As I write this, Ontario is in the midst of a third wave of the Covid-19 virus – this time with more contagious variants that are infecting younger people. Ontario is working on getting vaccines into arms but this takes time and vaccines. On April 7, 2021, the Ontario Government declared a third state of emergency and a Stay-At-Home order along with strict lockdown restrictions.

What does this have to do with civil jury trials?

Over the past 14 months, NO civil jury trials have taken place. I personally had one civil jury trial cancelled due to the pandemic. Many, if not most, personal injury lawyers are in the same boat – civil jury trials being cancelled. This is not fair to our clients who have been waiting years to get their cases resolved. Over the time of the pandemic, our court administration has worked very hard to bring the court process into the 21^st century and we now have the ability to conduct virtual civil trials. But. there's a catch. These virtual civil trials involve only a judge.

 

Several judge-alone virtual civil trials have gone very well.

A virtual civil trial has many benefits. One significant benefit is the cost savings that result from not having to bring expert witnesses to the court. We practice in the Quinte area. Our courthouse is located in Belleville, ON. The reality is that for most of our cases, we retain experts who work and live in distant places. In a virtual trial, the expert witnesses can provide their evidence without travel and without waiting around the courthouse. They can stay where they are and testify from their home or office. This is a significant cost saving.

The reality is, we are going to get through this pandemic and our courthouses will be open to the public once again. But, I say we use this opportunity to critically look at why we need civil jury trials at all going forward.

In my view, it is time to eliminate jury trials for most civil cases.

It is my belief that for the majority of civil cases, jury trials are simply not necessary. I think there need to be exceptions for cases that involve public interest such as medical malpractice, defamation/slander, malicious prosecution and intentional torts (eg. battery), but for other civil cases, justice is better served by proceeding before a judge alone. This is particularly the case for motor vehicle crash cases.

The reality is that except for the most seriously injured, most plaintiffs in automobile crash cases fail to obtain fair and equitable justice from a jury. Why is this the case?

Some reasons include the inability to tell the jury the truth about the deductible on pain and suffering, the 70% limit on pre-trial loss of income and the 100% deduction of all collateral benefits without any specific matching.

There are times when a civil jury's decision is inequitable due to a lack of information. 

Let me provide a real-life example of a case in which, due to the lack of information about insurance deductibles, a victim was not served well by a civil jury but may have been by a judge alone.

In October 2015 I had a 19-day civil jury trial. My client was injured when a drunk driver drove out of his driveway and directly into the path of my client’s vehicle. The defendant driver was convicted of impaired driving – his second conviction for impaired driving. My client suffered injuries to his ligaments, tendons and facet joints. He could not reasonably continue working in construction. He settled his no-fault accident benefits claim with his own insurance company in 2010. Part of the settlement was payment for 5 years for income replacement benefits of about $130,000.

Following the 19 day trial, the jury’s verdict was $50,000 for pain and suffering, $50,000 for past loss of income, $100,000 for future loss of income (from October 21, 2015, and into the future), $5,000 for past loss of housekeeping capacity, $10,000 for future loss of housekeeping capacity and $5,000 for expenses for a total of $220,000. The jury was not told that the amount they determined was fair and reasonable damages for what was taken from my client would be reduced by a deductible on pain and suffering damages in the amount $36,540, and all of the income replacement benefits previously paid, even if they were for different time periods.

The result after the deductions? A net judgment to my client of about $19,000!

For civil juries to be effective and just, they must be fully informed or we must cease to rely on them. 

If the jury had been fully informed about the deductions I expect that the jury would have taken these deductions into consideration. A judge, on the other hand, is aware of these deductions and will ensure that an injured plaintiff is appropriately compensated for his or her losses. Unless we are going to be honest and upfront with jurors about the deductible and collateral benefits that will reduce a jury’s verdict, an injured plaintiff is unlikely going to receive fair and just compensation.

We have a choice.

We either allow lawyers to be brutally honest with jurors about the deductions or we eliminate civil jury trials, particularly for motor vehicle crash cases. The status quo is unacceptable. The time is now to make the change.

Kristian Bonn

Personal Injury Lawyer

Bonn Law