Personal Injury Law in Ontario does not make sense. It’s overly complicated, and intentionally hides things from Jurors.
It would make sense to present a Juror (who likely has no prior experience being a Juror) with all of the facts so that they can make a just decision.
Yet, in personal injury cases, there are things which lawyers are NOT allowed to share with the jury. Insiders (like Judges, insurance adjusters, and lawyers) know about what can be shared with a jury, and what cannot. But jurors are intentionally left in the dark.
Here are a few things which lawyers cannot share with the jury, at a personal injury trial.
The identity of the insurance company which is defending the named Defendant cannot be shared, or even mentioned. The Defendant who caused the accident is being sued by the Plaintiff for his/her injuries. Yet, the individual Defendant does not pick his/her lawyer, nor does s/he pay for his her lawyer out of pocket. Any award or judgment is not paid by the individual Defendant either. That money is paid out by a large insurance company (where there is insurance available). All of the experts retained to defend the Plaintiff’s case are paid for by that insurance company as well. These items cannot be mentioned to a Jury at a personal injury trial, even though the Judge knows it; the lawyers know it; and the adjusters know it. The Jury is left in the dark.
In Ontario, there are special rules established by the Provincial Government to limit the amount of money which insurance companies have to pay on car accident cases. These rules are; in very plain English unfair to innocent accident victims. The lawyers and Judges know about these rules, but the jurors don’t. In fact, mention of these rules is NOT permitted at trial at all in front of a Jury. In order to sue in Ontario, the injuries need to be deemed both serious and permanent. This is called the threshold. In addition, there is a statutory deductible of around $44,000 which increases each year with inflation. That means that the first $44,000 of any award below $147,888 gets reduced by $44,000! It’s a secret credit because the Jury is NOT allowed to be told about this secret credit in favour of the Defendant insurance company. These rules exist to maximize the profits of insurance companies under the guise to keep claims down so that the savings can be passed along to the consumer in the form of lower insurance premiums. It begs the question whether or not your insurance premiums have gone down over the past decade or so. Chances are they have not and have only gone up. Mentioning the threshold and/or the deductible to a jury at trial is not permitted. Which is rather odd, because the will of the jury is not respected. If the Jury wants to award a Plaintiff $50,000 for his/her pain and suffering, that amount is automatically effected by the $44,000 deductible, which is not mentioned to the Jury. So, if the Jury’s intent was to award the Plaintiff $50,000; the Plaintiff will only receive around $6,000 after the statutory deductible of $44,000 is applied. Yet, this information is NOT passed along to the Jury in making their decision. This seems completely unfair, which I would argue is completely unfair.
If a Jury was responsible for sentencing a person convicted of a crime (which doesn’t happen in Canada, it’s the Judge’s responsibility), and they wanted the accused to serve 5 years in jail; but there was a law stating the regardless of the will of the jury, the number of years served sentenced by the Jury would automatically be increased by an additional 10 years, that would not make sense! The will of the Jury is circumvented, and the Jury is left in the dark with respect to their decision and how it impacts the accused. The same happens in personal injury cases, only instead of years served, we are talking about the amount of dollars awarded to a Plaintiff.
The lawyers also cannot discuss to a jury whether or not a Defendant was charged with anything in relation to an accident. The only thing which the lawyers can present to the Jury is whether or not the Defendant was convicted of a charge in relation to the accident. This is rather odd because given the state of the Court system in Ontario, many cases are administratively dismissed. Or, perhaps the officer did not attend at Court that day and the charges had to be dropped by the Crown. What happened at the Highway Traffic Act proceeding or the Criminal Trial is relevant and ought to be shared with the Jury so that they have a complete picture of what went down. If the Defendant gets off on a technicality, the Jury ought to know instead of drawing an inference that because there was no conviction then the Defendant did nothing wrong. This couldn’t be further from the truth. And isn’t that what a trial is all about? Finding the truth through the maze of evidence?
There has been a push by the Plaintiff bar to eliminate civil jury trials. The Defence Bar has pushed back against this suggestion. And no wonder why. The reality is that the rules when it comes to Jury trials, and what the Jury can be told, and what cannot be told to a Jury favour Defendants. In particular, the rules favour insurers defending personal injury cases. When civil jury trials are eliminated, you will see different award patterns for personal injury cases. Judges know about how the rules work and what games insurers play in personal injury cases (in particular, auto cases). As of the time of preparing this instalment of the Toronto Injury Lawyer Blog, the rules as they relate to civil jury trials favour Defendants and insurers. Those rules do not favour Plaintiffs. In fact, the rules don’t even favour jurors trying to get a better understanding of how personal injury cases work because as currently constituted, those rules keep jurors in the dark.