Toronto Injury Lawyer Blog
Insurance companies love jury trials for personal injury cases.
But getting a trial by way of Jury trial is not automatic. The default is that the personal injury trial proceed by way of Judge alone. Having a personal injury case heard by way of Judge alone simplifies the trial itself. It’s less complex. Less lengthy. Takes up fewer Court resources. It’s cheaper, more efficient and more cost effective. How many times have you heard of a mistrial involving a Jury case because of some shenanigans involving the jury itself? Lots! Now; how many times have you heard of a mistrial by way of Judge alone? Not many! That’s because when the trial proceeds by way of Judge alone, there are fewer changes at disaster happening. These are undeniable truths.
A personal injury case which is proceeding by way of Judge alone can quickly be converted to a Jury trial if either party files a “Jury Notice”. The cost for filing a Jury Notice in a personal injury case is only $138. Insurance companies file Jury Notices as a knee jerk response to defending claims. And, all for the low, low price of $138, the framework of the case has been changed completely.
Why do insurance companies want personal injury cases to be tried by a Jury, and not by way of Judge alone? Good question!
Jurors HATE hearing personal injury cases! These are cases which often don’t make headlines. There aren’t droves of reporters inside and outside of the Courthouse for a civil personal injury matter. But, they love hearing popular cases that make headlines. Criminal matters like nationally covered murder cases, sexual assault cases, drug cases, gun charge cases etc. Those are cases in which jurors are actively engaged. But, personal injury cases aren’t such cases. They don’t have the same notoriety, or cache as some of these prominent criminal cases.
And, because jurors don’t want to be hearing a personal injury case in the first place, they won’t be so generous in quantifying damages.
Jurors don’t know which party filed the Jury Notice. More often than not, it’s the Defendant insurer, but the jury won’t know, and the lawyers can’t say who filed the Jury Notice at trial.
In a Jury Trial, the lawyers are NOT allowed to talk about certain things which have a MAJOR impact on the case. The lawyers can’t talk about the statutory deductible for car accident cases in Ontario. Nor can they talk about the threshold for car accident cases in Ontario either. At the conclusion of the trial, the Defendant will no doubt bring a threshold motion to determine if the Plaintiff’s injuries meet the threshold to pursue a claim. The jury is shut out of this legal process. More dumbfounding is that because the lawyers cannot speak about the deductible for pain and suffering claims, the jury’s desired result (“the will of the jury“), is never satisfied. If a Jury wants a Plaintiff to receive $100,000 in general damages, and award the Plaintiff $100,000 in general damages, that award of $100,000 is then reduced by the statutory deductible of $46,790.05 leaving the Plaintiff with just $53,209.95. So, while a Jury thinks that they are awarding a Plaintiff with $100,000; the reality is that they are awarding the Plaintiff with just $53,209.95! Nobody is able to discuss this application of the statutory deductible of $49,790.05 with the Jury at the trial; and in all likelihood, they will never find out until after the fact (if they even care to find out at all).
Add to that, jurors aren’t paid for their time. In fact, they are missing time from work or from their day to day lives to be in Court. Many are paying for parking, or transportation to be at the Courthouse. Their hours are interrupted being away from home or work. Their lives are completely interrupted for weeks for a case which is of no consequence to society as a whole, but of significant consequences to the parties involved. Unlike a criminal case, personal injury cases are very insular. They have no impact on protecting society as a whole, or making it a better place. Nobody is going to jail following a personal injury case; meaning that a perpetrator is not going to jail. It’s about money; which; in the majority of cases; is being paid by a large, sophisticated insurance company who is making a business decision in assessing the value of the claim and taking it to trial.
What about the right to a trial in a legal matter? That’s another good question, where a distinction needs to be drawn between a criminal case where the rights of an accused are in jeopardy vs. a personal injury case (civil matter), where no rights are being disputed. Instead, the parties are fighting over money and benefits; which are completely different from natural rights of individuals.
In Canada, if you are charged with a criminal offence, you have a right to have your case heard and tried by a Jury.
This right is enshrined in the Charter of Rights and Freedoms at section 11(f) which states:
11. Any person charged with an offence has the right:
- except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
These rights don’t apply to civil matters, like in a personal injury case.
Sometimes, we hear members of the defence bar point Article 39 of the Magna Carta which states that no free man shall be seized, imprisoned, stripped of his rights or possessions, outlawed, or exiled, or deprived of his standing in any way, except by the lawful judgment of his peers or by the law of the land
The Magna Carta traces back to 1215. It has far more relevance to criminal matters where the rights of the individual are put at risk (like a lengthy prison sentence), rather than a modern personal injury case where the winning Plaintiff would receive monetary compensation from a large, multi national insurance company. This whole notion that defendants have the right to a jury trial in a civil case is a fabrication. It has far more relevance and use in the context of a criminal matter.
