Law Times

Page 14 June 12, 2017 • Law Times www.lawtimesnews.com personal injury Attempt to get those who pay car insurance excluded PI boutiques try to gain edge in civil jury system BY MICHAEL MCKIERNAN For Law Times P ersonal injury boutiques are getting more creative in their attempts to gain an upper hand in a civil jury system they say is increas- ingly hostile to plaintiffs and their lawyers. In Kapoor v. Kuzmanovski, the plaintiff 's legal team at To- ronto boutique Strype Injury Lawyers unveiled the latest in- novation: a motion to exclude any person who pays car insur- ance from the jury pool, claim- ing they are in an inherent con- f lict of interest due to the risk large damage awards pose to their own premium levels. "We have been getting pro- gressively more concerned with the verdicts we are seeing in jury cases," says Jeff Strype, the firm's principal, explaining the ratio- nale for the move. "Some of them are inexpli- cable," he adds. 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. But Strype says almost all jury notices in motor vehicle cases are filed by insurance com- panies and that various develop- ments over the last decade have made them virtually impossible to resist. He says the motion for exclusion is the next logical step after other routes to strike a jury were closed. For example, when Ontario's former associate chief justice, Coulter Osborne, recommend- ed in his 2007 report on civil justice reform that judges should get more latitude to decide when a civil jury was appropriate, the provincial government declined to follow by amending the Courts of Justice Act. And complexity arguments were largely stopped in their tracks in 2015 after the Court of Appeal for Ontario issued its judgment in Kempf v. Nguyen, ordering a new trial in a personal injury case due to a wrongly dis- missed jury. "In addition to the wisdom of their collective life experience, a jury would bring to this action, as juries always do, a ref lection of societal values," wrote Ontar- io Appeal Court Justice Gloria Epstein in her majority opinion. Strype says a big spur to look further into juries' motivations came late last year in the case of Mandel v. Fakhim, when Ontario Superior Court Justice Frederick Myers appeared to of- fer some sympathy for plaintiff boutique concerns. 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. As part of preparations for the Kapoor case, Strype's firm conducted a survey of residents in Brampton, Ont. to get a sense of their attitudes to accident vic- tims. He says the location is par- ticularly significant because res- idents of the suburban city pay the highest insurance premiums in the country on average. Strype says the results of the survey suggest people in the area would rather see their insurance rates stop rising than award rea- sonable damages to a motor ve- hicle accident victim. "It's shocking. We're really concerned, and the survey seems to underscore this, that civil ju- ries are no longer dealing with cases on their merits," he says. The motion in Kapoor calls for the exclusion of anyone who drives a car and pays auto insur- ance from the jury pool. Alter- natively, Strype wants the ability to challenge potential members to make sure the final jury panel is composed only of people who are able to decide the case fairly. "There has to be some trans- parency about how these ver- dicts are being arrived at, but be- cause of the law, we can't survey juries," Strype says. In his March 16 endorsement, Ontario Superior Court Justice Peter Daley, the regional senior judge for central west Ontario, adjourned the motion so that it could be served on the provin- cial attorney general's office "Although the issues at stake in this action involve the private rights of the litigants, the mo- tion relief sought by the plaintiff involves much broader consid- erations that may impact the rights of other parties involved in motor vehicle accident cases as well as possibly the rights of citizens of Ontario to sit as jurors in those cases," Daley wrote. The judge also invited the Ad- vocates' Society to intervene as a friend of the court in the case because of its broad-reaching membership, encompassing law- yers on both sides of the personal injury bar. Strype says the mo- tion is expected to be heard later this summer or in the fall. Steven Glowinsky, a lawyer with the personal injury-focused Pace Law Firm in Toronto, says plaintiffs' lawyers face an uphill battle when arguing before a jury, and that the "novel argu- ment" in Kapoor could change that. "I think that a bias already ex- ists among many jurors and that injured claimants desperately Steven Glowinsky says plaintiffs' lawyers face an uphill battle when arguing before a jury. Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. DAVID PAYNE | DAVID MACDONALD | MICHAEL BENNETT Untitled-6 1 2017-06-06 1:11 PM See Reform, page 16 Fresh Ontario legal news and analysis Get More Online LawTimesNews.com

• Cover