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The selfishness of selecting a Trial by Jury for Car Accident Cases in Ontario

The case summary below, involves a car accident in Ontario. It’s not out of the ordinary. This is how many car accident cases across the province play out. The defendant insurer often insists that these cases proceed with a jury, instead of by way of Judge alone.

I think the most unfortunate part of this decision is the toll these jury cases take on Ontario’s already over burdened judicial system. It appears that the Judge hearing this case felt the same way too, given that she made a point to comment specifically on the impact which jury trials have on our legal system:

“The strategy of offering plaintiffs nothing and forcing the matter to a jury trial is highly wasteful of court and public resources. This matter occupied a full three weeks of court time. It also drew on the time of eight jury members (six jurors and two alternate jurors) who could not work during their service. The cost to the public is clearly not something that factored into the Defendant’s calculations when deciding how to conduct this litigation. I find that this was unreasonable.

This is a strong reason as to why civil jury trials ought to be eliminated. There is no doubt that they take time away and resources away from civil productivity in order to litigate private disputes which have no significant or meaningful bearing on the public good. There is no compelling reason as to why this private dispute could not be tried by way of Judge alone. This would save money, time, desperately needed Court resources, and would likely foster settlement knowing that judges see right through the smoke and mirrors presented by many litigants in these sort of cases. Not to mention that they are also familiar with the deductible (the secret credit to insurers of $46,053.20 which lawyers cannot mention at trial). Jury trials in civil actions, particularly car accident cases are a selfish use of public resources for a non public dispute.

Here is a quick case summary of Barry v Anantharajah, 2024 ONSC 1267 (CanLII)

  • this was a three-week jury trial that began on January 15, 2024 in a car accident case
  • the Plaintiff was represented at trial by two senior counsel and one junior counsel
  • the Defendant was represented at trial by one senior and one junior counsel for her insurance company, Aviva Trial Lawyers. So for those keeping score at home, we have 5 lawyers for 2 litigants.
  • the Defendant was making a left turn while the Plaintiff was walking across the street within the crosswalk. The Defendant car hits the Plaintiff while the Plaintiff is a pedestrian. Both liability and damages were an issue at trial.
  • the Plaintiff called evidence from two family members, her family doctor, her treating psychiatrist, her treating social worker, a peer support worker, an expert physiatrist, an expert psychiatrist, a lifecare planner, and an actuary. (10 witnesses for the Plaintiff)
  • the Defendant vigorously defended all aspects of the claim. Trust nothing the Plaintiff says. Don’t give her the benefit of any doubt. Contest everything sort of approach.
  • the Defendant argued that the jury should infer that the Plaintiff was distracted and on her phone at the time of the accident, despite a total absence of evidence to prove this allegation. Make up theories and see what sticks sort of thing.
  •  At the conclusion of the trial, the jury awarded the Plaintiff $21,166 in general damages, and $26,000 in special damages for past income loss. The jury also found the Plaintiff contributorily negligent by 15%. After accounting for the jury’s finding of contributory negligence and the statutory deductible for general damages of $46,053.20 (the secret credit that the Defendant car insurer gets back which can’t be discussed before the jury and the jury doesn’t likely know about) , the parties agree that the Plaintiff will receive $16,160.50 in damages.
  • The Judge found that the Plaintiff that was more successful than the Defendant at trial
  • The Defendant asked the jury to award the Plaintiff nothing for past income loss, while the jury ended up awarding some damages under this categoryBrian-Goldfinger-03-200x300
  • The case was not a sure thing for the Plaintiff, with the Plaintiff getting zero for general damages after the application of the deductible of $46,053.20 (the secret credit which cannot be discussed with the jury otherwise, a mistrial will be declared. Talk about fairness and transparency in the courts)
  • Where a defendant insurer plays “hardball” by offering zero prior to trial rather than even a modest sum, it leaves the plaintiff in a bind: Either she has to abandon her claim entirely and face a claim for costs, or take the case to trial at great cost.
  • In deciding not to make any offer, the defence was setting a clear demarcation line or a ‘line in the sand’ which can be used to identify success or failure in an action.” Having set a line in the sand, the Defendant must accept that she lost on her own measure.
  • In light of the Defendant’s “hard ball” approach, the Judge refused to exercise her discretion under Rule 57.05(1).
  • The Judge also found that the Defendant would have been well-aware of the actual costs of this litigation early on in the process. The Defendant made the conscious tactical decision to play hardball, which backfired. They must pay the consequences for such a decision. The Judge no doubt that had the Defendant made a reasonable offer to settle, this trial (and the associated costs) could have been avoided.
  • It was the Defendant’s unreasonable decision not to make any pre-trial offers that effectively necessitated the matter going to trial. Significantly decreasing the Plaintiff’s claim for costs in such circumstances risks rewarding Defendants who engage in such bully tactics: Persampieri v Hobbs2018 ONSC 368, at paras 93-108 (where Aviva was also the defending insurer); Corbett v. Odorico, 2016 ONSC 2961, at paras. 19-20.
  • The Judge was troubled by the Defendant’s refusal to admit any degree of liability prior to trial given the factual context in which the accident took place. The would have lengthened the trial. The Defendant brought two unsuccessful motions: a pre-trial strike the claim for special damages, and a mid-trial motion to strike certain jury questions. This again lengthened the trial.
  • The Defendant’s decision not to make an offer makes no sense in light of the evidence at trial and which the jury clearly accepted. We will simply never know if that trial could have been avoided had the Defence made even a modest offer early on in the litigation.
  • Given that the Defendant’s clear tactic was to force the matter to trial in the hopes that the Plaintiff would either withdraw or settle her claim for no monetary compensation, it is fair and reasonable that the Defendant bear the costs of this aggressive litigation strategy. The Judge ended up awarding the Plaintiff a total of $300,000 inclusive of costs, disbursements, and HST. The award at trial was only $16,160.50 in damages.
  • The amount of costs reflects only those costs incurred by the Plaintiff. Assume for a moment that the Defendant insurer incurred the same amount in costs (which was reduced by the judge by $100,000, so those costs would have well exceeded $400,000). Then the parties would have spent a total of $600,000 on a case that was valued only $16,160.50! Think about that for a moment long and hard. But for the Defendant’s approach to litigating this case, which is fostered by having jury trials at no additional expense to the litigants, the case would likely have settled outside of Court.
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