Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 7 51 odd McCarthy got a recent reminder of Canadian society's high regard for the jury when he received a notice to attend for duty at his local courthouse through the mail. McCarthy, a partner in the Whitby, Ont. office of Flaherty McCarthy LLP, checked the box indicating that his profession as a law- yer would exclude him from taking part — but not before reading over the letter and its stern warning to recipients that a failure to appear could result in a fine or imprisonment. "Voting and jury duty are the two hallmarks of citizen participation in a democratic society. Voting's not man- datory yet, but with jury duty, you're compelled to be there," he says. In McCarthy's view, an institution first used here pre-Confederation — one that can trace its roots all the way back to Magna Carta — is one worth standing up for. And he and his fellow insurance defence lawyers have been forced into action over the last year as critics in Canada's most populous province step up the pressure to scrap or reform the civil jury system. "I don't think we should be afraid to put faith in our fellow citizens as fact find- ers. There is no evidence that juries are any less competent than a single judge in coming to a fair and reasonable decision," McCarthy says. "When a jury is struck, it says that they aren't equal to a judge as fact finder. To me, that's demeaning and smacks of bigotry. I think we should be wary of making the administration of jus- tice a lawyers' and judges' club." One Ontario case that caused a stir last fall — Mandel v. Fakhim — involved a man who was seeking $1.2 million in damages for physical and emotional inju- ries following a car crash. When the jury returned with a ver- dict of just $3,000 in the victim's favour, Ontario Superior Court Justice Frederick Myers appeared to give voice to those who believe juries are hostile to plaintiffs when he commented that "jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the inter- est of insurance companies, rather than to facilitate injured parties being judged by their peers." Myers' decision was part of the inspira- tion for a motion brought by the plaintiff earlier this year in another Ontario case, Kapoor v. Kuzmanovski. It seeks to exclude any person who pays for car insurance from the jury pool in civil cases due to an inherent conflict of interest caused by the risk a large damages award could boost their own premium levels. Alternatively, the plaintiff 's law- yer, Jeff Strype, wants to be allowed to challenge and exclude unsuitable panel members after he says a series of "inexplicable" decisions cast doubt in his mind about jurors' ability to judge a case fairly on its merits. "This is yet another assault on the L E G A L R E P O RT \ I N S U R A N C E D E F E N C E JEANNIE PHAN Scrapping the civil jury Critics say juries are not suited to determine damages in personal injury cases, but not everyone agrees By Michael McKiernan T

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