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In defence of the jury system in Ontario | Michael Smitiuch

Wednesday, August 14, 2019 @ 9:18 AM | By Michael Smitiuch

Michael Smitiuch %>
Michael Smitiuch
On matters concerning injury victims, it is not very often that my views align with those of the defence bar in Ontario. So when I read the submissions made by the Canadian Defence Lawyers (CDL) about the proposed revamping of the jury system and agreed with most of their general points, I must confess that this caused me some concern. As a plaintiff lawyer representing only injury victims, how could it be that I was seemingly on the same page on such an important issue as those who so often stand between victims and their pursuit of justice?

Before I answer this question, it is worth taking a step back to put all of this into the proper context.

The submissions made by different legal organizations, including the CDL and the Ontario Trial Lawyers Association, came after Ontario’s Civil Rules Committee conducted consultations on potential reforms to limit the availability of jury trials in actions under the simplified procedure of rule 76. It is with this background that most of the comments and submissions concerning the jury system have been made.

Recently, the Ontario government tabled amendments to the Courts of Justice Act that would provide that the issues of fact and the assessments of damages in actions proceeding under simplified procedure be tried without a jury. Bill 100, as it is known, has been passed and has received royal assent. It is set to come into effect Jan. 1, 2020.

While I understand that jury trials will not be allowed in simplified procedure actions only, from a broader perspective the erosion of jury trials in Ontario is not a good thing for our judicial system or for the parties involved. As the CDL put it in its submissions, “the right to trial by jury forms one of the most basic and closely held substantive rights of citizens in common law countries” and “juries act as a peer review of what is acceptable conduct in the community — they are an important calibration for the justice system.”

While I agree with this viewpoint, I am equally not so naive to think that the CDL supports the preservation of the jury system for only noble reasons such as this. The reality is that defence firms and insurance companies have generally done well defending certain types of claims before juries such as chronic pain claims where there is minimal property damage or no objective evidence of injury. These types of claims are more likely to fall within the scope of simplified procedure, which has a limit of $100,000 and hence part of the reason why OTLA, a plaintiff lawyers’ organization, supported the restriction on jury trials for such actions.

I am concerned whenever a party’s right to a jury is chiselled away even though the changes may be well intentioned. It is a slippery slope. My firm regularly conducts jury trials, and — win, lose or draw — I am convinced that when rendering a verdict, juries rarely get it wrong. Similarly, although many people are hesitant participants when called for jury duty, once they have been selected to serve, my observation has been that they take their role seriously and they pay attention.

If there is to be meaningful change to the justice system, there are many other issues that impact both sides of the table that urgently need to be addressed. For example, it should not take over two years from the time a trial record is filed to have your day in court. More funding, judges and courtrooms are needed in the civil arena. While it is understandable that criminal matters must move to trial quickly, civil actions, especially those involving injury or death, deserve their day in court also. A civil matter should not take four or more years to get to trial.

Putting on my plaintiff lawyer’s hat, in many ways the judicial system is also stacked against innocent injury victims. Changes need to be made. Trial records should not cost $800 to file. Juries should be informed about the deductible applicable in car accident cases. There should not be a cap on pain and suffering and Family Law Act damages. As well, jurors should not be bused from Brampton to places such as Kitchener.

Limiting jury trials is not the answer to improving our system. While I will not be joining the CDL any time soon, it is on this point that my views align with the defence bar, albeit for likely different reasons and motivations.

Michael Smitiuch is the founder of Smitiuch Injury Law.

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