Michael Ford (post until Oct. 31/19)
Personal Injury

Time to eliminate civil jury trials

The time has come to scrap jury trials in civil matters, says Toronto critical injury lawyer John McLeish

“The jury system has outlived its usefulness,” McLeish, a partner with McLeish Orlando LLP, tells AdvocateDaily.com. “Trials take longer, they’re more expensive, and the results are more uncertain.”

The vast majority of civil jury trials involve personal injury matters, McLeish says, and it is insurers who almost always elect trial by jury.

Juries tend to favour defendants, but plaintiff’s lawyers have few options, since judges can only strike jury notices in very limited circumstances, such as when the case is too complicated for ordinary citizens to understand, he says.  

“The jury pool in my view has been poisoned, probably because of all the tasteless and tacky advertising by a few personal injury law firms, which give the general public the sense that plaintiffs’ lawyers are a bunch of greedy ambulance chasers,” McLeish says.

In one recent decision, a judge seemed to sympathize with that view, when he commented 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.”

That followed the award by a jury to an injured individual of just $3,000 in damages for physical and emotional injuries, when significantly more was being claimed.

McLeish says the Law Society of Ontario could do its part to help restore the reputations of personal injury lawyers by cracking down on the false advertising of many personal injury firms.  This would help re-establish respect for the entire bar, as we are all painted with the same brush.

In the meantime, a plaintiff in another Ontario case has taken a new approach to tackling alleged bias by bringing a motion to exclude drivers from the jury pool. This plaintiff argues that anyone who pays car insurance premiums is in an inherent conflict of interest, because of the view that a large damages award in the case could increase their own insurance premiums.    Alternatively, the plaintiff’s lawyer in the case is arguing that he should be allowed to question potential jury members about their views, to ensure the final jury selection only includes people who can decide the case in a fair manner, the motion says.

The judge in the case adjourned the motion, so that interested parties, including the province, the insurance industry and lawyers’ groups could take part, and a hearing is expected to be held 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.  

“I don’t know if that’s going to be successful,” says McLeish. “But it would not be an issue if jury trials were eliminated in civil cases."


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