Submission to the Attorney General

Joseph Campisi’s Submissions to the Attorney General Regarding Amendment to the Courts of Justice Act and the Availability of Civil Juries

Dear Mr. Downey:

I have reviewed your letter dated June 5, 2020 requesting the views of stakeholders regarding potential reforms that you are considering to the Courts of Justice Act concerning the availability of jury trials. I am a personal injury lawyer who manages a firm of 12 lawyers, I am a certified specialist in civil litigation recognized by the Law Society of Ontario and I am an adjunct professor of Insurance Law at Osgoode Hall Law School teaching since 2009. I am well aware of the challenges that my clients face in accessing justice, and I am encouraged to see that you have sought the views of stakeholders such as myself on this important issue.

For reasons that I will explain below, I believe that the time is ripe for Ontario to follow the lead of other Provinces by completely abolishing civil jury trials. Moreover, I believe that the abolition of civil jury trials should be immediate and retrospective for ongoing civil matters. My primary reasons for advocating the abolition of civil jury trials are that they contribute significantly to unnecessary delay and expense in the civil justice system for litigants, they unnecessarily burden our courts, they are cynically abused by insurance companies to work injustices in many personal injury cases (particularly those related to civil suits for damages resulting from motor vehicle accidents), and because they lack transparency and accountability in the operation of the jury system. These problems have longstanding origins in our civil justice system and have been gradually becoming more acute as the years have passed, but the unprecedented closure of the courts as a result of the COVID-19 pandemic has provided an urgent impetus for the defects in our civil justice system to be immediately addressed. I will address each of my reasons for recommending the immediate and retrospective abolition of civil jury trials below.

Civil Jury Trials Detract from the Overriding Goal of Access to Justice for Ontarians

The applicable regulation under the Courts of Justice Act which governs the procedure to all civil actions in Ontario is the Rules of Civil Procedure. The underlying philosophy of the Rules of Civil Procedure is well summarized by the “general principle” in Rule 1.04(1), which states that “These rules shall be liberally construed to secure the just, most expeditious and least expensive

determination of every civil proceeding on its merits.” Rule 1.04(1.1) carries the title of “proportionality” and states that “In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” Clearly, the Civil Rules Committee, which is responsible for drafting the Rules, considers the concepts of expeditiousness, inexpensiveness and proportionality to be very important in the administration of our civil justice system. One of the major barriers to being able to achieve those goals is the persistence of the jury system during civil trials. The presence of juries during civil trials considerably lengthens the duration of trials, as a result of the extra time needed for jury selection to take place, for the judge to hear various motions as to whether certain evidence should be heard by the jury, for the judge to properly charge the jury prior to its deliberation, and to allow the jury time to deliberate prior to rendering its verdict. Additionally, there is an increased possibility of a mistrial for trials heard before a jury because of the possibility that the jurors may have been compromised by something said in or out of court. It is not uncommon for three to four-week jury trials to be required for cases which are barely valued above the current Small Claims Court jurisdiction of $35,000. This simply is not a prudent use of scarce judicial resources, nor does it align with the expressed intention of the Civil Rules Committee to ensure that the principle of proportionality governs our civil justice system.

By lengthening civil trials considerably, the continued use of civil jury trials also considerably contributes to a delay in matters being tried. It is a truism that justice delayed is justice denied. In the criminal context, the Supreme Court of Canada has recognized this principle in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, in which they impose hard ceilings on the time for various criminal offences to be tried. According to the Supreme Court in Jordan, if criminal cases were not tried within well defined time limits, the prosecution would be stayed as a result of the Crown’s breach of section 11(b) of the Canadian Charter of Rights and Freedoms. In order to ensure that serious criminal prosecutions are not stayed as a result of a breach of s. 11(b) of the Charter, courts have understandably been prioritizing the hearing of criminal trials, which has further delayed the hearing of civil trials. Unfortunately, it has become common in the Toronto and Brampton regions for trials to be scheduled two years into the future in trial scheduling courts. These trial scheduling sessions themselves often take place after the action is certified as ready for trial by one or more of the parties. Delay of this magnitude must be rejected as unacceptable for any civilized justice system.

