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 53 jury system by plaintiffs' counsel who seem to believe that jurors are not as sympathetic to their clients as they would like," says Eric Grossman, a part- ner at Toronto insurance defence bou- tique Zarek Taylor Grossman Hanrahan LLP, noting that many of the motion's supporters have also called for a dou- bling of the monetary jurisdiction of the province's simplified rules that would keep claims worth less than $200,000 out of the hands of juries. He says those who believe the jury pool is biased have a selective memory that excludes high-value judgments for plaintiffs, and he suggests the spike in unfavourable decisions could be down to the increasingly hardnosed attitude insur- ers are taking to cases they see as having no merit. When defendants refuse to offer settle- ments to claimants with very weak cases, Grossman says, plaintiffs' counsel are "stuck trying cases where they would have accepted a modest sum" with inevitably disappointing results. Despite the recent onslaught, McCar- thy says civil juries have experienced a "renaissance" in the last decade in Ontario. The system effectively allows one party to force a jury over the objections of another, unless they're able to convince a judge that the case is too complicated for laypeople to handle, he says. In 2008, McCarthy brought a Consti- tutional challenge in an attempt to strip judges of their ability to strike a jury at all. The case was ultimately unsuccess- ful, but a series of appeal court decisions since then have narrowed the scope of a trial judge to take over, culminating in the 2015 case of Kempf v. Nguyen, in which a judicial panel ordered a new trial due to a wrongly dismissed jury and at the same time put a stop to most complexity arguments. "Striking has become the exception rather than the rule, which is a great thing," McCarthy says. But the motion in Kapoor could shift the momentum in the opposite direc- tion. A hearing is expected some time in the fall, and it will feature interventions from Ontario's attorney general, as well as a host of other interested parties. In the event the motion is granted, Grossman says it has the potential to wipe out the province's civil jury pool, revolutionizing the system in one sweep. That would suit Rhona DesRoches, a board member of FAIR, the Associa- tion of Victims for Accident Insurance Reform. She says plaintiffs currently face an uphill battle to win over jurors tainted by insurance industry propa- ganda about fraud in the system. DesRoches says judges are in a far better position than a group of laypeople to navigate the way through complex legislation and conflicting expert tes- timony and arrive at a fair conclusion for accident victims. She says Ontario should follow the lead of jurisdictions such as Quebec and the United King- dom, where juries are no longer allowed in motor vehicle cases. "We're behind the times," DesRoches adds. Moin Yahya, a professor on the law faculty at the University of Alberta, says small populations or language issues have made it practically difficult for Canadian provinces outside of B.C. and Ontario to take advantage of rules allow- ing juries in civil matters. Last year, New Brunswick's attorney general suggested formally abolishing the right to a jury in virtually all civil cases, pointing out that the province had held just one trial in the last 15 years. If there are real concerns about insti- tutional bias among jurors backed up by empirical evidence in Ontario, Yahya says they can be cured within the existing sys- tem by instructions. "There's a lot of evidence that jurors take instruction seriously. They look to the judge for guidance," he says. "I'm not a fan of people knocking the system because they don't like the verdict. If you don't like the outcomes, change the instructions or change the substance of the law on what jurors are told about maximum and mini- mum damages. "There are other ways to change than attacking the jury system or trying to get rid of it," Yahya adds. In B.C., Vancouver lawyer Angus Gunn says perceptions about where juries' sympathies lie swing back and forth over time. "Sometimes, they seem more popular with defendants, and other times plain- tiffs, but I don't think you can generalize in either direction," he says. Despite concerns about its cost, Gunn says support for the civil jury system is "fairly robust" in the province. And when one party requests one, he says there's a high barrier for the jury notice to be struck. Gunn recently acted for the defen- dant and respondent in Donaldson v. Dorworth, where B.C.'s appeal court upheld a case management judge's deci- sion to proceed with a jury over the plaintiff 's objections, despite the unusual nature of the claim, and the proliferation of medical experts called to opine on the issues in dispute. In Gunn's view, jurors are just as well equipped as judges to "look into the whites of the eyes of witnesses" and decide whether they are credible, as well as other non-legal questions. "It's also a tremendous opportunity for the public to learn about the court system from somewhere other than the TV. People I have spoken to about it come away with a new respect for what lawyers and judges do," he says. THIS IS YET ANOTHER ASSAULT ON THE JURY SYSTEM BY PLAINTIFFS' COUNSEL WHO SEEM TO BELIEVE THAT JURORS ARE NOT AS SYMPATHETIC TO THEIR CLIENTS AS THEY WOULD LIKE. ERIC GROSSMAN, Zarek Taylor Grossman Hanrahan LLP 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

• Cover