My colleague, Éliane Lachaîne, published a recent blog on whether we should have civil jury trials in Ontario. Éliane’s blog post explains Ontario parties’ right to have their case tried by a jury if the case claims damages of over $200,000.

Jury trials – the risks and some context

Jury trials are generally more expensive and longer than trials heard by a judge. Jurors have little or no legal knowledge or training because judges, justices of the peace, lawyers and articling students are not eligible to sit as jurors. The jury assesses evidence and makes key decisions such as the liability of the parties and the value of the injured person’s losses without relying on legal precedent or training.

In a jury trial involving a personal injury, the parties are the injured person as plaintiff and the defendant person who caused the injury. The jury cannot be told that the damage award will usually be paid by the defendant’s insurer. The defence lawyer is paid by the driver’s insurance company, but the jury does not know this. The rationale behind keeping the jury in the dark about the insurance company’s involvement is apparently based in the view that juries will be more inclined to find for the plaintiff if they believe an insurance company with deep pockets will pay the award rather than the negligent defendant.

The trial will appear to be a fight waged between two individuals, but everyone involved in the trial except the jury is aware that the fight is between an individual and an insurance company. The negligent defendant is at relatively low personal financial risk in the law suit due to the insurance.

In personal injury cases, insurers routinely choose to have a trial by jury. Their lawyers must feel that juries are inclined to find in favour of the defendant where the defendant is an individual.

Long term disability actions and juries – some history

Long term disability (“LTD”) cases are different than personal injury cases because the defendant is the insurer. There is no mystery or secret about the real parties to an LTD lawsuit. The insured is suing their own insurance company to enforce their right to benefits in their insurance policy.

If insurance companies in personal injury matters prefer juries because plaintiffs are suing individual defendants, is the opposite true when a person sues their own insurer? A jury might be more inclined to find for an insured plaintiff in an LTD case. The jurors may personally relate to some element of the plaintiff’s plight. The jurors may have their own coverage – perhaps with that same insurer defendant – and may feel aggrieved for the plaintiff.

For this reason, life and disability insurers did not serve jury notices and, in fact, when faced with a jury notice, LTD insurers would apply to the court to strike out the jury notice in cases. The rationale was that a claim under an LTD policy was a claim for declaratory relief. The plaintiff is seeking a declaration of disability and actions seeking declaratory relief were not permitted to be tried by a jury under section 108 of the Courts of Justice Act. In the 1990s, Ontario courts agreed with this reasoning but in the early 2000s, this objection was laid to rest when an Ontario judge aptly and comprehensively dealt with the argument, finding that the declaration of disability was a factual declaration which could be dealt with by a jury.

The fact that LTD insurers objected to juries may suggest that a plaintiff should want their LTD matter tried by a jury. However, the concerns involved in choosing to have a matter tried by a jury remain – they are costly, longer and it is risky to have people with no legal training determine a lawsuit. Simply put, juries are unpredictable which increases risk. Given that very few LTD matters go to trial, the potential benefit of a serving a jury notice may be entirely theoretical.

When might a plaintiff choose a jury for an LTD matter?

Every person who has been denied LTD benefits is without income at a dreadful time in their life. They have become too sick to work and expected part of their income to be paid by their LTD insurer. Every client I have represented has seen their own circumstances as compelling, their illness to be clear and most have believed that any reasonable person would side with them and see them to be disabled. The crisis that the person finds themselves is real and heartbreaking, and they cannot compare their case to someone else and find it less compelling. Having practiced in LTD for almost 25 years, I can look back on hundreds of memorable cases to consider where a case will have emotional appeal to a jury. Many cases would not have had that appeal.

None of the following cases describe my past clients but these fictional clients have some elements of files from my experience with insurance – as a plaintiff’s lawyer, a mediator and a defence lawyer..

Plaintiff #1 – Hilda – the housekeeper…

Hilda came alone to Canada as a refugee after a civil war in her home country. Hilda has taken courses and tried to learn English. Despite her best efforts, she continues to speak very little English. She has worked as a cleaner in office buildings for 25 years and drives her bicycle to and from work in good weather. Hilda has never been off work for illness and has an excellent work history. She is an engaged member of her community, was a valued employee for her work ethic and volunteered for local charities. She has no family. Her income is low but she lives frugally and within her means.

Hilda fell off her bike on her way home from work and broke both of her wrists. She has never been able to use her hands in a meaningful way since the accident and has gone on to develop chronic pain and depression in addition to her physical limitations. The insurer pays her for two years and terminates her claim at definition change, alleging she can do another job, working for minimum wage. Hilda has been approved for CPP-D, has had to sell her house and is living in a rooming house. Her friends and neighbours are shocked by the changes in her. Hilda’s case might appeal to a jury.

Plaintiff #2 – Terry – the 911 operator….

Terry has been a 911 operator for years. He coped with the stress of his job by keeping to a regular routine of exercise and meditation. He has developed post traumatic stress disorder after a particularly bad series of calls. Terry’s PTSD has been treated and he has done everything recommended to him. The only thing that helps Terry cope with life is using marijuana to sleep, avoiding stressful situations, regularly exercising and meditating.

No medication has worked for Terry – several medications have made him suicidal and he has been hospitalized for periods as a result. The insurer pays Terry for a period and terminates his claim based on an in-house medical opinion that Terry should be on medication and not use marijuana. Terry’s psychiatrist, counsellor and family physician are all unequivocally supportive of Terry and have concluded after years of treatment that medication is not helpful. They support his claim. Terry’s case might appeal to a jury.

Other claims:

While this article refers to LTD matters, my thoughts on jury trials apply equally to life insurance, long term care claims, critical illness matters and travel insurance. In any of these cases, an individual is suing their own insurer.

Plaintiff #3 – Evelyn – the widow and beneficiary …

Evelyn and Paul have been married for 30 years. They have had life insurance since the beginning of their marriage. Shortly after Paul turns 60, his company closes and he loses the job he loves. Paul had intended to work until his late 60s. He was in great health, he had great coworkers and enjoyed going to work every day. Until he lost his job, Paul seemed to live a charmed life.

Since they have paid off their mortgage and have no debt, Paul and Evelyn want to reduce the cost of their life insurance. They are sold a new life insurance policy by their agent. After looking for work and having no luck, Paul develops a habit of taking sleeping pills and drinking heavily every night to sleep. Paul dies of an accidental overdose one night. The insurer denies his claim on the basis that he has died from suicide within the first two years that the policy has been effective. Evelyn’s case might appeal to a jury.

Conclusion:

Jury trials are risky and expensive. There will be many times that a jury notice is not appropriate in an LTD, life insurance or critical illness insurance even if the plaintiff’s circumstances are compelling and sympathetic. We have the experience necessary to carefully consider your case and advise you appropriately. If your case is an appropriate one for a jury in Ontario, Burn Tucker Lachaîne PC has years of experience trying cases before juries.

For advice please text 613-777-0992 or contact us through our website to schedule a meeting with one of our lawyers.  We provide a free consultation, in French or English, to ensure that your rights are protected.   In most cases, we can offer to represent you on a contingency fee basis.  This means that you do not pay legal fees unless you win or achieve a settlement on your case.

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