It is ironic that the Supreme Court’s expressed intent to ensure that justice is done in a timely manner has been at the expense of timely justice for civil litigants, but there is no reason to believe that the Supreme Court believes that timely and accessible justice is not also important for civil cases. In fact, in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87, the Supreme Court of Canada called for a “culture shift” in order to ensure access to justice for the broad mass of Canadians. In Hryniak, Justice Karakatsanis stated at paragraphs 1 and 2 of her reasons:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

My submission is that this “culture shift” must include the abolition of civil jury trials. Juries have a long history in the common law, but they have never had constitutional status in the Canadian civil justice system, as juries do in the criminal justice system or in the American civil justice system. Juries have historically been viewed as a means to the end goal of justice for civil litigants, not as an end in themselves. At a time when funds available for the justice system are in short supply, the continued use of juries requires courts to expend resources and money in summoning jurors, enforcing their summonses to attend court, presiding over jury selection, reimbursing jurors and ensuring their sequestration, and overseeing the longer trials that are required to accommodate the presence of the jury. As a result of the COVID-19 pandemic, the cost of accommodating the presence of jury members at civil trials will increase further, as social distancing and shielding measures will be necessary to ensure the safety of jurors and other participants in the civil trial process. At the same time, we can expect the COVID-19 pandemic to result in a collapse of tax revenues due to the resulting economic recession and mass unemployment. We can also expect the Province to be called upon to increase spending in the near term on social assistance and health care. This will result in budget deficits that are massive and seriously concerning with respect to the Province’s fiscal solvency. At this time when budgets are seriously stressed, the Province cannot afford to spend its money on non-essential matters which do not promote the welfare or safety of Ontarians. In summary, the culture shift that the Supreme Court of Canada stated that is needed to ensure that civil trials can be heard in a manner which is expeditious, inexpensive and proportional is still just as needed as it was when it rendered its decision in Hryniak in 2014. At a time of scarce budgetary resources available for the courts and the justice system, this can be achieved quickly and simply by no longer permitting juries for civil trials.

Civil Jury Trials are Abused by Insurance Companies in the Interest of Corporate Profits

One of the main reasons that juries have continued to be available for a wide range of civil trials in Ontario is due to incessant lobbying on the part of the insurance industry. The insurance industry knows that it has orchestrated a successful public relations campaign which has convinced the broader public from which juries are selected that personal injury plaintiffs are, for the most part, fraudsters and opportunists who are undeserving of compensation. Insurance companies are well aware of this perception, and they almost always instruct their counsel to file a jury notice, which provides them with an automatic right to a jury trial without requiring the consent of the opposing party in the litigation. Additionally, the Ontario Court of Appeal has stated that trial judges have limited grounds on which to dismiss the jury before or after the trial. Insurance companies continue to defend the practice of civil jury trials by lionizing jurors as having the “wisdom of collective life experience” and “a healthy measure of common sense.” Supposedly, according to this line of reasoning, trial judges are lacking in these qualities. Also, defenders of the continued use of civil jury trials have stated that they “keep the law in touch with evolving realities.” Ultimately, however, such arguments are heavy on platitudes and demagogic sloganeering and short on a compelling rationale to keep jury trials. How do we measure “wisdom” and “common sense,” and are such things even desirable in the context of a civil jury trial?

Trial judges, who see the reality of how insurance companies are using juries, have a better understanding of what is really going on. They have become increasingly frustrated with the frequently successful strategy on the part of trial counsel for insurance companies to defame and malign the motives of personal injury plaintiffs, and the fact that jurors are often eager to accept unfounded theories of malingering. Often, these are promoted by so-called “experts” who are repeatedly hired by insurance companies in order to advance a theory that the injured plaintiff is malingering. On of the more outspoken trial judges, Justice Frederick Myers, expressed his frustration with the system at paragraph 9 of his post-trial endorsement in Mandel v Fakhim, 2016 ONSC 6538 (CanLII), in which he stated the following:

While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land.

The above decision in Mandel was appealed to the Divisional Court, in which the panel expressed its disagreement with Justice Myers’ views at paragraphs 53 to 58 of its reasons:

[53] With great respect to Justice Myers, in my view the comments highlighted by plaintiff counsel do not have the significance suggested by plaintiff counsel, and I do not agree with the comments in any event.

[54] I say that for numerous reasons.

