Ontario Considers Eliminating Juries from Civil Trials

  • June 23, 2020
  • David Milosevic, Milosevic Fiske LLP

Litigation is a time-consuming prospect in any scenario, but trials involving juries are even more so. At a time when litigation has largely been on pause due to the COVID-19 pandemic, the backlog awaiting Ontario’s courts has been building. In response to the backlog, Ontario’s Attorney General has recently indicated that he is considering the idea of eliminating the use of juries in Ontario civil matters, and has sought input from the legal community on this issue.

Concerns of Bias and a Lack of Expertise

The call to eliminate juries from Ontario’s civil trials is not new, though the reasoning behind the recent push is different. Previously, lawyers and judges alike have expressed concerns that juries may not be ideally suited to decide complex civil matters involving complicated data. Further, there has been concern over the neutrality of juries, particularly in matters involving insurance companies.

In a 2016 decision called Madel v. Fakhim, the jury was asked to consider a matter involving injuries suffered in a car accident. The plaintiff in the case sought $1.2 million for the physical and emotional injuries he suffered as a result of the crash. The jury awarded damages totalling $3,000 to the plaintiff, causing the judge to state that “jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers.”

These comments inspired a plaintiff in a subsequent case called Kapoor v. Kuzmanovski to bring a motion seeking to exclude any person as a potential juror if they paid for car insurance. The rationale behind the motion was that there was an inherent conflict in finding against an insurance company, as a large damages award could in turn raise insurance premiums across the board.

On the matter of complexity, there is concern that matters involving complicated data such as medical information, technological issues, financial structures or the like are too difficult for the average citizen to properly assess in a trial. As a result, a jury may not fully appreciate the nuances of what is at stake, which may have a negative effect on the final decision or damages award. Of course, the same could potentially be said of a judge on a civil matter, as they are also not required to have special knowledge of complex subjects in order to preside over a case.