Law Times

LAW TIMES 10 COVERING ONTARIO'S LEGAL SCENE | APRIL 8, 2019 www.lawtimesnews.com BY MICHAEL MCKIERNAN For Law Times P arties' right to a jury trial is standing in the way of an effective simplified proce- dure in civil courts, according to the president of the Ontario Trial Lawyers Association. Following a wide-ranging consultation on reforms, On- tario's Civil Rules Committee reportedly recommended do- ing away with jury trials for ac- tions commenced under Rule 76 of the province's Rules of Civil Procedure, which governs the simplified procedure. The move would require leg- islative amendments to enact, but without them, says OTLA president Ron Bohm, the rest of the committee's proposals, which include strict time limits on trials and a plan to conduct examinations in chief by way of affidavit, could be dead in the water. "If you have a jury, it's hard to see how any of the other simpli- fied rules kick in," says Bohm, a partner with Richmond Hill, Ont. firm Blackburn Lawyers. "As lay people, you can't ex- pect jurors to behave like judges and get what they need by read- ing affidavits. They need evi- dence presented orally, talked through and explained." But Bohm and his predomi- nantly plaintiff-side member- ship face a fight from the insur- ance industry and the lawyers who act for them on the opposite side of the bar in their quest to eliminate civil jury trials under the simplified rules. Laura Emmett, president of Canadian Defence Lawyers, says she doesn't see the need for wi- descale reform of the simplified procedure. "I would say that it's work- ing well overall," she says, while admitting that the length of trials has become an issue for the courts, exacerbated by judi- cial shortages and the Supreme Court of Canada's decision in R. v. Jordan, which imposed strict deadlines on criminal cas- es heard in Superior Court. "Unfortunately, that puts a bigger burden on civil cases, which take somewhat of a back seat to criminal and family law matters," Emmett says. "But I'm not sure getting rid of the civil jury trial is the best way to re- solve that problem. "The right to a trial by jury is a basic and closely held right in Canada that we should not in- terfere with lightly," she adds. In a submission to the Civil Rules Committee, the CDL suggested there was some merit to the idea that the attempt to restrict jury trials under Rule 76 could be the thin end of the wedge "in a co-ordinated attack of the civil jury system in the Su- perior Court." The group pointed to the de- cision and public reaction in the 2016 case of Mandel v. Fakhim to illustrate its concern "about the polarization of the civil liti- gation (injury) bar and the need to work together to ensure pub- lic confidence in an effective jus- tice system." Ontario Superior Court Jus- tice Frederick Myers used his ruling in the case to comment that "jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance com- panies, rather than to facilitate injured parties being judged by their peers" after a jury awarded a man just $3,000 in damages for physical and emotional injuries for which he had sought $1.2 million. "Unfounded comments from lobbyists and from the bench diminish confidence in our system and contribute to the polarization of the litigation bar — something we should all strive to guard against," the CDL submission reads. But Bohm says public faith in the entire civil jury system could be put even further at risk if panels continue to be required in cases where the amount in dispute falls under the limit for simplified actions, even if the threshold is raised as planned by the rules com- mittee from to $200,000 from $100,000. "People are rightfully angry when they find out they're being asked to give up a few weeks of their lives to adjudicate a claim for $75,000. I certainly would be," he says. "For that amount of disrup- tion, you would expect to be hearing a murder, armed rob- bery or other serious case. "In my view, it's an abuse of a really sacred role," Bohm adds. Other jurisdictions, includ- ing Quebec and the United Kingdom, have eliminated ju- ries altogether in motor vehicle cases, but Bohm notes that On- tario has its own precedent for the removal of the jury option in civil cases. "I don't think anyone expects a jury in Small Claims Court or would say that the quality of justice is compromised as a re- sult. I don't see why it would be different for matters slightly be- yond its monetary jurisdiction, which is now up to $25,000," he says. Rule 76 has a relatively short history in Ontario, and it un- derwent its most recent trans- formation in 2010, following recommendations by former Associate Chief Justice Coulter Osborne in his Civil Justice Re- form Project. At that time, the monetary ju- risdiction of the simplified pro- cedure was raised to $100,000 from $50,000, a two-hour limit was placed on oral examinations for discovery and summary judgment was eliminated. "If the intent was to provide a simplified procedure that in- creases access to justice, controls costs and limits the use of valu- able resources for cases of mod- est value, then it has failed mis- erably," says Bohm. Miles Obradovich, a Toronto litigator with almost four de- cades of experience, welcomes the rules committee's plan to double the monetary jurisdic- tion covered by the simplified procedure to $200,000 from $100,000. "There are some cases that are now over the limit that would fit nicely into that procedure in terms of the burden of legal work that has to be done to bring a case to trial," he says. "In today's world, it's not a particularly huge amount of money, and I suspect the amount could even go higher to allow cases to get ready for trial in a shorter timeframe and im- prove access to justice." Albert Wallrap, a senior litigation associate with Dut- ton Brock LLP, views the 2010 changes as a disappointment in practice. However, he isn't convinced a higher monetary limit will make a huge difference, point- ing out that the complexity of a case does not always rise in proportion to the value of the claim. Ron Bohm says 'jurors need evidence pre- sented orally, talked through and explained.' Wide-ranging consultation on reforms Better simplified procedure needed in civil courts "The right to a trial by jury is a basic and closely held right in Canada that we should not interfere with lightly." 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