[55] First, in my view the emphasized comments by Justice Myers were clearly obiter. Justice Myers was being asked to provide a judicial ruling on the question of whether or not the injuries of the plaintiff in that case met the statutory “threshold”, established by s.267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8, for pursuing certain claims in relation to those injuries. In making such determinations, a trial judge is permitted to consider a verdict reached in the matter by a jury. In my view, such determinations do not invite or call for any necessary judicial determination of whether trial by jury is a just and appropriate method of adjudicating the merits of personal injury claims in Ontario. That is a matter for the Legislature and, as Justice Myers himself notes in his endorsement, the existing civil jury system remains “the law of the land”.

[56] Second, in my view the supposed purpose of civil jury trials suggested by Justice Myers, together with any corresponding suggestions of inherent injustice supposedly inflicted by the civil jury system, fly in the face of repeated indications by the Supreme Court of Canada and our own Court of Appeal that civil jury trials ensure our system of justice benefits from the “wisdom of … collective life experience,” “a healthy measure of common sense” and a “reflection of societal values” that jurors bring to trials, and that “one of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities.” I do not think those appellate statements, emphasizing the true purpose and contributions to justice of the civil jury system, should or can be effectively dismissed as some form of sham or meaningless verbiage. To the contrary, those appellate views are binding on the judges of this court. Moreover, the wisdom and accuracy of those appellate views seems readily apparent when one considers precedents dealing with motions to strike jury notices extending decades into the past; precedents which seem to suggest periods when such motions were brought predominantly by defendants, and other periods, (including the experience of recent years), wherein such motions have been brought primarily by plaintiffs. If defendants and plaintiffs, over time, successively perceive their preferences to be out of step with current jury verdict trends, (i.e., because jurors appear to be giving expression to an outlook on underlying realities and society values not favoured at the time by defendants or plaintiffs, as the case may be), one legitimate inference is that the civil jury system is not broken but instead working as intended.

[57] Third, I do not think the comments of Justice Myers were meant to suggest that insurers were somehow cynically intent on using the jury system to work injustice, as opposed to choosing the mode of trial they thought most likely to result in true justice in particular cases. In any event, to the extent the comments of Justice Myers have been perceived to have that meaning by plaintiff counsel, I disagree with them. Appellate courts repeatedly have emphasized that trial judges should not permit counsel, in submissions to a jury, to demonize or impugn a litigant’s motives or morality, as such considerations lead to flawed and prohibited reasoning. In my view, judges should not engage in any similar process or reasoning in relation to an insured defendant’s filing of a jury notice, in the absence of clear evidence to support accusations of wrongful intent.

[58] Fourth, and more generally, to the extent the comments of Justice Myers suggest that chronic pain claimants are incapable of receiving a fair and favourable verdict from a jury, (including substantial damage awards in appropriate cases, where the subjective claims of a plaintiff are found to be credible), that is not my view or experience for the reasons outlined above.

While the Divisional Court was understandably attempting to uphold defence to the Legislature’s view that civil jury trials are generally permissible, in fact they showed that they are out of touch with the current reality of the civil justice system. They use high sounding justifications for the persistence of the civil jury system such as the fact that it allegedly has “the wisdom of collective life experience” and possesses the elusive quality of “common sense,” when in fact these words are meaningless verbiage. Similarly, the Divisional Court’s suggestion that insurance companies, as billionaire financial institutions accountable to their shareholder, would prefer jury trials because they think it results in “true justice” rather than because it is likely to be profitable, is risible.

In fact, the experience of many trial judges is that insurers are cynically using the jury system to work injustice. This is particularly true with respect to actions relating to motor vehicle accidents, which represent approximately 25% of the civil case docket in Ontario, because of the unique and complex nature of the statutory compensation system for injuries caused by such accidents. Certain major auto insurance companies have in recent years come up with a business strategy in order to profit from the continued use of the jury system in civil trials. The Insurance Act requires a plaintiff injured by a “protected defendant” such as an at-fault driver or owner of a motor vehicle to prove that they have a serious and permanent impairment of an important physical, mental or psychological condition in order to recover any compensation for pain and suffering or for health care expenses. Additionally, the Insurance Act mandates a deductible of nearly $40,000 from awards for pain and suffering and various other deductibles for collateral benefits, which jury members are prohibited to learn about. Since the question of whether the plaintiff meets the “threshold” of a serious and permanent impairment of an important physical, mental or psychological function is to be decided by a judge rather than a jury, the jury members in our system also do not know about this “threshold.” Therefore, jury members are forced to decide motor vehicle accident compensation cases under a substantial veil of ignorance, and often end up awarding far less money to the injured plaintiff (if any) than they think they are awarding.

