Personal Injury

Civil jury trial system needs update: Lee

By Tony Poland, AdvocateDaily.com Associate Editor

Ontario’s civil jury system “reduces access to justice for many injured plaintiffs” and needs to be modernized, says Toronto personal injury lawyer Andrew M. Lee.

Lee, principal of Lee & Associates, says juries “can be unfriendly to plaintiffs” which makes it difficult to be fairly compensated when your claim goes to court.

“If you are not getting a satisfactory result through settlement negotiation, and you want your day in court, and you want what you feel is rightful compensation then currently you're facing risk and uncertainty if you're proceeding to trial,” he tells AdvocateDaily.com. “So there's a large amount of pressure to settle your case early for less than what it is worth.”

Lee says if one party to a lawsuit elects to do so, personal injury cases will go before a jury.

“In almost all instances, the defendant's insurance company and their lawyer will file a jury notice because it gives them a tactical and strategic advantage,” he says. “That's because jury trials create uncertainty and risk for many personal injury claimants.”

Lee explains procedural matters take more time when appearing before a jury, so trials last longer “and therefore increase the cost to litigants.”

“From my personal experience, a jury trial can take twice as long as a judge only trial,” he says.

Lee says another problem is that the average juror in Ontario is likely to be jaded toward a plaintiff.

“There's an impression, rightly or wrongly, that people are suing for nonexistent or minor injuries and that personal injury claims are lacking in merit,” he says. “I suspect many jurors believe meritless claims are driving up insurance rates, so the big concern is that potential jurors are not objective and impartial.”

Lee says jurors may also be bitter that they have been called to serve, pulling them away from their families and their jobs for several weeks.

He says they may also feel resentful if they believe the “case is low in value, so there's the possibility that a jury panel can punish the plaintiff with a low award.”

The other reason jury trials can work against the plaintiff is those serving on them “may not be suitable for cases where the evidence is overly complex or technical,” Lee says.

“Today’s personal injury cases can involve testimony from accident reconstruction experts, engineers, actuaries, forensic accountants, doctors, psychologists, and appraisers,” he says. “When you're presenting the evidence to a jury, you have to explain it carefully to six members of the public, and that can be time-consuming."

Lee says there’s currently a recommendation from the Ontario Civil Rules Committee for changes to the Simplified Procedure Rules to increase the limit in personal injury claims from $100,000 to $200,000 and eliminate juries in cases worth under $200,000.

He says there’s been “a groundswell of support” for the changes, which require legislative amendments.

"It is now up to the Ministry of the Attorney General and the provincial government," Lee says.

Under the proposed changes and the new limits, claims of less than $200,000 would go before a judge alone.

“I feel that judge alone trials are a safer bet for a plaintiff. There is greater predictability, judges are expected to follow past case law and provide written reasons. Juries are required to do neither,” Lee says. “If a judge rules against the plaintiff, there's always the possibility of an appeal, but you can’t appeal a jury decision.”

He notes such a system would “not be novel.” Juries do not hear personal injury cases in other common law jurisdictions such as England and Quebec.

Catastrophic claims and other large monetary value cases worth more than $200,000 would, of course, not move through the simplified procedure but there are plenty of plaintiffs who would see a benefit, Lee says.

Increasing the simplified procedure cap would not only be good for the claimant, but it will also help the overburdened court system, he says.

“If we can eliminate juries in cases worth under $200,000 that would reduce the backlog and allow more judicial resources to be dedicated to other matters,” Lee says.

By removing the jury, there is less risk for the plaintiff. Most cases will be shorter so, in the event of an unfavourable verdict, the cost consequences will be smaller.”

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