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Full text of "Report on the use of jury trials in civil cases"

REPORT 

ON 

THE USE OF JURY TRIALS IN CIVIL CASES 



ONTARIO LAW REFORM COMMISSION 




Ontario 



996 



The Ontario Law Reform Commission was established by the Ontario Government in 1964 as an 
independent legal research institute. It was the first Law Reform Commission to be created in the 
Commonwealth. It recommends reform in statute law, common law, jurisprudence, judicial and 
quasi-judicial procedures, and in issues dealing with the administration of justice in Ontario. 



Commissioners 

John D. McCamus, MA, LLB, LLM, Chair 
Nathalie Des Rosiers, LLB, LLM* 
Sanda Rodgers, BA, LLB, BCL, LLM* 
Judge Vibert Lampkin, LLB, LLM* 

Counsel 

J.J. Morrison, BA (Hon), LLB, LLM, Senior Counsel 
Donald F. Bur, LLB, LLM, BCL, PhD 
Barbara J. Hendrickson, MA, LLB, LLM 
Howard Goldstein, BA (Hon), MES, LLB, LLM 

Chief Administrator 

Mary Lasica, BAA 

Secretaries 

Tina Afonso 
Cora Calixterio 



These Commissioners served during the deliberations concerning this report. Their appointments expired, however, 
prior to its publication. 



The Commission's office is located on the Eleventh Floor at 720 Bay Street, Toronto, Ontario, 
Canada, M5G 2K1. Telephone (416) 326-4200. FAX (416) 326-4693. 



Canadian Cataloguing in Publication Data 

Ontario Law Reform Commission. 

Report on the use of jury trials in civil cases 

Includes bibliographical references. 
ISBN 0-7778-5647-6 

1 . Jury-Ontario. 2. Civil procedure-Ontario. I. Title. 

KEOl 144.057 1996 347.713'052 C96-964057-9 




Ontario 
Law Reform 
Commission 



Ontario 



The Honourable Charles Hamick 
Attorney General for Ontario 



Dear Attorney: 



I have the honour to submit the Ontario Law Reform Commisison's Report 
on the Use of Jury Trials in Civil Cases. 



John D. McCamus 
Chair 



October, 1996 



Digitized by the Internet Archive 

in 2011 with funding from 

Osgoode Hall Law School and Law Commission of Ontario 



http://www.archive.org/details/reportonuseofjuOOonta 



TABLE OF CONTENTS 

Page 

Letter of Transmittal iii 

Preface ix 

CHAPTER 1 INTRODUCTION 1 

CHAPTER 2 THE CIVIL JURY IN ONTARIO- 
BACKGROUND 5 

L ORIGINS OF THE CIVIL JURY IN ONTARIO 5 

2. THE PRESENT LAW OF ONTARIO 6 

3. THE USE OF CIVIL JURIES 8 

CHAPTER 3 EXPERIENCE IN OTHER JURISDICTIONS 13 

1. CIVIL JURY TRIALS IN OTHER JURISDICTIONS— ENABLING 
LEGISLATION 13 

2. THE USE OF CIVIL JURY TRIALS IN OTHER JURISDICTIONS 16 

(a) Canada and England 16 

(b) United States 17 

3. JURY USER FEES 17 

CHAPTER 4 THE ARGUMENTS FOR AND AGAINST 

RETAINING THE CIVIL JURY 19 

1. INTRODUCTION 19 

2. ARGUMENTS FOR THE RETENTION OF CIVIL JURIES 19 

(a) The Safeguard Against Abuse of Power Argument 19 

[v] 



VI 



(b) The Due Process, Community Standards, and Law 

Reform Argument 20 



'&' 



(c) The Catalyst Argument 23 

(d) The Competence Argument (For Juries) 23 

(e) The Confidence in Fair Treatment Argument 24 

(f) The Participation Argument 25 

(g) The Burden of Proof Argument 26 

3. ARGUMENTS AGAINST THE RETENTION OF CIVIL JURIES 26 

(a) The Cost-Benefit Argument 26 

(b) The Tactical Device Argument 27 

(c) The Competence (Against Juries) 29 

4. EVALUATING THE ARGUMENTS 30 

CHAPTER 5 THE CONSULTATION PROCESS 31 

L CONSULTATION WITH THE BAR AND INTERESTED PARTIES 31 

2. CONSULTATION WITH THE REGIONAL SENIOR JUSTICES 35 

(a) Length of Jury Trials and Their Effect on Judicial Workload 36 

(b) The Jury's Effect on Civil Lists and Settlement Rates 37 

(c) Appropriate Cases for Juries 38 

(d) Judicial Perceptions of the Jury 39 

(e) Summary 39 



Vll 



CHAPTER 6 THE RELATIVE LENGTH OF CIVIL JURY 

TRIALS AND THE COST OF CIVIL JURIES 41 

1. THE RELATIVE LENGTH OF CIVIL JURY TRIALS 41 

(a) Research Design and Methodology 42 

(b) Data Collection 43 

(c) Types of Cases and Parties 45 

(d) Court Time Taken in Jury and Non-Jury Trials 47 

(e) Total Time Required for Jury and Non-Jury Matters 50 

2. THE COST OF CIVIL JURIES 52 

3. CONCLUSIONS 54 

CHAPTER 7 THE IMPACT OF JURY SERVICE ON JURORS 57 

1. THE CONSCRIPTION ISSUE 57 

2. EMPLOYMENT SECURITY AND REMUNERATION 58 

3. SURVEY OF JURORS' EXPERIENCE, CONDITIONS, 

AND SATISFACTION 63 

(a) The Cost of Jury Duty 64 

(b) Jurors' Experience and Impressions 66 

(c) Jurors' Comments 72 

4. CONCLUSIONS 75 



VUl 



CHAPTER 8 CONCLUSIONS AND RECOMMENDATIONS 

FOR REFORM 77 

1. GENERAL 77 

2. JURY USER FEES 79 

3. THE TREATMENT OF JURORS 80 

4. AVAILABILITY OF THE JURY IN ACTIONS INVOLVING 

THE GOVERNMENT 82 

5. MOTION TO STRIKE OUT A JURY NOTICE OR DISCHARGE 

A JURY 83 

6. CONCLUSION 90 

SUMMARY OF RECOMMENDATIONS 93 



PREFACE 



In late 1993, the Commission was asked by the then Deputy Attorney General 
to conduct a study of the civil jury, and to make recommendations with respect to 
its future use. In order to ensure that the Commission consulted widely before 
arriving at its final recommendations, the Commission published its Consultation 
Paper on the Use of Jury Trials in Civil Cases in March 1994. 

The Commission wishes to express its gratitude, once again, to Paul M. Perell, 
Weir & Foulds, for his indispensable contribution to the preparation of the 
consultation paper. The Commission also wishes to record its thanks to all of the 
individuals and groups that responded to the consultation paper. Their submissions 
were of great assistance to the Commission in formulating its final proposals. The 
Commission wishes especially to acknowledge the contributions of the Canadian 
Bar Association — Ontario and the Advocates' Society, both of which conducted 
surveys of their members before drafting their responses to the consultation paper. 
In particular, the Commission wishes to thank Leonard Walker, Chair of the Civil 
Litigation Section of the Canadian Bar Association — Ontario and Frank K. 
Gomberg, Chair of the Civil Jury Review Committee of the Advocates' Society. 

Subsequent to the consultation process, the Commission conducted a number 
of ftirther studies. The first was an analysis of the relative length of jury and non- 
jury civil trials. The Commission wishes to thank Karen Atkin, Karen Atkin 
Research Associates, who conducted this study on behalf of the Commission. The 
results of this study were critical in assisting the Commission in arriving at its 
conclusions. The Commission also examined the additional costs associated with 
jury trials in civil cases. In connection with this study, the Commission wishes to 
thank the following individuals, who provided the Commission with essential 
statistical information: John Twohig, Policy Branch, Ministry of the Attorney 
General; and Pardip Bedi, Warren Dunlop, and Dorothy Gonsalves-Singh, Courts 
Administration Program, Ministry of the Attorney General. In addition to these 
studies, the Commission conducted a survey of Regional Senior Justices of the 
Ontario Court of Justice (General Division), and a survey of past civil jurors. The 
Commission wishes to record its thanks to all of the respondents to these surveys. 

Finally, the Commission wishes to express its appreciation to Howard 
Goldstein, Counsel at the Commission, who prepared an initial draft of this report, 
J.J. Morrison, Senior Counsel at the Commission, who was responsible for 
completing the report, and Cora Calixterio, for her secretarial assistance in 
preparing the report for publication. 



[ix] 



CHAPTER 1 

INTRODUCTION 



The civil jury has a long history in the province of Ontario, where juries 
have been available for civil actions for over 200 years. Although the civil jury 
is an established feature of our legal system, it has had a number of critics and 
detractors over the years. In the last thirty years, in particular, the civil jury 
has been studied by a number of governmental commissions, which have 
recommended severely limiting its availability. 

In 1968, for example, the Royal Commission Inquiry into Civil Rights 
recommended that trial by jury should be abolished for all civil cases, except 
those based on defamation. The McRuer Report stated that "the trial of civil 
cases by a jury is a procedure that has outlived its usefulness in Ontario".^ 
This conclusion was based on the view that the plaintiffs counsel in a personal 
injury case— which is the type of civil case that is most frequently tried before 
a jury— is usually less experienced than counsel for the defendant, who has 
normally been retained by an insurance company. As a result, the McRuer 
Report concluded that the jury was no longer protecting the weak, but rather 
was "a weapon in the hands of the strong". 

In 1973, the Ontario Law Reform Commission considered the civil jury 
within the context of the administration of Ontario courts generally, and 
reached a similar conclusion. The Commission referred specifically to motor 
vehicle actions, which, it noted, constituted the majority of civil jury trials. 
The Commission also noted that, in these cases, the jury was used primarily 
for tactical advantage, not for the preservation of the litigants' liberties.^ As a 
result, the Commission recommended that "[c]ivil juries should be abolished 
except in the case of actions for libel, slander, malicious arrest, malicious 



Ontario, Royal Commission Inquiry into Civil Rights (1968), Report No. 1, Vol. 2 
(hereinafter referred to as the "McRuer Report"). 

Ibid., at 859-60. 

Ibid., at 860. 

Ibid. 

Ontario Law Reform Commission, Report on Administration of Ontario Courts (1973), 
Part I, at 329-50. 

Ibid., at 336. 

[1] 



prosecution and false imprisonment". The Commission's recommendation 
provoked numerous articles from both the bar and the bench in defence of the 
civil jury. 

Over twenty years have passed since the Commission recommended 
circumscribing the availability of the jury for civil cases. Given the passage of 
time and developments in the law, such as the enactment of legislation limiting 
the right of a person injured in a motor vehicle accident to maintain a tort 
action,^ the availability of the civil jury merited reconsideration. In late 1993, 
the Ontario Courts Management Advisory Committee, whose task is to review 
and provide advice with respect to court management in the province, *° 
requested that the Deputy Attorney General initiate an investigation of the 
current use of the jury in civil cases. The Deputy Attorney General, in turn, 
asked the Commission to conduct a new study of the civil jury and make 
recommendations with respect to its future use. The Commission was 
specifically requested to consider whether the additional public costs associated 
with jury trials could be justified in civil cases. 

In March 1994, the Commission released its Consultation Paper on the 
Use of Jury Trials in Civil Cases. In the consultation paper, the Commission 
reviewed the arguments both for and against the retention of civil jury trials. 



7 



10 



11 



Ibid., at 350. 

For articles in support of the retention of the civil jury, both before and after the 
Commission's report, see, for example, Martin, "The Role of a Jury in a Civil Case", in 
Special Lectures of the Law Society of Upper Canada 1959[:] Jury Trials (1959) 167; 
Kennedy, "Should the Use of Juries for the Trial of Civil Actions be Abolished or Limited?" 
(1966), Chitty's L.J. 367; Haines, "The Future of the Civil Jury" in Linden (ed.). Studies in 
Canadian Tort Law (1968) 10; Maloney, "The Challenge to the Retention of Civil Juries" 
(1974), 8 Gazette 166; Haines, "The Role of the Jury in the Control of the Abuse of Power", 
in Special Lectures of the Law Society of Upper Canada 1979[:] The Abuse of Power and the 
Role of an Independent Judicial System in its Regulation and Control (1979) 31; Sommers 
and Firestone, "In Defence of the Civil Jury in Personal Injury Actions" (1987), 7 
Advocates' Q. 492; Maclntyre, Manes, and McGrenere, "More in Defence of the Civil Jury 
in Personal Injury Actions" (1987), 8 Advocates' Q. 109; Gaetz, "Jury Trials in Civil 
Actions" (1988), 22 Gazette 119; and Kenny, " 'Loonies' and the Law: Jury Costs and the 
Lack of Civil Jury Trials in Canada" (1991), Am. Rev. Can. Stud. 45. 

See, now. Insurance Act. R.S.O. 1990, c. 1.8, s. 267.1, as en. by S.O. 1993, c. 10, s. 25. 

The Ontario Courts Management Advisory Committee is established pursuant to s. 73 of the 
Courts of Justice Act, R.S.O. 1990, c. C.43. Its function, set out in s. 73(4) of the Act, is 
"to consider and recommend to the relevant bodies or authorities policies and procedures to 
promote the better administration of justice and the effective use of human and other 
resources in the public interest". 

Ontario Law Reform Conmiission, Consultation Paper on the Use of Jury Trials in Civil 
Cases (1994). 



and arrived at a tentative conclusion. The consultation paper was intended to 
stimulate discussion about the future of the civil jury among interested 
members of the bench, the bar and the general public, in order to provide the 
Commission with the best possible information and advice before arriving at its 
fmal recommendations. 

In this report, the Commission reviews the consultation paper and the 
subsequent consultation process. In addition, it presents the findings of two 
studies conducted by the Commission following the release of the consultation 
paper, respecting the length and cost of civil jury trials and the views of 
former civil jurors. The report concludes with the Commission's final 
recommendations respecting the use of juries in civil cases. 



CHAPTER 2 



THE CIVIL JURY IN 
ONTARIO— BACKGROUND 



1 . ORIGINS OF THE CIVIL JURY IN ONTARIO 

The history of the civil jury in Ontario predates confederation. The civil jury 
was introduced in Upper Canada in 1792 by the second act of the legislature. It 
is interesting to note that the preamble to that Act provided, in part, as follows: 

Whereas the trial by jury has been long established and approved in our mother 
country, and is one of the chief benefits to be attained by a free constitution... 

The above preamble illustrates clearly the origins of the civil jury in Ontario. 
It was imported from England, where it was seen by many as a cornerstone of a 
democratic society. The sentiment expressed in this eighteenth cenmry document 
remains for many people today a compelling reason for maintaining the civil 
jury. 

At the time of its instimtion, juries were mandatory for civil trials. The 
introduction of the jury for civil cases in Upper Canada was a reform aimed at 
dealing with discontent with the existing civil courts, which were dominated by 
judges and local merchants who were able to shape the law in an unfettered 
fashion.^ Unformnately, the advent of the civil jury brought with it its own 
problems. At the time the sheriff enjoyed absolute discretion in composing the 
jurors' roll. The sheriff's discretion often led to "jury packing", which involved 
a less than impartial selection of jurors, with a view to selecting only those jurors 
who were sympathetic to the local elite. 



An act to establish trials by Jury, 1792, 32 Geo. 3, c. 2 (Upper Can.). 

Ibid. 

Much of the history of the civil jury set out here is drawn from Romney. "From 
Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in 
the Canadian Political Culture"(1989), 7 Law & Hist. Rev. 12L 

Ibid., at 130-31 



[5] 



Criticism of jury packing continued for decades before the practice was 
finally abolished in 1850, when a comprehensive statutory reform of the jury 
system was passed. Interestingly, as soon as the reform was enacted, the jury 
itself came under attack from the legal profession. As one legal historian has 
noted, "[i]ts reputed age-old role as a 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 only through the inertia of public 
will". This mid-nineteenth century critique of the jury as being inefficient and 
costly is a theme that has been revisited periodically over the past 150 years by 
opponents of the civil jury who, for whatever reason, seek its abolition. 

As we noted in our 1973 Report on Administration of Ontario Courts, after 
1856 a civil trial could be conducted before a judge alone if all parties consented. 
Thus, there was an exception to the presumption that civil trials would be held 
before a jury. In 1868, the presumption that civil trials were to be heard by a jury 
was reversed. Thereafter, most civil actions were to be tried by a judge alone, 



unless a jury was requested by one of the parties. However, trial by jury did 
continue to be prescribed for a small group of tort actions— most notably 
defamation and malicious prosecution— unless the parties waived such a trial. 

