Law Times

Page 6 September 22, 2014 • Law Times www.lawtimesnews.com COMMENT B.C.'s labour relations example ne of the remarkable things about the recent B.C. teachers' strike was that it happened it all. The announcement of a deal to end the strike last week was no doubt a relief to B.C. families that had to muddle their way through months of labour turmoil. It was certainly a major inconvenience and hardship for all sides but it was a rare instance of a government showing a sustained willingness to stand up to cost pressures. Besides wages, there were many other issues at stake, including a long-standing dispute over class size and composition. On that score, the province made some concessions to union demands. On wages, the deal provided for a very affordable wage hike of 7.25 per cent over six years. Ontario Premier Kathleen Wynne is presumably taking note. Fac- ing her own bid to freeze compensation across the public sector, she's sure to have difficult months ahead. No one wants a teachers' strike, but the B.C. situation at least shows some resilience on the public's part to hold firm despite the intense pressure to get kids back into class. There's no doubt both the B.C. government and the teachers faced criticism for their stances during the labour negotiations. But the temptation to give in to avoid the disruption simply results in the diffi- cult financial situation we now find ourselves in. And going to arbitra- tion, as the B.C. teachers had proposed, tends to favour the status quo. The situation follows a recent Fraser Institute report that criticized time to abolish ontario's civil jury trials udicial resources must be hus- banded to ensure that the courts function properly and that litigants have access to a justice system that meets the highest possible standards." That statement comes from the recent Supreme Court of Canada decision in Canada (Attorney General) v. Confédéra- tion des syndicats nationaux. So why is it that we continue to make jury trials available for civil litigation? Surely, allowing a jury to decide complex factual issues and apply their findings to legal issues doesn't meet the test of the "highest possible standards." According to statistics cited in the 2007 civil justice reform project, about 20 per cent of Ontario's civil trials take place in front of juries and the "vast majority" of them involve litigation arising from motor vehicle accidents. If you wonder what it is about motor vehicle litigation that creates a specific demand for jury trials, you need look no further than the observation of former Ontario associate chief justice Coulter Osborne, author of the civil justice reform project report, when he noted: "I recog- nize the unfortunate reality that insurers in most negligence actions require their counsel to deliver a jury notice." Personal injury litigation is often highly complex with tech- nical evidence on various issues including accident reconstruc- tion, future costs of care, losses of income, and causes of and the extent of the plaintiff 's inju- ries and disabilities. Engineers, economists, actuaries, apprais- ers, physicians, psychiatrists, psychologists, various thera- pists, and other experts often testify at personal injury trials. Most judges are familiar with such evidence. Most jurors are likely unable to fully comprehend and assess such evidence, certainly not as well as the judges. Jury decisions, in terms of both liability and quantum, are more unpre- dictable than those of judges. Judges must follow precedents and provide adequate reasons to support their decisions. Juries provide no reasons. One would think insurance compa- nies would do everything in their power to avoid jury trials. Surely, they'd want to have more predictability and consistent re- sults. But insurers know there are tactical advantages to electing jury trials. The tactical advantages f low from the uncertainty and potential for longer, more expensive trials. Plain- tiffs faced with the prospect of jury trials and their inherent uncertainty and exposure to increased costs are more likely to settle. According to a 1996 paper by Prof. John McCamus on civil justice reform, civil jury trials "settle more frequently and more quickly than non- jury trials." According to Osborne, serving a jury notice is part of a strategy "to increase the risk to which the plaintiff is exposed, manifestly on the basis that the insurer can absorb the risk better than almost all plaintiffs." If the chief reason for a civil jury trial is the provision of a tactical advantage to insurers or to force plaintiffs to roll the dice, are we really providing a civil justice system that meets the highest possible standards? Surely, a civil justice system that meets the highest possible standards wouldn't allow parties to use juries to ob- tain tactical advantages. Surely, such a system would require judicial decisions to include adequate reasons, something only a judge can provide. Cost is an important factor in access to justice. Civil jury trials that don't settle are likely to take up more court time than cases heard by a judge alone. That's the conclusion reached by both Osborne and McCamus. That's not surprising as jury trials re- quire jury selection, the judge's charge, voir dire proceedings to determine the admis- sibility of evidence, and other time-con- suming elements. There's also the prospect of costly motions to strike jury notices. Quebec and the Federal Court of Can- ada have abolished civil jury trials. Eng- land has long since barred the use of juries for personal injury cases. Some states and territories in Australia no longer allow civ- il jury trials, while others provide for them but not for motor vehicle litigation. There was once a solid historical basis for the use of juries in civil trials. That his- torical basis no longer applies and there's no justification for the continued use of ju- ries in personal injury cases or indeed any civil litigation. It's time we eliminated jury trials for civil lawsuits in Ontario. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. 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Rather, the B.C. situation was positive because it ref lects a bargain- ing process that worked as it should: Both sides took a position and when they couldn't reach a deal, they allowed for the inevitable result — a strike — until the circumstances and pressures dictated that they find a way, through concessions on both sides, out of it. Ontario should consider the B.C. example and throw on top of that a willingness to finally act on long-standing demands to reform the arbitration system in order to get costs under control. — Glenn Kauth O " J Social Justice Alan Shanoff

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