By LegalMatters Staff
With civil cases piling up due to the COVID-19 crisis it’s time to suspend jury notices to get courts moving again, says Barrie-area litigator Steve Rastin.
Rastin, Senior Counsel with Rastin Gluckstein Lawyers, says he has seen his cases delayed by up to 15 months and a contributing factor is the insistence of insurance companies to have such cases heard before a jury.
He says while there have been calls to abolish civil jury trials in the past, courts should at least consider the move temporarily to get files back on track.
“These were difficult and unprecedented times. We can talk about permanently getting rid of civil jury trials on another day. Right now, we have to act,” Rastin tells LegalMattersCanada.ca. “If you look behind the curtain, the people advancing the argument for civil jury trials are insurance companies.
Access to justice issue
“Access to justice in these extraordinary circumstances trumps the right of a corporation to have a jury hear a case,” he adds. “Don’t we owe it to society to deal with these matters more efficiently?”
Rastin says a jury trial can benefit insurance companies, especially since personal injury cases can be complex.
“Juries don’t have a full understanding of the law,” he says. “They don’t understand collateral deductions, they don’t always have the background and training to understand the medical evidence that even experts such as judges can find confusing,” Rastin says.
He says juries are not allowed to know about the $40,000 deductible that applies to the plaintiff’s general damages in motor vehicle claims and are not even aware the defendant is an insurance company.
“All they know is that some guy started a lawsuit that’s pulling them out of their jobs for weeks,” Rastin says. “Unless you are in a union or you are fortunate to have an employer who continues to pay you, a trial can be a real hardship for jurors.”
Could develop a bias
As well, because proceedings can be lengthy, jurors could develop a bias against the person who filed the claim.
“There’s some concern that frustrated jurors, who are finding their lives disrupted for what amounts to an economic dispute, will lash out in the only way they can and that is to take vengeance on the plaintiff,” he says.
Rastin says judges have weighed in on the issue of civil jury trials.
In a 2016 decision, Justice Frederick L. Myers notes that while jury trials in civil cases are the law of the land, they “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.”
In a successful motion to strike a jury this month, Justice Liza Sheard wrote: “The parties are ready for trial. But for the pandemic, the trial would have proceeded in October 2020. The events that gave rise to the action are already a decade old. The defendant’s right to a trial by jury is outweighed by the need to provide the plaintiff with more timely access to justice.”
Court has the discretion
In striking a jury in an Ottawa civil case on Sept. 1, Justice P. Roger ruled court has the discretion to decide if a jury trial is reasonable.
“The judicial discretion is subject to what is sensible, and in the appropriate case the right to a jury trial may have to yield to practicalities where that is in the interest of justice,” he writes.
Rastin says “the insurance industry claims they have a substantive right to a jury.”
“You would think by the way they are talking that this is some sort of fundamental charter right,” he says. “It’s not.
“People say the right to a jury is a substantive right and ought not to be interfered with,” Rastin adds. “However, in most other jurisdictions in Canada, they don’t have juries in personal injury trials. In England, they haven’t had civil juries in 30 years.”
He says civil jury trials are more expensive, more time consuming and more cumbersome than a trial by judge alone.
Rastin says the province is looking at a plan to halt civil jury trials during the pandemic.
Two choices
It all comes down to two choices, he explains. “Trials are going to be delayed for years due to COVID and innocent accident victims are going to suffer because they are going to lose timely access to justice,” Rastin says. “Or we’re going to suspend jury notices and we’re going to mitigate the harm to some degree.” He says if something isn’t done to get courts moving “people are just going to give up because the legal system is nonresponsive and not able to help them.” Rastin says the pandemic has already led to a phenomenon called the “COVID discount.” “I am hearing ‘Whatever you think your case is worth, wouldn’t you prefer to take some money this week rather than sit and wait years to maybe get your day in court?’” he says. Rastin says it’s time to re-evaluate the jury system. “The bottom line is sometimes you want juries. On issues relating to families or criminals you want the voice of the public to be there when you are faced with issues of credibility,” he says. “But juries are unnecessary in civil trials.”