Law Times

Law Times • November 7, 2016 Page 3 www.lawtimesnews.com 'Seem to exist . . . solely to keep damages awards low' Judge has strong words for jury trials in civil cases BY ALEX ROBINSON Law Times T he commentary of a judge in a recent Superi- or Court decision has re- ignited a long-standing debate on the use of civil juries in personal injury matters. In Mandel v. Fakhim, the jury found the defendant was responsible for causing a car ac- cident in 2009, but it awarded the plaintiff, Alan Mandel, just $3,000 for damages after he sought $1.2 million. Justice Frederick Myers sup- ported the jury's decision, but he also had some strong words for the civil jury system. "While 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 facili- tate injured parties being judged by their peers, the fact is that the jury system is still the law of the land," he wrote in the decision. "This jury has spoken and did so loud and clear." Lawyers say the decision is an example of how tough civil juries are on plaintiffs in per- sonal injury matters. Kris Bonn, a plaintiff side personal injury lawyer, says juries have been par- ticularly hard on plaintiffs over the last four or five years. "It's, unfortunately, the real- ity. Juries over the last several years have been unfairly inf lu- enced by mostly the insurance companies to come in with a prejudice against injured plain- tiffs," says Bonn, who was not involved in the Mandel case. Bonn says it is difficult for the average plaintiff to get a fair per- sonal injury trial as a result, es- pecially in cases concerning car crashes. While there are certain- ly cases that are successful, Bonn says there can often be a discon- nect between what juries award and what a judge feels is fair. "I think that it's unfortunate, but the reality is a lot of juries are jaded against injured plain- tiffs," he says. Under the current system, just one side needs to issue a re- quest for a jury. Once the request is made, if the other party does not want a jury trial, they have to prove the case is too complex for a jury, which is rarely the case in personal injury matters, says Bonn. He would like to see the sys- tem changed so that both parties would have to agree on having the matter tried before a jury. "There should be the option to opt in to a jury trial, but the default should be that if one par- ty objects, then there is no jury trial," Bonn says. Lawyers say jury trials are also more expensive than having a trial with a judge and can often take twice as long. Eric Grossman, a defence side lawyer, says complaints about civil juries date back decades, but in his view they play an im- portant role. "They are the conscience of the community. Judges by their very presence of hearing cases day in and day out don't share that conscience to the degree a juror does," says Grossman, a partner with Zarek Taylor Grossman Hanrahan LLP, who was not involved in the case. "Things that will offend a juror may not offend a judge. Things that a juror may view as common sense, a judge may have been wired to overlook be- cause they see so many things that are not common sense day in and day out as a judge." In the Mandel case, the contact between the cars in the accident was "slight," accord- ing to the decision, but Mandel claimed he suffered "very sub- stantial physical and emotional injuries" from the crash, result- ing in chronic pain. He also has not worked since the accident. After a 12-day trial, the jury awarded Mandel the $3,000 for general damages and did not award anything for loss of in- come, medical care or house- keeping costs. "It is perfectly clear that the jury believed that the minor contact between the vehicles caused Mr. Mandel only very minor injuries and it awarded him very modest damages ac- cordingly," Myers said. "There is no way to under- stand the jury's verdict other than to conclude that either: (a) the jury did not believe the plaintiff 's testimony as to the extent of his injuries; or (b) they did not believe that the plaintiff proved that his injuries were caused by the trivial contact be- tween the parties' vehicles." Mandel will not recover any of the money awarded because of a requirement under the In- surance Act in Ontario that all non-pecuniary damages arising from car accidents are subject to a mandatory deductible, which was at least $30,000 in this case. Bonn says that jurors are not told about this deductible before they come to their verdict. "The jury's already coming in jaded, already maybe provid- ing reduced compensation and then it gets reduced again fur- ther," he says. Frank DelGiudice, one of the lawyers for the defendants, said a jury was suitable for this case as credibility was a central part of it. "A lot of this case had to do with credibility of the plaintiff and, as Justice Myers said, they spoke loud and clear in coming to the decision that they did," he says. DelGiudice, who is a partner at McCague Borlack LLP, says very few personal injury matters actu- ally go to trial and the ones that do often centre on credibility issues. As long as a judge properly provides charges, juries are well equipped to deal with these kinds of cases, he says. "A lot of the cases that are be- ing litigated are chronic pain cases where credibility is key," he says. Alan Rachlin, the lawyer for the plaintiff, says jury verdicts have been low in recent years but not because of any inherent fail- ing of the civil jury system. "What distinguishes our so- ciety from any others is that peo- ple can ask for other members of the community to decide their dispute," says Rachlin, a partner at Rachlin & Wolfson LLP. "These days I think it's fair to say virtually every insured defen- dant asks for a jury because they recognize the reality that juries have become cynical and tend to render low verdicts. That's, I think, a ref lection of other fac- tors rather than any inherent f law in the system," he adds. LT NEWS Frank DelGiudice says very few personal injury matters actually go to trial and the ones that do often centre on credibility issues. A legal classic for your bankruptcy and insolvency practice Always up to date – two editions a year The Annotated Bankruptcy and Insolvency Act continues to be the resource you can rely on for authoritative guidance and current law and policy at a moment's notice. 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