Justice delayed is justice denied.  

This legal axiom has been around for centuries. And has never been more relevant than it is today. Essentially, it means that access to justice that is not forthcoming to an injured party in a timely fashion, is no better than having no justice at all. According to the Supreme Court of Canada, “unnecessary delay in judicial and administrative proceedings has long been an enemy of a free and fair society.”

The Ontario Trial Lawyers Association (OTLA), due to the current COVID-19 pandemic and other pre-existing factors, has stated clearly that we have an “access to justice crisis” in Ontario. Civil jury trials are at the forefront of this crisis.

In fact, the Attorney General has asked for input on a proposal to eliminate civil jury trials in order to free up backlogged courts in Ontario.

In response, the OTLA is calling on an immediate suspension of all current and future civil jury notices (with only certain public interest case exemptions), and it’s easy to see why.

The pandemic, and the associated court closures and suspension of jury trials for various periods, has led to an exponential increase in the already massive backlog of trials on the books in Ontario.

If you are an injured party in Toronto, with a Trial Record filed (after a failed mediation), your wait for a long jury trial is likely to be at least 2 ½ years (this is a pre-pandemic  estimation, this could be much longer going forward), while a judge-alone trial can be had far more expeditiously.

Insurance Company tactic?

As pointed out by the Ministry of the Ontario Attorney General’s office Civil Justice Reform Project, “Insurers in most negligence actions require their counsel to deliver a jury notice… One clear aim of the strategy is to increase the risk to which the plaintiff is exposed, manifestly on the basis that the insurer can absorb the risk better than almost all plaintiffs.”

The risks for the plaintiff include not only the unconscionable wait times, but also the exorbitant cost, and the uncertainty of a jury’s decision.

Ontario Superior Court Justice Fred Myers also feels that the insurer strategy helps their bottom line in another major way, as he stated in response to a 2016 jury verdict that awarded only $3,000 to an accident victim who had asked for over a million dollars:

“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.”

Judge vs Jury

Judge-alone trials are not facing the same kind of backlog as jury trials for various reasons, not the least of which is that in many cases they can still be held during the pandemic virtually, through technological means.

Civil jury trials, naturally, cannot be held during lockdown periods of the pandemic, and are far more expensive than judge-alone trials, both for the plaintiff and for the jurisdiction, consuming far more time and resources. They can take as much as 2 to 3 times as long to complete. This is due to a number of factors:

  • Jury selection time
  • Opening and closing statements take longer than judge-alone
  • Motions the judge must hear to decide whether certain evidence is admissible before the jury
  • The need to rely on expensive demonstrative evidence like computer accident simulations and enlarged medical illustrations of the major injuries (often there are motions argued dealing with admissibility)
  • The number of expert witnesses needed to prove liability and damages
  • Judge’s charge to the jury
  • Jury deliberations

Juries are not legal experts. Asking them to decide on a private legal matter between a stranger and, likely, an insurance company, is a questionable practice, at best. Most judges are much more well-versed in such evidence as presented at these types of trials.

By law, the jury is never told several important factors: that the defendant is backed by an insurance company; in motor vehicle cases, there is a large monetary deductible (about $40,000.00); and the requirement that the plaintiff’s injuries must meet the Insurance Act threshold.

This means the jury will be asked to award damages for pain and suffering but are not told that the injured plaintiff does not get to keep the first $40,000.00.  This accepted practice by the courts in Ontario is quite clearly unfair to the injured plaintiff.

Due to the jury’s ignorance in the law, the plaintiff’s legal team is compelled to bring in a considerable number of expensive expert witnesses to make their case — often many more than in the case of a judge-alone trial. The burden of expense for the plaintiff can be crushing.

An injured party needs financial restitution to help with the healing process, and to get on with the new reality of their life. This combination of onerous wait times for a jury trial, plus the enormous expense and the inherent uncertainty of a jury’s decision forces many plaintiffs to be scared off from proceeding, and perhaps settling for less than they’re entitled to.

The 2 ½-year wait for a pre-trial and Trial Date leaves plaintiffs and personal injury lawyers in a bind. “In most cases, my clients don’t understand the inordinate delay and are not prepared to wait that long for a resolution of their case,” says Brian A. Horowitz of Horowitz Injury Law.

‘If the Attorney General decides not to abolish civil jury trials permanently, as is the case in the UK and most of the rest of Canada, he must at least strongly consider suspending jury trials for at least a year to help with the backlog and improve access to justice.”

With the ever-increasing demands on Ontario’s justice system brought on by the coronavirus court closures and the already-existing backlog, access to justice has reached crisis proportions in this province, especially for injured parties who are in dire need of some kind of resolution.

The Federal Court of Canada, along with most of the provinces have already abolished civil jury trials (with the aforementioned exception of certain public interest cases, such as defamation).

In Ontario, it’s time to do the same. The time for delaying, and thus, denying justice must come to an end.