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EXHIBIT 80
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“G U A R D IA N O F CIVIL R IG H TS . . .
ME D IE VA L R E LIC” †: TH E CIVIL JU R Y IN
CA NA D A
W. A . B O G A R T *
I
I NTR O D U CTIO N
The civil jury in Canada dangles on a shoestring despite the fact that the
1
available evidence indicates that it enjoys broad public support. It exists in
some jurisdictions in little more than name only, while in a few jurisdictions it
has been abolished outright. H owever, in O ntario, the largest province, civil
juries appear to be used more than in other provinces. In fact, there was strong
reaction when the O ntario Law R eform Commission (“O LR C”) suggested in a
2
recent Study Paper that civil juries be drastically curtailed. A s a result, the
O LR C reversed itself and actually recommended expanding the use of lay deci-
3
sionmakers. Nevertheless, juries in civil matters still exist only at the periph-
ery, playing nowhere near the central role in administering justice as their
4
counterparts in the U nited States. This article offers some explanations of why
Canadian civil juries exist only at the margins by examining the availability of
civil juries, empirical evidence regarding their use and cost in O ntario (the only
province for which such information exists on a systematic basis), and academic
and policy debates concerning their role.
Copyright © 1999 by Law and Contemporary Problems
This article is also available at http://www.law.duke.edu/journals/62LCPBogart.
† Paul R omney, From Constitutionalism to L egalism : T rial by Jury, R esponsible G overnm ent,
and the R ule of L aw in the Canadian Political Culture, 7 L. & H IST . R E V . 121, 138 (1989).
* Professor of Law, U niversity of Windsor.
My thanks to Vishva R amlall for painstaking research assistance, and to Linda Bertoldi and Justice
G ranger, R egional Senior Justice, O ntario Court of Justice, for very helpful comments.
1. See infra Part III.C.
2. O NTA R IO L A W R E FO R M C O MM ’N , C O NSU LTA TIO N P A PE R O N TH E U SE O F J U R Y T R IA LS IN
C IVIL C A SE S (1994) [hereinafter O LR C, STU D Y P A PE R ].
3. See O NTA R IO L A W R E FO R M C O MM ’N , R E PO R T O N TH E U SE O F J U R Y T R IA LS IN C IVIL C A SE S
(1996) [hereinafter O LR C, R E PO R T ].
4. In contrast, the jury plays a vital role in the administration of criminal justice in Canada. The
right to a jury in a criminal trial (where the maximum punishment is five years or more) is constitu-
tionally protected in the Charter of R ights and Freedoms (an entrenched bill of rights) enacted 15
years ago. See C A N . C O NST . (Constitution A ct, 1982) pt. I (Canadian Charter of R ights and Free-
doms), § 11(f).
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II
T H E A VA ILA BILITY O F C IVIL J U R IE S IN C A NA D A
A . A Brief H istory of Civil Juries
Canada had imported the institution of civil juries from E ngland before
confederation in 1867. Initially, at least in O ntario, juries were mandatory in
civil trials. Their obligatory use was seen as a safeguard against the domination
of the courts by the merchant classes and served as a bulwark against threats to
5
fundamental freedoms.
U nfortunately, civil juries in O ntario suffered from abuses that limited their
effectiveness. Sheriffs had absolute control in composing juror rolls, which led
to frequent allegations of corruption and “packing” to favour the interests of
6
those in the Sheriff’s office. A fter decades of such charges, O ntario adopted a
7
comprehensive statutory reform of the jury system in 1850. H owever, in 1868,
the presumption that civil trials were to be tried by a jury was reversed by pas-
8
sage of the Law R eform A ct of 1868: Subject to a few exceptions, civil actions
9
were to be tried by a judge unless one of the parties requested trial by jury.
A fter the implementation of much-needed reform, criticisms of civil juries,
once well-founded, were transformed into attacks on the institution itself. O p-
ponents of the civil jury argued that trial by jury was too costly and time con-
suming, and they questioned the ability of lay people to grapple successfully
10
with complicated legal and factual issues. A s a result, the use of civil juries
was drastically curtailed. Thus was established a tone of judgment from which
the Canadian civil jury has never fully recovered: “Its reputed age-old role as
guardian of civil rights and liberties was forgotten; suddenly it was a medieval
relic, costly and inefficient, which continued to clog the machinery of justice
11
only through the inertia of public will.”
B. Conditions for Civil Trial by Jury
D espite its tumultuous history, the civil jury is still available in Canada.
H owever, its availability varies among the Canadian jurisdictions. E ven those
provinces that most widely encourage the use of juries still impose substantial
conditions on their employment.
5. See O LR C, R E PO R T , supra note 3, at 5-6.
6. See Paul R omney, From Constitutionalism to L egalism : T rial by Jury, R esponsible G overnm ent,
and the R ule of L aw in the Canadian Political Culture, 7 L. & H IST . R E V . 121, 130 (1989).
7. See O LR C, R E PO R T , supra note 3, at 5-6.
8. Law R eform A ct of 1868, ch. 6, § 18(1), 1868-69 S.O . 18, 25 (O nt.).
9. See id.
10. See O LR C, R E PO R T , supra note 3, at 26-29.
11. Id. at 6 (quoting R omney, supra note 6, at 138).
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12 13
A t one end of the spectrum is Q uebec and the Federal Court of Canada,
both of which unqualifiedly prohibit civil juries. O ccupying the middle ground
14 15
are provinces such as A lberta and Saskatchewan, where civil juries are avail-
able for certain types of claims. G enerally, juries are available in cases in which
the amount in controversy exceeds $10,000. In A lberta, for example, such
claims are limited to those in tort and those for the recovery of property valued
16
in excess of $10,000. In addition, in Saskatchewan, a jury may be ordered
where: “(a) the ends of justice will be best served if findings of fact are made by
representatives of the community; or (b) the outcome of the litigation is likely
to affect a significant number of persons who are not party to the proceed-
17
ings.” Finally, at the other end of the spectrum are provinces like British Co-
18 19
lumbia and O ntario. A lthough jury trials are available there for certain
kinds of actions, the list of excluded actions is significant and includes claims
20
for equitable relief and claims against the crown and municipalities.
C. Judicial A ttitudes Toward the Civil Jury
A s seen above, the role of the civil jury, at minimum, is subject to signifi-
cant limitations in all Canadian jurisdictions. This tenuous hold is partially at-
tributable to hostile judicial attitudes. E xcept for the limited instances where
juries are mandatory, judges retain discretion to conduct a trial without a jury.
In addition, judges retain power to intervene in juries’ verdicts. E xamining
cases where these powers have been invoked provides insight into the courts’
understanding of the decisionmaking capacity of lay jurors and reveals that Ca-
nadian judges are at best ambivalent toward civil juries.
Canadian judges and justices have long saluted the importance of the civil
jury, characterizing trial by civil jury as a “substantive right” not to be taken
21
away except for “cogent reasons.” Nevertheless, courts retain the ability to
22
strike civil juries. In all provinces, a party may move to have a jury notice
23
struck out, and the judge may rule on the motion as an exercise of his or her
discretion. The most frequently cited ground for eliminating the jury in a civil
12. See Jurors A ct, ch. 9, § 56, 1976 S.Q . 59, 68 (Q ue.).
13. See Federal Courts A ct, R .S.C., ch. F-7, § 49 (1985) (Can.).
14. See Jury A ct, ch. J-2.1, § 16, 1982 S.A . 37, 44 (A lta.); A LBE R TA R U LE S O F C O U R T 234, 235.
15. See Jury A ct, ch. J-4.1, §§ 14-22, 1980-81 S.S. 53, 57-59 (Sask.); Q U E E N ’S B E NCH R U LE S O F
SA SK . 196.
