I am a proud insurance defence lawyer. I am proud of my role in the justice system that helps people get back on their feet after an injury while keeping the system honest. Both aspects are needed. The system is set up that for those that are injured and not so injured have to focus on their injuries and limitations in order to receive maximum compensation. Some are justified and some may not be. Juries are an important part of this process.
Juries have historically been involved in bodily injury trials in Ontario. Juries bring the approach of the common person. The beauty of the common person's perspective in Ontario is that there is no stereotypical "common person". We live in a wonderfully multicultural province that I am extremely proud to be a part of. The "common person" therefore includes the newly married, the single, the LGBTQ, the parents, the non-parent, the working, the retired, the Christian, the Jew, the Muslim, the Hindu, the Punjabi, the atheist, the agnostic, the black, the white, the Hispanic, the Asian, the Arab, the Aboriginal, the differently-abled, the new citizens, the multi-generational Canadians, the grocer, store clerk, the small business owner, the teacher, the doctor, the real estate agent, the union and non-union workers. These are just a few examples of our very diverse tapestry. The jury, therefore, brings new and important perspectives to keep our systems rooted in the values of the day. It keeps our system decisions fresh and forward-thinking.
The act of the jury trial has not changed. What I have noticed change since I began my legal career 18 years ago, are the decisions of juries in soft tissue/chronic pain cases. It is these cases that have brought the plaintiff bar, particularly in the last 5 years to question the appropriateness of jury trials. This debate, on a simplified level, is whether a plaintiff suffered muscle pains that resolve within a reasonable period of time or whether the plaintiff suffered permanent ongoing pain that permanently limits the plaintiff's activities and wellbeing. It is these cases, that a jury is perfect for and their role important. The majority of actions settle long before trial. The actions that are tried, are those where the parties fundamentally do not assess the circumstances the same way. Juries are important in these soft tissue/chronic pain cases. The juries, in addition to the judge, bring to the court their own diversified experiences. The juries bring with them their own perspectives, biases, life experiences and anecdotal experience of others around them. They bring the experience collectively of those who have worked physical jobs and understand the aches and pains associated with it, irrespective of injuries. They bring the joint experience of suffering non-compensable diseases and injuries and how long they suffered, and how they overcame them. They bring collectively the collective experience of the ability to return to some type of work if not the pre-accident work when health, family circumstances or injury strikes. Jury decisions have been changing. Juries are coming back with verdicts that are not as sympathetic to the plaintiffs that they do not believe and or that are not mitigating their damages. Juries are compensating those that they believe are badly hurt.
The cases where there are objective injuries, with objective limitations are largely settled and when they do go to trial, those parties are largely compensated appropriately. It is the cases where credibility of the plaintiff that is being tested, where the jury has garnered the most attention. Accordingly, I believe it is important to stay the course.
Earlier this year, Attorney General Downey's changes to the Rules of Civil Procedure and the Courts of Justice Act came into effect. These changes included raising the cap for the simplified procedure process to actions seeking damages of $200,000 or less (previously the cap was $100,000) and juries are no longer permitted as of right for civil actions that fall within the simplified procedure unless they meet a specified exception (bodily injury cases do not). Accordingly, soft tissue injuries will fall within the simplified procedure. There is no doubt that the trial process is expensive and frustrates both the plaintiffs and defendants. There are long delays in the system due to an overburdened justice system. Weighing the issues and concerns, the benefits are hoped to outweigh the drawbacks in the circumstances where damages suffered fall within the $200,000 damages award threshold. These changes, however, likely will not address the circumstances where the defendant believes it is a matter that falls at most within the simplified procedure but the plaintiff believes that it is a severe chronic pain case. Perhaps more severe penalties are needed for those actions brought in the regular procedure that should have been brought with the simplified procedure.
While the plaintiff bar is quick to point out that defendants are backed by insurers in these types of cases, they fail to mention two important points. First, not all claims are fully insured. It is common now to see claims seeking $2,000,000 or more, while non-commercial defendants generally hold insurance policies of $1,000,000. Accordingly, the defendant him or herself, and not the insurer, is exposed to those excess amounts. The second matter that is not talked about by the plaintiff bar is that over the last number of years, plaintiffs have been getting some type of litigation insurance to help them fund the litigation. Accordingly, plaintiffs are behaving very differently in litigation, driving costs up further than they had when I had started my career.
Many Ontarians own vehicles and if not know people that do so they understand that this litigation is largely backed by insurance. They don't need to be told. Similarly, Ontarians are proud of our publicly funded health care system and know that is available to the injured as well. These days many plaintiffs have some type of litigation insurance to help them fund the litigation and protect them from cost awards. None of this is disclosed to the jury. The role of the jury is to decide the facts of the cases and assess the damages arising from those facts. It is not the role of the jury to worry about how the litigation is paid for and what impact the requirement to pay will have on an individual party.
There is no doubt that we face unusual hurdles due to the COVID-19 pandemic. There is no doubt that the system can be modernized by adopting more technology. Let's use this time to streamline the processes but not to silence voices. The voice of the jury, particularly for the amounts at issue through the regular process is important to make sure the justice system hears the voice of the evolving values of the community it serves.
Originally published 15 June, 2020
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