2. THE PRESENT LAW OF ONTARIO 

In Ontario, juries are no longer mandatory for any type of case, and continue 
to be optional in many cases. Since 1955, civil juries have been composed of six 
rather than twelve members, with the agreement of only five members being 
required for a verdict. In order to obtain a jury for a civil matter a party must 
serve a jury notice under rule 47.01 of the Rules of Civil Procedure. With 
proper grounds, a party may move to have the jury notice struck out and the 



9 

10 

II 

12 



An Act for the consolidation and amendment of the Laws relative to Jurors, Juries and Inquests 
in that part of this Province called Upper Canada, 1850, 13 & 14 Vict., c. 55 (Prov. of Can.). 

Romney, supra, note 3, at 138. 

Ontario Law Reform Commission, Report on Administration of Ontario Courts (1973), Part I, at 
330. 

The Law Reform Act of 1868, 32 Vict., c. 6 (Ont.), s. 18(1). 

The Administration of Justice Act of 1873, 36 Vict., c. 8 (Ont.), s. 17. 

See, now. Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(4). 

See, now, ibid., s. 108(6). 

R.R.O. 1990, Reg. 194. 



13 

action tried by a judge alone. However, the cases establish that the right to a 
jury trial is a substantive right of great importance, which is not to be taken away 
except for cogent reasons. Where an order striking out a jury notice is refused 
at the interlocutory stage, the trial judge retains the discretion to try the case 
without a jury. 

This procedural scheme is based on section 108(1) of the Courts of Justice 
Act, which provides that "[i]n an action in the Ontario Court (General Division) 
that is not in the Small Claims Court, a party may require that the issues of fact 
be tried or the damages assessed, or both, by a jury, unless otherwise provided". 
Section 108(2) of the Act prohibits jury trials for certain types of claim, most of 
which concern the court's equitable jurisdiction, but which also include matters 
such as family law proceedings. As a matter of jurisdiction, juries have never 
been available for equitable claims. Section 108(2) of the Act provides as 
follows: 

108.— (2) The issues of fact and the assessment of damages in an action shall be 
tried without a jury in respect of a claim for any of the following kinds of relief: 

1. Injunction or mandatory order. 

2. Partition or sale of real property. 

3. Relief under Part I, II or III of the Family Law Act or under the 
Children 's Law Reform Act. 

4. Dissolution of a partnership or taking of partnership or other accounts. 

5. Foreclosure or redemption of a mortgage. 

6. Sale and distribution of the proceeds of property subject to any lien or 
charge. 

7. Execution of a trust. 

8. Rectification, setting aside or cancellation of a deed or other written 
instrument. 

9. Specific performance of a contract. 

10. Declaratory relief. 

11. Other equitable relief. 

12. Relief against a municipality. 



13 



Ibid., r. 47.02(1) and (2). 



King V. Colonial Homes Ltd., [1956] S.C.R. 528, and Such v. Dominion Stores Ltd., [1961] 
O.R. 190 (C. A.). 



Rules of Civil Procedure, supra, note 12, r. 47.02(3). 
Supra, note 10. 



Given the origin of the jury as a means of tempering the perception of abuse 
of power, it is significant that jury trials are not available in actions against the 
government. Section 108(2)12 of the Courts of Justice Act, reproduced above, 
prohibits jury trials in civil actions against a municipality. Similarly, section 11 of 

17 

the Proceedings Against the Crown Act prohibits jury trials in civil actions 
against the provincial Crown. Juries are prohibited in proceedings against the 
federal Crown by section 26 of the federal Crown Liability and Proceedings 

Act:' 

In 1989, two additions were made to the Courts of Justice Act that are 
relevant to the arguments for and against civil jury trials. Section 118 of the Act 
provides that, "[i]n an action for damages for personal injury, the court may give 
guidance to the jury on the amount of damages and the parties may make 
submissions to the jury on the amount of damages". Section 119 provides that, 
"[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". 



3. THE USE OF CIVIL JURIES 

Although the frequency of jury trials for civil cases in Ontario has been 

20 

diminishing generally over time, statistics gathered by the Ministry of the 
Attorney General suggest that there has been a slight increase in the use of the 
civil jury in recent years. According to the Ministry's statistics, there has been 
a seven percent increase in the proportion of civil cases tried by jury over the 
past seven reported years. Table No. 1, below, sets out the civil trial statistics for 



17 



19 



20 
21 



R.S.O. 1990, c. P.27. 

R.S.C. 1985, c. C-50, s. 26, as en. by S.C. 1990, c. 8, s. 31. The title of the staaite was 
changed by S.C. 1990, c. 8, s. 21. 

Courts of Justice Act, 1984, S.O. 1984, c. 11, ss. 130a and 130b, as en. by S.O. 1989, c. 67, s. 
4. See, now, Courts of Justice Act, supra, note 10, ss. 118 and 119. These amendments 
implemented recommendations made by the Commission in Ontario Law Reform Commission, 
Report on Compensation for Personal Injuries and Death (1987), at 108-09. See, also, ss. 15 
and 16(1) of the draft Personal Injuries Compensation Act proposed by the Commission in 
Appendix 1 of the report. 

See Report on Administration of Ontario Courts, supra, note 7, at 329-31. 

Unless otherwise indicated, the statistics provided in this chapter are derived from the Ministry 
of the Attorney General, Court Statistics Annual Reports, which compile statistics based on the 
fiscal year ending on March 31st. 



a seven-year period between 1988 and 1995. These figures disclose a small 
increase in the use of juries for civil trials since 1990/91. 

Table No. 1 
Civil Trials— Ontario Court (General Division) 





1988/89 


1989/90 


1990/91 


1991/92 


1992/93 


1993/94 


1994/95 


non-jury 


2,292 
(84.6%) 


2,055 
(86.5%) 


2,024 
(84,7%) 


2,400 
(81.6%) 


2,744 
(79.6%) 


2,473 
(78.2%) 


2,032 
(77,8%) 


jury 


418 
(15.4%) 


318 
(13.4%) 


367 
(15.3%) 


540 
(15.3%) 


702 
(20.4%) 


688 

(21.7%) 


577 
(22.1%) 


total 


2,710 


2,373 


2,391 


2,391 


3,446 


3,161 


2,609 



In compiling its statistics on civil trials, the Ministry distinguishes between 
motor vehicle actions, on the one hand, and all other kinds of action, on the 
other. Table No. 2, below, provides a breakdown of civil trials by type of action. 
These figures reveal that approximately three-quarters of all civil jury trials 
involve motor vehicle actions. 

Table No. 2 

Civil Actions— Mode of Trial 

Ontario Court (General Division) 





1991/92 


1992/93 


1993/94 


1994/95 


MV-non-jury 


450(15.3%) 


473 (13.7%) 


357(11.3%) 


281 (10.8%) 


other-non-jury 


1,950(66.3%) 


2,271 (65.9%) 


2,116(66.9%) 


1,751 (67.1%) 


MV-jury 


394 (13.4%) 


520(15.1%) 


499(15.8%) 


389(14.9%) 


other-jury 


146 (5.0%) 


182(5.3%) 


189(6.0%) 


188(7.2%) 


total 


2,940 (100%) 


3,446 (100%) 


3,161 (100%) 


2,609 (100%) 



A review of the statistics over the past two decades reveals that jury trials 
have become more popular over time. In the 1988 Report of Inquiry into Motor 

23 

Vehicle Accident Compensation in Ontario, the use of civil juries in motor 
vehicle actions was studied over a four-year period. As Table No. 3 
demonstrates, motor vehicle jury trials increased m popularity over the four-year 

24 

Span. 



22 



23 



24 



In light of the empirical study conducted by the Commission in connection with this report, there 
is some evidence to suggest that the statistics provided by the Ministry in respect to the number 
of jury trials are somewhat inflated. See infra, ch. 6, sec. 1(b). 

Ontario, Report of Inquiry into Motor Vehicle Accident Compensation in Ontario (1988). 

Ibid., Vol. 1, at 368-69. The table presents the aggregate statistics for motor vehicle actions set 
down for trial in both the Supreme Court of Ontario and tlie District Court of Ontario. 



10 



Table No. 3 
Motor Vehicle Actions Set Down for Trial 





1982 


1983 


1984 


1985 


Non-jury 


3,134(58%) 


2,918 (56%) 


2,793(51%) 


2,861 (51%) 


Jury 


2,239 (42%) 


2,328 (44%) 


2,634 (49%) 


2,722 (49%) 


Total 


5,373 (100%) 


5,246 (100%) 


5,427 (100%) 


5,583 (100%) 



More recent data for the 1992 and 1993 calendar years reveal a sharper 
increase in the use of juries in motor vehicle actions. Table No. 4 discloses a 
marked increase in the number of motor vehicle cases in both 1992 and 1993. 
Anecdotal evidence suggests that this trend is a consequence of the greater use of 
the jury by defendants, whose defences are usually conducted by the insurance 
companies that insure them. Anecdotal evidence further suggests that the appeal 
of the jury for insurance companies stems from the tendency of juries, in 
Ontario, to make smaller awards of damages than judges. This observation will 
be discussed in greater detail, below. 

Table No. 4 
Motor Vehicle Actions Set Down for Trial 





1992 


1993 


Non- 
jury 


2,822 
(33.8%) 


1,835 
(29.3%) 


Jury 


5,528 
(66.2%) 


4,419 
(70.7%) 


Total 


8,350 
(100%) 


6,254 
(100%) 



As a result of the enactment of legislation limiting tort claims for motor 
vehicle actions, there is reason to believe that the frequency of motor vehicle 
actions, including those before juries, will be reduced further as the full impact 
of this legislation is realized. The effect of this legislation to date is reflected in 



25 

See infra, ch. 4, sec. 3(b). 

^^ Insurance Act, R.S.O. 1990, c. 1.8, s. 267.1, as en. by S.O. 1993, c. 10, s. 25. 

The prediction of a long term reduction in the number of motor vehicle actions is contingent 
upon the continued existence of the current legislation. As this report was prepared for press, the 
Ministry of Finance issued draft legislation to amend the Insurance Act and other Acts related to 
automobile insurance. Among other things, s. 14 of the projDOsed Insurance Statute Law 
Amendment Act, 1996 would restore the right to sue for significant economic loss in excess of 
the no-fault benefits. This legislation, if enacted, might have a significant affect on the number 



11 



the Ministry statistics set out in Table No. 5, below. The table discloses a marked 
decrease in the number of motor vehicle actions commenced in the 1992/93 fiscal 
year, and a further significant decrease in the number of motor vehicle actions 
commenced in the 1993/94 fiscal year. Interestingly, while the total number of 
motor vehicle actions decreased sharply in 1992/93, the actual number of motor 
vehicle actions tried with a jury increased. A somewhat similar phenomenon 
occurred in 1993/94. These increases, however, are likely related to cases 
commenced in previous years that are only now proceeding to trial. Accordingly, 
it will probably take a few more years before the full impact of "no-fault" 
legislation on civil juries can be observed. It would seem reasonable to assume, 
however, that a substantial decrease in motor vehicle actions would result in 
fewer civil jury trials. 

Table No. 5 

Motor Vehicle Actions Commenced 

Ontario Court (General Division) 





1988/89 


1989/90 


1990/91 


1991/92 


1992/93 


1993/94 


1994/95 


actions 


26,394 


35,874 


26,064 


22,930 


7,032 


3,651 


3,752 



Given that the majority of civil jury trials involve motor vehicle actions, and 
that the number of such actions has decreased dramatically over the past few 
years, there is a basis for predicting that, in the absence of further statutory 
reform concerning motor vehicle actions, a sharp decrease in civil jury trials will 
occur. 



of motor vehicle actions commenced and, consequently, on the number of jury trials conducted 
in the province. 



CHAPTERS 



EXPERIENCE IN OTHER 
JURISDICTIONS 



1 . CIVIL JURY TRIALS IN OTHER JURISDICTIONS— EN ABLING 
LEGISLATION 

Civil jury trials are available in all other Canadian provinces, except 

Quebec, where they were abolished in 1976.^ Jury trials are also available for 

-J 

civil actions in England. Civil juries are available in these jurisdictions under 
various enabling schemes. 

In Manitoba and Nova Scotia, unless the right is waived by the parties, jury 
trials are required where an action is for defamation, malicious arrest, malicious 
prosecution, or false imprisonment. In Nova Scotia, actions for criminal 
conversation and seduction are added to this list. 

In Alberta, jury trials are not mandatory, but are available for defamation; 
malicious arrest; malicious prosecution; seduction; breach of promise for 
marriage; tort, where the damages exceed $10,000; and the recovery of property, 
where its value exceeds $10,000. The scheme is similar in Saskatchewan, except 
there is no action for seduction and a jury trial is available in an action where the 
amount- claimed exceeds $10,000. The Alberta and Saskatchewan schemes 
preclude jury trials for actions not included in the list of permitted claims. 



Alberta, Jury Act. S.A. 1982, c. J-2.1, s. 16, Alberta Rules of Court, rr. 234 and 235; British 
Columbia, Supreme Court Act. S.B.C. 1989, c. 40, s. 15, Jury Act, R.S.B.C. 1979, c. 210, ss. 
13-21, Rules of Court, r. 39(24)-(30); Manitoba, 772^ Court of Queen's Bench Act. S.M. 
1988-89, c. 4, s. 64, The Jury Act, R.S.M. 1987, c. J30, s. 32, Court of Queen's Bench Rules, 
r. 48; New Brunswick, Jury Act, S.N.B. 1980, c. J-3.1, s. 33, Rules of Court, r. 46; 
Newfoundland, Jury Act, 1991, S.N. 1991, c. 16, s. 32, Rules of the Supreme Court, 1986, 
r. 45; Nova Scotia, Judicature Act, R.S.N. S. 1989, c. 240, s. 34, Juries Act, R.S.N. S. 1989, 
c. 242, s. 13, Civil Procedure Rules, r. 28.03; Prince Edward Island, Jury Act, S. P.E.I. 1992, 
c. 37, s. 3, Civil Procedure Rules, r. 47.01; Saskatchewan, The Jury Act, 1981, S.S. 1980-81, 
c. J-4.1, ss. 14-22, Rules of Court, r. 196. 

Jurors Act, S.Q. 1976, c. 9, s. 56. 

Supreme Court Act 1981. c. 54 (U.K.), s. 69, Rules of Supreme Court, 0.33, rr. 2 and 5. 



[13 



14 

Saskatchewan, however, has a unique provision that a judge, upon 
application, may order a jury trial 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 proceedings". 

In England, jury trials are required in the Queen's Bench Division if, upon 
application, the court is satisfied that there is in issue a charge of fraud against 
the party applying for the action to be tried with a jury, or a claim is made for 
defamation, malicious prosecution, or false imprisonment. The court in England 
has a discretion to order a jury trial in other cases. The approach is similar in 
New Brunswick and in Newfoundland where, however, fraud has been deleted 
from the list and breach of promise of marriage has been added. Newfoundland 
has also added seduction. In England, questions of foreign law are to be decided 
by a judge alone. 

In British Columbia and Prince Edward Island, jury trials are precluded for 
certain listed claims, but are otherwise available. While the details of the lists 
vary, in general, equitable claims such as claims for injunctions, specific 
performance, and the administration and execution of estates and trusts, are 
precluded. 

Subject to those actions in respect of which jury trials are precluded, if any, 
in England, Alberta, British Columbia, Manitoba, New Brunswick, 
Newfoundland, Nova Scotia, Prince Edward Island, and Saskatchewan, jury 
trials are available vairiously upon court order or upon serving a jury notice. 

In England, Alberta, British Columbia, Nova Scotia, Prince Edward Island, 
and Saskatchewan, the legislation provides that, notwithstanding a request for a 
jury, a judge may order that the action be tried without a jury. In England, 
Alberta, British Columbia, and Newfoundland, this power may be exercised 
where the trial will involve scientific investigations, complex issues, or prolonged 
examination of documents or accounts. 

The enabling legislation in the other jurisdictions in Canada and in England 
is summarized in the following table: 



The Jury Act, 1981 (Sask.), supra, note 1, s. 17(1). 