As mentioned above, certain insurance companies continue to exploit this system by devising a corporate “defensible program” in which they refuse to make an offer to settle to plaintiffs whose injuries they deem insufficiently serious, usually those with chronic pain or psychological injuries. The use of “defensible programs” by these injuries has been overwhelmingly successful from a financial standpoint, because most motor vehicle accident plaintiffs confronted with a refusal to settle for any amount other than a dismissal without costs will accept that offer rather than risk an adverse costs award which could amount to hundreds of thousands of dollars. However, the use of these “defensible programs” has also increased the number of civil jury trials in recent years, because some plaintiffs choose to proceed to trial rather than walk away from their lawsuits without any compensation. Trial judges understand that these defensible programs have increased the strain on our civil justice system, and many of them are furious that insurance companies have exploited the ignorance of jurors in order to make windfall profits at the expense of legitimate claimants and taxpayers who have to subsidize the costs associated with their insistence on running lengthy jury trials, even for small cases.

Trial judges have reacted to this in the past few years by imposing substantial cost sanctions on insurers who refuse to make offers to settle for personal injury trials before proceeding to lose to the plaintiff at trial. At that time, insurers have argued that the costs awarded against them should be proportional to the relatively small jury verdict against them. For instance, in her costs endorsement in Persampieri v. Hobbs, 2018 ONSC 368 (CanLII), Justice M. Sanderson stated the following at paragraphs 95 to 104 of her reasons:

[95] Like Firestone J, in Valentine, and the other Courts to which I have earlier alluded in this endorsement, I am of the view that to unduly shave Plaintiff’s costs, especially substantial indemnity costs ordered under Rule 49.01(1), based solely or primarily on an undue emphasis on the application of the proportionality factor (reasonableness of costs ordered relative to the amount awarded) would be unfair, especially in all of the circumstances here.

[96] The proportionality principle is generally invoked to foster access to justice.

[97] However a strict application of the proportionality principle here could work against the achievement of that goal and could have the opposite effect.

[98] Here, the party invoking the proportionality principle and thereby seeking to minimize the effects of a usual order for costs under Rule 49.01(1) is a sophisticated insurer that made a tactical decision to reject a Plaintiff’s formal Rule 49 Offer to Settle understanding the risk in costs that it was taking by so doing.

[99] Because it had framed its defence in the manner that it had, it knew that the resolution of the issues at a trial would involve the hearing of lengthy and costly evidence, including extensive medical evidence.

[100] Sanctioning insurers’ litigation strategies involving:

(1) discouraging Plaintiffs from pursuing legitimate but modest claims by refusing to make any meaningful offer to pay damages and forcing those Plaintiffs to trial in circumstances where, because of defences the insurers have asserted, they cannot possibly be successful unless they call expensive medical and other evidence;

(2) then, raising the spectre of very serious adverse cost consequences of such trials;

(3) then, even after Plaintiffs have chosen to take the serious adverse costs risks of such trials, and even after they have been successful at trial and have received costs awards under Rule 49.01(1) on a substantial indemnity scale;

(4) attempting to unduly minimize the quantum of otherwise usual amounts of costs including substantial indemnity costs on the basis of proportionality, would be, in my view, to sanction under compensation of Plaintiffs for costs legitimately incurred to make many lawsuits uneconomic and could generally discourage Plaintiffs with modest claims, even if valid from pursuing them.

[101] If pursuing such an approach or strategy were to have the effect of generally discouraging Plaintiffs from bringing and pursuing modest sized claims, [even in cases such as here where liability has been admitted] the benefits to insurers could be significant and wide ranging.

[102] If insurers were incentivized to pursue such a strategy and to generally resist settlement of such cases, in order to generally discourage such Plaintiffs from pursuing such actions, that could seriously jeopardize overall access to justice.

[103] Insurers can, of course, pursue whatever strategy options they deem fit, but especially where such strategies may have wide ranging and adverse implications involving widespread denial of access to justice, the use such strategies should not be encouraged by the giving of cost breaks on foreseeable costs consequences.

[104] The insurer here rejected a Plaintiff’s offer that would have made it possible for it to pay minimal damages.

