Law Times

Page 10 November 26, 2018 • Law Times www.lawtimesnews.com 'I think we have a serious problem' Lawyer tries to overhaul civil jury process BY MICHAEL MCKIERNAN For Law Times A Toronto personal inju- ry lawyer is not giving up his fight to reform the province's civil jury process, despite a setback in the Ontario Superior Court of Jus- tice. In Kapoor v. Kuzmanovski, Regional Senior Justice Peter Daley ruled against the plain- tiff 's motion to either exclude anyone who pays car insurance premiums from the jury pool or give him the right to challenge them for cause. But plaintiff 's counsel Jeff Strype has already applied for leave to appeal the decision to the Divisional Court, claim- ing drivers should be struck in these cases due to an inherent conf lict of interest created by the risk large damage awards pose to their own premium levels. He says he would like to see Ontario follow the lead of other jurisdictions, such as Quebec and the United Kingdom, where juries are no longer allowed in motor vehicle cases. In others, such as B.C., he says reforms such as a legislated right to chal- lenge jury panel members for cause and expensive jury fees have helped level a playing field that otherwise seems tilted in fa- vour of insurance companies. "I think we have a serious problem; we're the last bastion of the civil jury in the free world, with the possible exception of the U.S., where they have their own issues," says Strype, the principal at Strype Injury Law- yers in Toronto. "I think I speak for the plaintiffs' bar when I say that this has to be remedied. We need some more openness and transparency about how these triers of fact are arriving at their verdicts." Trying motor vehicle acci- dent cases without a jury would also have the added benefit of saving time and courtroom space in an era of squeezed re- sources, according to Strype. As well as the problems caused by judicial shortages, he says, civil cases are more likely to be shunted as the knock-on effects are felt from the Supreme Court of Canada's decision in R. v. Jor- dan, which imposed strict dead- lines on criminal cases heard in Superior Court. "Jury cases take twice as long as judge-alone trials, so that could them free them up to do so much more work," Strype says. Ontario's civil jury system effectively allows one party to force a jury trial over the objec- tions of another, unless they can show the case is too complicated for lay people to handle, and Strype says jury notices are al- most always filed by the defen- dant insurers. He says a major prompt for his investigation into jurors' motivations came with the 2016 case of Mandel v. Fakhim, when Ontario Superior Court Justice Frederick Myers appeared to offer some sympathy for a com- mon plaintiff-side complaint. The judge commented in his decision 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 facili- tate injured parties being judged by their peers" after a jury awarded a man just $3,000 in damages for physical and emo- tional injuries for which he had sought $1.2 million. But that's not the only case that has caused concern, accord- ing to Strype, who says he has been inundated with anecdotes from colleagues at the bar and even some former lawyers now sitting on the bench. "You hear about these cases where the plaintiff says the damages are $800,000 and the judge thinks it should be about $400,000 and the jury comes in with $5,000," he says. "That discrepancy can't be right, but it seems to happen over and over [again]." A survey commissioned by Strype for the Kapoor case also seemed to lend weight to his claims of jury bias. Of the 300 Brampton, Ont. residents questioned, 73 per cent said they would limit the damages awarded in order to lower their insurance premiums, while the remaining 27 per cent said they would award damages without regard to their premiums. Strype says the location is particularly significant because residents of the suburban city pay the highest insurance pre- miums in the country on aver- age. But in his Aug. 8 decision, Daley declined to consider the survey evidence, ruling that it failed to meet the minimum re- quirements for expert opinion evidence. "At its highest, it is a summa- ry of data collected without any analysis or opinion expressed as to its validity or reliability. Ab- sent evidence as to the qualifi- cations of its author and absent analysis of the data and a cor- responding opinion, no reason- able inferences can be drawn from the proffered Survey," he FOCUS See Jurors, page 13 Jeff Strype says he would like to see Ontario follow the lead of other jurisdictions, such as Quebec and the United Kingdom, where juries are no longer allowed in motor vehicle cases. It's important to note that jurors are presumed impartial. Todd McCarthy Includes lists of: • Federal and provincial judges • Federal courts • Ontario courts and services • Small claims courts • The Institute of Law Clerks of Ontario ONTARIO LAWYER'S PHONE BOOK 2019 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. More detail and a wider scope of legal contact information for Ontario: • Over 26,600 lawyers listed • Over 8,700 law firms and corporate offices listed • Telephone numbers, e-mail addresses, office locations and postal codes Perfectbound Published December each year On subscription $87.50* One time purchase $91* Order No. L7798-8405 ISBN 978-0-7798-8405-6 Multiple copy discounts available Plus applicable taxes and shipping & handling. 1rices subject to change without notice Order your copy today. Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation CONNECT INSTANTLY TO ONTARIO'S LEGAL COMMUNITY Untitled-11 1 2018-11-21 2:53 PM

• Cover