16. See supra note 14.
17. Jury A ct, ch. J-4.1, § 17(1), 1980-81 S.S. 55, 58 (Sask.).
18. See Jury A ct, R .S.B.C., ch. 210, §§ 13-21 (1979) (B.C.); Supreme Court A ct, ch. 40, § 15, 1989
S.B.C. 327, 330 (B.C.); SU PR E ME C O U R T R U LE S 39(24)-(30) (B.C.).
19. See Courts of Justice A ct, R .S.O ., ch. C.43, § 108 (1990) (O nt.); R U LE S O F C IVIL P R O CE D U R E
47 (O nt.).
20. See supra notes 18, 19.
21. King v. Colonial H omes Ltd. [1956] S.C.R . 528, 533 (Can.); Such v. D ominion Stores Ltd.
[1961] O .R . 190, 193 (O nt. C.A .).
22. See, e.g., Jury A ct, ch. J-2.1, § 16(2), 1982 S.A . 37, 44 (A lta.).
23. See, e.g., R U LE S O F C IVIL P R O CE D U R E 47.02 (O nt.).
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case is the undue complexity of the factual issues to be decided. Less fre-
quently, the judge eliminates the jury because of the potential for prejudice to a
25
party arising from the determination of issues by laypersons. Furthermore,
judges have developed specific guidelines, almost all of which militate against
26
juries and favour striking their use in certain circumstances. A lthough most of
these strictures have been removed or significantly loosened in the last two
decades, courts in some provinces are inclined to make findings of complexity
that result in juries being eliminated relatively easily.
Traditionally, courts restricted the use of juries in civil cases to guard
against a jury becoming overwhelmed by “complexity” in cases involving com-
plicated issues of law, medical malpractice actions, and in cases where the jury
might discover that the defendant had insurance that would apply toward any
adverse judgment. R ecently, however, these categorical bars on the use of civil
juries have been eliminated.
The first categorical bar previously recognized by Canadian courts occurred
when the case involved complex legal issues. A lthough questions of law are left
to judges, courts, particularly those in O ntario, have held that the presence of
complicated issues of law in a case swamped the issues of fact, thus rendering
27
the action inappropriate for determination by a jury. H owever, appellate
courts in O ntario recently have reasoned that because only judges decide legal
questions, the complexity of the legal issues in an action are irrelevant to the
28
appropriateness of trial by jury.
A nother categorical bar to the use of the civil jury occurred in medical mal-
practice cases. Courts were reluctant to allow the use of juries in these cases
because of the perception that the factual issues were too complex and that the
29
risk of prejudice against doctors was too great. By the 1970s, reservations ex-
pressed by O ntario courts about the use of juries to determine issues of negli-
24. This is underscored by legislation in some provinces. See, e.g., SU PR E ME C O U R T R U LE S 39(27)
(B.C.) (permitting the Court to strike out a civil jury where the issues require prolonged examination,
scientific investigation, or are of “an intricate or complex character”).
25. See generally 3 G A R R Y D . W A TSO N & C R A IG P E R KINS, H O LME STE D A ND W A TSO N :
O NTA R IO C IVIL P R O CE D U R E 47 §§ 12-14, at 47-24 to 47-27 (O ct. 1997).
26. In contrast, courts are disinclined to strictly review the means by which juries are selected. See
H rup v. Cipollone [1994] 19 O .R .3d 715, 723 (O nt. C.A .) (holding that failure to follow statutory
stipulations for peremptory challenges is not a miscarriage of justice); Thomas-R obinson v. Song
[1997] 34 O .R .3d 62 (O nt. G en. D iv.) (holding that the right to challenge potential jurors for cause,
whether for racial bias or otherwise, does not exist in civil cases).
27. See MacD ougall v. Midland D oherty Ltd. [1984] 48 O .R .2d 603, 606 (O nt. H .C.J.); Fulton v.
Town of Fort E rie [1982] 40 O .R .2d 235, 237 (O nt. H .C.J.); D amien v. O ’Mulvenny [1981] O .R .2d 448,
451 (O nt. H .C.J.).
28. See Cosford v. Cornwall [1992] 9 O .R .3d 37, 48 (O nt. C.A .); Murray v. Collegiate Sports Ltd.
[1989] 40 C.P.C.2d 1, 3 (O nt. C.A .).
29. See Law v. Woolford [1976] 2 C.P.C. 197 (O nt. H .C.J.); Kingbury v. Washington [1925] 4
D .L.R . 632 (Man. C.A .). While the position in other provinces varied, only A lberta seemed to ap-
proach O ntario’s hostility toward the use of juries in medical malpractice litigation. For a discussion of
the various positions, see W.A . Bogart, T he Use of Civil Juries in M edical M alpractice Cases, in
STU D IE S IN C IVIL P R O CE D U R E 1, 5-9 (E ric G ertner ed., 1979).
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gence in medical malpractice cases led to their prohibition. This prohibition
was not based on any evidence suggesting that juries favoured plaintiffs in such
cases or that juries are incapable of understanding factual issues in medical
31
cases. But in the 1980s, O ntario courts dropped the strict rule against civil ju-
ries in such cases, although they retained the power to eliminate juries in spe-
32
cific cases deemed too complex or involving the potential for prejudice.
A final categorical bar recognized by Canadian courts occurred when the
jury “might reasonably infer” that the defendant was insured against a finding
of liability. In such cases, the Supreme Court held that the panel must be re-
33
leased. The Court reasoned that jurors would be more likely to find liability if
34
they knew that an insurer would pay any judgment against the defendant. A l-
though such reasoning may have been sound decades ago, compulsory automo-
bile insurance and the prevalence of liability coverage in other areas calls into
question an automatic assumption of prejudice so severe as to require the re-
moval of the case from the jury. Indeed, in the face of silence concerning such
35
matters, juries might well assume that the defendant is insured. A s a result,
many lower courts have found ways around automatically releasing juries just
because they had acquired information from which they “might reasonably in-
36
fer” that insurance coverage played a role in the case. In 1997, the Supreme
37
Court put its imprimatur upon such efforts and abolished the rule. Judges
may now exercise discretion in determining whether to release a jury which has
come to know that the defendant carries insurance that would cover any judg-
38
ment against it. A lthough such discretion is entirely defensible given the
modern reality of ubiquitous insurance coverage, the prohibition against the
39
mention of insurance continues to prevail in the U nited States.
Though these strictures against the use of juries have been eliminated or
drastically modified, the authority to strike out a jury on the grounds of the
complexity of the issues or potential prejudice to one of the parties continues.
Courts employ this discretion to strike juries in many debatable circum-
30. See L aw [1976] 2 C.P.C. at 197.
31. See Bogart, supra note 29, at 9-14.
32. See Strojny v. Chan [1988] 26 C.P.C.2d 38 (O nt. H .C.J.); A nderson v. Wilgress [1985] 6
C.P.C.2d 172 (O nt. H .C.J.); Z eller v. Toronto G en. H osp. [1984] 45 C.P.C. 221 (O nt. H .C.J.); Sold-
wisch v. Toronto W. H osp. [1983] 43 O .R .2d 449 (O nt. H .C.J.); A rchibald v. D ixon [1981] 24 C.P.C.
235 (O nt. H .C.J); Lalonde v. Sudbury G en. H osp. of the Immaculate H eart of Mary [1980] 19 C.P.C.
147 (O nt. D ist. Ct.).
33. See Bowhey v. Theakston [1951] S.C.R . 679, 683 (Can.).
34. See id.
35. The Supreme Court’s rule was widely criticized. See, e.g., J O H N SO PINKA , T H E T R IA L O F A N
A CTIO N 31-32 (1981).