15 



Table No. 1 
Enabling Legislation for Civil Juries in Other Jurisdictions 





Jury mandatory unless 
waived for: 


Jury permitted by notice 
or by application for: 


List of claims 

for which jury 

precluded 


Fee charged 
for jury trial 


England 


n.a. 


fraud, defamation, 
malicious prosecution, 
false imprisonment, 
others claims 
discretionary 


n.a. 


no 


Alta. 


n.a. 


defamation, malicious 
arrest, malicious, 
prosecution seduction, 
breach of promise, 
torts ($10,000+), 
property ($10,000+) 


n.a. 


yes 


B.C. 


n.a. 


all save precluded 


yes 


yes 


Man. 


defamation, malicious 
arrest, malicious 
prosecution, false 
imprisonment 


all claims 


n.a. 


yes 


N.B. 


n.a. 


defamation, malicious 
prosecution, false 
imprisonment, breach 
of promise, other 
claims discretionary 


n.a. 


no 


Nfld. 


n.a. 


defamation, malicious 
prosecution, false 
imprisonment, breach 
of promise, seduction, 
other claims 
discretionary 


n.a. 


yes 


N.S. 


defamation, malicious 
arrest, malicious 
prosecution, false 
imprisonment, criminal 
conversation, seduction 


all claims 


n.a. 


no 


P.E.I. 


n.a. 


all save precluded 


yes 


yes 


Sask. 


n.a. 


defamation, malicious 
arrest, malicious 
prosecution, breach of 
promise, claims over 
$10,000, community 
involvement in 
interests of justice 


n.a. 


yes 



16 
2. THE USE OF CIVIL JURY TRIALS IN OTHER JURISDICTIONS 

(a) Canada and England 

A variety of sources indicate that juries are rarely used in civil cases in other 
jurisdictions. In England, the case law suggests that, apart from those actions for 
which a jury trial is generally required if requested, an order for a jury trial is 
rarely made; and, in actions for personal injury, an order for a jury trial will not 
be made unless there are exceptional circumstances. Severe injuries are not an 
exceptional circumstance. In a 1965 judgment. Lord Denning M.R. noted that 
civil trials by jury had declined in England to about two percent of cases tried. ^ 

A 1975 report of the Manitoba Law Reform Commission noted that there 
were only four civil jury trials in the province during the period from 1944 to 
1956, and that there were no civil jury trials in the province during the period 
from 1957 to 1975.'^ 

The Manitoba experience was noted in the Ontario Law Reform 
Commission's 1973 Report on Administration of Ontario Courts.^ The 
Commission also noted that, in Alberta and Saskatchewan, the number of civil 
jury trials was negligible; in British Columbia and Newfoundland, fewer than ten 
percent of civil cases were tried by a jury; in Nova Scotia, civil juries were 
employed in not more than five percent of the cases in the Supreme Court, and 
infrequently in the County Courts; in New Brunswick, juries in civil cases were 
extremely rare; and in Prince Edward Island, there had not been a civil jury trial 
in five years. , 

In 1979, the Law Reform Commission of Saskatchewan noted that civil jury 
trials were rare in Saskatchewan, there being three civil jury trials in 1976, and 
five civil jury trials in 1977.'° Bouck J. of the British Columbia Supreme Court 
noted, in a 1981 article, that fewer than three percent of all civil cases in that 



9 

10 

11 



Ward V. James, [1966] 1 Q.B. 273 (C.A.); Sims v. William Howard & Sons Ltd., [1964] 2 Q.B. 
409 (C.A.); and Hennell v. Ramboldo, [1963] 3 All E.R. 684 (C.A.). 

Ward V. James, supra, note 5, at 368. 

Manitoba Law Reform Commission, Report on the Administration of Justice in Manitoba 
Part II— A Review of the Jury System (1975), at 37. 

Ontario Law Reform Commission, Report on Administration of Ontario Courts (1973), Part I, at 
333. 

Ibid., at 331-34. 

Law Reform Commission of Saskatchewan, Tentative Proposals for Reform of the Jury Act 
(1979), at 36. 

Bouck, "The Civil Jury Trial in British Columbia" (1981), 39 Advocate 105. 



17 

province are tried with a jury. In a 1993 discussion paper, the Law Reform 
Commission of Nova Scotia noted that, in that province, in many districts there 
were no jury trials and that typically the larger districts had only one or two civil 
jury trials annually. 

(b) United States 

Jury trials are used considerably more often in the United States than they 
are in either Canada or Britain. Annually, civil jury trials terminate 
approximately 50,000 claims in the United States. ^^ This no doubt reflects the 
fact that the right to a civil jury trial is entrenched in the Seventh Amendment to 
the United States Constitution and by similar provisions in most state 
constitutions. 

Given the importance of jury trials in the United States, in both criminal and 
civil proceedings, the role and performance of juries has been the subject of 
considerable debate, investigation, analysis, and commentary by American 
attorneys, judges, court administrators, and academics. In the United States, the 
use of civil juries has been the subject of both vigorous criticism and defence for 
many years. The debate has revived recently as a result of a perceived crisis in 
the insurance industry, which is said to be caused, in part, by excessive jury 
awards. As a result, there is a large and growing body of American literature 
concerning civil juries, some of which is considered below. 

3. JURY USER FEES 

Unlike Ontario, most jurisdictions in Canada provide for some form of fee to 
be paid- by the party seeking a jury, in order to offset the cost to the public of the 
jury and the sheriff's officers. In Alberta, for example, the Jury Act provides that 
the party seeking a jury shall deposit with the clerk of the court "a sum of money 
that the clerk considers sufficient to pay the expenses of conducting the trial by 
jury". In practice, this ordinarily results m approximately $1,000 or $2,000 
having to be paid into court before the commencement of a civil jury trial. '^ 

Similarly, the Saskatchewan Act requires that the party requesting a jury 
"deposit with the local registrar in advance of the trial any sum that the local 



12 

Law Reform Commission of Nova Scotia, A Discussion Paper: Juries in Nova Scotia (1993), at 

19. 

13 

The statistics are derived from Galanter, "The Regulatory Function of the Civil Jury", in Litan 

(ed.), Verdict[:\ Assessing the Civil Jury System (1993) 61, at 63. 

14 

Supra, note 1, s. 17(1). 

15 ,^. 

This practice was reported to the Commission by court officials in Calgary. 



18 

registrar considers sufficient for the fees and expenses of the jury for the 
estimated length of the trial". The policy in Saskatchewan, therefore, is to 
estimate in advance the full additional cost of the jury trial, to the extent that it 
can be calculated. The provision in the Saskatchewan legislation with respect to 
costs is unique. With certain limited exceptions, the Saskatchewan Act prohibits 
the successful party from recovering the cost of the jury.'^ The legislation in 
most provinces, however, allows the successful party, who requested a jury, to 
recover the amoimt of the jury fee in costs. Provinces having such legislation 

19 * 20 21 

include Alberta, British Columbia, and Newfoundland, as well as the Yukon 
Territory. 



16 
17 



19 

20 
21 

22 



The Jury Act, 1981, supra, note 1, s. 16(2)(a). 

Section 16(3) of The Jury Act, 1981, ibid., provides that the trial judge may make an order 
regarding the cost of the jury in an action for libel, slander, seduction, malicious arrest, 
malicious prosecution, false imprisonment, or in respect of personal injury or death where the 
award exceeds $10,000. 

The Jury Act, 1981, ibid., s. 16(2)(b). 

Jury Act, supra, note 1, s. 17(2). 

Jury Act, supra, note 1, s. 15. 

Jury Act, 1991, supra, note 1, s. 21(3). 

Jury Act, R.S.Y. 1986, c. 97, s. 3(3). 



CHAPTER 4 



THE ARGUMENTS FOR AND 
AGAINST RETAINING THE 
CIVIL JURY 



1. INTRODUCTION 

In the Consultation Paper on the Use of Jury Trials in Civil Cases, the 
Commission presented a number of arguments both for and against the retention 
of civil 'jury trials. In this chapter, we review those arguments briefly. 

As we noted in the consultation paper, difficulties arise in evaluating the 
arguments, since many of the arguments are difficult to test empirically, or 
involve competing values that are irreconcilable. A further difficulty in assessing 
the arguments arises from the fact that there is no agreement about the criteria 
that should be used to measure the performance or contribution of juries or 
judges. It would appear, therefore, that the views of both advocates and 
opponents of the civil jury are informed, at least in part, by their own moral and 
political values. 



2. ARGUMENTS FOR THE RETENTION OF CIVIL JURIES 
(a) The Safeguard Against Abuse of Power Argument 

At the heart of the argument in favour of the civil jury is the view that jury 
trials protect litigants from corruption, systemic bias, and abuses of executive, 
legislative, or judicial power. The jury is the community's mechanism for 
involvement in the administration of justice. It allows ordinary citizens the 
opportunity to check the improper exercise of public authority. This argument is 
particularly persuasive in the context of criminal proceedings, in which the 
contest is between the state and an individual. In civil cases, the argument might 
have force in the context of claims by or against public authorities. However, as 



Ontario Law Reform Commission, Consultation Paper on the Use of Jury Trials in Civil Cases 
(1994). 

^ Ibid., at 14-15. 



[19] 



20 



we discussed above, a number of statutes preclude juries in actions against 
federal, provincial, and municipal governments. These provisions undermine the 
argument that the civil jury provides protection against governmental or judicial 
abuse of power or corruption. Nevertheless, the ability of the jury to scrutinize 
the conduct of public authorities remains a powerful justification for the jury as a 
democratic instrument, and an argument for removing the barriers to its 
availability in actions involving the government. 

A related view is that there might be cases in which a jury is sought because 
a particular judge is perceived to be biased or to abuse his or her power. 
However, there is little evidence to suggest that litigants generally request juries 
as a result of a concern about judicial impartiality or incompetence. The research 
and consultation conducted in connection with this report does suggests that some 
parties request juries as a result of a concern about the anticipated views or 
predispositions of particular judges. A number of lawyers advised the 
Commission that they request juries as a means of avoiding judges who, they 
feel, for one reason or another, would not give them a good hearing. While this 
might not be an instance of instimtional "abuse of power", it indicates 
nevertheless that some parties select juries out of a concern about how some 
judges might decide cases or conduct hearings. 

The old adage that "justice must not only be done, but must be seen to be 
done" is still important today, and is an argument in favour of a broad right of 
access to the civil jury. 



(b) The Due Process, Community Standards, and Law Reform 
Argument 

Supporters of jury trials argue that juries maintain the integrity of the 
administration of justice, allow the law to respond to the imique nature of 
individual cases, and reflect contemporary community standards about proper 
conduct and adequate remedies. 



5 



Supra, ch. 2, sec. 2 

Examples of the extensive American literature by members of the bench or senior judicial 
officials in support of the jury on this basis include the following: Rubin, "The Jury System: An 
Unbelievable Success" (1992), 18 Ohio N.U.L. Rev. 743; Feikens, "The Civil Jury— An 
Endangered Species" (1987), 20 J.L. Ref. 789; and Culley, "In Defense of Civil Juries" (1983), 
35 Me. L. Rev. 17. See, also, Silverman, "Judicial Bias" (1990-91), 33 Crim. L.Q. 486. 

Many respondents to our survey of former civil jurors stated that they would prefer their matters 
to be heard by a jury. See infra, ch. 7, sec. 3. 



21 



A jury is composed of laypeople, selected randomly from the community, 
who, in theory, provide the court with a cross-section of societal views. 
Ordinarily, the decision of a jury will not be overruled by an appeal court. It has 
been held that a jury verdict will not be set aside unless it is so plainly 
unreasonable and imjust as to satisfy the appeal court that no jury reviewing the 
evidence as a whole and acting judicially could have reached the verdict. A jury 
is able to reach a decision m a particular case without the institutional pressures 
faced by a judge. Judges are professional adjudicators who must give reasons for 
their decisions, and deal with the authority of binding precedent, the implications 
of the decision on future development of the law, and the greater willingness of 
an appeal court to review and reverse their decisions. Because a jury verdict is a 
group decision, arguably it is less likely to be idiosyncratic, or reflective of 
individual standards; rather, the randomly selected group's decision will be 
infused with current community values about what is reasonable conduct or what 
is a reasonable remedy. 

The community standards argument also notes that a jury verdict can 
revitalize and reform die law, as well as preserve due process in the 
administration of justice. An American commentator advancing this argument 
stated as follows:^ 

[T]he jury helps retain the salience of the substantive morality embodied in the 
law— and helps align that morality with the emergent moral sense of the community 
or communities. In a system in which issues of culpability are typically effaced in 
settlement and routine processing, it is a good thing that at the end of the day there is 
a recourse to a forum that can respond to the particulars in terms of moral conviction 
undiluted by the constraints of institutional priorities or career concerns. 

Supporters of the jury have also considered the kinds of action that are most 
appropriate for the community involvement of the jury. Defamation actions, 
which involve injury to one's reputation in the community, and false 
imprisonment and false arrest actions, are the examples typically given of cases 
that are most appropriately put before a jury. It is interesting to note, however, 
that there is no consensus on this list, even among advocates of the jury. The 



McCannell v. McLean. [1937] S.C.R. 341, and Graham v. Hodgkinson (1983), 40 O.R. (2d) 
697 (C.A.). 

Although the question of jury selection and composition is beyond the scope of this report, it 
should be noted that there has been a debate for some time about whether or not the jury does 
provide a genuine representation of the community, because the rules of jury selection, 
particularly those about peremptory challenges and the size of the jury, may disturb the random 
sampling. 

Galanter, "The Regulatory Function of the Civil Jury", in Litan (ed.), yerdict[:] Assessing the 
Civil Jury System (1993) 61, at 89-90. 



22 



justification given for the above types of action is that they concern security of 
the person, or are instances in which the values, attitudes, or priorities of the 
community are themselves predominant issues in the case. 

The proposition that certain civil cases are appropriate for a jury and that 
others are not was advocated by Lord Devlin, who was an admirer of the virtues 
of trial by jury. This proposition, in his view, explained and justified the decline 
of civil juries in England. Using the context of a civil case about carelessness, 
Lord Devlin stated:^ 

In a case which was unique I should say unhesitatingly that a question of 
carelessness was better settled by a jury than by any other tribunal. Where there is 
no precedent to act as a guide, a common opinion is better than a single one. But 
cases that come up for trial rarely are unique.... Whenever cases about carelessness 
belong to a type, it is inevitable that there should also grow up a typical standard of 
care; it is not something that can be put into a formula which the jury can be told to 
apply; it depends upon a knowledge of the sort of approach that is generally made to 
cases of the type... where a case belongs to a type, it is an informed mind that is 
needed rather than a fresh one. 

Lord Devlin accepted that jury verdicts are inherently inconsistent and 
suggested the factor of predictability as a measure for determining what sort of 
case was appropriate or inappropriate for a jury. He stated:' 

[S]o you will find that in modem times, the mode of trial is allowed to depend 
upon the importance of [predictability] in relation to the type of case that is being 
tried. When, for example, a man is on trial for his liberty, predictability is quite 
unimportant. What is then wanted is a decision on the merits that will after the event 
satisfy the public that justice as the ordinary man understands it has been done. 
Likewise, when a man's honour or reputation is at stake.... hi any case in which 
there is going to be hard swearing on both sides, the result is unpredictable anyway 
until the witnesses have been heard and compared. Cases which have one or more of 
these characteristics will be probably either criminal or, if civil, will fall into one of 
the categories in which trial by jury is given as of right. If the case is of a 
common type in which there is no hot dispute on the facts— for example, the 
ordinary accident case on the roads or in the factories; there is often an acute conflict 
on certain parts of the evidence but rarely wholesale perjury— a jury is not normally 
allowed, unless the case has some exceptional feature; otherwise, if a jury were 
allowed in one, it would have to be allowed in all. 



9 

10 

11 



Lord Devlin, Trial by Jury (rev. ed., 1966), at 142-43. 

/^fV/., at 157-58. 

The reference here is to libel, slander, malicious prosecution, false imprisonment, seduction, 
breach of promise of marriage, and fraud. 



23 



Lord Devlin concluded that, while juries are useful instruments of justice, 
the cases for which they are suited are rare. Advocates of a more expansive role 
for the civil jury argue that cases cannot be categorized neatly into common and 
uncommon types. The advantage of the jury, in their view, is that juries allow 
each case to be heard afresh. This insures that no case will be typed as 
"common", and thereby guarantees that cases will not receive "assembly line 
justice". This issue— whether there are particular types of case that are 
appropriate for civil juries— is one on which opinion is divided. Moreover, 
among those who take the view that a division can be made between cases that 
are appropriate for a jury and cases that are not, there appears to be little 
consensus as to where the division occurs. 

(c) The Catalyst Argument 

Advocates of the civil jury argue that cases that are scheduled to be heard 
before a jury are more likely to settle. In an effort to verify this thesis, the 
Commission undertook a detailed comparative study of jury and non-jury trials, 
which strongly suggests that matters scheduled to be heard before a jury are 
indeed more likely to settle, and are more likely to settle more quickly.^ The 
ability of the jury to promote settlements would appear to be a compelling 
argument in its favour. It should be noted, however, that, during the 
Commission's consultation process, a number of lawyers and judges expressed 
the view that the effect of the jury on settlement rates is likely a function of the 
jury's perceived unpredictability. If it should be determined that litigants settle in 
order to guard against the unpredictability of the jury, this might constitute an 
argument against the jury. The issue of the perceived unpredictability of the jury 
is discussed below. ^ 

(d) The Competence Argument (For Juries) 

Supporters of civil jury trials argue that, as a matter of dispensing justice, 
the quality of jury verdicts is better than that of judgments reached in non-jury 
trials. This argument relies on the instimtional characteristics of the jury, 
particularly the fact that jury decisions are group decisions. This characteristic is 
particularly important for those who argue for the retention of civil juries, 
because they refer to psychological smdies that show that groups perform certain 
intellectual tasks, like fmding credibility and assessing damages, better than 
individuals.''^ 



12 

This study is discussed infra, ch. 6. 

