplified. Court operations were suspended and all trials (criminal, civil, family) were adjourned. Our firm had to notify numerous clients that their trials, scheduled to run this year and next, have been and will likely be cancelled. These are regular citizens who have been waiting years for their day in court and are now being told that they will have to wait even longer. Further compounding this problem is that no one in the system knows with any confidence when civil jury trials will be rescheduled. Criminal jury trials, which have also been significantly backlogged and take priority over civil cases, are only now being rescheduled. Civil jury trials will therefore have to wait until those cases work their way through the system.

The reason for all of this is that our civil procedure and legislation allows either party, plaintiff or defendant, to demand a jury trial. Once that demand is made, the other party has no choice but to go along with it. In personal injury litigation, it is generally the defending insurance company that chooses a jury because it knows that, for example, a jury cannot be told during the trial: a) the fact that an insurance company is defending the claim on behalf of the at-fault driver and will pay out any judgment awarded; and b) the deductible of just under $40,000 that applies to reduce general damage awards in car accident cases.

In Canada, Ontario is the only province that allows one party to insist on a civil jury trial as of right. Most provinces limit the right to a jury and require the party that wants a jury trial to make an application to a court and be granted permission to have the case heard by a jury. The default is a judge-alone trial as opposed to the default being a jury trial.

We need to do better. Justice delayed is justice denied. The time is now for this government to take bold action to dramatically improve our civil justice system. Abolishing civil jury trials for most but not all civil cases will:

  • Improve access to justice.
  • Reduce the costs of civil trials (judge-alone trials can proceed by virtual means much easier than jury trials, for example, thereby reducing time and the costs of witness attendances).
  • Encourage more civil cases to settle before trial.
  • Improve predictability of outcomes for clients (both plaintiff and defence, since judges are bound by precedent whereas juries are not required to give reasons for their decisions).
  • Improve the overall efficiency of our civil justice system.

We would support exceptions to the abolition of jury trials for all civil cases where the subject matter of the case involves significant community values, including, for example, defamation/slander cases, professional and institutional negligence cases (nursing home cases, institutional sexual abuse, medical malpractice, etc.) and any case involving the assessment and award of punitive damages.

Abolishing civil juries for all cases, save and except for the few exceptions listed above, will substantially improve our civil justice system. From my experience and general knowledge, these proposed exceptions only represent a small fraction of the overall caseload in the civil justice system. Maintaining the right to a civil jury for these cases will not take away from the benefits of eliminating the jury for all other civil cases.

The time to act is now to make the civil justice system more efficient and more cost-effective for the public.

Joseph Dart

Partner, Bergeron Clifford LLP

Member, board of directors, Ontario Trial Lawyers Association

Guest Column – Kingston Whig Standard for September 16, 2020

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