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Appellate Litigation

Litigation is a time-consuming prospect in any scenario, but trials involving juries are even more so. At a time when litigation has largely been on pause due to the COVID-19 pandemic, the backlog awaiting Ontario’s courts has been building. In response to the backlog, Ontario’s Attorney General has recently indicated that he is considering the idea of eliminating the use of juries in Ontario civil matters, and has sought input from the legal community on this issue.

Concerns of Bias and a Lack of Expertise

The call to eliminate juries from Ontario’s civil trials is not new, though the reasoning behind the recent push is different. Previously, lawyers and judges alike have expressed concerns that juries may not be ideally suited to decide complex civil matters involving complicated data. Further, there has been concern over the neutrality of juries, particularly in matters involving insurance companies.

In a 2016 decision called Madel v. Fakhim, the jury was asked to consider a matter involving injuries suffered in a car accident. The plaintiff in the case sought $1.2 million for the physical and emotional injuries he suffered as a result of the crash. The jury awarded damages totalling $3,000 to the plaintiff, causing the judge to state 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 facilitate injured parties being judged by their peers.”

These comments inspired a plaintiff in a subsequent case called Kapoor v. Kuzmanovski to bring a motion seeking to exclude any person as a potential juror if they paid for car insurance. The rationale behind the motion was that there was an inherent conflict in finding against an insurance company, as a large damages award could in turn raise insurance premiums across the board.

On the matter of complexity, there is concern that matters involving complicated data such as medical information, technological issues, financial structures or the like are too difficult for the average citizen to properly assess in a trial. As a result, a jury may not fully appreciate the nuances of what is at stake, which may have a negative effect on the final decision or damages award. Of course, the same could potentially be said of a judge on a civil matter, as they are also not required to have special knowledge of complex subjects in order to preside over a case.

AGO Proposal Amid COVID Concerns

Ontario Attorney General Doug Downey recently distributed a letter to key stakeholders in Ontario’s legal profession seeking their input on the idea of eliminating juries from civil trials to help with the anticipated backlog as a result of the COVID-19 court shutdown. Interestingly, the letter not only considers the idea of a temporary moratorium on juries in civil trials but a permanent one. This would seem then to also be considering the longstanding concerns around civil jury trials indicated above.

Downey’s press secretary Jenessa Crognali said in a statement that “[Downey] has sought the input and perspective of justice partners on a potential, permanent amendment to the Courts of Justice Act to eliminate some or all civil jury trials. The [attorney general’s] office is currently accepting feedback and this input will help to inform next steps.”

Jury trials are expected to take longer to resume than judge-only trials, as the concerns around social distancing would make it difficult to empanel a jury. Cases currently set to move ahead as jury trials could be in limbo for months before they are allowed to resume.

Could the Elimination of Civil Juries Result in an Increase in Appeals?

It is possible that in eliminating juries to assist with the litigation backlog, there may eventually be an increase in appeals across the province. This is because jury decisions are more difficult to appeal given that juries are not required to provide reasoning for their decisions, unlike a judge. Without detailed reasons, there is less potential to find legal fault with a decision. So it is possible that time saved in the lower courts by eliminating juries may ultimately have the effect of shifting the burden to the Ontario Court of Appeal.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online to schedule a consultation.