13 

Infra, this ch., sec. 3(c). 

14 

See, for example. Joiner, Civil Justice and the Jury (1962), at 25-35. 



24 



An immediate difficulty with this argument is that it assumes that there is 
some measure for competence. Unfortunately, the accuracy of a verdict or 
judgment cannot be a criterion, since, if the correct result were easily known, 
there would not likely be a dispute to be resolved. Thus, the competence of juries 
has been measured historically by studies that compare jury results with the 
results that judges say they would have reached in the same case, and by archival 
investigations that compare reported judgments and verdicts. ^^ These smdies 
indicate that juries usually respond as judges would. The University of Chicago 
Jury Project, the seminal study by Kalven and Zeisel, indicated that judges 
agreed with jury verdicts approximately eighty percent of the time,^^ and that, on 
average, jury awards tended to be higher than judge awards. Recent anecdotal 
evidence in Ontario indicates, however, that jury awards in personal injury cases 
tend to be lower than judge awards. The eighty percent congruence between 
judge and jury, and the inherent inability of determining which mode of trial 
would yield the "correct" result for the balance of the cases, suggests that judges 
and juries are equally competent or, at least, that it is difficult to disprove the 
thesis that they are so. 

(e) The CoNrroENCE in Fair Treatment Argument 

The supporters of civil jury trials argue that the judgment of one's peers is 
more tolerable than a judgment from a judge alone because many citizens have 
greater confidence in the fairness of their peers than they do in the fairness of 
judges. On the odier hand, it might be argued that some disappointed litigants 
may take greater comfort from the decision of a judge, since detailed reasons for 
judgment are provided, and it is subject to review by an appeal court. 

Responses to the Commission's survey of former jurors, discussed below, 
suggest that there might be more merit to this argument than was first thought. 
The responses to the survey suggest that many citizens, after serving as jurors, 
would prefer trial by a jury of their peers to trial by judge alone. While there 
might be a number of explanations for these responses, the most obvious 
explanation is a belief that their peers would provide them with a better hearing 
or decision than a judge. Moreover, as noted above, our consultations with the 
profession suggest that, in some instances, coimsel do request juries out of a 
concern for fair treatment. 



15 
16 
17 
18 



Kalven, "The Dignity of the Civil Jury" (1964), 50 Va. L. Rev. 1055. 
Kalven and Zeisel, The American Jury (1966), at 58. 
Kalven, supra, note 15, at 1065-66. 
Infra, ch. 7, sec. 3(b). 



25 



(!) The Participation Argument 

The supporters of civil jury trials argue that, to the benefit of society, jury 
duty provides ordinary citizens with an opportunity to participate in the 
administration of their society's justice system. As one commentator has 
observed, this argument has rarely been challenged: 

[I]n the civil jury literature over the years, the educative function of the civil 
jury has come to trump effectively any jury skepticism, perhaps because the 
postulated product of jury experience— increased civil responsibility— can be thought 
to be of nearly infinite value in a democracy. Whatever the reason, there has been 
little effort over the years either to measure with any precision how jury service 
alters commitment to democracy, or to compare jury service to other civic 
experiences or to other educational mechanisms for improving citizenship. 

In addition to noting the absence of any studies to prove the participation 
argument, Professor Priest points out that, because of population growth, very 
few citizens are afforded an education about democracy through jury duty. For 
example, a modem Chicago citizen faces a probability of jury duty once every 
260.2 years, while in the last cenmry, a Chicago citizen would have been called 

20 

for jury duty once every three or four years. 

Professor Priest also points out that it is not clear that all disputes provide a 
similar educational experience in the civic virtues. His analysis of all civil jury 
trials in Cook Coimty, Illinois (16,984 cases) for the period from 1959 to 1979 
reveals that 63.17 percent of the cases involved motor vehicle accidents, 
27.45 percent involved other tort claims, and only 4.9 percent involved 
governments as defendants or as plaintiffs. Sorted differently, his analysis reveals 
that 52.91 percent of the cases were about routine injuries, no more serious than 
a fracture. By comparison, all criminal cases involve state power and the liberty 
and reputation of the accused citizen, and it is fair to argue that participation in 
the adjudication of a criminal proceeding is a more valuable educational 
experience in civics than participation in the adjudication of a civil case. This 
argument applies with greater force to Ontario where civil actions against the 
government are not tried by a jury and where an even higher percentage of civil 
jury trials involve motor vehicle accidents. 



19 

Priest, "The Role of the Civil Jury in a System of Private Litigation", |1990] U. Chi. Legal 

Forum 161, at 187. 
^° Ibid., at 187-88. 
^' Ibid., at 190. 



26 



In Ontario, the statistics of the Ministry of the Attorney General indicate that 
fewer than 4,200 citizens a year would have the benefit of an education in civics 
from jury duty in civil cases, and this education, with very few exceptions, would 
be in a case involving a motor vehicle accident. Apart from the rare cases of 
malicious arrest, malicious prosecution, and wrongful imprisonment, which 
would involve a police officer, none of the cases would involve a governmental 
element. 

These figures, and the nature of the cases decided in Ontario, suggest that 
civil jury trials make an extremely modest contribution to improved citizenship in 
the province. This contribution, alone, would not appear to justify the retention 
of civil jury trials. 

(g) The Burden of Proof Argument 

Supporters of the civil jury argue that, given its long history and tradition as 
a valued social institution, the civil jury should not be abolished without 
substantial evidence to justify such action. Thus, supporters argue, the burden of 
proof is on those who seek to abolish the jury. 

There is a further, more contemporary, argument that would suggest that the 
burden of proof should be placed on those who seek to abolish the jury. At 
present, populist values— the sense that citizens should have the opportunity to 
participate directly m governance— are very strong. The authority and legitimacy 
of institutions and their leaders are everywhere imder attack as being elitist. 
Courts and judges, while retaining greater legitimacy than other institutions, are 
not immune from such criticisms. As a result, one might hesitate before 
abolishing one of the instruments through which individuals can participate 
directly in the judicial process— even if the actual number of citizens who do so is 
relatively small. The civil jury thus has a certain symbolic value, which might 
provide a further rationale to suggest that the burden of proof should be placed on 
opponents of the jury. 

3. ARGUMENTS AGAINST THE RETENTION OF CIVIL JURIES 

(a) The Cost-Benefit Argument 

In the consultation paper, the Commission found the cost-benefit argument to 
be the most persuasive argument advanced by those seeking the abolition of the 
civil jury. This argument assumes that jury trials are more lengthy and more 



22 

Our own study suggests that the number would actually be much smaller than 4,200. See infra, 

ch. 6. 



27 



expensive than non-jury trials. It further assumes that trials by judge alone deal 
adequately with disputes, rendering the jury an unnecessary added expense. 
However, the cost study conducted by the Commission in connection with this 
report, discussed below, ^^ demonstrates that jury trials do not take as long, and 
are not as costly, as is often suggested. 

A study undertaken by the Ministry's Court Reform Task Force, which 
conducted a survey of both civil and criminal jury trials for the period from July 
1, 1990 to June 30, 1991, suggested that the total cost of civil jurors' fees and 
expenses for the period was between $250,000 and $350,000.'^'^ The task force 
did not examine the other costs associated with civil jury trials, for example, the 
additional time of court clerks, sheriffs, other court staff, and judges. The 
Commission's estimate of these other costs is provided below. 

The cost-benefit argument is persuasive if the underlying assumption— that 
is, that jury trials are more lengthy and more expensive than non-jury trials— is 
correct. However, the Commission's empirical smdies did not demonstrate 
conclusively that civil jury trials cost the government more than trials by judge 
alone. Accordingly, there would appear to be reason to doubt the correctness of 
the imderlying assumption. The cost-benefit argument, therefore, does not appear 
to be as persuasive as was suggested in die consultation paper. 



(b) The Tactical Device Argument 

Many critics of the civil jury assert, in essence, that the jury has become a 
tactical device that is often misused by defendants and, to a lesser extent, by 
plaintiffs. Both the Royal Commission Inquiry into Civil Rights, and the 

27 

Commission's 1973 Report on Administration of Ontario Courts, noted this 
phenomenon and offered it as a reason for recommending that the availability of 
jury trials be limited in civil cases. 

Both anecdotal and some empirical evidence appear to suggest that individual 
litigants who lack confidence in the merits of their case request a jury because 



23 

Ibid. 

24 

As we discuss infra, ch. 6, sec. 1(b), there is some question about the accuracy of these figures. 

25 

See infra, ch. 6, sec. 2. 

2fi 

Ontario, Royal Commission Inquiry into Civil Rights (1968), Report No. 1, Vol. 2 (the "McRuer 
Report"), at 860. 

27 

Ontario Law Reform Commission, Report on Administration of Ontario Courts (1973), Part I. at 
336. 



28 



they hope that the relative impredictabiUty of the jury will promote a settlement. 
Similarly, parties with weak cases may hope to make a sentimental appeal to the 
sympathy of the jurors. 

A frequent complaint made about the civil jury is that it is utilized primarily 
by instimtional defendants, such as insurance companies, to obtain a tactical 
advantage. Insurance companies, it is alleged, request juries because their 
lawyers have considerable experience with this mode of trial, whereas the 
lawyers for individual plaintiffs often lack comparable experience. This 
difference in experience gives a decided advantage to such defendants. In 
addition to the advantage in experience, it has been suggested that lawyers for the 
defendants in motor vehicle cases request juries because jury awards in Ontario 
apparently have become lower than awards by judges for such cases. Numerous 
reports of these tactics were received by the Commission during the consultation 
process that followed the publication of the consultation paper. The responses 

28 

received in the consultation process will be discussed below. 

The tendency of juries to make smaller awards of damages, if true, would be 
a persuasive argument against juries if it appeared that they were arriving at these 
lower figures in the absence of supporting evidence. However, we do not have 
any data to show that juries are making awards outside the range proposed by the 
experts at trial. Accordingly, it is difficult to conclude that juries are assessing 
damages improperly. Moreover, it should be noted that, merely because a jury 
makes an award of damages that is smaller than an award made by a judge, it 
does not mean that the decision of the jury is less correct than that of a judge. 

Assuming, however, that Ontario juries are more conservative in awarding 
damages, as the anecdotal evidence suggests, the question arises why this is so. A 
number of views were expressed on this issue in our consultation process. One 
reason often given to explain the restraint of juries is the inability of jurors to 
appreciate fully the expert evidence and complicated calculations associated with 
claims for future loss. Another explanation given for the conservatism of juries is 
the jurors' self-interest in keeping insurance premiums low. Others suggested that 
juries were more willing than judges to take an appropriately skeptical view of 
the testimony of plaintiffs. However, explanations such as these are not 
accompanied by any data. Since jurors in Ontario cannot be questioned about 
their deliberations, it is difficult to assess properly the reasons why juries are less 
generous in their awards. In the absence of substantial evidence, this reported 
phenomenon does not, in our view, provide an adequate basis for a persuasive 
argument against civil juries. 



28 

See infra, ch. 5. 



29 



While there is evidence to suggest that some lawyers request a jury trial in 
order to obtain a tactical advantage, it is unclear whether this constitutes a valid 
argument against maintaining the jury. As we noted in the consultation paper, ^^ 
advantages and disadvantages change over time. Moreover, it might be 
inappropriate to single out the use of the jury to obtain a tactical advantage as 
being improper in an adversarial system that involves tactics at each step. As we 

30 

concluded in the consultation paper, the tactical device argument is 
unpersuasive. 



(c) The Competence Argument (Against Juries) 

Opponents of the civil jury often allege that the quality of jury verdicts is 
inferior or less reliable than the judgments of judges sitting alone. In addition, it 
is argued that the relative unpredictability of jury verdicts is detrimental to the 
administration of justice. 

Data such as that provided by the University of Chicago Jury Project, ^^ 
demonstrates that juries appear to be as competent as judges. However, while the 
alleged incompetence of juries may be an imconvincing argument, the issue of 
their unpredictability is more difficult. Submissions received by the Commission 
from lawyers during the consultation process indicated that many believe juries to 
be less predictable than judges. According to a number of respondents to the 
consultation paper, this perception— that juries are more unpredictable— accoimts 
for the higher rate of settlement of matters scheduled for jury trials. The extent to 
which this might be true has yet to be quantified. Other lawyers, however, 
suggested that judicial opinion is also unpredictable. They add that any case that 
truly is predictable would have settled before trial. According to these 
respondents, the outcome of any case that proceeds to be adjudicated is 
unpredictable by defmition. 

In light of the unanswered questions surrounding the issue of the 
unpredictability of juries and the data that affirms their competency, the argument 
that juries are incompetent appears to be unconvincing. 



29 


Supra, note 1 , at 30. 


30 


Ibid. 


31 


Supra, note 17. 



30 



4. EVALUATING THE ARGUMENTS 

The arguments for and against the retention of the civil jury, outlined above, 
include many of the arguments ordinarily advanced by advocates or critics of the 
jury. As we have already noted, it is difficult to assess the relative merits of 
these arguments and, accordingly, we have concluded that they do not provide an 
entirely satisfactory basis for determining the proper role for the civil jury. 

Respondents in the consultation process suggested that more empirical data 
were required before a properly informed decision could be made about the civil 
jury. As a result of the short period of time that was available for the production 
of the consultation paper, there was insufficient time to conduct such studies or to 
canvass interested parties. Since that time, however, the Commission has had the 
opportunity to conduct a number of studies into the relative length of jury and 
non-jury trials and the added expense associated with jury trials. We also had an 
opportunity to canvass the opinions of judges and jurors. Surveys of litigation 
lawyers also were prepared for our consideration by the Advocates' Society and 
the Canadian Bar Association— Ontario. These studies, which are discussed 
below, ^^ provide a more accurate and contemporary view of the civil jury in 
Ontario. Accordingly, they provide a soimder basis for policy formulation than 
was available at the time of the preparation of the consultation paper. 



32 

Supra, this ch., sec. 1. 

33 

Infra, chs. 5-7. 



CHAPTER 5 



THE CONSULTATION 
PROCESS 



1. CONSULTATION WITH THE BAR AND INTERESTED PARTIES 

In late 1993, the Deputy Attorney General asked the Commission to 
undertake a study of the current use of the civil jury in Ontario. As the 
Commission was asked for an early response, we were not able to conduct 
original research in the preparation of our consultation paper. Consequently, it 
was based primarily on existing data and secondary literature. The consultation 
paper concluded with the following tentative recommendation for the future of 
civil juries: 

[T]he current presumption in Ontario law favouring the availability of juries in 
civil cases should be reversed, and... juries should be available, upon judicial order, 
only where the predominant issues in the action concern the values, attitudes or 
priorities of the community and the ends of justice will be best served if the findings 
of fact or assessment of damages are made by a jury. 

After its publication, in March 1994, the consultation paper was circulated 
widely. Copies were sent to provincial political leaders, senior officials within the 
Ministry of the Attorney General, judges of the Ontario Court of Justice (General 
Division), county and district law associations, and a variety of community 
groups and professional organizations. The aim in circulating the consultation 
paper was to stimulate a discussion in the community about the value of the civil 
jury. Moreover, by consulting with those who would be most affected by the 
Commission's tentative recommendation, the Commission sought to obtain first- 
hand accounts of experiences with juries in Ontario. 

By the conclusion of the consultation process, the Commission had received 
a number of written responses, as well as numerous informal responses. The 



Ontario Law Reform Commission, Consultation Paper on the Use of Jury Trials in Civil Cases 

(1994). 

^ Ibid., dt 33. 

I 31 I 



32 

formal submissions were received from a variety of sources, including lawyers; 
judges, both active and retired; and representatives of industries who felt that 
they had a stake in the jury's survival. 

Of the written submissions, only two approved of the Commission's tentative 
recommendation. Most responses were critical of the proposed restriction on the 
availability of the civil jury. The most common criticisms in these responses 
were that the consultation paper did not provide enough empirical data on the 
added cost of the jury, and that citizens have a right to be tried before their peers. 

One of the submissions, received from a retired judge, criticized the 
consultation paper for being too philosophical, at the expense of providing 
meaningful practical discussion. The same respondent also warned that, as a 
practical matter, the Commission's tentative proposal— that leave of the court 
should be required before a jury is granted— would result in the elimination of the 
civil jury in Ontario. This opinion was also expressed by another retired judge, 
who stated that the reverse onus, suggested by the Commission, would be 
tantamount to the abolition of the jury in civil cases. The sentiment underlying 
both of these submissions seems to be that judges would not be inclined to grant a 
trial by jury, believing that they could perform the job adequately on their own. 

