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Personal Injury

Excluding drivers from pool would end civil juries

An attempt to bar insurance-paying drivers from civil juries would kill the system as we know it, says Toronto personal injury lawyer Jessica B. Mahabir.

In an ongoing personal injury case, the plaintiff has brought a motion to exclude drivers who pay premiums from the jury pool altogether, reasoning that the possibility a large damages award could cause a hike in their own rates leaves them in an inherent conflict of interest.

“If you prevent drivers from serving on a jury, that would remove a huge chunk of the population,” Mahabir, a lawyer with Derfel Injury Lawyers, tells AdvocateDaily.com. “Considering there are already all sorts of people who can’t sit on a jury, I’m not sure it would be able to continue in practice.”

She says the future of juries in civil matters is a controversial issue in the bar, with many advocating for judges to handle the cases alone due to a feeling that members of the public have a negative view of claimants and their representatives.

The extra time and expenses associated with jury trials also count against the system, and they are no longer permitted in civil cases in the Quebec or Federal courts.   

“The insurance industry has done a good job of letting people know about fraud and linking that to higher rates,” Mahabir says. “The law also helps limit the information that jurors are fed about the defendant and deductions, which creates a disconnect between their decision and what the plaintiff actually receives.”

Despite that, Mahabir says there is still a place for juries — she would favour much less drastic solutions, such as an alternative suggested by the same claimant in the motion currently before the courts.

If the judge won’t agree to his attempt to strike jurors, the plaintiff wants to be granted the right to question potential jury members about their views to ensure the final panel only contains people who can decide the case in a fair manner, according to the motion filed with the court.

“That’s a good compromise that would be fair to both sides,” says Mahabir, who is not involved with the case and comments generally.

A similar mechanism is already available in criminal cases, where defence lawyers are allowed to challenge jurors for cause.

“You don’t know much about jurors, other than their name and occupation, so it would be useful to ask them some questions to see if they have any biases that would prevent them from keeping an open mind in the case before them,” Mahabir says. “It could work for both sides because if you get someone on the jury who has been a victim of a car accident, the lawyer for the defendant might want to challenge that person too.”

The judge in the case adjourned the motion so that interested parties — including the province, insurance industry and lawyers’ groups — could take part, with a hearing expected in the near future.

“Although the issues at stake in this action involve the private rights of the litigants, the motion relief sought by the plaintiff involves much broader considerations that may impact the rights of other parties involved in motor vehicle accident cases as well as possibly the rights of citizens of Ontario to sit as jurors in those cases,” the judge wrote.

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