The issue in Nemchin v Green, 2017 ONSC 2126 (CanLII) was whether the underlying insurers responding on behalf of motorists named as a defendant in a lawsuit should be included as “persons involved” and disclosed to the jury as a part of the pre-screening during the jury selection process. The plaintiff submitted that the identities of the underlying insurers, both on behalf of the tortfeasor and the accident benefit insurer, should be disclosed to jury members in order to determine if there is any connection between the insurers and jury members that would impact a juror’s impartiality. However, the named defendant argued that disclosing such information would be prejudicial to their case and as a result the names of the underlying insurers should not be disclosed.
The plaintiff’s concern regarding impartiality extended beyond whether a potential juror is or has been employed by one of the involved insurers. The plaintiff was also concerned that potential jurors might be related to someone who was employed by one of the involved insurers. The defendant made the logical counter-argument that any questions regarding the potential jurors’ occupations and resulting impartiality concerns could be addressed in the pre-screening process without disclosing the underlying insurers, therefore rendering the plaintiff’s concern moot.
Section 108(7) of the Courts of Justice Act addresses impartiality in stating that “the judge presiding at trial may discharge a juror on the ground of illness, hardship, partiality or other sufficient cause.”
In R v Find the Supreme Court of Canada laid out the two-step jury selection process: firstly, a pre-trial process, and secondly an in-court process. The overall process embodies “procedures designed to ensure jury impartiality”.
In R v Sherratt, Justice L’Heureux-Dube stated that “a juror must be presumed to perform his/her duties in accordance with the oath sworn”. Jurors swear an oath to give a true verdict, and there is a presumption that jurors are capable of fulfilling their responsibilities in an impartial manner.
Following a review of the above authorities, Justice Sylvia Corthorn dismissed the plaintiff’s request to have the identity of the underlying insurers disclosed to potential jurors.
In writing the judgment for this case, Justice Corthorn noted that the law has not evolved to the point where it is required to disclose the names of motor vehicle insurers as a part of the pre-screening process for civil juries. Justice Corthorn went on to state a few pertinent policy reasons for why the law should remain such that the underlying insurers do not need to be disclosed. Firstly, she noted that to mention the insurers would mistakenly characterize the dispute in the eyes of the jury as one between insurance companies as opposed to one between citizens. And secondly, disclosing the names of the underlying insurers might lead a jury to conclude that the plaintiff will be compensated by an insurance company as opposed to the defendant, which ignores the possibility of personal exposure to the defendant.
Additionally, Justice Corthorn noted that jurors were instructed on at least three occasions regarding their responsibilities to act in an impartial manner. The risk of a juror failing to follow these instructions with respect to impartiality was small.
This decision is a strong endorsement for the notion that the identifying of the names of underlying insurers in an action should not be disclosed to the jury. Justice Corthorn appropriately considered the relevant case law and statute with respect to jury impartiality and the pre-screening process, and she also raised highly relevant policy reasons for why the names of the underlying insurers should not be disclosed to a jury.
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