Law Times

Law Times • OctOber 20, 2014 Page 7 www.lawtimesnews.com COMMENT IN PRAISE OF CIVIL JURY TRIALS I had an opportunity to read Alan Shanoff 's article on abolishing civil jury trials in Ontario in the Sept. 22 edition of Law Times. I was somewhat surprised at the assertions and conclusions reached by Shanoff as it seems he did not consult with any seasoned trial counsel who have done a number of jury trials before writing that article. As a young lawyer, I was always taught to file a jury notice on most files (unless they are technically com- plex or there was a statutory exclusion for the use of a jury trial) as good practice. In fact, I now instruct all of my lawyers to file jury notices on all cases unless it is cleared with me ahead of time that it is not an appro- priate case for a jury. I assumed after reading Shanoff 's article that per- haps he has never done a jury trial himself and there- fore does not understand the value and use of a jury. While I would agree with Shanoff that a vast number of jury trials involve litigation arising from motor vehicle accidents, they also involve litigation arising from any personal injury claim. There is good reason for this. The plaintiffs' bar is attempting to pump up the numbers and damage assessments for their clients, some to the tune of $15 million to $18 million. The average liability or motor vehicle policies usually have limits of about $1 million. Some commercial general liability policies have limits of $2 million to $5 million. The absolute minimum limits are $200,000 in motor vehicle liability policies. Contrary to popular belief, judges are in fact hu- man beings. They possess emotions, feelings, and, from time to time, biases. They are human and they are not perfect no matter how hard they strive to be. I should also point out that the selected judge may very well not be an expert in the specific area of law and the issues to be tried. Many judges are well aware that motor vehicle and other defendants have insurance policies that will r espond to any claim brought by the plaintiffs. While they may not know the limits of those policies, they are certainly in a position to guess the amounts of money that may be in jeopardy. Some people feel that insurance monies are essen- tially just another form of social welfare. That is, if a plaintiff needs money, we might as well just award it or society will have to look after the person anyway. One of the problems we have noticed is some judges are al- lowing experts to rule the courtroom. Many cases ex- ceed the applicable insurance limits. I am sure many defendants would feel that if they are going to get their day in court and their personal assets are in jeopardy, they would like to use their substantive rights to have a trial by jury. Just as Shanoff points out, plaintiff lawyers will call great numbers of experts and believe quantity is usu- ally better than quality in order to convince the judge that their client is grievously injured. It is my position that six people, using common sense and properly instructed on the law, are more likely to get it right that one person who may have some type of inherent bias. Five of those six people have to agree on the decision. In the case of a judge, only one person has to agree on that decision. Contrary to what Shanoff says, juries do in fact give reasons for their decisions as they are required to outline the particulars by answering very specific jury questions. Shanoff is completely incorrect when he talks about the tactical advantages that f low from a jury trial for insurers. Insurers generally do not want to be faced with a prospect of long jury trials if they can resolve the case. They are expensive. However, when they can- not resolve the case and the plaintiff 's demands are ex- cessive, they, too, want six people to tell them they are wrong as opposed to one. What, then, are the advantages of a jury trial? I would list them as follows: 1. Six people are examining a plaintiff 's credibility and demeanour on the stand as opposed to one. 2. Six people may not be persuaded by an expert as easily as one person. 3. Six people will not know what insurance monies are available and whether there is insurance and may be very careful about the amount of the award they make as six people perhaps would be persuad- ed by common sense and not take an overly techni- cal and legalistic approach to their decision. From a practitioner's standpoint, jury trials are fun. They add an element of excitement and drama and re- quire a bit of acting on behalf of counsel. That's why trials on TV are always in front of a jury. If the government decides to abolish juries, then I would suggest people should get ready for their insur- ance premiums to double. Mark Harrington, Torkin Manes LLP, Toronto LAWYER PUZZLED BY MEERAI CHO CASE Who is Meerai Cho? By now, we all know that she is a member of the Law Society of Upper Canada who allegedly misappropri- ated $14 million in deposit monies in her real estate practice and has since been suspended from practice, criminally charged, and gone bankrupt. But who is she? The truth is I don't know. I did have a case with her where she acted for the husband and I acted for the wife in an acrimonious family law file. Cho was courteous, civil, and showed me all signs of being a competent counsel. She knew the law, represented her client well, made forceful ar- guments, and earned my respect. So I am as shocked as all lawyers that a fellow mem- ber of the bar could be caught up in this web of per- sonal