Regrettably, insurance companies have used juries as their unwitting accomplices in a bid to strategically exploit the motor vehicle accident compensation system in order to deprive accident victims of access to justice. Aviva, for one, has been remarkably successful in doing so, as the vast majority of those motor vehicle accident plaintiffs who are placed in their “defensible program” end up “walking away” from the litigation without compensation. In Mandel, the Divisional Court states that counsel should not impugn the motives or morality of litigants in submissions to a jury, but the reality is that trial counsel for insurance companies in fact do so regularly. Trial judges are unable to stop this, as insurance counsel have learned how to covertly imply to juries that the injured plaintiff is malingering, without having to say so explicitly. Additionally, insurance companies have become adept at using the complexity of the hybrid fault/no-fault nature of the motor vehicle accident compensation system in Ontario in order to confuse and mislead jurors, who are necessarily not experts in the law. This is illustrated by the recent Court of Appeal case in Girao v. Cunningham, 2020 ONCA 260 (CanLII), in which the court attempts to formulate a manageable standard by which trial judges can charge jurors in motor vehicle accident cases, at paragraph 137 of its reasons:

[137] Finally, where evidence of the statutory accident benefits settlement is in evidence before the jury, the jury instructions should carefully explain how the motor vehicle accident compensation system in Ontario functions, including the fact that the plaintiff was entitled to the statutory accident benefits, and the distinct roles of the trial judge and the jury in setting the tort damages and accounting for benefits received so that the jury can understand the reasons for the allocation of the roles. The jury should be instructed not to reduce the award of damages because it believes that the benefits have compensated the plaintiff adequately for the accident. The current rather sparse standard instruction is not adequate.

Effectively, the Court of Appeal seems to be suggesting that the juries in motor vehicle accident cases should be educated as to the law of the tort compensation system and statutory accident benefits so that it can come to a fair verdict. In my experience, many of my clients are unable to grasp the complexity of this system, and it even takes time for junior lawyers to grasp of the subtleties of this system. The Court of Appeal is not being realistic by expecting jury members to become experts in the law of motor vehicle accident compensation in Ontario, which is what would be needed in order for them to do their job fairly.

Personal injury cases in general, and motor vehicle accident cases specifically, form a large portion of the docket of civil trials in Ontario. An effective and functional justice system should not permit insurance companies to exploit the ignorance and confusion of jurors in order to reap windfall profits off the backs of the taxpayers of Ontario.

There is a Lack of Transparency in the Jury System:

In our current civil jury system, parties are permitted to know very little about jury members before they are called to serve. Jurors are summoned by the sheriffs, and the parties are only permitted a few challenges for cause, each based on limited grounds. They are entitled to know prospective jurors’ occupations before they are summoned, but little else. Once jurors are seated, they are told that they are to ignore all evidence that they hear from out of court, but with little oversight as to whether they have in fact complied with that direction. They are also told never to discuss their deliberations with anyone outside of the courtroom, but with little oversight as to whether they comply with that mandate. When they are called upon to give a verdict at the end of trial, jury are not expected to give any reasons, and in fact, they are prohibited by the Criminal Code from publicly discussing their deliberations following the trial.

All of these practices result in a remarkably opaque system of adjudication, which is an anomaly considering that the Canadian justice system prides itself on transparency. In the administrative law context, the Supreme Court of Canada has discussed the importance of written reasons and transparency in several landmark decisions. For instance, in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, the Supreme Court of Canada stated the following at paragraphs 38 and 39 of its reasons:

38 Courts and commentators have, however, often emphasized the usefulness of reasons in ensuring fair and transparent decision-making. Though Northwestern Utilities dealt with a statutory obligation to give reasons, Estey J. held as follows, at p. 706, referring to the desirability of a common law reasons requirement:

This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal. . . .

The importance of reasons was recently reemphasized by this Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at paras. 180-81.

39 Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 4972 (FCA), [1997] 2 F.C. 646 (C.A.), at para.

38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf, & Jowell, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. I agree that these are significant benefits of written reasons.