Criticisms of the tentative recommendation were received from active judges 
as well. A current member of the Ontario Court of Justice (General Division) 
expressed the view that civil trial by jury is an important civil right that should 
not be tampered with. The same respondent went on to note that leaving the 
decision to have a jury with the parties, who are best able to judge their own 
needs, is the preferred policy, and is one that is consistent with our adversarial 
system. Another judge of the same court expressed the view that juries should 
continue to be available in cases involving contested wills. 

Of the submissions received by the Commission during the consultation 
process the most thorough and representative came from the Canadian Bar 
Association— Ontario (the "CBA— O") and the Advocates' Society, both of 
which are province-wide legal professional associations. Both groups conducted 
surveys of their members before drafting their positions to the consultation paper. 
The CBA— O also convened a program entitled "The Future of Civil Juries", 
which provided an opportunity for participants to discuss the issues raised in the 
consultation paper and the Commission's tentative proposal. 

Perhaps the most interestmg issues addressed during these various 
consultations concerned the reasons that parties request juries in civil cases. The 
most common reasons given by lawyers for requesting juries were the followmg: 

1 . Forum "Shopping " Many of the lawyers with whom the Commission consulted 
expressed the opinion that the request for a jury provides a safeguard against 
the possibility of having to go to trial before a judge who is viewed as being 



33 

unsympathetic or otherwise unsuitable for the matter at hand. As the 
trial date approaches, and the identity of the trial judge becomes known, 
the jury can be dispensed with if the judge is viewed as being acceptable. 

2. Appearing in Unfamiliar Courts A number of counsel stated that they might be 
uncomfortable when appearing in court in communities other than those in 
which they practise regularly. The jury provides them with the oppormnity to 
have liability determined by citizens who are unconnected with another 
community's potentially insular legal community. As one lawyer observed, the 
presence of a jury imposes a certain discipline on the proceeding. 

3. Juries Give Smaller Awards For at least thirty years, since the decision in Grey 

3 

V. Alanco, the tendency of Ontario juries to make smaller awards of damages 
than judges has been noted on numerous occasions. As a result of this 
tendency, juries are very popular with insurance companies and their lawyers 
when defending the interests of defendants. Indeed, the Commission received a 
number of impassioned pleas from members of the defence bar to maintain the 
jury. 

4. Juries Intimidate Inexperienced Counsel It appears to be widely believed in the 
legal profession that the request for a jury is often employed as a tactic by 
experienced counsel (usually the defence bar in personal injury cases) to 
intimidate younger and less experienced counsel. This tactic, as we noted 

4 

above, was one of the reasons given by the Commission in 1973 for 
recommending that civil juries should be abolished except in respect of specific 
types of action. 

The above reasons were reiterated to the Commission by a number of 
respondents during the consultation process, and confirmed by surveys of the 
profession. Although the frequency with which particular motives inform the 
request for a jury has not been smdied, we do not doubt that juries are often 
selected for the above reasons. 

The consultation process also revealed that it is the lawyer, as opposed to the 
client, who ordinarily makes the decision whether a jury will be requested. 
Moreover, it is often the case that the lawyer for one party requests a jury against 
the wishes of the lawyer for the other party. 



[1%5] 2 O.R. 144 (H.C.J.). In that case, at 151, Mr. Justice Haines stated that, in his 
experience, jury notices are served by insurers. He explained that "It]he reasons are not hard to 
find. Juries unacquainted with the value of these claims assess damages in an amount lower than 
a Judge, sometimes considerably lower." 

Supra, ch. 4, sec. 3(b). 



34 



The civil litigation section of the CBA— O submitted a position paper to 
the Commission on behalf of the majority of the section.^ The position paper 
rejected the Commission's tentative recommendation on several grounds, 
including the fact that, historically, the right to a civil jury was a substantive 
right. In addition, the paper noted that the participation of members of the 
community in the judicial process is of great importance to the legal system. The 
CBA— O paper also stated, as did many of the other respondents, that the 
Commission's consultation paper contained little analysis of the Ontario 
experience. 

The CBA— O paper also provided a detailed analysis of the arguments 
presented by the Commission in the consultation paper for and against the civil 
jury. The CBA— O's response placed some emphasis on its view that the 
significance of the civil jury rests, to some extent, on the fact that the perception 
of the litigants that justice was done is important, and its recognition of the reality 
that members of the bench tend to come from a privileged segment of society. 

The submission of the Advocates' Society came to a similar conclusion, and 
included many of the same observations contained in the CBA— O paper. In 
preparing for its submission, the Society sent a questionnaire to each of its 1,768 
members. Of the respondents, seventy percent were in favour of retaining the 
civil jury system, while thirty percent were in favour of abolition, or significant 
modification of the availability of the jury. 

The submission of the Advocates' Society, like so many other responses 
received during the consultation process, argued that juries protect democracy 
and, to that end, urged that the scope of the jury be expanded to allow juries in 
actions against governmental bodies. The Society also responded to the view that 
the purported unpredictability of the jury is a difficulty, suggesting that 
unpredictability creates an incentive to settle. This incentive, the Society argues, 
is a principled approach to resolving disputes because unpredictability permeates 
all civil actions that proceed to trial. 

Finally, the Advocates' Society contributed to the cost-benefit debate, 
arguing that any comparison of trial lengths should compare the "gross number" 
of jury and non-jury cases, rather than comparing individual cases. The argument 
focuses on the total populations of all jury and non-jury actions, so that 
appropriate account can be taken of the rates of settlement. This method of 



Approximately 2/3 of the civil litigation section was in favour of retaining the jury. Interestingly, 
this percentage was consistent for both plaintiff and defence counsel. The consistency in 
approval rates for plaintiff and defence counsel is surprising given the normal assumption that it 
is primarily defence lawyers who utilize the jury. 



35 

analysis proved to be productive in the Commission's own time study, 
discussed below. 

The fact that the majority of responses received by the Commission during 
the consultation process were critical of the tentative recommendation is likely a 
result, at least in part, of the tendency of those who approve to remain silent. 
Nevertheless, given that the responses of the CBA— O and the Advocates' 
Society, which together represent a substantial number of members of the 
profession, were critical of the tentative recommendation, the Commission 
acknowledged that additional empirical research was desirable. 

By virtue of the consultation process, the Commission was able to determine 
that there was enough interest in a time and cost study to justify the expense of 
such an undertaking. Following the publication of the consultation paper, the 
Ministry's sense of urgency with respect to this issue diminished as a result of 
certain changes in the legislative schedule. The additional time available to the 
Commission was utilized to obtain more detailed mformation concerning the 
Ontario experience, by conducting the following studies: an analysis of the 
relative length of jury and non-jury civil trials; the additional costs associated 
with the civil jury; a survey of Regional Senior Justices of the Ontario Court of 
Justice "(General Division); and a survey of past civil jurors. 

2. CONSULTATION WITH THE REGIONAL SENIOR JUSTICES 

In order to obtain a more comprehensive view of the effect of the civil jury 
on the administration of justice, a survey was undertaken of the Regional Senior 
Justices of the Ontario Court of Justice (General Division). The questionnaire 
included questions on the types of cases that are more appropriate for civil juries, 
as well as the effect that juries have on judges' work loads. 

After consulting with a number of senior judges, it was decided that die 
Regional Senior Justices would be invited to forward the questionnaire to any of 
the judges in their region who, in their view, might have insights to contribute to 
the survey. As a result, the Commission received a total of twenty-five 
questionnaires from General Division Judges, including responses from Regional 
Senior Justices in seven of the province's eight judicial regions. The other 
eighteen responses came from General Division judges from across the province. 



7 



Infra, ch. 6. 

It should be noted that the questionnaire did not ask judges to identify themselves. Nevertheless, 
a large number of respondents chose to do so. Among those who identified themselves were 7 of 
the province's 8 Regional Senior Justices. Whether the eighth Regional Senior responded 
anonymously is not known. 



36 



(a) Length of Jury Trials and their Effect on Judicial 
Workload 

The first question that the judges were asked was whether, in their 
experience, civil jury trials require more court time than trials before a judge 
alone and, if so, the amount of additional time that they require. Not 
surprisingly, all of the respondents observed that jury trials require additional 
time. While there was some divergence among the twenty -three responses that 
provided a numerical estimate, the average response was that civil jury trials take 
between one-half of a day and one full day longer.^ 

The judges were then asked to consider whether jury trials require more 
preparation time out of court than trials when they sit alone. This question was 
intended primarily to ask the judges to compare the time required to write a 
charge to the jury with the time required to write a reserved judgment. 
Approximately two-thirds of the responses stated that there was no significant 
difference in the amount of time required out of court to prepare for the two 
different modes of trial. Among these responses were those from several judges 
who were of the view that a charge to the jury might actually take slightly longer 
in a simple case. On the other hand, just fewer than one-third of the respondents 
were of the view that reserved judgments required more time to prepare. 

The judges were also asked to estimate how often they reserved judgment in 
civil cases, and the average amoimt of time that it took for them to prepare such 
judgments. Most of the twenty -one numerical estimates as to the frequency of 
reserved judgments provided in the responses were quite high, with the average 
response being approximately fifty -eight percent. With respect to the amount of 
time required to write reserve judgments, the answers imderstandably were quite 
varied, and often were accompanied by qualifications. Since no two cases are 
exactly alike, it is difficult to arrive at the "average" time that it takes to prepare 
written reasons for judgment. Nevertheless, the wide range of responses, which 
varied from a few hours to six months (with the majority of respondents stating 
that reserve judgments can, in some cases, take weeks or even months to 
complete), still indicate that litigants sometimes have to wait for a considerable 
time before receiving their judgment. 



While 1/2 to 1 full day longer was the average response, the estimates ranged from an additional 
2 or 3 hours (from a judge who went to the trouble of breaking down the minutes required for 
each extra step in a jury trial, for example, the charge to the jury) to twice as long. 

The time estimates given by these respondents ranged from slighdy longer to considerably 
longer, with the average estimate being substantially longer. 



37 



In general, the judges expressed the view that, while jury trials take longer 
to complete and thereby require more judge time in the court room, they require 
less judge time out of the court room. On balance, however, in the minds of 
judges, jury trials still required more judge time. The only other observation that 
should be noted was that, although some judges were of the view that jury trials 
take longer and consume more judicial resources, they acknowledged that jury 
trials generally provide decisions to the parties more promptly than trials by a 
judge alone, 

(b) The Jury' s Effect on Civil Lists and Settlement Rates 

As stated above, the initial objective of the survey was to ascertain the effect 
that juries have on the management of the courts' civil lists. The survey question 
concerning this issue was intended primarily for the Regional Senior Justices 
who, because of their administrative responsibilities, have the greatest familiarity 
with the lists in each region. The responses of the seven Regional Senior Justices 
who could be identified were almost evenly divided. Three judges expressed the 
opinion that juries slow down the list, two expressed the opinion that they speed 
it up through increased settlement, and two others were of the view that the jury 
has no appreciable effect. Among the comments received respecting this 
question, it is interesting to note that one judge expressed the view that the 
increased settlement rate associated with jury trials speeds matters up, while 
another judge was of the opinion that it posed a scheduling dilemma, which slows 
the list down. 

While there was clear disagreement on the effect of the jury on the civil lists, 
the same could not be said about its impact on settlements. Of the twenty-five 
responses received, all but three expressed the view that cases scheduled to be 
heard before a jury have a higher settlement rate than cases scheduled to be heard 
by a judge alone. In addition, most of the respondents who noted the higher 
settlement rate were of the opinion that it was at least in some sense attributable 
directly to the jury itself. The most common reasoning offered for this impact 
was the perceived unpredictability of the jury, which, it was suggested, might 
lead many parties to agree to settle. 

In an effort to substantiate the hypothesis that jury matters are more likely to 
settle, one Regional Senior Justice's response included settlement data from that 
judge's region, which is one of the busiest in the province. According to the data 



While the question about the jury's effect on the civil lists was intended for the Regional Senior 
Justices, some of the other 18 respondents also offered opinions. Of the other responses to this 
question, 4 judges expressed the view that the jury speeds the list up, another 4 said that it slows 
it down, and 2 other judges responded that it has no appreciable effect. 



38 

provided for that region, fifteen to eighteen percent of matters scheduled to 
be heard before a judge alone actually proceed to trial, whereas only three 
percent of cases scheduled to be heard before a jury actually proceed to trial. On 
the basis of these statistics, which show jury matters settling at an approximate 
rate of six to one, it would appear that the jury has a marked effect on 
settlements. A more detailed statistical analysis of the effect of the jury on 
settlement appears below. 

(c) Appropriate Cases for Juries 

The judges were also asked for their views as to the kinds of cases that are 
heard most appropriately before juries, and those that are heard most 
appropriately before a judge alone. 

Witii respect to the questions concerning the kinds of cases that are heard 
most appropriately before juries, opinions were divided. Approximately one-half 
of the judges were of the view that there is no class of case that is more 
appropriately heard before a jury. These responses might be taken as a statement 
by these judges that they can adjudicate matters as well as a jury. This would not 
be a surprising position for professional adjudicators to take. The odier half of 
the respondents expressed the view that there are certain types of cases that are 
heard more appropriately before a jury. These respondents, moreover, generally 
agreed on the kinds of cases that would benefit from public involvement, most 
often referring to actions for libel, slander, false arrest, false imprisonment, and 
wrongful dismissal. 'A few respondents also stated that personal injury cases were 
more appropriately heard before a jury, while a single judge expressed the 
opinion that every type of civil case is best heard before a jury. 

The responses received to the question concerning the kinds of cases that are 
heard most appropriately by a judge alone were relatively more consistent. Most 
respondents expressed the view that there are certain types of cases that are best 
heard by a judge alone. The kinds of cases that were most often cited were 
complex cases, such as commercial matters and malpractice cases, or any case 
involving considerable technical evidence. One judge also noted that cases 
involving modest sums of money ought to be heard by a judge alone, while 
another judge expressed the view that lengthy trials are best heard by judge 
alone. While there was more unanimity among the judges in respect to this 
question, there were still some responses at either extreme. For example, one 
judge was of the view that all civil cases should be heard by a judge alone, while 
another judge expressed confidence in the ability of jurors to deal with all types 
of issues. 



Infra, ch. 6, sec. 1. 



39 



(d) Judicial Perceptions of the Jury 

Although the questionnaire did not ask the judges directly if they were in 
favour of the continued existence of the civil jury, in some form, it did ask them 
to state their perceptions as to the advantages and disadvantages of the jury in 
civil cases. There was considerable agreement on this issue among the responses 
received from the Regional Senior Justices. In general, they indicated that the 
disadvantages of the jury mclude the fact that jury trials take longer than trials by 
a judge alone, and that jury verdicts are often unpredictable. With respect to the 
advantages, most respondents expressed the view that it was important for the 
public to be mvolved in the administration of civil justice. Only two of the 
responses seemed to express a conclusion as to the overall worth of the jury, 
those being responses from judges who were of the view that public involvement 
was "important". 

Of the other eighteen responses received, six expressed the view that the 
advantages of the jury outweigh its disadvantages. On the other hand, four 
respondents were of the view that the jury had no advantages, or that it should be 
abolished. Many of the comments contained in these responses mirrored those 
contained in the responses of the Regional Senior Justices. In addition, one judge 
observed that juries have difficulty assessing damages. In order to demonstrate 
the point, the judge included a comparison of his calculation of damages in a 
recent case, with those assessed by the jury. The jury's total was substantially 
lower. On the other hand, two other judges were of the opinion that juries 
restrain the judicial tendency towards larger awards. Finally, two judges 
expressed concern that jurors were not compensated adequately and that an 
improvement of the facilities for jurors was needed. 

(e) Summary 

What began as a survey of the province's Regional Senior Justices evolved 
into a modest survey of the judges of the Ontario Court of Justice (General 
Division). One of the insights obtained from the survey was that there is a 
perception among most judges that the jury induces settlement. The most 
common explanation given for this was the unpredictability of die jury, which 
induces the parties to be more receptive to settlement. This view was also 
reported to the Commission by numerous lawyers during the consultation 
process. The judges were also generally in agreement that complex cases are not 
appropriate for juries. 

Another insight obtained from the survey was that judges reserve judgment 
in a great number of cases, and that this often results in the parties waiting for 
several weeks or months before receiving their judgment. Finally, of the 
respondents who expressed an opinion as to whether the civil jury should be 



40 

maintained, sixty percent were in favour of retaining the jury while forty 
percent were against retention. It is interesting to note that opinion on this issue 
is divided among lawyers in approximately the same proportion. The wide 
difference of opinion among judges demonstrates that the jury is as controversial 
an issue for judges as it is for lawyers. 



12 

For a description of 2 relatively recent surveys of American judges in which there was a "strong 

judicial endorsement of civil juries", see Galanter, "The Civil Jury as Regulator of the Litigation 

Process", [1990] U. Chi. Legal Forum 201, at 205. 