36. See Cameron v. E xcelsior Life Ins. Co. [1978] 27 N.S.R .2d 218 (N.S.S.C.T.D .); Morin v. R o-
chon [1983] 42 O .R .2d 301 (O nt. H .C.J.); A lden v. H utcheon [1960] Q .L.R . 539 (Q ue. Q .B.).
37. See H amstra v. British Columbia R ugby U nion [1997] 1 S.C.R . 1092, 1106 (Can.).
38. See id.
39. See 1 M C C O R MICK O N E VID E NCE § 201 (John W. Strong et al. eds., 4th ed. 1992), cited in
H am stra [1997] 1 S.C.R . at 1103.
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stances. Nevertheless, courts of some provinces are more inclined to exercise
this discretion to strike a jury demand than others. A lberta, where civil jury
trials are rare, stands out. A search of cases decided in A lberta in the 1990s re-
veals four judgments in which the application for a jury was denied on the
ground of complexity, which is a significant number given the otherwise few
41
cases in which there is a jury.
Furthermore, courts retain the authority to interfere with the judgment of a
42
jury once it has reached its verdict. Yet, in contrast to the penchant of some
courts to dispense with lay decisionmakers, judges express substantial defer-
ence to juries once they have completed their task. A ppellate courts consis-
tently have held that it is only in limited circumstances—when there is no evi-
dence to support the findings or the verdict cannot in law be a foundation for
43
judgment—that the trial judge can disregard a jury’s verdict.
Moreover, the O ntario Court of A ppeal seems disinclined to respond to
even a legislative invitation to substitute its views for that of a civil jury. A re-
cently enacted law empowers appellate courts to substitute their own assess-
44
ment of damages on appeal in both jury and bench trials. Nevertheless, the
O ntario Court of A ppeal has decided that, where the jury has awarded dam-
ages, the court will not interfere with the award unless there has been a “wholly
45
erroneous estimate of the damages.”
D . A cademic A ttitudes Toward the Civil Jury
A nother factor possibly explaining the (non)use of the civil jury is academic
influence. A cademic legal education in Canada, particularly in O ntario, is of
comparatively recent origin. U ntil the 1950s, lawyers were largely educated as
apprentices. O ne of the main architects of academic legal education was Cecil
Wright, a tort scholar. Wright was adamantly opposed to civil juries, viewing
them as ill-equipped to respond to the many theoretical and policy arguments
46
essential to the development of tort law and policy. Wright had tremendous
influence and may have inculcated in several generations of lawyers a deep
40. See Babyn v. Patel [1997] A .J. No. 261 (A lta. Q .B.) (striking jury because of difficult issues of
causation and the likelihood of conflicting expert testimony); Taguchi v. Stuparyk [1993] A .J. No. 843
(A lta. Q .B.) (striking jury because the trial would involve lengthy examination of documents and actu-
arial reports as well as much conflicting expert testimony).
41. See B abyn [1997] A .J. No. 261; Sharma v. Smook [1996] A .J. No. 22 (A lta. Q .B.); Baker v.
Suzuki Motor Co. [1993] A .J. No. 240 (A lta. Q .B.); Meyer v. R oyal Bank of Canada [1993] A .J. No.
705 (A lta. Q .B.); T aguchi [1993] A .J. No. 843. B ut see Wilton v. R oyal Bank [1991] A .J. No. 770 (A lta.
Q .B.).
42. See Malloch v. Moenke [1996] B.C.J. No. 399 (B.C.C.A .); H ill v. Church of Scientology [1992]
7 O .R .3d 489, 498 (O nt. G en. D iv.); Loffredi v. Simonetti [1988] 29 C.P.C.2d 10, 15 (O nt. D ist. Ct.).
43. See cases cited supra note 42.
44. See Courts of Justice A ct, R .S.O ., ch. C.43, § 119 (1990) (O nt.) (“O n an appeal from an award
for damages for personal injury, the court may, if it considers it just, substitute its own assessment of
the damages.”).
45. Koukounakis v. Stainrod [1995] 23 O .R .3d 299, 305 (O nt. C.A .).
46. See E dson L. H aines, T he Future of the Civil Jury, in STU D IE S IN C A NA D IA N T O R T L A W 10,
10-11 (A llen M. Linden ed., 1968) (recounting Wright’s hostility toward the civil jury).
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skepticism about the role, if any, that civil juries should play in the administra-
47
tion of civil justice.
A nother academic perspective, developed in the 1970s, came to view civil
litigation as an ill-suited mechanism for providing compensation and effecting
48
deterrence in most areas of torts. Scholars in this school of thought instead
looked to the administrative state to provide redress, at least in the area of per-
49
sonal injuries. For example, they advocated expanded versions of worker
compensation programs, no-fault regimes for automobile accidents, and com-
50
pensation for damages suffered as a result of medical treatment. They were
also largely unenthusiastic about civil juries, seeing them as inextricably linked
51
to a system of tort adjudication that should, by and large, be abolished. Some
judges may agree with the view that juries are part of an outmoded system of
compensation for personal injuries. In any event, judges might emphasize the
burden on the judiciary in preparing what are contended to be long and intri-
52
cate charges to civil juries.
Whatever the merits of the stance taken by either Wright and his acolytes,
on the one hand, or those advocating administrative regimes, on the other,
these positions were highly influential in law and particularly legal policymak-
ing. The civil jury for a very long time, especially in O ntario, thus had very few
advocates among those in a position to recast the civil justice system.
III
SO ME E MPIR ICA L E VID E NCE : T H E U SE A ND C O ST O F C IVIL J U R IE S IN
O NTA R IO
It is one thing to detail how the courts—or anyone else—believe civil juries
should be employed. It is quite another to determine empirically the frequency
with which they are used, in what category of cases, and at what cost. R esearch
on the use of juries in most provinces is essentially educated guesswork. In
some provinces, such as Manitoba, there were no civil jury trials for extensive
53
periods of time. In British Columbia, the frequency of use of the civil jury has
47. See O LR C, R E PO R T , supra note 3; 2 O NTA R IO , R O YA L C O MMISSIO N I NQ U IR Y INTO C IVIL
R IG H TS: R E PO R T N U MBE R O NE 859-60 (1968).
48. For a critical yet sympathetic evaluation (based on empirical studies) of this position, see D O N
D E WE E S E T A L ., E XPLO R ING TH E D O MA IN O F A CCID E NT L A W : T A KING TH E F A CTS SE R IO U SLY
(1996).
49. See id.
50. See id.
51. See O LR C, R E PO R T , supra note 3. The Commission relied heavily on the advice of academics
in coming to its recommendations in these studies. In addition, the leading casebook on civil proce-
dure, G A R R Y D . W A TSO N E T A L ., C IVIL L ITIG A TIO N : C A SE S A ND M A TE R IA LS (4th ed. 1991), contains
only a few scant references to civil juries. See, e.g., id. at 280. Indeed, it is not an exaggeration to say
that academics have ignored the civil jury, largely hoping it would go away.
52. Letter from Justice B.T. G ranger, R egional Senior Justice, O ntario Court of Justice (Feb. 23,
1998) (on file with author).
53. See O LR C, R E PO R T , supra note 3, at 16-17.
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been estimated at between three and ten percent. The O LR C tried to dis-
55
cover such facts, with regard to O ntario, in its recent report on the civil jury.
D ue to the state of the records used as the basis of this study, caution is re-
56
quired when examining its findings. O n the other hand, the O LR C report
provides the only current, systematic attempt at assembling facts regarding the
use of juries in any province.
