The Ontario Superior Court of Justice recently heard a novel argument by a plaintiff in a civil motor vehicle accident action. The plaintiff brought a motion to exclude from her trial all potential jurors who drive and pay for automobile insurance premiums, or have premiums paid on their behalf, due to an “inherent conflict of interest”. The plaintiff argued that prospective jurors’ financial obligation to pay automobile insurance constituted a personal interest adverse to that of plaintiffs in motor vehicle accident cases. Regional Senior Justice Daley dismissed the motion in its entirety.
The plaintiff relied on one key document as evidence of this “inherent conflict of interest” – a survey conducted of 300 Brampton residents from January 23 to January 25, 2017 (the “Survey”). The Survey asked participants whether or not they would seek to lower their auto insurance premiums by limiting the damages awarded to a claimant in a motor vehicle accident case or whether they would award damages regardless of whether their insurance premiums would increase. The results showed 73% of those questioned would limit the damages awarded in order to lower their insurance premiums. The remaining 27% would award damages without regard to their insurance premiums. Unfortunately for the plaintiff, RSJ. Daley excluded the Survey from the evidentiary record of the motion.
The plaintiff had attempted to bring the Survey evidence in as expert evidence. The expert, according to the plaintiff, was the Executive Vice President of AskingCanadians, the company retained to administer the Survey. RSJ. Daley assessed the admissibility of this purported expert evidence by applying the Supreme Court’s test in White Burgess Langille Inman v. Abbott & Haliburton Co., 2015 SCC 23. Pursuant to this test, a trial judge must first consider the threshold inquiry that balances the risks and benefits of admitting the evidence. If found admissible at the first stage, the trial judge must then consider: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and the need for a properly qualified expert.
RSJ. Daley concluded that the Survey did not even pass the first stage of the threshold inquiry, holding:
Crucial to considering potential juror bias or partiality in the context of the Survey is whether or not the survey’s respondents, as prospective jurors, would be capable of setting aside any bias if instructed to do so. Questions of this nature are not considered in the survey and answers to such questions would speak to whether a survey respondent’s views would be amenable to “cleansing by the trial process.”
Out of completeness, RSJ. Daley went on to assess the four requirements of the White Burgess test as though the Survey had in fact passed the first stage of the threshold inquiry. Still, RSJ. Daley found that the proffered evidence did not satisfy the four requirements and was inadmissible.
RSJ. Daley invited submissions from Intervenors. The Attorney General of Ontario intervened and took the position that jurors in civil cases may only be challenged for want of eligibility under the Juries Act. The Advocates’ Society intervened and took the position that any substantive reform to the civil jury system allowing for a general challenge for cause should only be done through legislative amendments and/or changes to the Rules of Civil Procedure.
Agreeing with the Attorney General of Ontario, RSJ. Daley held that the Juries Act only provides for two forms of challenges for cause in civil cases: for want of eligibility and for ratepayers of municipal corporations where a municipal corporation is a party. A review of the jurisprudence makes clear that the Juries Act does not permit a broad/general challenge for cause. Agreeing with the Advocates’ Society, RSJ. Daley held that a challenge for cause based on bias or lack of partiality for prospective jurors ought not to be read into the Juries Act, as the legislature’s silence in the Act reflect an intention to exclude such challenge.
With the Survey excluded, RSJ. Daley held that there was “no evidence whatsoever that would demonstrate the presence of a widespread bias among Brampton citizens, as prospective jurors, against the interests of the Plaintiff or generally against similarly situated Plaintiffs.” RSJ. Daley further concluded that even if the Survey had been admitted, it would not have been enough to prove widespread bias among Brampton citizens who pay automobile insurance premiums.
Clearly, plaintiffs’ counsel are getting frustrated with the way juries are dealing with modest accident claims. Whether it is the proliferation of advertising “no fees unless you win” by lawyers, or that more citizens off the street are coming to realize that not every car accident leads to life altering injuries, there can be no doubt that plaintiff personal injury lawyers are willing to go to pretty extreme lengths to try to avoid putting such cases before a jury. While this attempt failed, it is pretty likely that there will be others.