CHAPTER 6 



THE RELATIVE LENGTH 
OF CIVIL JURY TRIALS 
AND THE COST OF CIVIL 
JURIES 



1 . THE RELATIVE LENGTH OF CIVIL JURY TRIALS 

The most frequent observation made during the consultation process, as we 
noted above, was that there was a need for empirical research into the relative 
length and expense of civil jury trials, as compared to trials by judge alone. 
While it has been an accepted truth among many judges and lawyers that jury 
trials take longer and cost more than trials by judge alone, a number of 
respondents expressed the view that there was a need to go beyond intuitions and 
anecdotes. 

The relative length of civil jury trials, as opposed to trials by judge alone, 
has rarely been studied in Ontario. The study of civil jury trial duration cited 
most often is the 1968 postscript to The Report of the Osgoode Hall Study on 
Compensation for Victims of Automobile Accidents. The figures in the Postscript 
to the Osgoode Hall Study reveal that the average time to conclude a jury trial 
was 2.4 days, as opposed to 1.9 days for a trial by a judge alone. These figures 
were based on the measurement unit of tenths of a court day. Due to the age of 
the study, the Commission concluded that it would be desirable to conduct a new 
study. 



Supra, ch. 5, sec. 1. 

Tlie original study is Linden, The Report of the Osgoode Hall Study on Compensation for 
Victims of Automobile Accidents (1965). The postscript, which contained the study of relative 
trial durations, is Linden and Sommers, "The Civil Jury in the Courts of Ontario: A Postscript 
to the Osgoode Hall Saidy" (1968), 6 Osgoode Hall L.J. 252 (hereinafter referred to as 
"Postscript to the Osgoode Hall Study"). 

Ibid., at 258. 



41 



42 

The general purpose of the study conducted by the Commission was to 
determine whether civil jury trials take longer than trials by a judge alone. If jury 
trials were found to take longer than trials by a judge alone, and were thus more 
expensive, this might constitute an argument for restricting the availability of the 
civil jury. Of course, the time that it takes for legal proceedings to be completed 
can be measured differently depending on the stage in the process from which 
one is measuring. As a result, the time taken for trials can be divided into a 
number of categories, including: "total time", which is the time from the filing 
of a statement of claim to the final disposition of a matter; "pre-trial time", 
which is the time from the filing of a statement of claim until the start of trial; 
and "hearing time", which is the actual time spent by the court hearing a matter. 
The study examined all three of these measurements. At the outset, it is 
interesting to note that the various measurements of time have different 
significance for different parties. Thus, for example, while total time might be 
the most important consideration for litigants, taxpayers have a greater interest in 
hearing time, and the court expenditures associated with it. 

In addition to studying the comparative lengths of civil jury and non-jury 
trials, the Commission collaborated with the Courts Administration division of 
the Ministry on a costing study of the civil jury. The purpose of the costing study 
was to estimate how much more jury trials cost to administer than trials by judge 
alone. 



(a) Research Design and Methodology 

The original basis for the study was statistics compiled by the Ministry of the 
Attorney General for the period from April 1, 1992 to March 31, 1993. 
According to those Ministry figures, 702 (or approximately twenty percent) of 
the 3,446 civil trials reported in 1992/93 involved a jury. With these figures in 
mind, the study was designed to insure that a significant proportion of these 702 
jury trials were sampled. Six courthouses were selected from four of the eight 
judicial regions in the province. Table No. 1 sets out the original sample design. 



4 



5 



The figures were provided by the Courts Administration division of the Ministry of the Attorney 
General. 

The courthouses selected were in Durham, York, Hamilton-Wentworth, Waterloo, Peel, and 
Toronto. 



43 



Table No. 1 
Proposed Civil Jury Research Study Sample Design 



Court 


Jury 


Non-Jury 


Total 


Durham 


13 


13 of 43 


26 


York 


17 


17 of 42 


34 


Hamilton-Wentworth 


34 


34 of 46 


68 


Waterloo 


50 of 104 


50 of 78 


100 


Peel 


9 


9 of 116 


18 


Toronto 


75 of 183 


75 of 663 


150 


TOTAL 


198 


198 


396 



The figures in Table No. 1 show that the study intended originally to analyze 
all of the jury trials in four of the courts, and a significant proportion of the jury 
trials in Waterloo and Toronto. The 198 jury trials set out in the sample design 
constituted more than one-quarter of all of the civil jury trials that were reported 
in the province during the 1992/93 year. As the table illustrates, these jury trials 
were to be compared to an equal number of similar non-jury trials at each 
courthouse. 

The general purpose of the study was to compare the amount of time 
required to dispose of jury and non-jury matters. The comparison included the 
three measures of time noted above— total time, pre-trial time, and hearing time. 
Of particular note was the measurement of hearing time in minutes, through the 
review of courtroom minute books, which are logs kept by the registrars for each 
courtroom. These logs record how every minute of courtroom time is used, and 
thus permitted a high degree of precision. 

(b) Data Collection 

Very early in the process of collecting the data it became apparent that we 
would not be able to adhere to the original sample design, set out in Table No. 1. 
The Ministry statistics, on which that design was based, stated that there were 
702 jury trials in 1992/93. Research conducted at the six selected sites, however, 
indicated that there were considerably fewer civil jury trials being conducted in 
the province than had been reported by the Ministry. The reason for the 
discrepancy between the Ministry figures and the data collected by the 
Commission was the manner in which many trial coordinators had recorded the 
existence of trials at their courts. 



r 



Discussions with trial coordinators indicated that most of them included in 
their trial statistics any case that had completed a pre-trial conference and had 
been listed for trial. One trial coordinator even included in the trial statistics at 
that courthouse matters that were settled during pre-trial proceedings. The time 
from pre-trial conference to trial varies from several weeks to several months. 



44 



depending on the region. Thus, it is quite possible that a case that was settled two 
months before it was scheduled to be tried was included as a trial in the Ministry 
statistics. 

It should be noted that, for the purposes of the Commission's study, a trial 
was defined as any case in which an actual hearing was commenced and at least 
some evidence was heard. A matter was not included as a trial if the parties 
appeared in court to deal only with minutes of settlement. 

Due to the varying criteria utilized by trial coordinators for recording trials, 
more trials were reported than had actually taken place. Table No. 2 below 
shows the actual number of jury trials at each of the sites, compared to the 
number of trials reported by the Ministry. The number of actual or "identified" 
trials represents only 43.3 percent of the Ministry total. The final sample used in 
the study differs from the actual number of jury trials because it was not possible 
to locate all the necessary documentation for every case. 

Table No. 2 
Number of Actual Jury Trials as Compared to Ministry Statistics 



Region 


Provincial 
Statistics 


Identified 
Jury Trials 


Final 
Sample 


Toronto 


183 


100 


95 


Durham 


13 


9 


3 


York 


17 


5 


5 


Peel 


9 


13 


12 


Hamilton 


34 


19 


19 


Waterloo 


104 


10 


6 


TOTAL 


360 


156 


140 



As a result of this discrepancy in the statistics, the proposed sample design 
had to be modified. Table No. 3 shows the number of cases by region that were 
acmally smdied. The sample represents all of the jury trials for which data were 
available at each of the six courthouses, and probably represents approximately 
one-half of all jury trials in the province during the 1992/93 year. In each region 
an effort was made to study a comparable number of similar non-jury cases, 
which were randomly selected. In Toronto, difficulties with the tracking of cases 
in the minute books resulted in an unequal number of non-jury cases being 



This statement is based on the fact that the 6 courthouses in the study were supposed to have had 
360 (that is, approximately 1/2) of the 702 jury trials reported for the period. If the figures from 
the other courthouses were compiled according to similar standards— and there is every reason 
to believe that they were— it is reasonable to conclude that the Commission's study reviewed 
approximately half of the jury trials in the province. 



45 

studied.^ Nevertheless, the cumulative total of 250 cases studied is sufficiently 
balanced for the purposes of comparison. 

Table No. 3 
Number of Cases per Region by Trial Type 



Region 


Judge 


Jury 


All 


Toronto 


50 


95 


145 


Durham 


5 


3 


8 


York 


5 


5 


10 


Peel 


18 


12 


30 


Hamilton 


22 


19 


41 


Waterloo 


10 


6 


16 


ALL 


110 


140 


250 



(c) Types of Cases and Parties 

Since the working definition of a trial in the Commission's study required 
only that at least some evidence be heard, both the judge and the jury samples 
include a number of cases that settled prior to a judgment from the bench or a 
jury verdict. Table No. 4 below provides a breakdown of the cases sampled by 
the method by which they were concluded. It should be noted that jury trials 
ended in settlements more frequently, approximately ten percent more frequently 
than trials by a judge alone. 

Table No. 4 
Number of Cases by Trial Type 





Number 


Percent 


JUDGE 


110 




Decided by Judge 


87 


79.1% 


Settled by Judge 


23 


20.9% 


JURY 


140 




Decided with Jury 


99 


70.7 


Settled with Jury 


41 


29.3 



The study revealed a more distinct pattern when the cases were analyzed by 
type. As illustrated in Table No. 5 below, almost all of the matters that were 



Of the 250 cases studied in the final sample, 55.8% were jury trials, while the other 44.2% were 
non-Jury trials. 

Efforts were also made to dcicrniiiie the types of parties that were involved in the cases (that is. 
whether they were individuals, corporations, or, more specifically, insurance companies), but 
this ultimately proved not to be possible. While data was obtained from the court files with 
respect to the ideiuily of the parties, that data did not rellect the practice. For example, in the 



46 



heard before a jury were tort claims. This contrasts with the cases heard by a 
judge alone, of which only 22.7 percent were tort claims. It should be noted that 
all of the tort claims heard by a judge alone were motor vehicle actions, whereas 
almost three-quarters (71.5 percent) of the jury trials involved motor vehicle 
actions. These fmdings support the commonly held view that civil jury trials deal 
primarily with motor vehicle personal injury matters. 



10 



Table No. 5 
Case Type by Trial Type 



Case Type 


Judge 


Jury 


All 


Tort 


22.7% 


96.9% 


64.9% 


Contracts 


49.5% 


1.5% 


22.4% 


Other (unknown) 


27.8% 


1.5% 


12.7% 



The study also revealed that, in the majority of cases (72.2 percent), jury 
notices were filed by the defendant. This fact is consistent with the view, 
reported to the Commission in the consultation process, that juries are requested 
primarily by insurance companies, who are defending the action on behalf of the 
insured. 



typical motor vehicle case the style of cause ordinarily refers only to two or more individuals. A 
review of the court files similarly would fail to disclose tlie involvement of insurance companies 
in the litigation. However, while insurance companies do not appear to be involved in motor 
vehicle actions, on the face of the court documents, as a matter of practice they often are 
involved. Consultation with members of the insurance bar confirmed that insurance companies 
virtually always retain counsel for the defence in motor vehicle cases, and occasionally retain 
counsel for the plaintiffs case as well. 

A more detailed breakdown of the types of cases found in each sample is as follows: 
Number of Cases by Case Type and Trial Type 



Type of Case 


Judge 


Jury 


All 


Motor Vehicle 
Accident 


13 


92 


105 


Tort 


7 


32 


39 


Contract 


46 


1 


47 


Other 


22 


2 


24 


All 


L 88 


127 


215 



10 



In the Postscript to the Osgoode Hall Study, supra, note 2, at 253, the authors observe that the 
Jury is "frequently used" in automobile cases. While there has always been a sense that the jury 
hears primarily motor vehicle cases, this was not proven in the Osgoode Hall Study. The 
findings in the Commission's study provide evidence in support of this long-held view. 

The jury notices were filed by the plaintiffs in 16.7% of the cases, and by both parties in the 
remaining 11.1% of cases. 



47 



(d) Court Time Taken in Jury and Non-Jury Trials 

The Commission's smdy also analyzed the respective length of jury and non- 
jury trials, in both minutes and days. Minutes were utilized to measure the 
actual time in court taken to dispose of a case. Table No. 6 sets out the court 
time, in both minutes and days, taken to dispose of jury and non-jury matters. 
Both the mean and the median figures are given. 

Table No. 6 
Time in Court by Type o-f Trial 





Minutes 


Days 


Type of Trial 


Mean 


Median 


Mean 


Median 


Judge 


1198 


762 


4.4 


2.8 


Decided by Judge 


1124 


701 


4.2 


2.6 


Settled with Judge 


1476 


961 


5.5 


3.6 


Jury 


1023 


820 


3.8 


3.0 


Decided by Jury 


1136 


905 


4.2 


3.4 


Settled with Jury 


741 


560 


2.7 


2.1 



The above figures disclose that matters heard by a judge alone take an 
average of approximately one-half of a day longer of court time for disposition. 
While this result might be somewhat unexpected, it is important to note the 
composition of the statistics. When the "Decided by Judge" and "Decided by 
Jury" cases are compared, the mean or average times are almost identical. A 
comparison of the "Setded with Judge" and "Settled with Jury" cases, on the 
other hand, reveals a substantial difference. Cases heard without juries take 
approximately twice as long to reach a settlement (5.5 days, as compared with 
2.7 days for jury trials). The effect that the jury appears to have on facilitating 
settlements serves to reduce the average of the total jury sample, while the 
inclusion of longer complex cases within the non-jury category serves to increase 
its average. Accordingly, while there appears to be no significant difference in 
the amount of time required to decide jury and non-jury matters, the difference in 
settlement rates appears to account for the extra half day required, on average, 
for matters to be disposed of by a judge alone. 

While trials by a judge alone take an average of one -half of a day longer 
than jury trials, a comparison of medians reveals different results. The median 
jury trial is fifty-eight minutes longer than the median trial by a judge alone. An 



12 



13 



For the purposes of the Commission's study, 1 day in court was taken to equal 4.5 hours, which 
equals 270 minutes. 

The "mean" is the average time taken. The "median" is the mid-i>oint, that is, the [X)int at which 
half the cases took more time and half the cases took less. 



48 



even greater difference is observed when the medians of "Decided by Judge" and 
"Decided by Jury" are compared. The median for cases decided by a jury is 204 
minutes longer than the median of cases decided by a judge. Interestingly, 
however, the median for cases settled with a judge is almost double the median 
for cases settled with a jury, further reinforcing the view that the jury facilitates 
settlement. 

In attempting to understand the disparity between the averages and the 
medians, it is helpful to review the distribution of the individual samples. Table 
No. 7, below, sets out the data contained in Table No. 6 in days, and allows for 
a clearer appreciation of the distribution of the individual samples. An 
examination of the table reveals that jury trials are considerably more likely to be 
settled within the first three days of trial than non-jury trials. This distribution 
explains both the average and the median in respect to settlements. The 
discrepancy in the decided cases, and its effect on the overall averages and 
medians, poses somewhat more of an interpretive problem. The difference might 
be accounted for by the fact that, during the first three days, approximately 
fifteen percent more cases heard by a judge alone are decided within that period 
(55.1 percent as opposed to 40.7 percent of jury cases). The mid-point for cases 
heard by a judge alone would thus arise sooner than for jury cases. However, this 
does not explain why the median is lower. It is possible, of course, that cases 
heard by a judge alone dealing with similar disputes take less time than cases 
heard by a jury. Our study, however, is unable to establish this fact. 



Table No. 7 



15 



Days in Court by Type of Trial 





JUDGE 


JURY 




Days 


Decided 


Settled 


Decided 


Settled 


All 


1 day or less 


16.1% 


8.7% 


7.1% 


20.5% 


12.6% 


2 days 


21.8 


13.0 


17.3 


20.5 


19.0 


3 days 


17.2 


17.4 


16.3 


23.1 


17.8 


4 days 


11.5 


21.7 


14.3 


10.3 


13.4 


5 days 


6.9 


17.4 


13.3 


7.7 


10.5 


6-10 days 


19.5 


4.3 


26.5 


17.9 


20.6 


More than 10 days 


6.9 


17.4 


5.1 


0.0 


6.1 



Further reinforcement for the conclusion that jury and non-jury trials, 
including settlements, take, on average, approximately the same amount of court 



14 



15 



This represents approximately 3/4 of a court day. See ibid. 
See supra, note 12. 



49 

time is obtained by comparing similar kinds of cases. A comparison of motor 
vehicle trials reveals that those that were heard before a judge alone took an 
average of approximately one hour longer than those that were heard before a 
jury.'^ While these statistics are based on a rather small sample (thirteen trials by 
a judge alone, and ninety-two trials by a jury) the results are still significant, 
particularly given that discussions with counsel m our consultation process 
suggested that motor vehicle cases that are heard by juries are no more or less 
complex than those that are heard by a judge alone. The fact that motor vehicle 
cases of equivalent complexity take approximately the same amount of time for a 
judge or a jury to adjudicate suggests that there is no significant difference in the 
amount of court time required to dispose of a matter by a judge alone or a jury. 

