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October 2017

Is This The End of Civil Jury Trials in Motor Vehicle Accident Cases?

Sabrina Lucibello
Annette Uetrecht-Bain,

By Annette Uetrecht-Bain

Complaints about civil jury trials in motor vehicle cases are not novel or uncommon. It is the perception of some (most notably the plaintiff bar) that jury results are typically unfavourable to plaintiffs. Recently, the complaints have increased to the point where even the Judiciary is weighing in. For example, in 2016 a Superior Court Judge commented in a threshold decision that jury trials in civil cases exist solely to keep damages awards low in the interest of insurance companies.

It comes as no surprise then that the plaintiffs in one case Kapoor v Kuzmanovski, 2017 ONSC 1709, brought a motion to seek to exclude potential jurors who "drive and pay for automobile insurance premiums or have premiums paid on their behalf" from the jury pool. The reason for the exclusion is the alleged bias due to a conflict of interest: i.e. financial obligations of these jurors to pay motor vehicle insurance premiums. Essentially, the plaintiffs submitted that a juror who pays insurance premiums or has them paid on their behalf, cannot act impartially in motor vehicle accident cases given the risk said premiums may rise as a result of an award.

Justice Peter A. Daley presided on the original motion date in March 2017. He concluded that the extensive implications of a decision to exclude all potential jurors who are insured under motor vehicle liability insurance policies in Ontario triggered a discussion of Rules 13.01 and 13.02 of the Rules of Civil Procedure. That is, it became necessary to determine the value of involving other individuals or organizations as intervenors or friends of the court. He concluded that the Advocates' Society would be best placed to provide assistance to the court in accordance with Rule 13.02.

The motion brought by the plaintiffs will undoubtedly have extensive ramifications should it be successful, even in part. Given the drastically reduced pool of individuals to draw from if all insured drivers will be excluded through a challenge for cause, the very existence of jury trials in motor vehicle accident cases is at stake.

The motion is scheduled to proceed on December 18, 2017.


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