Juror challenges could make fair civil jury system

Allowing lawyers to challenge jurors for bias could help preserve the civil jury system in the long run, says Ottawa personal injury lawyer Najma Rashid.

Rashid, a partner with Howard Yegendorf & Associates, that an increasing number of plaintiffs’ lawyers would welcome the abolition of juries in civil matters due to the perception that they have become biased against claimants.

She says the long-established jury system still has much to offer in civil matters but adds that a mechanism for removing panel members who display bias in questioning could help alleviate some of her colleagues’ concerns.

And if one plaintiff gets his way, Ontario’s civil jury system could undergo a major change. In the case, the claimant has brought a motion to exclude drivers who pay premiums from the jury pool altogether.

His argument runs that they have an inherent conflict of interest due to the potential impact a large damages award could have on their own insurance rates.

If the judge won’t agree, the plaintiff has sought the right to question potential jury members about their views to ensure the final panel only contains people who can decide the case in a fair manner, according to the motion filed with the court.

The judge 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.

Rashid says she’s not surprised that some drivers view personal injury claimants with suspicion.

“There is a climate created by the insurance industry that there are many fraudulent claims out there and that this is causing premiums to rise. And it’s an idea that the media has seized on,” she says. “I can see that it may result in a possible bias in certain members of the jury such that the plaintiff would not get a fair trial.”

However, Rashid says changing the way civil juries are picked would cause some practical difficulties.

“The problem is there isn’t a specific process for challenging jurors,” she says. “There’s just a section in the Courts of Justice Act that provides for discharge on the ground of illness, hardship, partiality or other sufficient cause, and the question of partiality is not defined.”