( Disponible en anglais seulement )
This is the very question that will be before the Court in the case of Kapoor v. Kuzmanovski, a motor vehicle accident action that was scheduled for a trial by jury in January 2017.
Prior to trial, the Plaintiff brought a motion to exclude potential jurors who drive and pay insurance premiums, or have automobile insurance premiums pain on their behalf, on the basis that these jurors have an inherent conflict of interest. The argument is premised on the fact that jurors who pay insurance premiums are adverse to the Plaintiff due to their financial obligations to the insurer, creating an unfair bias. In the alternative, the Plaintiff sought an order permitting them to challenge potential jurors who pay automobile insurance premiums, or have premiums paid on their behalf, due to this alleged inherent bias.
Given the far reaching impacts this decision could have on the civil litigation system, the Court wanted interested organizations to participate as amicus curiae, or “friends of the court.” Amicus curiae are non-parties permitted to make submissions on questions before the court. In this case, Justice Daley found that it was appropriate for the Ontario Government to make submissions given potential legislative changes to the Juries Act if the motion were to succeed. The Plaintiff requested that the Ontario Trial Lawyers Association (“OTLA”) be added as a friend of the court. However, Justice Daley was not convinced that the OTLA was sufficiently neutral to fulfill the amicus curie role. Instead, Justice Daley thought the Advocates’ Society could provide more comprehensive and impartial submissions on the issues.
The motion was adjourned to allow the amicus curiae to respond and a case management conference to be held.
Excluding insurance premium-paying citizens from the potential juror pool would have significant impacts on jury trials in MVA claims. From a practical standpoint, the number of potential jurors to draw from would drastically plummet considering the number of citizens who drive and pay for insurance.
This is not the first time that questions of a jury’s ability to remain impartial in MVA actions have been raised. Is it true that insurance premiums paid by jurors are impacting upon jury awards? Or are there are other factors at play, if at all?
Some have theorized that the rule forbidding any insurance-related references to jurors may be misleading. For example, some jurors may be under the impression that a defendant will be personally footing the bill for a damages award. Of course, this is not always the case. Additionally, jurors are not formally advised of the statutory deductibles that will be subtracted from certain heads of damages, which could lead to an impression that a plaintiff is being awarded more than the net result.
With advertising in the legal profession under the microscope, some have hypothesized that jurors are influenced by the extent and nature of “been in an accident?” ads. These ads may have had the effect of eroding public perception of personal injury lawyers which could negatively impact upon a juror’s overall assessment of the plaintiff’s case.
Although the issues identified above focus on MVA cases, the civil system more generally must also be considered in the context of the Kapoor motion. Anyone who is familiar with civil litigation in Ontario knows that it can take a very long time to get a case before a jury. Similarly, a jury trial takes much longer than a trial before a judge sitting alone. In addition to these procedural issues, human nature can play a big role in a juror’s decision, for example the juror who finds a particular plaintiff not “likeable.” These factors have led some to suggest that civil juries ought to be abolished outright.
Proponents of juries note that the Canadian judicial system is built on the idea that juries are an inherent part of our democratic society – they aid in the maintenance of law and order and uphold justice among their fellow citizens. There is arguably no other part of Canadian society where ordinary citizens participate in decisions of such immediate importance; juries are democracy in action. In theory, a jury’s decision helps to ensure that the justice systems reflects the values and standards of the general public.
Whatever the case may be, the outcome of the Kapoor motion could lead to some drastic changes in MVA litigation and open up the door to a broader conversation about civil jury trials in Ontario. It might be a bit of a stretch to eliminate jury trials (or potential jurors) in MVA claims on the sole basis that jurors pay insurance premiums. Indeed, it is highly likely that most judges pay insurance premiums and are not asked to recuse themselves. Nevertheless, the motion has started a conversation among the judiciary and the civil litigation bar that is likely far from over.