While the above data suggest that, on average, jury trials require no more 
court time to dispose of matters than trials heard by a judge alone, the court's 
time in empanelling and selecting the jurors must also be considered. In order to 
assess the amount of court time required to select a civil jury, a survey of Court 
Service Managers was conducted with the assistance of the Courts Administration 
division of the Ministry of the Attorney General. The survey responses ranged 
from thirty to sixty minutes, with the average response being forty-eight minutes. 
The apparent speed with which civil juries are selected results in no substantial 
amount of court time being added to the above figures. As a result, even when 
the time required to select the jury is added to the above averages, there is no 
significant difference in the court time required to dispose of jury and non-jury 
matters, when the two complete populations (that is, cases decided and cases 
settled) are averaged. 

It should be emphasized that the data reveal that there is no significant 
difference in the court time required to dispose of jury and non-jury matters only 
when the two complete populations are averaged. The statistics do not suggest 
that a matter would require the same amount of time whether it is tried before a 
judge or a jury. Indeed, that is almost certainly not the case. The Commission 
was unable to undertake a study of matched pairs of cases, with a view to 
demonstrating how much more time, if any, it would take to obtain a decision on 
the particular facts from a jury rather than a judge. Rather, the study 
demonstrates that the jury's promotion of settlement has the effect of reducing the 
average time required to dispose of matters heard by a jury. This results only in 
the average jury trial requiring less time than the average trial by judge alone. It 



16 



17 



The average time for motor vehicle cases heard before a judge was 1.096 minutes. Tlie average 
time for motor vehicle cases heard before a jury was 1 ,035 minutes. 

Indeed, the data suggests that a jury trial might require less time to dispose of a matter than a 
non-jury trial. 



50 

does not mean that the jury does not add court time to the adjudication of any 
given matter, if that matter were to proceed to a verdict. 

A final measure that should be considered in connection with court time is 
elapsed hearing days. Although the means for time in court for cases "Decided 
by Judge" and cases "Decided by Jury" are virmally identical, there is a 
substantial difference in the elapsed hearing days of these two groups. While the 
hearing of the "Decided by Jury" cases required an average of 6.3 days, the 
"Decided by Judge" cases took an average of 14.2 days. Thus, it took in excess 
of twice as long, in elapsed time, for cases heard by a judge alone to be decided, 
even though they involved virtually the same amount of acmal court time. 

A greater disparity is disclosed when the elapsed hearing days are compared 
for the total population of non-jury and jury cases. As we noted above, trials 
heard by a judge alone require about one-half of a court day longer to arrive at a 
final resolution. In terms of elapsed hearing days, however, trials by a judge 
alone take in excess of three times as many days to be heard. Trials by a judge 
alone take an average of 19.7 days, while trials by a jury take an average of 6.1 
days. These figures suggest that jury trials are conducted in a more expeditious 
fashion. The relative speed with which jury trials are completed may contribute 
to a more efficient use of courtroom time, and a speedier result for the parties. 

(e) Total Time Required for Jury and Non-Jury Matters 

While the analysis of the actual time spent in the courtroom reveals no 
significant difference between jury and non-jury matters, a total time analysis 
discloses a considerable difference. A review of the number of elapsed calendar 
days from the filing of a statement of claim through to a final disposition— that is, 
a settlement, judgment, or verdict— reveals a substantial discrepancy between 
jury and non-jury cases. Table No. 8 sets out the number of elapsed days, in both 
mean and median, at the various stages of a claim, as well as the total elapsed 
days required for a matter's resolution. The data show that matters heard before 
a judge alone took an average of 1 ,208 days to proceed from the filing of the 
initial claim to the final resolution. Matters heard before a jury, on the other 
hand, took an average of 1,430 days to be concluded, that is, in excess of seven 
months longer than the average for matters heard by a judge alone. 



51 



Table No. 8 
Time in Days by Type of Trial 





JUDGE 


JURY 




Time 
Period 




Decided 


Settled 


All 


Decided 


Settled 


All 


All 


Total 


Mean 
Median 


1133 
1003 


1504 
1547 


1208 
1085 


1382 
1339 


1548 
1418 


1430 
1375 


1341* 
1308 


Before 
Trial 


Mean 
Median 


1080 
963 


1461 
1390 


1157 
1033 


1376 
1336 


1533 
1416 


1422 
1375 


1314* 
1277 


Trial 


Mean 
Median 


14.2 
8.0 


41.6 
8.0 


19.7 
4.0 


6.3 
6.0 


5.1 
3.0 


6.0 
5.0 


11.5* 
4.5 


Judgment 
/Verdict 


Mean 
Median 


38.7 
3.0 


— 


— 


0.6 
0.5 


~ 


~ 


14.3* 
0.6 



* p < .01 (there is less than a 1 in 100 chance tliat the results occurred due to chance) 

The above data reveal that the difference in averages, referred to above, is a 
result of the greater amount of time before trial (265 days, or almost nine 
months) in the jury sample. As we noted above, once a trial starts, juries are 
over three times as fast in elapsed days at producing a resolution. This difference 
m time before trial is a product primarily of trial scheduling. In many 
courthouses throughout the province, because of their infrequency, jury trials are 
conducted only in special sessions, once or twice a year. In Ottawa, for example, 
civil jury trials are heard normally in January of each year, although, in urgent 
cases, jury trials can be included on the ordinary civil list at other times in the 
year. 



Since jury trials require more administrative preparation than cases heard by 
a judge alone, it is efficient to have them heard together at periodic sittings. 
Nonetheless, it is not clear that jury trials could not be heard on a more frequent 
basis than is currently the case. Efforts to bring jury matters to trial sooner would 
have the effect of shortening the time before trial, and bringing the average total 
elapsed days of both samples closer together. This would appear to be as much a 
matter of administrative policy as it is the product of any inherent characteristic 
of the jury itself. 

Interestingly, after the trial, juries required an average of only 0.6 of a day 
to arrive at their verdicts. Judgments from a judge, on the other hand, required 
an average of 38.7 days to be released after the trial. It might be suggested, 
therefore, that one of the benefits of the jury is that the litigants who have their 
matters heard before a jury receive their result more promptly. 



52 



2. THE COST OF CIVIL JURIES 

The above time study demonstrates that jury trials, as a group (that is, 
including those that reach a settlement), do not utilize significantly more court 
time than matters that are heard before a judge alone. Indeed, it would appear 
that, on average, jury trials utilize less court time than non-jury trials. Assuming, 
however, as this study suggests, that there is no significant difference in the 
amount of time required to dispose of jury and non-jury matters, there are 
nevertheless additional costs associated with the jury. These costs arise, for 
example, as a result of the additional administrative burden placed on the court, 
the additional court time required to empanel the jury, the fees that are required 
to be paid to jurors, and the need for additional court officers. 

In order to estimate the additional administrative costs associated with jury 
trials, an informal survey of Court Services Managers was conducted at a 
number of courts in the province, with the assistance of the Courts 
Administration division of the Ministry. The managers were asked to identify the 
additional tasks that must be performed in connection with jury trials, and to 
estimate the costs associated with those tasks. 

The first task identified by the Court Services Managers was administrative 
paperwork. This includes the filing of the jury notice, the preparation of 
correspondence with potential jurors, the preparation of notices (for example, 
with respect to the jurors' absences from work), paying bills (for example, 
restaurant and hotel bills), and paying the jurors' fees. The responses estimated 
that the additional administrative paperwork requires the labour of three people, 
for approximately six hours each. The total cost of this task, assuming that the 
services are performed by administrative personnel in two job classifications, is 
$364.44. 

The next two tasks noted in the responses of the Court Services Managers 
were empanelling and selecting a jury. The average time to organize a single 
panel was estimated to be two and one-half hours. This requires the labour of one 
court services officer. The total cost of this task was thus estimated to be 

1 8 

$39.10. With respect to the selection of the jury, the responses estimated that it 
took from thirty to sixty minutes, with the average time being forty-eight 
minutes. In order to select a jury, the services of all courtroom personnel are 



It should be noted that a single panel may produce a number of juries. Accordingly, it is not 
entirely accurate to charge the total cost of empanelling to any single jury. Nevertheless, as a 
result of the difficulty in apportioning the cost of empanelling a single jury, and the relatively 
low cost of the total empanelling process, we have included the total empanelling cost in our 
calculations. 



53 

required, including a court clerk, a court reporter, three court services officers, 
and a General Division judge. The total cost of the services of these individuals 
for three-quarters of an hour, which is the average time required to select a civil 
jury, is $305.21. 

In addition to the administrative paperwork, referred to above, a variety of 
other administrative tasks must be performed during the course of a civil jury 
trial. Responses from the Court Services Managers estimated that these tasks 
would require the services of two members of the court staff, for a total of 
slightly less than ten hours. The total cost of these tasks was estimated to be 
$180.58. 

Finally, there are additional costs associated with the jury trial itself. 
Whereas a trial before a judge alone ordinarily requires the services of one court 
services officer, jury trials ordinarily require the services of three court services 
officers. The addition of two court officers, over the course of a trial, can add 
significantly to the cost of the proceedings. In order to estimate the added cost 
over the duration of a trial, the average length of a civil jury trial was utilized. 

20 

The above study of comparative trial lengths revealed that civil jury trials last 
an average of four days. The cost of an ordinary six-hour day of a court services 
officer was multiplied by four, and then doubled to represent the fact that two 
extra officers are needed. The resulting figure, $750.72, represents the greatest 
additional cost associated with the jury. Of all the estimated costs, this is the most 
likely to vary in accordance with the length of each trial. 

The total of the additional costs, identified above, for a four-day jury trial, is 
$1651.74. This amount represents the cost of all personnel, including the 
additional time required of the judge to select the jury; however, it does not 
include any capital costs, for example, the amortized cost of building facilities for 



19 

20 
21 



It is not always the case that 3 court services officers are utilized in civil jury trials. The Toronto 
court, for example, uses only 2 officers. Nevertheless, the average number of officers reported 
in the survey was 3. 

Supra, this ch., sec. 1. 

It might be argued, of course, that the calculation of a judge's "extra" time should not be limited 
to the amount of time required for selecting a jury, but should include as well the additional time 
required for a jury trial. According to the judges with whom the Commission consulted, jury 
trials take approximately 3/4 of a day longer tlian non-jury trials. However, if we were to add 
the cost of an additional 3/4 of a court day, we would also have to calculate the costs saved by 
the jury's apparent ability to avoid or shorten trials through increased settlements. In the result, 
the Commission determined tliat it would include only tliose additional costs tliat may be clearly 
identified. 



54 

jurors. The total also excludes jurors' fees and expenses, which are negligible in 
relation to a four day trial. 



22 



It is interesting to note that the additional cost of a jury trial estimated by the 
Commission, of approximately $1,600, corresponds closely with the jury user 
fees charged in a number of provinces, which are intended to recover the actual 

23 

additional cost of the jury. As we noted above, the average fee ordinarily 
required in Alberta is between $1,000 and $2,000. Similarly, court officials m 
Vancouver estimated the cost of the jury to be $450 per day, which equals 
$1,800 for a four-day trial. These figures, derived from the practice m other 
provinces, thus serve to reinforce our conclusion. 

Notwithstanding the empirical data obtained by the Commission, we were 
unable to arrive at a conclusion with respect to the broader issue, that is, whether 
the abolition of the civil jury would result in significant cost savmgs. To 
determine this issue, the resulting savings in administrative expenditures would 
have to be set off against the present efficiencies resulting from the increased 
settlement rate induced by the filing of jury notices and the commencement of 
jury trials. Account would also have to be taken of the rate of appeal from jury 
verdicts, as opposed to the rate of appeal from decisions of a judge alone, a 
matter on which we were unable to gain conclusive evidence. Similarly, it would 
be relevant to determine whether appeals from such verdicts are likely to be more 
or less costly than appeals from non-jury verdicts. Unfortunately, within the 
scope of the present study, the Commission was not able to determine these 
matters. We were Unable, therefore, to reach a conclusion as to whether abolition 
of the civil jury indeed would produce savings for the administration of justice. It 
seems likely, however, that even if savings were to be achieved, they would not 
be substantial. 



3. CONCLUSIONS 

Although it appears to have been accepted by many judges and lawyers that 
civil jury trials take a greater amount of court time than trials by a judge alone, 
the empirical data obtained by the Commission demonstrated otherwise. A 
comparison of the respective medians of cases decided by judges and cases 
decided by juries discloses that jury trials take in excess of three-quarters of a day 



22 

Jurors' fees are discussed infra, ch. 7, sec. 2. 



23 

Supra, ch. 3, sec. 3. 

24 

The officials did note, however, that the cost might vary sUghtly in different locations in the 

province. 



55 

25 

longer than non-jury trials. However, the averages for these two samples are 
the same, which suggests that there might not be a basis for the common 
perception that jury trials take longer on average. More interestingly, when 
considered as a complete population, inclusive of settlements, the average court 
time required for jury trials is less than for trials before a judge alone. 

While the time required for empanelling the jury, making the opening and 
closing addresses, and giving the judge's charge to the jury can only add to the 
length of a trial, this analysis is unduly restricted. A review of the statistics for 
all jury and non-jury trials studied, including both settled and decided cases, 
demonstrates that the jury does not have the effect of lengthening trials. Indeed, 
the average court time required to dispose of jury trials is acmally less than the 
court time required to dispose of non-jury trials. The reason for this result is the 
apparent effect that juries have on promoting settlements. The ability of the jury 
to facilitate settlement results in less court time being required to dispose of 
cases. This saving of court time appears to function in two ways: (1) more cases 
settle prior to trial; and (2) cases that reach trial settle earlier. Thus, while trying 
a matter before a judge alone might result in a shorter trial than if the matter 
were tried before a jury, such an analysis fails to account for the fact that, had a 
jury been scheduled, the case might not have reached trial as a result of a prior 
settlement. 

With respect to cost, our study suggests that the jury is not as expensive as 
was previously thought. There are a number of reasons for this conclusion. First, 
it would appear that there are significantly fewer jury trials acmally bemg 
conducted in the province than Ministry statistics indicate. Second, as we noted 
above, there appears to be reason to believe that juries result in the use of less 
courtroom time, and thereby represent a cost savings. Moreover, there might be 
additional savings that result from the apparent decrease, in civil jury matters, in 
the use of judges' time outside the courtroom, and the probability that civil jury 
matters have a higher rate of settlement, and a lower rate of appeal. However, 
within the scope of the present report, we were not able to quantify these savings. 



25 
26 

27 



See supra, this ch., sec. 1(d), Table No. 6. 

See ibid. 

The view that juries facilitate settlement, demonstrated by the Commission's study and reported 
by numerous lawyers and judges in the consultation process, is subject to one criticism. 
Approximately 3/4 of all jury trials involve motor vehicle cases. It might be argued that this t>pe 
of case lends itself to last minute settlement, and tliat such settlements might occur even if the 
jury were abolished. The data obtained by the Commission in connection with this report did not 
address this p(\ssibility. Having noted tliis reservation, it must be emphasized that the evidence 
that is available, both empirical and anecdotal, suggests that tJie jury does play a role in tlie 
settlement process. 



56 

Finally, when the measurable administrative costs are identified and totalled, the 
additional cost of the average jury trial is not substantial 



28 



Finally, it should be noted that the empirical data obtained by the 
Commission suggest that the cost-benefit argument against juries, referred to 

29 

above, is not as persuasive as was originally believed. 



28 

As we noted supra, this ch., sec. 1(b), the number of jury trials in Ontario is probably half the 

number that is reported by the Ministry. Accordingly, it would appear to be reasonable to 

conclude that there are approximately 350 jury trials annually in the province. When this number 

is multiplied by $1,600, which is the average additional administrative cost of a jury trial (see 

supra, this ch., sec. 2) the total annual non-capital cost of the jury to taxpayers, exclusive of jury 

fees and expenses, is $560,000. Of course, this amount does not account for the potential 

savings in court time that arguably are associated with the jury. As a result, on the basis of the 

data obtained by the Commission, it is impossible to state defmitively that jury trials cost 

taxpayers more than trials by a judge alone. 

29 

Supra, ch. 4, sec. 3(a). 



CHAPTER 7 



THE IMPACT OF JURY 
SERVICE ON JURORS 



1. THE CONSCRIPTION ISSUE 

One of the aspects of the debate concerning the future of the civil jury that 
has been neglected is the impact of the jury on the jurors themselves. During the 
consultation process, it was suggested to the Commission that the impact of jury 
service on individuals' lives is as an area that would benefit from further 
research. In particular, one judge, who is located in the Toronto region and is 
familiar with its inadequate facilities for jurors, emphasized that the treatment of 
jurors requires substantial improvement. With a view to obtaining better 
information concerning the impact of jury duty on the lives of individuals who 
serve as jurors, the Commission determined to conduct a survey of former jurors 
in civil cases. The purposes of the survey were to ascertain the extent of the 
impact that civil jury duty can have on the lives of jurors, and to provide an 
oppormnity to those who have served to express their attitudes with respect to the 
use of the civil jury. 