A . The U se of Civil Jury Trials in O ntario
A lthough the use of civil juries in O ntario had been declining in recent dec-
ades, over the last several years their employment has increased by about seven
57
percent. Specifically, civil jury trials have generally increased from fifteen
58
percent in 1988-89 to twenty-two percent in 1994-95. Further breakdown of
these figures indicates that approximately three-quarters of all civil jury trials
59
involve claims arising from motor vehicle accidents.
B. E xpense of Civil Jury Trials in O ntario
There is a widely held perception that jury trials take longer and cost more
60
than bench trials. The accuracy of this view depends on whether the trial is
concluded and how one determines the cost. The O LR C found that this per-
61
ception is correct for those actions in which the trial is concluded. It deter-
mined that the median length of trials determined by jury verdict exceeds by
62
three-quarters of a day the median length of bench trials. H owever, when
cases that go to trial but settle before their conclusion are included, the average
63
length of jury trials is less than that of bench trials. This reflects the impact
that juries have in promoting settlement: More jury cases settle prior to trial,
54. See id.
55. See id.
56. The O LR C study indicates that justice system statistics in Canada, generally, and in O ntario,
in particular, are not what they should be. See also R O D E R ICK A . M A C D O NA LD , STU D Y P A PE R O N
C IVIL J U STICE 20-23 (1995); W.A . Bogart et al., Current Utiliz ation Patterns and Unm et L egal N eeds,
in 2 R E PO R T O F TH E O NTA R IO L E G A L A ID R E VIE W , A B LU E PR INT FO R P U BLICLY F U ND E D L E G A L
SE R VICE S 316 (1997).
The researchers candidly acknowledge that they experienced significant difficulties, including es-
tablishing precisely how many jury trials actually took place in the last several years as opposed to ac-
tions in which a jury trial was scheduled but, for whatever reason, was not heard. See O LR C, R E PO R T ,
supra note 3, at 43-45.
57. See id. at 8.
58. See id. at 8-9. Statistics are last available for 1994-95.
59. See id. at 9. This despite the fact that motor vehicle litigation in O ntario has declined in the
last few years because of a move away from tort-based litigation to an administratively based “no-
fault” regime with exceptions for severe and permanent injuries. See I NSU R A NCE B U R E A U O F
C A NA D A , F A CTS O F TH E G E NE R A L I NSU R A NCE I ND U STR Y IN C A NA D A 8-9 (1997); A LLA N
O ’D O NNE LL , A U TO MO BILE I NSU R A NCE IN O NTA R IO 229-50 (1991).
60. See O LR C, R E PO R T , supra note 3, at 26-27.
61. See id. at 54-55.
62. See id.
63. See id. at 55.
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and the jury cases that reach trial settle earlier than bench-trial cases that set-
64
tle.
With respect to the cost of a civil jury, the O LR C concluded that the jury is
65
not as expensive as is widely thought. There are several reasons why the jury
might, in fact, be less costly. For example, the O LR C concluded that the ad-
66
ministrative costs it identified and totaled were not substantial. In addition,
civil actions set to be tried by juries result in less courtroom time overall be-
67
cause of the higher rate of settlement and an apparently lower rate of appeal.
C. E xperience of Jurors
The O LR C found that citizens of O ntario generally approve of the use of
68
the civil jury. Perhaps of even greater importance, the study reports findings
that actual jury service increases approval. The O LR C studied the experience
of jurors by surveying former jurors and those who were part of civil jury pan-
69
els but who did not actually serve. O f those who had a favourable impression
of the jury before serving, 40.2% had a more favourable impression after serv-
70
ing on a jury, while only 20.2% had a less favourable impression. This finding
apparently is consistent with an A merican study that found that sixty-three
percent of jurors reported having a more favourable attitude to jury duty after
71
serving.
R espondents to the survey were also asked whether they thought the jury
should be available for most civil trials, and whether they would seek a civil
jury for an action in which they were a party. Most, 64.5% , were in favour of
72
the continued availability of the jury for most civil actions. For an action in
which they were a party, 61.6% stated that they would prefer a judge and jury,
thirty percent stated that they would select a judge alone, and 8.4% stated that
73
their decision would depend on the particular case.
IV
A R G U ME NTS A BO U T C IVIL J U R IE S
The O LR C report on civil juries conveniently summarizes the perceived
74
strengths and weaknesses of this institution.
64. See id. at 54-56.
65. See id. at 55.
66. See id. at 56.
67. See id. at 55-56.
68. See id. at 69.
69. See id. at 63-73.
70. See id. at 69.
71. See id. at 70 n.52 (citing Shari Seidman D iamond, W hat Jurors T hink : E xpectations and R eac-
tions of Citiz ens W ho Serve as Jurors, in V E R D ICT : A SSE SSING TH E C IVIL J U R Y SYSTE M 282 (R obert
E . Litan ed., 1993)).
72. See id. at 71.
73. See id.
74. See id. at 19-30.
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314 L A W A ND C O NTE MPO R A R Y P R O BLE MS [Vol. 62: No. 2
A . A rguments Favouring the Civil Jury
1. Safeguard A gainst the A buse of Power. O ne reason identified by the
O LR C as justifying the civil jury is that the jury is viewed as the bulwark
75
against misuse of official power. This notion finds its most robust expression
in the institution of criminal juries. It also could be applied in civil matters in
areas concerning misdirected activities of government. The difficulty, however,
is that the use of juries often is forbidden in such matters. For example, in
O ntario, lay decisionmakers are statutorily precluded in actions against all
76
levels of government: federal, provincial, and municipal. Notably, the O LR C
has recommended the removal of statutory proscriptions against the use of
77
juries when governments are sued.
Some proponents of the jury system have argued that juries are also a safe-
78
guard against abuse of power by protecting litigants from judicial bias. The
O LR C, however, found no evidence that litigants systematically believe that
79
judges are biased. O n the other hand, the O LR C did find that some lawyers
occasionally choose juries in order to avoid particular judges who they believe
80
would not afford their client a good hearing.
2. D ue Process, Com m unity Standards, L aw R eform . A nother reason
identified by the O LR C as justification for the civil jury is that juries uphold
the administration of justice by permitting the law to treat each case as unique
81
while reflecting contemporary community standards. This argument is
particularly relevant in defamation and false arrest and imprisonment actions,
because of the need to apply contemporary community standards in such cases.
O thers contend that this argument supports the use of juries in a wide range of
cases because lay decisionmakers are a strong protection against assembly-line
82
justice.
3. T he Jury as Catalyst. A third reason justifying the use of the civil jury is
that juries promote settlement and thereby save cost and time in the
83
administration of justice. A s discussed earlier, the O LR C has found evidence
84
supporting this conclusion. H owever, doubters of lay decisionmakers argue
that these economies stem merely from the jury’s unpredictability—litigants
85
settle out of fear of the gyrations that take place in the jury room.