and professional disaster. Was there something that I could have done? Did she have colleagues she could turn to for help? Could the law society have sup- ports that could have prevented this debacle? I look forward to hearing more about this case and the story behind it. Steven Benmor, Benmor Family Law Group, Toronto Move cautiously on ranked ballots for municipal elections emocracy, as Sir Winston Churchill noted, "is the worst form of government except all the others that have been tried." As much as we cherish it, however, de- mocracy isn't a static process and is open to tinkering. The ruling party decides when and how we cast our votes and can redraw the riding and ward boundaries to favour its own re-election chances. Now the Ontario Liberal government appears ready to replace the oft-criticized first-past-the-post system with an alter- native approach, using a ranked ballot, for the 2018 Toronto municipal election. The genesis of the proposal came from two private members' bills that would have amended the City of Toronto Act. There are two other pieces of legislation involved, the Municipal Elections Act and the Municipal Act, that the province will also have to review starting the day after the Oct. 27 elections. Both private members' bills died on the order paper before the June election, but the pressure to change the winner- take-all process has been palpable for some time. The group Ranked Ballot Initiative of Toronto claims a ranked ballot would of- fer more diversity in both attracting and choosing candidates. Adding to the push was a vote by Toronto council in June 2013 asking the province for a ranked ballot. With a ranked ballot, voters select their first choice of the candidates for of- fice and then their second, third, and so on through the list. If a single candidate wins more than 50 per cent of the vote, they're au- tomatically the winner. Let's look at an example of how the issue could play out. In the 2010 Toronto election, May- or Rob Ford won with 47 per cent of the vote over 35 per cent for George Smitherman and 11 per cent for Joe Pantalone while the other 39 candidates scored less than a single percentage point each. Would a ranked ballot have prevented Ford from taking office? We don't know, but many people privately believe Smith- erman might have won on the second bal- lot after drawing votes from Pantalone's supporters. Ranked ballots aren't new. They're how most political parties elect their lead- ers and why it's important to avoid burn- ing bridges and be careful about slagging your opponents in those races. You never know when you'll need them and their supporters to swing it your way. But is it messing with democracy? Do we meddle at our peril? University of Toronto Prof. Lawrence LeDuc, author of Comparing Democracies 2: New Chal- lenges in the Study of Elections and Voting, says we just don't know enough about it to really know one way or the other. "It's not used that widely, though they have it in Australia and they seem to have a lot of experience with it," he says. Ranked ballots tend to work best when there are no politi- cal parties involved and while that's officially true at Toronto city hall, anyone who has spent time there quickly realizes the party labels are very much on display. Britain came close in 2011 but rejected alternative voting partly because of infighting among proponents and partly because opponents were able to claim it would cost millions of pounds to implement a successful "disin- formation campaign," notes LeDuc. The compelling argument from proponents is that it "gives better voice to minorities," although it doesn't offer them more seats, he adds. That has been an issue in Toronto where the ranked ballot is the first stage of a two- phase plan to allow non-citizens to vote and perhaps even lower the voting age. Still, as LeDuc notes, ranked ballots don't necessarily favour the left or centrist candidates. Depending on the electoral mood, it can just as easily work the other way. Proponents suggest candidates like Karen Stintz and David Soknacki would still have a shot in this year's elections in Toronto. But in my own experience, im- plementing a ranked ballot in 2018 entails a risk because it will change the way can- didates and their hidden party supporters approach a municipal election. Could a Rhinoceros party or other fringe candidate campaign specifically as the No. 2 choice and win because of voter disengagement? Could a third- or fourth-ranked candidate suddenly vault into office by a f luke? How does that serve the majority of voters conditioned to the first-past-the-post system? Making democracy's essential event — the vote — more complex also risks further alienating voters. As it is, barely 50 per cent of them turn out now and there's going to have to be a huge campaign to educate voters. So what's the rush? As Churchill also not- ed, "The best argument against democra- cy is a five-minute conversation with the average voter." The issue of how we tally the votes is another question. Will we need voting machines or is doing it manually good enough? So why are we messing with Canada's biggest municipality first? Why not test it in a town or city that's more representa- tive of Ontario? Better still, let's hold a dry run to test a ranked ballot system alongside a tradi- tional vote with the results compared but not counted and the learning applied to a future election. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@ rogers.com. Queen's Park Ian Harvey u LETTERS TO THE EDITOR D

• Cover