How Will Proposed Changes to Civil Jury Trials Affect Personal Injury Lawsuits?

Gavel resting on desk

Michael Henry

The COVID-19 pandemic has affected every aspect of society, including the court system. Lockdowns and other safety restrictions have introduced new backlogs and delays into a justice system that was already facing challenges with its long wait times and outdated processes. As a result of these obstacles, many people who have patiently waited for years for their trials will need to wait even longer to see their cases argued in court. Furthermore, when the courts do re-open, family law and criminal trials will take precedence, delaying personal injury cases even more.

The response to the pandemic has revealed many strengths and weaknesses of our legal system in Ontario. The role of juries in civil lawsuits has received particular attention in recent months. Well before the pandemic began, legal observers had noted several challenges associated with civil juries:

  • Preparing for a jury trial takes additional time and resources, increasing the costs for all parties, including individual plaintiffs.
  • Jury trials are expensive for society at large, as taxpayers finance the public cost of administering the jury pool system and citizens donate their time to serve as jurors, often without meaningful compensation.
  • Jury trials take longer than those with a judge alone. For example, time is often spent during the trial arguing over what the jury can and cannot hear. Even the simple act of moving the jury in and out of the courtroom adds more hours to a trial than people might think.
  • Certain procedural rules make it difficult or impossible to explain the nuances of the law, including the statutory accident benefits system, the threshold and deductible, limitations on income loss claims, deductibility of other collateral benefits, etc. to juries, which sometimes results in plaintiffs receiving inadequate compensation for their injuries.

In the summer of 2020, in response to a request from the Attorney General, the Ontario Trial Lawyers Association (OTLA) submitted a proposal calling for the elimination of most civil jury trials in the province. (It should be noted that OTLA’s proposal does not impact criminal jury trials.)

OTLA and other proponents of eliminating civil trial juries argue that the changes would improve the justice system for personal injury plaintiffs in many ways:

  • Reducing the number of people involved in the trial would speed up court-room processes and allow for more efficient trials generally.
  • Trials would take less time and would be less expensive for plaintiffs, defendants, and society at large.
  • Unlike civilian jury members, judges have the training and expertise to understand the nuances of legal arguments and are familiar with complex regulations such as Ontario’s Statutory Accident Benefits regime.

There is also a possibility that the elimination of civil trial juries could lead to an increase in appeals because unlike juries, judges issue reasons for their decisions. On balance, however, many lawyers and legal thought leaders believe that the elimination of civil juries would be a significant net benefit to the court system in Ontario. In fact, cases under $200,000.00 in value now must be tried without a jury.

It should be noted that under the changes proposed by OTLA, not all injured victims would see their trials go without a jury. Carve-outs are proposed for professional negligence, medical malpractice and nursing home neglect cases. Juries would also still be available for cases where the plaintiff is requesting punitive damages.

Generally speaking, the insurance companies and their lawyers more often than not prefer a jury trial. Jury trials are not only more expensive than judge alone trials, they also create far more uncertainty for the parties, because the range of outcomes tends to be much wider and less predictable. Uncertainty tends to favour those with more appetite for risk, and insurers are in the business of risk. Individual plaintiffs on the other hand cannot afford to undertake that same level of risk. Trials should be about getting fair results in the most efficient manner reasonably possible. Many court observers feel that, unfortunately, the jury system has not been able to deliver efficient, timely, and cost effective justice for a long time. The pandemic has elevated this state of affairs into a full blown justice crisis.

The Attorney General is currently reviewing the submissions that were requested in June 2020, and we will provide further updates as we learn more about the Attorney General’s plans.

At Howie, Sacks & Henry, it is our job to stay on top of proposed changes that affect our clients such as the elimination of civil juries so that we can advise accident victims on the best way to approach a potential claim and their case. We can let you know what your rights are, what benefits you might be entitled to claim, and the important deadlines to meet in order to put your best case forward. If you have been injured as a result of someone else’s negligence, please contact us to learn how we can help.


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