75. See id. at 19.
76. See id. at 20.
77. See id. at 82-83.
78. See id. at 20.
79. See id.
80. See id.
81. See id.
82. See id. at 23.
83. See id.
84. See supra Part III.B.
85. See O LR C, R E PO R T , supra note 3, at 23.
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4. Com petence. A fourth reason cited by the O LR C as justification for
juries is that group decisionmaking by juries is as good as or superior to solo
86
decisionmaking by judges. Psychological studies support this contention,
87
particularly regarding credibility findings and damage assessments. In
addition, studies based on archival investigations and interviews with judges
suggest that there is as much as an eighty percent overlap between what juries
88
decide and what judges would have decided in the same cases. Such studies,
and the difficulty of establishing the “correct” outcome in a disputed case,
suggest that, at the least, it is difficult to disprove arguments that juries are as
Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 EXHIBIT 80 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 “G U A R D IA N O F CIVIL R IG H TS . . . ME D IE VA L R E LIC” †: TH E CIVIL JU R Y IN CA NA D A W. A . B O G A R T * I I NTR O D U CTIO N The civil jury in Canada dangles on a shoestring despite the fact that the 1 available evidence indicates that it enjoys broad public support. It exists in some jurisdictions in little more than name only, while in a few jurisdictions it has been abolished outright. H owever, in O ntario, the largest province, civil juries appear to be used more than in other provinces. In fact, there was strong reaction when the O ntario Law R eform Commission (“O LR C”) suggested in a 2 recent Study Paper that civil juries be drastically curtailed. A s a result, the O LR C reversed itself and actually recommended expanding the use of lay deci- 3 sionmakers. Nevertheless, juries in civil matters still exist only at the periph- ery, playing nowhere near the central role in administering justice as their 4 counterparts in the U nited States. This article offers some explanations of why Canadian civil juries exist only at the margins by examining the availability of civil juries, empirical evidence regarding their use and cost in O ntario (the only province for which such information exists on a systematic basis), and academic and policy debates concerning their role. Copyright © 1999 by Law and Contemporary Problems This article is also available at http://www.law.duke.edu/journals/62LCPBogart. † Paul R omney, From Constitutionalism to L egalism : T rial by Jury, R esponsible G overnm ent, and the R ule of L aw in the Canadian Political Culture, 7 L. & H IST . R E V . 121, 138 (1989). * Professor of Law, U niversity of Windsor. My thanks to Vishva R amlall for painstaking research assistance, and to Linda Bertoldi and Justice G ranger, R egional Senior Justice, O ntario Court of Justice, for very helpful comments. 1. See infra Part III.C. 2. O NTA R IO L A W R E FO R M C O MM ’N , C O NSU LTA TIO N P A PE R O N TH E U SE O F J U R Y T R IA LS IN C IVIL C A SE S (1994) [hereinafter O LR C, STU D Y P A PE R ]. 3. See O NTA R IO L A W R E FO R M C O MM ’N , R E PO R T O N TH E U SE O F J U R Y T R IA LS IN C IVIL C A SE S (1996) [hereinafter O LR C, R E PO R T ]. 4. In contrast, the jury plays a vital role in the administration of criminal justice in Canada. The right to a jury in a criminal trial (where the maximum punishment is five years or more) is constitu- tionally protected in the Charter of R ights and Freedoms (an entrenched bill of rights) enacted 15 years ago. See C A N . C O NST . (Constitution A ct, 1982) pt. I (Canadian Charter of R ights and Free- doms), § 11(f). FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 306 L A W A ND C O NTE MPO R A R Y P R O BLE MS [Vol. 62: No. 2 II T H E A VA ILA BILITY O F C IVIL J U R IE S IN C A NA D A A . A Brief H istory of Civil Juries Canada had imported the institution of civil juries from E ngland before confederation in 1867. Initially, at least in O ntario, juries were mandatory in civil trials. Their obligatory use was seen as a safeguard against the domination of the courts by the merchant classes and served as a bulwark against threats to 5 fundamental freedoms. U nfortunately, civil juries in O ntario suffered from abuses that limited their effectiveness. Sheriffs had absolute control in composing juror rolls, which led to frequent allegations of corruption and “packing” to favour the interests of 6 those in the Sheriff’s office. A fter decades of such charges, O ntario adopted a 7 comprehensive statutory reform of the jury system in 1850. H owever, in 1868, the presumption that civil trials were to be tried by a jury was reversed by pas- 8 sage of the Law R eform A ct of 1868: Subject to a few exceptions, civil actions 9 were to be tried by a judge unless one of the parties requested trial by jury. A fter the implementation of much-needed reform, criticisms of civil juries, once well-founded, were transformed into attacks on the institution itself. O p- ponents of the civil jury argued that trial by jury was too costly and time con- suming, and they questioned the ability of lay people to grapple successfully 10 with complicated legal and factual issues. A s a result, the use of civil juries was drastically curtailed. Thus was established a tone of judgment from which the Canadian civil jury has never fully recovered: “Its reputed age-old role as guardian of civil rights and liberties was forgotten; suddenly it was a medieval relic, costly and inefficient, which continued to clog the machinery of justice 11 only through the inertia of public will.” B. Conditions for Civil Trial by Jury D espite its tumultuous history, the civil jury is still available in Canada. H owever, its availability varies among the Canadian jurisdictions. E ven those provinces that most widely encourage the use of juries still impose substantial conditions on their employment. 5. See O LR C, R E PO R T , supra note 3, at 5-6. 6. See Paul R omney, From Constitutionalism to L egalism : T rial by Jury, R esponsible G overnm ent, and the R ule of L aw in the Canadian Political Culture, 7 L. & H IST . R E V . 121, 130 (1989). 7. See O LR C, R E PO R T , supra note 3, at 5-6. 8. Law R eform A ct of 1868, ch. 6, § 18(1), 1868-69 S.O . 18, 25 (O nt.). 9. See id. 10. See O LR C, R E PO R T , supra note 3, at 26-29. 11. Id. at 6 (quoting R omney, supra note 6, at 138). FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 Page 305: Spring 1999] C A NA D IA N C IVIL J U R Y 307 12 13 A t one end of the spectrum is Q uebec and the Federal Court of Canada, both of which unqualifiedly prohibit civil juries. O ccupying the middle ground 14 15 are provinces such as A lberta and Saskatchewan, where civil juries are avail- able for certain types of claims. G enerally, juries are available in cases in which the amount in controversy exceeds $10,000. In A lberta, for example, such claims are limited to those in tort and those for the recovery of property valued 16 in excess of $10,000. In addition, in Saskatchewan, a jury may be ordered where: “(a) the ends of justice will be best served if findings of fact are made by representatives of the community; or (b) the outcome of the litigation is likely to affect a significant number of persons who are not party to the proceed- 17 ings.” Finally, at the other end of the spectrum are provinces like British Co- 18 19 lumbia and O ntario. A lthough jury trials are available there for certain kinds of actions, the list of excluded actions is significant and includes claims 20 for equitable relief and claims against the crown and municipalities. C. Judicial A ttitudes Toward the Civil Jury A s seen above, the role of the civil jury, at minimum, is subject to signifi- cant limitations in all Canadian jurisdictions. This tenuous hold is partially at- tributable to hostile judicial attitudes. E xcept for the limited instances where juries are mandatory, judges retain discretion to conduct a trial without a jury. In addition, judges retain power to intervene in juries’ verdicts. E xamining cases where these powers have been invoked provides insight into the courts’ understanding of the decisionmaking capacity of lay jurors and reveals that Ca- nadian judges are at best ambivalent toward civil juries. Canadian judges and justices have long saluted the importance of the civil jury, characterizing trial by civil jury as a “substantive right” not to be taken 21 away except for “cogent reasons.” Nevertheless, courts retain the ability to 22 strike civil juries. In all provinces, a party may move to have a jury notice 23 struck out, and the judge may rule on the motion as an exercise of his or her discretion. The most frequently cited ground for eliminating the jury in a civil 12. See Jurors A ct, ch. 9, § 56, 1976 S.Q . 