The impending decision in Kapoor v Kuzmanovski may revolutionize jury trials in motor vehicle accident litigation, severely limiting who may serve on a jury.
Counsel for the Plaintiff brought a motion to exclude potential jurors who drive and pay insurance premiums, or have automobile insurance premiums paid on their behalf, on the basis of an inherent conflict of interest. The essence of the Plaintiff’s novel argument is the idea that jurors who pay insurance premiums have an adverse interest to the Plaintiff due their financial obligation to the insurer. As a result, the Plaintiff contends that the potential juror cannot be impartial.
Alternatively, the Plaintiff sought an Order permitting the Plaintiff to challenge potential jurors who pay automobile insurance premiums, or have premiums paid on their behalf, for either cause or want of eligibility.
Justice Daley determined the issue could not be decided summarily and turned his attention to proper resolution of the matter. Given the potentially wide-ranging impact of the decision, the parties agreed that this was a case where interested legal organizations could participate as friends of the court.
The Court held that two parties should be added as an intervenor and friend of the court, Her Majesty the Queen in the Right Province of Ontario and The Advocates’ Society respectively. Under Rule 13.01 of the Rules of Civil Procedure a party may move to be added to litigation if it is interested in the subject matter of the proceeding. Justice Daley suggested that the Ontario government likely satisfied the test under 13.01. Under the current Juries Act, litigants in civil actions are unable to challenge an eligible juror for cause. The Plaintiff’s proposed remedies sought to change the legislation. As such, Justice Daley held that the Ontario government would likely be interested in the outcome of the motion and should be invited to intervene.
Justice Daley then considered the role of friends of the court. A friend of the court must meet the test set out by 13.01, as well as additional requirements outlined in 13.02. Chief amongst the extra criteria is the stipulation that a friend of the court must assist the court in their decision making. While Justice Daley acknowledged that the role had evolved over time, he rejected the idea that friends of the court were partisan. Although assistance was provided by way of argument, some neutrality must be maintained. As such, he denied the Plaintiff’s request to have the Ontario Trial Lawyers Association added as friend of the court and opted to include The Advocates’ Society instead. The Advocates’ Society provided a more comprehensive contribution to the court. It is made up of lawyers practicing in a broad spectrum of civil litigation, rather than restricted to the plaintiff’s or defence bars in personal injury litigation.
Justice Daley adjourned the motion and issued an Order to serve the Office of the Attorney General and The Advocates’ Society with a copy of motion materials.
If the Plaintiff is granted their requested remedies, it would have a significant impact on jury trials in the context of motor vehicle accident cases. With almost 11 million registered vehicles in Ontario, excluding potential jurors who pay automobile insurance premiums would inevitably shrink the pool of potential jurors substantially. One might question why a judge who pays automobile insurance premiums is any less biased than a potential juror. The full extent of the changes remains unclear. The attack on civil juries seems to be heating up of late. In Mandel v Fahkim decision, Justice Fred Myers said “Jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies“. In light of the judge shortage, and the length of jury trials relative to trials with judge alone, former strong advocates of the jury system including John McLeish of the McLeish Orlando firm, have recently proposed the abolishment of civil juries, or the increase of the monetary jurisdiction of the Simplified Rules (where juries are not available). Having said all of that, the impending decision is one that the insurance industry should keep a close eye on.