Power J. Rejects Insurer’s Constitutional Challenge to Court’s Power to Dismiss Civil Juries

In Legroulx v. Pitre, Mr. Justice Denis Power had to consider whether Rule 47.07 of the Rules of Civil Procedure, which permits a court to strike a jury notice on the ground that the action ought to be tried without a jury, contravenes the Canadian Charter of Rights and Freedoms. He held that it does not. In reaching his conclusion, he held that “judges are people who are skilled and experienced in deciding cases” and that “deciding cases is their business”.

This was a personal injury action action arising out of a 2000 car accident. The trial began before Justice Power and a jury. Counsel for the plaintiffs moved, at the opening of trial, for the jury to be discharged because of the complexity of the case. In particular, causation was a major and difficult issue in the case. Justice Power dismissed the motion, but without prejudice to the right of the plaintiffs to renew it later in the trial.

After some medical experts had testified, counsel for the plaintiffs did renew his motion. This time, Justice Power granted it and discharged the jury. He had been observing the jurors and had concluded that some of them were “having difficulty with the evidence”.

The trial continued. Eventually though, Power J. was advised that a “conditional settlement” had been reached between the parties. The condition was that His Honour make an order under Rule 22.01(2) of the Rules of Civil Procedure, for the determination of a constitutional question about the validity of Rules 47.02(2) and (3), which empower a judge to dismiss a jury. Justice Power agreed to make such an order.

Accordingly, the trial itself came to an end, but the constitutional question was argued last September. (This was a peculiar situtation; trial counsel for the plaintiffs did not appear on the motion. Instead, a new firm was engaged to argue the constitutional question. Although the Attorney-General was invited to participate in the motion, the invitation was not taken up. Counsel for the Ontario Trial Lawyers’ Association and the Advocates’ Society did make submissions though.)

Justice Power rejected the submission of counsel for the Advocates’ Society, that the motion should be dismissed on the ground that the issue was moot. He pointed out that the settlement had been expressly predicated on the Rule 22 motion proceeding. He accepted that the settlement would not have occurred had he refused to order that the constitutional question be argued.

Justice Power conducted a detailed review of the history of civil trials by jury in Ontario and elsewhere. He noted that the right to trial by jury in this province is not an unlimited one. Certain types of cases are, by statute, excepted from being tried by a jury.

He referred to a 1973 report of the Ontario Law Reform Commission, which had concluded that the majority of civil jury trials in Ontario were in motor vehicle cases. The Commission had recommended the abolition of juries in such cases, but that recommendation was not taken up. His Honour said that insurers’ tendency to seek trial by jury had, in more recent times, increased sharply: “Anecdotal evidence suggests this trend is a consequence of the greater use of the jury by defendants whose defences are usually conducted by insurance companies and the apparent tendency of juries in Ontario to make smaller awards of damages than do judges.”

Justice Power was not persuaded that the power conferred by Rule 47.02 amounted to a deprivation of life, liberty or security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In his reasons, he explained in detail why he did not believe that depriving litigants, in some circumstances, of a trial by jury offended their Charter rights. And he went on to say that, even if there were an infringement of Charter rights, it was saved by s. 1 of the Charter as constituting “reasonable limits demonstrably justiried in a free and democratic society”.

Counsel for the defendants argued that because there are no established criteria governing the exercise of the court’s power under Rule 47.02, that power was “vague and arbitrary” and therefore, offended the Charter. Power J. discussed the concept of judicial discretion, characterizing it as “fundamental in our law”. He observed that that is so for the very reason that the law does not contain a “complete road map”; otherwise, a judge would only have to follow the map.

As noted above, His Honour held that judges are better qualified than jurors to deal with difficult legal and factual issues, as they have “learning and experience that is not possessed by the ordinary juror”.

This case is perhaps as interesting for its unspoken subtext as it is for the arguments overtly made before Power J. There is little doubt but that lawyers acting for insurance companies are instructed to serve jury notices in at least certain types of cases, usually, those involving soft tissue injuries or “chronic pain”. Some companies have standing instructions to their lawyers, to serve jury notices in every case. The reason for this approach is that insurers believe that juries are much less inclined to award large damages for injuries which involve few, if any, objective, clinical evidence of injury. In our experience, this belief is well-founded, but only in the soft tissue or chronic pain type of case. Jurors seem disclined to believe that an apparently minor accident has produced a lifelong disability.

By way of contrast, we can recall a conversation several years ago, with a senior trial judge, who, while in practice, had acted for both plaintiffs and insurers. He told us that upon his appointment to the bench, he had quickly decided that he “would not lose a minute’s sleep, worrying about whether [he] had undercompensated a plaintiff” (in other words, he would ensure that he would never have to worry about this). Jurors seem to be much less troubled by this prospect. And for now, both sides will have to continue to take their chances at jury trials.

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