59, 68 (Q ue.). 13. See Federal Courts A ct, R .S.C., ch. F-7, § 49 (1985) (Can.). 14. See Jury A ct, ch. J-2.1, § 16, 1982 S.A . 37, 44 (A lta.); A LBE R TA R U LE S O F C O U R T 234, 235. 15. See Jury A ct, ch. J-4.1, §§ 14-22, 1980-81 S.S. 53, 57-59 (Sask.); Q U E E N ’S B E NCH R U LE S O F SA SK . 196. 16. See supra note 14. 17. Jury A ct, ch. J-4.1, § 17(1), 1980-81 S.S. 55, 58 (Sask.). 18. See Jury A ct, R .S.B.C., ch. 210, §§ 13-21 (1979) (B.C.); Supreme Court A ct, ch. 40, § 15, 1989 S.B.C. 327, 330 (B.C.); SU PR E ME C O U R T R U LE S 39(24)-(30) (B.C.). 19. See Courts of Justice A ct, R .S.O ., ch. C.43, § 108 (1990) (O nt.); R U LE S O F C IVIL P R O CE D U R E 47 (O nt.). 20. See supra notes 18, 19. 21. King v. Colonial H omes Ltd. [1956] S.C.R . 528, 533 (Can.); Such v. D ominion Stores Ltd. [1961] O .R . 190, 193 (O nt. C.A .). 22. See, e.g., Jury A ct, ch. J-2.1, § 16(2), 1982 S.A . 37, 44 (A lta.). 23. See, e.g., R U LE S O F C IVIL P R O CE D U R E 47.02 (O nt.). FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 308 L A W A ND C O NTE MPO R A R Y P R O BLE MS [Vol. 62: No. 2 24 case is the undue complexity of the factual issues to be decided. Less fre- quently, the judge eliminates the jury because of the potential for prejudice to a 25 party arising from the determination of issues by laypersons. Furthermore, judges have developed specific guidelines, almost all of which militate against 26 juries and favour striking their use in certain circumstances. A lthough most of these strictures have been removed or significantly loosened in the last two decades, courts in some provinces are inclined to make findings of complexity that result in juries being eliminated relatively easily. Traditionally, courts restricted the use of juries in civil cases to guard against a jury becoming overwhelmed by “complexity” in cases involving com- plicated issues of law, medical malpractice actions, and in cases where the jury might discover that the defendant had insurance that would apply toward any adverse judgment. R ecently, however, these categorical bars on the use of civil juries have been eliminated. The first categorical bar previously recognized by Canadian courts occurred when the case involved complex legal issues. A lthough questions of law are left to judges, courts, particularly those in O ntario, have held that the presence of complicated issues of law in a case swamped the issues of fact, thus rendering 27 the action inappropriate for determination by a jury. H owever, appellate courts in O ntario recently have reasoned that because only judges decide legal questions, the complexity of the legal issues in an action are irrelevant to the 28 appropriateness of trial by jury. A nother categorical bar to the use of the civil jury occurred in medical mal- practice cases. Courts were reluctant to allow the use of juries in these cases because of the perception that the factual issues were too complex and that the 29 risk of prejudice against doctors was too great. By the 1970s, reservations ex- pressed by O ntario courts about the use of juries to determine issues of negli- 24. This is underscored by legislation in some provinces. See, e.g., SU PR E ME C O U R T R U LE S 39(27) (B.C.) (permitting the Court to strike out a civil jury where the issues require prolonged examination, scientific investigation, or are of “an intricate or complex character”). 25. See generally 3 G A R R Y D . W A TSO N & C R A IG P E R KINS, H O LME STE D A ND W A TSO N : O NTA R IO C IVIL P R O CE D U R E 47 §§ 12-14, at 47-24 to 47-27 (O ct. 1997). 26. In contrast, courts are disinclined to strictly review the means by which juries are selected. See H rup v. Cipollone [1994] 19 O .R .3d 715, 723 (O nt. C.A .) (holding that failure to follow statutory stipulations for peremptory challenges is not a miscarriage of justice); Thomas-R obinson v. Song [1997] 34 O .R .3d 62 (O nt. G en. D iv.) (holding that the right to challenge potential jurors for cause, whether for racial bias or otherwise, does not exist in civil cases). 27. See MacD ougall v. Midland D oherty Ltd. [1984] 48 O .R .2d 603, 606 (O nt. H .C.J.); Fulton v. Town of Fort E rie [1982] 40 O .R .2d 235, 237 (O nt. H .C.J.); D amien v. O ’Mulvenny [1981] O .R .2d 448, 451 (O nt. H .C.J.). 28. See Cosford v. Cornwall [1992] 9 O .R .3d 37, 48 (O nt. C.A .); Murray v. Collegiate Sports Ltd. [1989] 40 C.P.C.2d 1, 3 (O nt. C.A .). 29. See Law v. Woolford [1976] 2 C.P.C. 197 (O nt. H .C.J.); Kingbury v. Washington [1925] 4 D .L.R . 632 (Man. C.A .). While the position in other provinces varied, only A lberta seemed to ap- proach O ntario’s hostility toward the use of juries in medical malpractice litigation. For a discussion of the various positions, see W.A . Bogart, T he Use of Civil Juries in M edical M alpractice Cases, in STU D IE S IN C IVIL P R O CE D U R E 1, 5-9 (E ric G ertner ed., 1979). FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 Page 305: Spring 1999] C A NA D IA N C IVIL J U R Y 309 30 gence in medical malpractice cases led to their prohibition. This prohibition was not based on any evidence suggesting that juries favoured plaintiffs in such cases or that juries are incapable of understanding factual issues in medical 31 cases. But in the 1980s, O ntario courts dropped the strict rule against civil ju- ries in such cases, although they retained the power to eliminate juries in spe- 32 cific cases deemed too complex or involving the potential for prejudice. A final categorical bar recognized by Canadian courts occurred when the jury “might reasonably infer” that the defendant was insured against a finding of liability. In such cases, the Supreme Court held that the panel must be re- 33 leased. The Court reasoned that jurors would be more likely to find liability if 34 they knew that an insurer would pay any judgment against the defendant. A l- though such reasoning may have been sound decades ago, compulsory automo- bile insurance and the prevalence of liability coverage in other areas calls into question an automatic assumption of prejudice so severe as to require the re- moval of the case from the jury. Indeed, in the face of silence concerning such 35 matters, juries might well assume that the defendant is insured. A s a result, many lower courts have found ways around automatically releasing juries just because they had acquired information from which they “might reasonably in- 36 fer” that insurance coverage played a role in the case. In 1997, the Supreme 37 Court put its imprimatur upon such efforts and abolished the rule. Judges may now exercise discretion in determining whether to release a jury which has come to know that the defendant carries insurance that would cover any judg- 38 ment against it. A lthough such discretion is entirely defensible given the modern reality of ubiquitous insurance coverage, the prohibition against the 39 mention of insurance continues to prevail in the U nited States. Though these strictures against the use of juries have been eliminated or drastically modified, the authority to strike out a jury on the grounds of the complexity of the issues or potential prejudice to one of the parties continues. Courts employ this discretion to strike juries in many debatable circum- 30. See L aw [1976] 2 C.P.C. at 197. 31. See Bogart, supra note 29, at 9-14. 32. See Strojny v. Chan [1988] 26 C.P.C.2d 38 (O nt. H .C.J.); A nderson v. Wilgress [1985] 6 C.P.C.2d 172 (O nt. H .C.J.); Z eller v. Toronto G en. H osp. [1984] 45 C.P.C. 221 (O nt. H .C.J.); Sold- wisch v. Toronto W. H osp. [1983] 43 O .R .2d 449 (O nt. H .C.J.); A rchibald v. D ixon [1981] 24 C.P.C. 235 (O nt. H .C.J); Lalonde v. Sudbury G en. H osp. of the Immaculate H eart of Mary [1980] 19 C.P.C. 147 (O nt. D ist. Ct.). 33. See Bowhey v. Theakston [1951] S.C.R . 679, 683 (Can.). 