An attempt to bar drivers who pay insurance from serving on civil juries would revolutionize the system as we know it, Ottawa personal injury lawyer Howard Yegendorf.
In an ongoing personal injury case, the plaintiff brought a motion to exclude drivers who pay premiums from the jury pool altogether, arguing that the possibility a large damages award could cause a hike in their own rates places them in an inherent conflict of interest.
“That would cover a huge number of people. If you remove drivers, there is not much of a jury pool left,” says Yegendorf, founding partner of Howard Yegendorf & Associates LLP.
While the vast majority of civil jury trials involve personal injury matters, Yegendorf says almost all are initiated by insurers.
“Insurers have had very favourable, low judgments in recent times,” he says.
In one decision, the judge went so far as to say 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.”
That followed the award by a jury of just $3,000 in damages for physical and emotional injuries for which the plaintiff claimed $1.2 million.
Despite that, Yegendorf says there is still a place for juries in civil cases.
“I don’t think the problem is bias exactly, but there’s no question that juries are tough on plaintiffs. They probably have been influenced by the public relations campaigns conducted by insurers,” he says.
In the ongoing case, the plaintiff has suggested an alternative in the event the judge rules against the possibility of striking jurors. That option would see plaintiffs granted the right to question potential jury members about their views, in order to ensure that the final panel is made up only of individuals who can decide the case in a fair manner.
The idea is based on a similar mechanism available in criminal cases, where defence lawyers are allowed the chance to challenge jurors for cause.
The judge in the case adjourned the motion so that interested parties, including the province, insurance industry and lawyers’ groups, could take part, with a hearing expected in the near future.
“Although the issues at stake in this action involve the private rights of the litigants, the motion relief sought by the plaintiff involves much broader considerations that may impact the rights of other parties involved in motor vehicle accident cases as well as possibly the rights of citizens of Ontario to sit as jurors in those cases,” the judge wrote.