The Ontario Government is considering eliminating juries from civil cases during the pandemic and going forward. Very few civil jury cases have been able to proceed since the start of the pandemic due to provincial health restrictions. This has caused a huge backlog of cases in a system in which it already took years to get a civil case to trial. The proposal being considered by the government recommends that all current and future jury notices be immediately suspended until such time as the provincial health restrictions allow for civil juries to be empaneled and the COVID-19 delays and backlog of cases can be addressed. Additionally, the proposal recommends that the use of juries to try civil cases be eliminated on a permanent basis with the exception of certain types of cases (including defamation, assault, professional negligence and institutional negligence cases).
As a personal injury lawyer, I support the proposal currently being considered by the Ontario Government. My clients have had to wait far too long to proceed to trial in their effort to obtain fair compensation for their injuries. Both the wait and the expense of a jury trial impose a significant financial burden on individual injured litigants. They wait years to get to court for a determination of their entitlement to compensation for their pain, suffering, lost income and medical expenses.
Ontario is one of the last provinces in Canada where either party to most civil disputes has the right to file a jury notice requiring that the matter be tried by a jury. Even in Ontario juries have been eliminated for matters where the claim is for less than $200,000. Jury trials are longer and much more expensive to run than judge alone trials for all concerned. In motor vehicle accident cases there are additional complexities involved. We ask juries to quantify damages and assess responsibility but they make those decision without knowing all the relevant information including the role played by insurance laws including amounts which will be deducted from the amounts they award. Claimants are not permitted to tell the jury that the award will be paid by an insurance company in the end.
The burden of jury duty is onerous on the individuals chosen. Most people are not able to take a 7-week break from their lives including employment, school, parenting, caretaking and other responsibilities to sit on a civil jury. This is a huge ask by way of civic duty when jurors are not paid for the first 10 days of service and are only very modestly compensated thereafter. Employers are not required to pay the salaries of people on jury duty, so the financial hardship alone prevents most people from being able to sit on a jury. In Ottawa, this means that most jurors are federal government employees or retired individuals. Their service is appreciated but could be better spent acting in trials for which the right to a jury is essential, such as criminal matters.
The global pandemic has presented an opportunity to explore different ways to do things including working from home and online learning. I hope it will also be an opportunity to move forward to a more fair and efficient way to resolve civil disputes including the elimination of juries in most civil cases.
By Colleen Burn of Burn Tucker Lachaîne Personal Injury Lawyers
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