34. See id. 35. The Supreme Court’s rule was widely criticized. See, e.g., J O H N SO PINKA , T H E T R IA L O F A N A CTIO N 31-32 (1981). 36. See Cameron v. E xcelsior Life Ins. Co. [1978] 27 N.S.R .2d 218 (N.S.S.C.T.D .); Morin v. R o- chon [1983] 42 O .R .2d 301 (O nt. H .C.J.); A lden v. H utcheon [1960] Q .L.R . 539 (Q ue. Q .B.). 37. See H amstra v. British Columbia R ugby U nion [1997] 1 S.C.R . 1092, 1106 (Can.). 38. See id. 39. See 1 M C C O R MICK O N E VID E NCE § 201 (John W. Strong et al. eds., 4th ed. 1992), cited in H am stra [1997] 1 S.C.R . at 1103. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 310 L A W A ND C O NTE MPO R A R Y P R O BLE MS [Vol. 62: No. 2 40 stances. Nevertheless, courts of some provinces are more inclined to exercise this discretion to strike a jury demand than others. A lberta, where civil jury trials are rare, stands out. A search of cases decided in A lberta in the 1990s re- veals four judgments in which the application for a jury was denied on the ground of complexity, which is a significant number given the otherwise few 41 cases in which there is a jury. Furthermore, courts retain the authority to interfere with the judgment of a 42 jury once it has reached its verdict. Yet, in contrast to the penchant of some courts to dispense with lay decisionmakers, judges express substantial defer- ence to juries once they have completed their task. A ppellate courts consis- tently have held that it is only in limited circumstances—when there is no evi- dence to support the findings or the verdict cannot in law be a foundation for 43 judgment—that the trial judge can disregard a jury’s verdict. Moreover, the O ntario Court of A ppeal seems disinclined to respond to even a legislative invitation to substitute its views for that of a civil jury. A re- cently enacted law empowers appellate courts to substitute their own assess- 44 ment of damages on appeal in both jury and bench trials. Nevertheless, the O ntario Court of A ppeal has decided that, where the jury has awarded dam- ages, the court will not interfere with the award unless there has been a “wholly 45 erroneous estimate of the damages.” D . A cademic A ttitudes Toward the Civil Jury A nother factor possibly explaining the (non)use of the civil jury is academic influence. A cademic legal education in Canada, particularly in O ntario, is of comparatively recent origin. U ntil the 1950s, lawyers were largely educated as apprentices. O ne of the main architects of academic legal education was Cecil Wright, a tort scholar. Wright was adamantly opposed to civil juries, viewing them as ill-equipped to respond to the many theoretical and policy arguments 46 essential to the development of tort law and policy. Wright had tremendous influence and may have inculcated in several generations of lawyers a deep 40. See Babyn v. Patel [1997] A .J. No. 261 (A lta. Q .B.) (striking jury because of difficult issues of causation and the likelihood of conflicting expert testimony); Taguchi v. Stuparyk [1993] A .J. No. 843 (A lta. Q .B.) (striking jury because the trial would involve lengthy examination of documents and actu- arial reports as well as much conflicting expert testimony). 41. See B abyn [1997] A .J. No. 261; Sharma v. Smook [1996] A .J. No. 22 (A lta. Q .B.); Baker v. Suzuki Motor Co. [1993] A .J. No. 240 (A lta. Q .B.); Meyer v. R oyal Bank of Canada [1993] A .J. No. 705 (A lta. Q .B.); T aguchi [1993] A .J. No. 843. B ut see Wilton v. R oyal Bank [1991] A .J. No. 770 (A lta. Q .B.). 42. See Malloch v. Moenke [1996] B.C.J. No. 399 (B.C.C.A .); H ill v. Church of Scientology [1992] 7 O .R .3d 489, 498 (O nt. G en. D iv.); Loffredi v. Simonetti [1988] 29 C.P.C.2d 10, 15 (O nt. D ist. Ct.). 43. See cases cited supra note 42. 44. See Courts of Justice A ct, R .S.O ., ch. C.43, § 119 (1990) (O nt.) (“O n an appeal from an award for damages for personal injury, the court may, if it considers it just, substitute its own assessment of the damages.”). 45. Koukounakis v. Stainrod [1995] 23 O .R .3d 299, 305 (O nt. C.A .). 46. See E dson L. H aines, T he Future of the Civil Jury, in STU D IE S IN C A NA D IA N T O R T L A W 10, 10-11 (A llen M. Linden ed., 1968) (recounting Wright’s hostility toward the civil jury). FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 Page 305: Spring 1999] C A NA D IA N C IVIL J U R Y 311 skepticism about the role, if any, that civil juries should play in the administra- 47 tion of civil justice. A nother academic perspective, developed in the 1970s, came to view civil litigation as an ill-suited mechanism for providing compensation and effecting 48 deterrence in most areas of torts. Scholars in this school of thought instead looked to the administrative state to provide redress, at least in the area of per- 49 sonal injuries. For example, they advocated expanded versions of worker compensation programs, no-fault regimes for automobile accidents, and com- 50 pensation for damages suffered as a result of medical treatment. They were also largely unenthusiastic about civil juries, seeing them as inextricably linked 51 to a system of tort adjudication that should, by and large, be abolished. Some judges may agree with the view that juries are part of an outmoded system of compensation for personal injuries. In any event, judges might emphasize the burden on the judiciary in preparing what are contended to be long and intri- 52 cate charges to civil juries. Whatever the merits of the stance taken by either Wright and his acolytes, on the one hand, or those advocating administrative regimes, on the other, these positions were highly influential in law and particularly legal policymak- ing. The civil jury for a very long time, especially in O ntario, thus had very few advocates among those in a position to recast the civil justice system. III SO ME E MPIR ICA L E VID E NCE : T H E U SE A ND C O ST O F C IVIL J U R IE S IN O NTA R IO It is one thing to detail how the courts—or anyone else—believe civil juries should be employed. It is quite another to determine empirically the frequency with which they are used, in what category of cases, and at what cost. R esearch on the use of juries in most provinces is essentially educated guesswork. In some provinces, such as Manitoba, there were no civil jury trials for extensive 53 periods of time. In British Columbia, the frequency of use of the civil jury has 47. See O LR C, R E PO R T , supra note 3; 2 O NTA R IO , R O YA L C O MMISSIO N I NQ U IR Y INTO C IVIL R IG H TS: R E PO R T N U MBE R O NE 859-60 (1968). 48. For a critical yet sympathetic evaluation (based on empirical studies) of this position, see D O N D E WE E S E T A L ., E XPLO R ING TH E D O MA IN O F A CCID E NT L A W : T A KING TH E F A CTS SE R IO U SLY (1996). 49. See id. 50. See id. 51. See O LR C, R E PO R T , supra note 3. The Commission relied heavily on the advice of academics in coming to its recommendations in these studies. In addition, the leading casebook on civil proce- dure, G A R R Y D . W A TSO N E T A L ., C IVIL L ITIG A TIO N : C A SE S A ND M A TE R IA LS (4th ed. 1991), contains only a few scant references to civil juries. See, e.g., id. at 280. Indeed, it is not an exaggeration to say that academics have ignored the civil jury, largely hoping it would go away. 52. Letter from Justice B.T. G ranger, R egional Senior Justice, O ntario Court of Justice (Feb. 23, 1998) (on file with author). 53. See O LR C, R E PO R T , supra note 3, at 16-17. