Canadian Lawyer

But recent changes to small claims court, simplified procedure allowing judge-only trials steps in the right direction WHILE THE CHANGES to the small claims court and the simplified procedure have been heralded for having the potential to cut wait times for trials, there is another benefit to the changes for personal injury lawyers. "There's been ongoing discussion on both sides of the table about the current effective- ness of the civil jury system in the personal injury sphere," says Jan Marin, senior associ- ate at Gluckstein Personal Injury Lawyers. The changes to the simplified procedure, which came into effect Jan. 1, are substan- tial, she says. Any claim can proceed under it as long as the defendant does not object, oral discovery is now limited to three hours, up from two, and all trials will proceed by way of summary trial. They will have a fixed trial date for a maximum of five days, no direct examination instead of 10 minutes and no time limit on cross-examination or re-examination. Costs will now be limited to $50,000 and disbursements to $25,000, exclusive of HST. The other big change is that the maximum value of a claim under the simplified rules will be doubled — making it $200,000, up from $100,000. But perhaps most signifi- cant is the fact that jury trials will no longer be permitted under the updated rules for the simplified procedure, Marin notes. Marin says there's been "lots of chatter" around the office about making use of simpli- fied procedure more because there's a percep- tion — or frankly, more than a perception, she adds — that juries "haven't been too friendly to plaintiffs" and don't understand the values or know about deductibles, for example. "We've certainly been talking about using the new limit, particularly the new rules around no juries," she says, adding that the increased limit, elimination of juries, limited oral discovery and set trial dates will encour- age use of the new system, while the fact that the only oral evidence permitted at trial will be cross-examinations and the hard limit on costs and disbursements may discourage some parties. "It may actually make a big difference in the more marginal auto cases or slip-and-falls and things like that." It's a common frustration for personal injury lawyers that they cannot educate the juries on the inner workings of the insurance system. Sloan Mandel, a partner at Thomson Rogers, calls it "court-mandated juror ignorance." Consider a scenario where a woman driv- ing her teenage daughter swerves to miss a squirrel and ends up in an accident result- ing in a fracture of her daughter's leg. To recover compensation, the daughter makes a claim against her mom and the insurer files a jury notice, refuses to pay and takes the case to trial. The jury isn't allowed to know what insur- ance coverage is available to the mom — for example, that the Ontario government mandates every driver must have at least $200,000 in coverage and that the mom has access to a motor vehicle insurance pol- icy of $1 million and the daughter is claiming $75,000. The jury also cannot be told that if the pain and suffering claim awarded to the daughter is $130,000 or less, the judge applies a $40,000 deductible to the amount. "The jury has to operate out of ignorance in those two respects," Mandel says, even though it impacts on their intended outcome. Juries often also don't understand why a family member would sue another fam- ily member — the jury gets upset that the daughter would sue her mother for uninten- tional harm. Although they recognize that the daughter was injured, they don't want to penalize the mother too severely. He calls these concerns legitimate, and says they are common sense, but the jury mis- understands the bearing these assumptions will have on the case. If the jury awards the daughter $45,000, the daughter — and her mother — would be left with only $5,000 once the deductible is taken off. "It's not what the jury intended, but it's the result," Mandel says. "Rhetorically, I ask, is it any wonder that insurers invariably seek to file a jury notice in every personal injury case in the province of Ontario?" Marin says there was "a movement" from some of the plaintiff 's bar alleging the jury system is no longer working, but there's "a lot of pushback on that" from insurance com- panies and defendants. She adds that there's also a certain legacy of that system that you must respect — and there are also some plaintiff lawyers who do like a jury and it's important to them. "There has been a push to talk about the elimination of civil juries," says Marin. "There's been judicial commentary about FOCUS ON PERSONAL INJURY Jury rules hamper personal injury lawyers www.lawtimesnews.com 21

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