More recently, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), the Supreme Court of Canada stated in the context of administrative law decision making that a “reasonable” decision is one that is both based on an internally coherent reasoning and justified in light of the legal and factual constraints that bear on the decision. Administrative decision makers must exercise their discretion is a manner that justifiable, intelligible and transparency. Supposedly, courts are the pinnacle of the justice system, and have the highest duty of procedural fairness of all. It seems strange then that juries presiding over civil trials are expected to make decisions in a complete black box with no requirement that their decisions be justifiable, intelligible or transparent. They are not required to give any written reasons at all, even for matters of great importance to the parties. Supposedly, their “wisdom” and “common sense” is all that the parties can expect. Once they have rendered their verdict, it is given greater deference by the presiding trial judges and by appeal courts, to the point that a jury verdict is virtually unappealable. There is no way for any of the parties to know that they have received a fair hearing from a jury, because it is simply presumed without any further thought. This is completely at odds with modern notions of procedural fairness, which is not only that justice must be done, but that it must be seen to be done. It is unbecoming of our civil justice system to have an adjudication system as opaque as our civil jury system, and it leaves the door open to numerous abuses, such as those currently being practiced by certain automobile insurance companies in many motor vehicle accident cases.

The very opaqueness of the current system makes it very hard to challenge by a civil litigant in a particular case. How do we judge what is “wisdom”? Or “common sense”? Or a “reflection of societal values”? All of those phrases are highly subjective, and they are not necessarily in line with what is logical or reasonable. In Kapoor v. Kuzmanovski, 2018 ONSC 4770 (CanLII), the plaintiff argued that any jury members who pay auto insurance premiums should be struck from the jury pool. The theory of the plaintiff was that those jurors would be biased against him because they would not want to see their own auto insurance premiums rise as a result of a large damages award. This challenge failed, as the court did not have any evidence that auto insurance premium payers would be biased against the plaintiff. However, as a result of the very lack of transparency in the system, it is questionable how one would even obtain such evidence. Similarly, it is entirely possible that jurors could make adjudicative decisions in civil cases based on discriminatory criteria, contrary to s. 15 of the Charter. This is not to suggest that jurors are somehow bigoted, but there is simply no oversight or discipline to prevent jurors from decided cases on prohibited grounds. That is a serious problem that threatens the rule of law in Ontario in itself. All Ontarians must have confidence that their civil cases are being decided fairly, reasonably and impartiality in accordance with reason and logic. They should not suspect at the end of a case that they were treated differently because irrelevant and prejudicial stereotypes, including prohibited grounds under the Charter and the Human Rights Code. Finally, the reality is that it is becoming increasingly common for jurors to look up facts or law on the Internet in order to inform their deliberations. While there are laws prohibiting jurors from doing so, and a judge may caution, discharge or sanction a juror for doing so, it is becoming increasingly difficult to enforce any sort of prohibition against jurors doing their own research in the modern age of the Internet.

Conclusion:

For all of the reasons mentioned above, I urge you to take the bold but necessary step to abolish all civil jury trials in Ontario. The presence of juries in civil trials slow down trials and clog our civil dockets, without providing any demonstrable value to the civil justice system. In fact, the past few years have shown that they are abused by cynical insurance companies who exploit stereotypes of personal injury plaintiffs as malingerers in order to realize windfall profits at the expense of injured victims and the taxpayers of Ontario. In particular, the low awards granted by jurors has forced injured plaintiffs to place greater reliance on our public health care system, which has further strained our provincial budget.

We are now facing an unprecedented health crisis with the onset of the COVID-19 pandemic, which has resulted in a prolonged closure of the court system and a looming budget crisis. Once regular court operations resume, they will face the challenge of streamlining a court docket that will be more crowded and delayed than ever before, as well as accommodating juries in a manner that safeguards the health and safety of all participants in the justice system. The abolition of all civil jury trials is a simple and logical solution to these issues, which promises to save considerable time and costs for our court system.

Finally, civil jury trials are a form of adjudication which relies on a lack of transparency as their hallmark. Justice should be about all participants having the sense that they had their day in court at the end of a trial, and litigants simply cannot say that with confidence based on our jury system as currently constituted. In motor vehicle accident cases in particular, jurors are not even allowed to know the truth about the implications of their verdict on the parties. These shortcomings of civil juries have been known by lawyers and judges for many years, and were partially addressed by your amendment to the Simplified Procedure Rules last year. The COVID-19 pandemic has led to a major re-thinking of many aspects of our way of life, and so it is time to reconsider once again whether civil jury trials are truly serving the needs of Ontarians and providing them with a justice system that is affordable, timely and accessible.