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 312 L A W A ND C O NTE MPO R A R Y P R O BLE MS [Vol. 62: No. 2 54 been estimated at between three and ten percent. The O LR C tried to dis- 55 cover such facts, with regard to O ntario, in its recent report on the civil jury. D ue to the state of the records used as the basis of this study, caution is re- 56 quired when examining its findings. O n the other hand, the O LR C report provides the only current, systematic attempt at assembling facts regarding the use of juries in any province. A . The U se of Civil Jury Trials in O ntario A lthough the use of civil juries in O ntario had been declining in recent dec- ades, over the last several years their employment has increased by about seven 57 percent. Specifically, civil jury trials have generally increased from fifteen 58 percent in 1988-89 to twenty-two percent in 1994-95. Further breakdown of these figures indicates that approximately three-quarters of all civil jury trials 59 involve claims arising from motor vehicle accidents. B. E xpense of Civil Jury Trials in O ntario There is a widely held perception that jury trials take longer and cost more 60 than bench trials. The accuracy of this view depends on whether the trial is concluded and how one determines the cost. The O LR C found that this per- 61 ception is correct for those actions in which the trial is concluded. It deter- mined that the median length of trials determined by jury verdict exceeds by 62 three-quarters of a day the median length of bench trials. H owever, when cases that go to trial but settle before their conclusion are included, the average 63 length of jury trials is less than that of bench trials. This reflects the impact that juries have in promoting settlement: More jury cases settle prior to trial, 54. See id. 55. See id. 56. The O LR C study indicates that justice system statistics in Canada, generally, and in O ntario, in particular, are not what they should be. See also R O D E R ICK A . M A C D O NA LD , STU D Y P A PE R O N C IVIL J U STICE 20-23 (1995); W.A . Bogart et al., Current Utiliz ation Patterns and Unm et L egal N eeds, in 2 R E PO R T O F TH E O NTA R IO L E G A L A ID R E VIE W , A B LU E PR INT FO R P U BLICLY F U ND E D L E G A L SE R VICE S 316 (1997). The researchers candidly acknowledge that they experienced significant difficulties, including es- tablishing precisely how many jury trials actually took place in the last several years as opposed to ac- tions in which a jury trial was scheduled but, for whatever reason, was not heard. See O LR C, R E PO R T , supra note 3, at 43-45. 57. See id. at 8. 58. See id. at 8-9. Statistics are last available for 1994-95. 59. See id. at 9. This despite the fact that motor vehicle litigation in O ntario has declined in the last few years because of a move away from tort-based litigation to an administratively based “no- fault” regime with exceptions for severe and permanent injuries. See I NSU R A NCE B U R E A U O F C A NA D A , F A CTS O F TH E G E NE R A L I NSU R A NCE I ND U STR Y IN C A NA D A 8-9 (1997); A LLA N O ’D O NNE LL , A U TO MO BILE I NSU R A NCE IN O NTA R IO 229-50 (1991). 60. See O LR C, R E PO R T , supra note 3, at 26-27. 61. See id. at 54-55. 62. See id. 63. See id. at 55. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 Page 305: Spring 1999] C A NA D IA N C IVIL J U R Y 313 and the jury cases that reach trial settle earlier than bench-trial cases that set- 64 tle. With respect to the cost of a civil jury, the O LR C concluded that the jury is 65 not as expensive as is widely thought. There are several reasons why the jury might, in fact, be less costly. For example, the O LR C concluded that the ad- 66 ministrative costs it identified and totaled were not substantial. In addition, civil actions set to be tried by juries result in less courtroom time overall be- 67 cause of the higher rate of settlement and an apparently lower rate of appeal. C. E xperience of Jurors The O LR C found that citizens of O ntario generally approve of the use of 68 the civil jury. Perhaps of even greater importance, the study reports findings that actual jury service increases approval. The O LR C studied the experience of jurors by surveying former jurors and those who were part of civil jury pan- 69 els but who did not actually serve. O f those who had a favourable impression of the jury before serving, 40.2% had a more favourable impression after serv- 70 ing on a jury, while only 20.2% had a less favourable impression. This finding apparently is consistent with an A merican study that found that sixty-three percent of jurors reported having a more favourable attitude to jury duty after 71 serving. R espondents to the survey were also asked whether they thought the jury should be available for most civil trials, and whether they would seek a civil jury for an action in which they were a party. Most, 64.5% , were in favour of 72 the continued availability of the jury for most civil actions. For an action in which they were a party, 61.6% stated that they would prefer a judge and jury, thirty percent stated that they would select a judge alone, and 8.4% stated that 73 their decision would depend on the particular case. IV A R G U ME NTS A BO U T C IVIL J U R IE S The O LR C report on civil juries conveniently summarizes the perceived 74 strengths and weaknesses of this institution. 64. See id. at 54-56. 65. See id. at 55. 66. See id. at 56. 67. See id. at 55-56. 68. See id. at 69. 69. See id. at 63-73. 70. See id. at 69. 71. See id. at 70 n.52 (citing Shari Seidman D iamond, W hat Jurors T hink : E xpectations and R eac- tions of Citiz ens W ho Serve as Jurors, in V E R D ICT : A SSE SSING TH E C IVIL J U R Y SYSTE M 282 (R obert E . Litan ed., 1993)). 72. See id. at 71. 73. See id. 74. See id. at 19-30. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 314 L A W A ND C O NTE MPO R A R Y P R O BLE MS [Vol. 62: No. 2 A . A rguments Favouring the Civil Jury 1. Safeguard A gainst the A buse of Power. O ne reason identified by the O LR C as justifying the civil jury is that the jury is viewed as the bulwark 75 against misuse of official power. This notion finds its most robust expression in the institution of criminal juries. It also could be applied in civil matters in areas concerning misdirected activities of government. The difficulty, however, is that the use of juries often is forbidden in such matters. For example, in O ntario, lay decisionmakers are statutorily precluded in actions against all 76 levels of government: federal, provincial, and municipal. Notably, the O LR C has recommended the removal of statutory proscriptions against the use of 77 juries when governments are sued. Some proponents of the jury system have argued that juries are also a safe- 78 guard against abuse of power by protecting litigants from judicial bias. The O LR C, however, found no evidence that litigants systematically believe that 79 judges are biased. O n the other hand, the O LR C did find that some lawyers occasionally choose juries in order to avoid particular judges who they believe 80 would not afford their client a good hearing. 2. D ue Process, Com m unity Standards, L aw R eform . A nother reason identified by the O LR C as justification for the civil jury is that juries uphold the administration of justice by permitting the law to treat each case as unique 81 while reflecting contemporary community standards. This argument is particularly relevant in defamation and false arrest and imprisonment actions, because of the need to apply contemporary community standards in such cases. O thers contend that this argument supports the use of juries in a wide range of cases because lay decisionmakers are a strong protection against assembly-line 82 justice. 3. T he Jury as Catalyst. A third reason justifying the use of the civil jury is that juries promote settlement and thereby save cost and time in the 83 administration of justice. A s discussed earlier, the O LR C has found evidence 84 supporting this conclusion. H owever, doubters of lay decisionmakers argue that these economies stem merely from the jury’s unpredictability—litigants 85 settle out of fear of the gyrations that take place in the jury room. 75. See id. at 19. 76. See id. at 20. 77. See id. at 82-83. 78. See id. at 20. 79. See id. 80. See id. 81. See id. 82. See id. at 23. 83. See id. 84. See supra Part III.B. 85. See O LR C, R E PO R T , supra note 3, at 23. FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/10/2023 Page 305: Spring 1999] C A NA D IA N C IVIL J U R Y 315 4. Com petence. A fourth reason cited by the O LR C as justification for juries is that group decisionmaking by juries is as good as or superior to solo 86 decisionmaking by judges. Psychological studies support this contention, 87 particularly regarding credibility findings and damage assessments. In addition, studies based on archival investigations and interviews with judges suggest that there is as much as an eighty percent overlap between what juries 88 decide and what judges would have decided in the same cases. Such studies, and the difficulty of establishing the “correct” outcome in a disputed case, suggest that, at the least, it is difficult to disprove arguments that juries are as