On June 5, 2020, amidst the COVID-19 pandemic, Doug Downey, Ontario’s current Attorney General, called for input on temporarily suspending civil juries. The reality is that the civil courts have been essentially shut down since mid-March. Civil cases already take a back seat to criminal and family law trials. When the courts open, there is going to be a large backlog of cases that need to be dealt with and civil cases will be at the back of the line.

Civil jury trials have been phased out abroad. Is it time to do the same here in Ontario?

There is no doubt that a civil jury trial takes more time and is more expensive than a judge alone trial. Having juries decide civil cases has been part of the Ontario judicial system for over 150 years. But just because something has been done for a long time doesn’t mean that this is reason enough to keep it going.

In England, civil juries were abolished nearly 40 years ago for almost all civil cases. Most of the other provinces here in Canada do not have civil juries decide civil cases. Even before the pandemic getting a civil case to trial would take a long time – 3 to 4 years would be quick and 5 to 7 years more the norm.

We need to do better. Will eliminating the civil jury trial make justice more accessible? We can’t say for sure.

Motor vehicle crashes: An example of how civil jury trials can miss the mark.

There is no constitutional right to a civil jury trial. There are many good reasons to eliminate the civil jury. This is particularly true for motor vehicle crash cases.

Motor vehicle crash cases make up the bulk of the civil cases going to trial. Unfortunately, due to the complex insurance laws in Ontario and the hybrid system with no-fault benefits alongside the tort case, obtaining a fair verdict in a motor vehicle crash case from a jury can be difficult. For starters, the jury is not told about the deductible on pain and suffering damages.

Currently, if a drunk driver or a distracted driver innocently injures you, the at-fault driver’s insurance company is not required to pay the first $39,556.53 of damages! This amount increases each year by inflation. How is this fair? A jury finds that a fair verdict to compensate a plaintiff for injuries and losses caused by a negligent defendant is $75,000 but is never told that the judge will reduce this amount by $39,556.53.

Civil jury trials should be reserved for cases where there is a public interest. 

There is also merit to eliminating civil juries for most other private civil disputes. Almost no one from the public wants to be called for jury duty. Why should we impose on our citizens the need to take two or three weeks out of their lives to decide a private dispute? However, while it is time to abolish the civil jury for most cases, there should be some exceptions; namely those cases where there is a public interest. For example, medical malpractice cases where the dispute involves the care provided by publicly funded health care professionals or our hospitals should continue to allow civil juries.

We need to make some radical changes to ensure that all Ontarians can access justice in a fair and efficient manner.