In stating the advantages of the civil jury, advocates of the jury often neglect 
to consider its complete cost. While the jury might enhance the democratic namre 
of the trial process, by allowing at least one of the parties to choose their own 
mode of trial and by involving members of the public in adjudication, it has 
certain disadvantages as well. Perhaps the most obvious of the jury's negative 
implications for democracy is the fact that it involves compelling individuals to 
serve as jurors. The fact that individuals essentially are conscripted to fulfil what 
has traditionally been considered one of their most basic democratic duties, does 
not necessarily constitute an abridgment of their democratic rights. Civil society, 
as has so often been noted, involves obligations as well as entitlements. 
Nonetheless, the unusual nature of conscripted service in contemporary 
democratic society requires us to consider whether such a measure is warranted 
in this instance. It remains to be shown whether the social good achieved by the 
jury in civil cases is sufficient to justify imposing an obligation of service upon 
the average citizen. The balancing of the jury's social utility will be dealt with 
further below. Even if conscription is justified, however, questions remain with 
respect to the treatment of those who are conscripted. 



57 



58 



2. EMPLOYMENT SECURITY AND REMUNERATION 

Pursuant to section 41(1) of the Juries Act, every employer is required to 
grant to its employees who are summoned for jury service a leave of absence 
sufficient for the employees to complete their jury obligations. Upon their return 
to the workplace, the employees must be reinstated to their former positions, or 
be provided with work of a comparable nature and value. '' While this provision 
protects employees from losing their employment, it provides expressly that the 
leave may be "with or without pay". Accordingly, the Act protects employment 
only, not wages. 

Section 35(1 )(a) of the Juries Act provides that jurors are to be paid the fees 
and allowances prescribed under the Administration of Justice Act/' Pursuant to 
the regulations made under that Act, jurors are paid for their service only after 

f\ 7 

the tenth day of service. Section 1 of the regulation provides as follows: 

1. A juror who attends a sitting of the Ontario Court (General Division) shall be 
paid a fee of $40 for each day of service after the tenth day of service up to an 
including the forty-ninth day of service and $100 for each day of service after the 
forty-ninth day of service. 

In addition to the above fees, jurors who do not reside in the city or town in 
which the trial is held are entitled to receive a travel allowance. 

Although the V fees and expenses provided for in the regulation are rather 
modest, they do not differ substantially from those in other provinces, at least 
after ten days of service. For example, the fee in Prince Edward Island of forty 



1 


R.S.O 1990, C.J. 3. 


2 


Ibid. 


3 


Ibid. 


4 


Ibid. 


5 


R.S.O. 1990, c. A. 6. 


6 


R.R.O. 1990, Reg. 4, s. 1. 


7 


Ibid. 



Ibid., s. 4, as am. by O. Reg. 497/93, s. 1, and O. Reg. 258/96, s. 1. It should be noted that 
the latter amendment removed the right of jurors who live in the same city or town in which the 
trial is held to receive a travel allowance of $2.75. 

During the first 10 days of service, Ontario is clearly the least generous province. 



59 



dollars per day represents the highest fee paid to civil jurors for every day, or 
part of a day, served. In Manitoba, jurors are paid twenty dollars for each day 
that they attend for the purposes of jury selection, and thirty dollars for each day, 
or part of a day, that they actually serves as a juror. However, under The Jury 
Act, the presiding judge has a discretion, where a trial is "of unusual length" or 
where "a juror has suffered undue hardship by reason of his attendance at court", 
to increase the fees paid to jurors. The fees paid to jurors in a number of the 
other provinces are as follows: fifteen dollars per day in Nova Scotia; twenty- 
five dollars per day in New Brunswick; and ten dollars per day in Alberta. 

In Newfoundland, jurors who are not in receipt of income from wages, self- 
employment, unemployment insurance or social assistance are paid the provincial 
minimum wage, which is currently $4.75 per hour. However, that province 
requires that employers continue to pay the wages of employees required to serve 
on a jury. Pursuant to section 42(1) of the Newfoundland Jury Act, 1991, an 
employer must pay an employee, who has been summoned to court, "the same 
wages... and... the same bene fits... as that person would have received if he or she 
had not been summoned or required to attend upon a court or inquiry". Section 
42(4) provides, however, that, in the case of a civil jury, where an employer has 
incurred a cost by continuing to pay the salary and benefits of an employee who 
has been summoned for jury service, "the presiding judge may make an 
appropriate order as to those costs". 

The Newfoundland legislation requiring employers to continue paying 
employees who have been conscripted for jury service is unique in Canada. 



10 

II 

12 
13 
14 
15 
16 

17 
18 
19 



E.G. 431/92. 

Man. Reg. 320/87, s. 1(1) and (2). 

The Jury Act. R.S.M. 1987, c. J30. 

Ibid., s. 42(2). 

Juries Act. R.S.N.S. 1989, c. 242, s. 17(1). 

N.B. Reg. 90-175, s. 2(1). 

Alta. Reg. 186/91. Unlike tlie Ontario provisions, the Alberta regulation also allows jurors to 
claim for meals purchased. 

Jury Act, 1991, S.N. 1991, c. 16, s. 43(2), and Nfld. Reg. 209/91. s. 6(1). 

Supra, note 17. 

It should be noted that s. 42(1) applies not only to those who have been summoned for jur> 
service, but also to those whose attendance is required as a witness in a criminal or quasi- 
criminal matter, and those whose attendance is required at certain inquiries. 



60 



While other provinces have yet to introduce such legislation, a number of law 
reform bodies in the country have considered such provisions. For example, the 
Law Reform Commission of Saskatchewan, in its Proposals for Reform of the 
Jury Act, recommended that every juror should receive from the province 
"hourly compensation at the provincial hourly minimum wage".^' The 
Commission also stated that "no employee should suffer loss of income for jury 

• » 22 

service . 

In order to achieve its goal, the Saskatchewan Commission recommended 
that every employer should continue to pay the wages of any employee who is 

23 

required to serve on a jury. Moreover, the Saskatchewan Commission 
concluded that jurors who continued to receive their salaries while serving should 
be required to assign their provincial stipend to their employers. Finally, it 
should also be noted that the Saskatchewan Commission was of the opinion the 
legislation should permit persons such as employees of small businesses, and 
salespersons on commission, to avoid having to serve as jurors. ^^ 

Shortly after the release of the Saskatchewan report, the Law Reform 
Commission of Canada released its recommendations concerning the treatment of 
jurors. The recommendations made by the federal Commission are similar to 
those of the Saskatchewan Commission. Like the Saskatchewan proposals, the 
federal Commission recommended "[a] fixed daily remuneration... based on the 

27 

provincial minimum wage or expressed as a percentage of that sum". The 



20 
21 
22 
23 
24 
25 
26 



27 



Law Reform Commission of Saskatchewan, Proposals for Reform of the Jury Act (1979). 

Ibid., at 7. 

Ibid., at 8. 

Ibid. 

Ibid. 

Ibid. 

Law Reform Commission of Canada, The Jury in Criminal Trials, Working Paper 27 (1980). 
While the federal Commission's recommendations are made with respect to jurors in criminal 
cases, the nature of the work and the conditions of service are similar for jurors in both criminal 
and civil cases. Accordingly, the recommendations of the federal Commission are relevant for 
the purposes of the present report. It should also be noted that a number of the recommendations 
made by the federal Commission were made to the provinces, which posses the power, for 
example, to legislate with respect to the remuneration of jurors. See s. 92(14) of the Constitution 
Act, 1867, 30 &31 Vict., c. 3 (U.K.), which assigns to the provinces exclusive legislative 
jurisdiction in relation to "[t]he Administration of Justice in the Province, including the 
Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal 
Jurisdiction". 

Supra, note 26, at 68. 



61 



federal Commission also recommended that employers should be required to 
"continue the wages or salary of every employee during absence for jury 

28 

service", and that "salaried employees and wage earners called to jury service 
[should] be obliged to make an assignment of their jury remuneration to 

29 

employers who continue their wages or salaries". Thus, both the Law Reform 
Commission of Canada and the Saskatchewan Law Reform Commission were of 
the view that jurors should to continue to be paid by their employers while 
serving, and that those who do not receive a salary should be paid an amount 
based on the provincial minimum wage. 

The issue of juror remuneration has been considered more recently by the 
Law Reform Commission of Nova Scotia, in its 1994 report Juries in Nova 

30 

Scotia. The Commission noted that, in its earlier discussion paper, the 
Commission had proposed that employers should be required to continue to pay 

3 1 

jurors their regular wages. However, "negative public response and further 
research" led the Commission to change its position in the final report. ^^ As a 
result, the Commission concluded in the final report that the proposal was 
impractical, and that it could be unfair to some employers. 



33 



Notwithstanding the absence of legislation requiring employers to continue 
paying their employees who serve as jurors, it is worth noting that many 
employers continue to do so nonetheless, particularly in unionized workplaces. 
One of the questions asked by the Commission in its survey of former jurors was 
whether their employers continued to pay their regular salary while they served 
as jurors. The responses, based on 757 completed questionnaires, showed that 
83.9 percent of employed persons continued to receive their full salary while 
serving as jurors, while 15.6 percent received none of their regular salary. In 
addition, 0.6 percent received part of their salary while serving. This finding, 
which suggests that a majority of the employees continue to be paid, corresponds 
with the findings of similar studies. For example, a national survey of criminal 



28 
29 
30 
31 
32 
33 



Ibid. 

Ibid. 

Law Reform Commission of Nova Scotia, Juries in Nova Scotia (1994). 

Ibid., at 40. 

Ibid. 

Ibid. By contrast, a recent report of a joint task force of the American Bar Association and the 
Brookings Institution recommended "that employers be required to grant paid leave for a hmiied 
peri(Ki— for example, three to five days— to their employees who serve as jurors: Charriiiii a 
Future for the Civil Jury System— Report From an American Bar Assoclation/Brooklngs 
Symposium (1992), at 28. 



62 



jurors conducted on behalf of the Law Reform Commission of Canada revealed 
that only a small percentage of jurors did not continue to receive their wages. ^"^ 
Of the approximately 500 jurors surveyed, 51.6 percent continued to receive their 
full pay while serving, while 7.1 percent of the jurors received partial pay, and 
only 16.4 percent received no pay at all. The other 24.8 percent reported that 
they had no regular income. 

The federal smdy also revealed a great regional disparity in the way that 
employers treat employees who are required to attend for jury service. In 
Edmonton 32.5 percent of jurors reported that the their wages were discontinued 
while they served, whereas in Toronto, the only Ontario city included in the 
survey, only 0.1 percent of persons reported not receiving any of their salary 
while serving. The general conclusion reached in the study— that is, that most 
jurors continue to receive all or some of their wages while serving— seems to be 
the case in the United States as well. A national survey of over 3,000 American 
jurors revealed that approximately eighty percent of those serving on juries did 

37 

not lose income. 

While it appears that a majority of the employed persons who serve on a jury 
continue to be paid by their employers, this is not determinative of the 
remuneration issue. The Law Reform Commission of Canada survey also asked 
jurors their opinion of the fee and other expenses they received for jury service. 
Of the respondents, 43.7 percent found the remuneration to be "small", while 

38 

another 18.7 percent found it to be "outrageously small". Only 35.1 percent of 
the respondents found the fees to be "adequate". 

Comments received in response to the smdy conducted in connection with 
this report suggest that many of those who serve on juries in Ontario were 
annoyed, or even insulted, by the remuneration they received. The most common 



34 



35 
36 
37 

38 
39 



Doob, "Canadian Juror's View of the Criminal Jury Trial: A Report to the Law Reform 
Commission of Canada" in The Law Reform Commission of Canada[:] Studies on the Jury 
(1979) 29. Although the survey focused on jurors in criminal cases, the kind of trial on which a 
juror served is irrelevant with respect to the issue of remuneration. 

/^/^.,at51. 

Ibid. 

Pabst, Munsterman, and Mount, "The Myth of the Unwilling Juror" (1976), 60 Judicature 164, 
at 170. 

Supra, note 34, at 52. 

Ibid. It should also be noted that the remaining 2.6% of respondents found the existing jury fees 
to be "generous". See ibid. 



63 



complaint on the completed questionnaires received by the Commission was that 
jurors were underpaid. Many of the respondents to the survey suggested that 
jurors should receive at least the provincial minimum wage. Others took the 
position that, due to the poor remuneration and impact on working people's lives, 
only those receiving unemployment insurance benefits or social assistance 
benefits ought to serve as jurors. Interestingly, many of the demands for higher 
juror fees came from individuals who continued to receive their full salary. 
Those who were fortunate enough to have their employers continue to pay their 
salaries seemed to have a great deal of sympathy for the less fortunate jurors 
amongst them. 

The responses received by the Commission indicate that any perceived need 
to improve juror remuneration cannot be addressed completely by requiring 
employers to continue paying employees while they serve as jurors. A number of 
persons who serve on a jury are without employment, and compelling them to 
serve might hamper their job search. As a result, any comprehensive attempt to 
compensate jurors better should include some form of reasonable minimum 
payment for those without a source of income. In addition, it should be noted that 
self-employed persons, who ordinarily have no third party from whom they 
might continue to receive their income, are required to make the largest sacrifice 
by serving. 

3. SURVEY OF JURORS' EXPERIENCE, CONDITIONS, AND 
SATISFACTION 

In an effort to assess the experience of jurors in civil cases, the Commission 
surveyed a number of persons who served in Ontario as civil jurors, or who were 
part of civil jury panels, during the 1994 calendar year. Twenty-one 
courthouses across the province responded to the Commission's request for lists 
of persons who had served as civil jurors. On the basis of these lists, 1,482 
questionnaires were sent out, of which 536 were sent to persons who served in 
the Toronto region, in which a large percentage of the province's civil jury trials 
take place. 

The Commission received 757 responses in sufficient time to be included in 
its tabulations, resulting in a tabulated response rate of 51.8 percent.'^' Of these 
respondents, 78.7 percent actually served on a jury, while the other 21.3 percent 



40 



41 



It should be noted that the list of jurors provided by the Toronto courthouse included only 
persons who served on a jury. 

The actual response rate is somewhat higher, as 20 questionnaires were returned for having 
incorrect addresses and another 18 responses were not received in time to be included in the 
tabulation. 



64 



were involved only in the empanelling process. It was interesting to observe the 
number of respondents who expressed their appreciation of the fact that the 
Commission was interested in receiving their views. The comments seem to 
suggest that many jurors had suggestions or complaints about their experience, 
but believed that they had no official means by which those suggestions or 
complaints might be expressed. The questions asked in the survey were designed 
to provide the Commission with both demographic information and the subjective 
views of the jurors. It was in response to the request for the jurors' subjective 
views that many of the suggestions were made. 

(a) The Cost of Jury Duty 

The first question that the jurors were asked related to their employment 
status. As illustrated in Table No. 1 below, a majority of the jurors, 
approximately 55.6 percent, were full-time employees, while another 9.2 percent 
were part-time employees. Thus, 64.8 percent of those who served were 
employed, either on a full-time or part-time basis. When this statistic is combined 
with the fact, noted above, that most employees continue to receive their salaries, 
it appears that at least fifty percent of jurors receive all or part of their wages 
while they serve. The remaining jurors— approximately one-third of the 
respondents— was composed primarily of persons who were retired, persons who 
were self-employed, and parent/homemakers. Of these three categories, as we 
noted above, it is the self-employed who stand to lose the most through jury 
service. Self-employed persons, and the 15.6 percent of employed persons who 
do not receive their salaries, are required to make a considerable sacrifice when 
they serve as jurors. 



42 

The responses included comments such as "thanks for taking an interest" or "it's nice to see that 

somebody cares". 



65 



Table No. 1 
Employment Status 





AREA 


Employment Status 


Toronto 


Other 


Ail 


Self-employed 


7.9% 


11.2% 


9.9% 


Full-time 


56.6 


54.9 


55.6 


Part-time 


7.2 


10.5 


9.2 


Parent/Homemaker 


3.8 


7.7 


6.2 


Retired 


18.3 


11.4 


14.1 


Student 


2.1 


1.3 


1.6 


Unemployed 


2.0 


2.5 


2.3 


Two jobs 


2.1 


0.7 


1.2 


Percentage of total sample 


38.6 


61.4 


100 


Number 


290 


461 


751 



Responses received from jurors who were self-employed indicated that 
three-quarters of them lost income. The average amount reported as lost by those 
who were self-employed was $996. This figure, of approximately a thousand 
dollars, is a very a high price to pay for the privilege of assisting in the 
adjudication of a private dispute. It should also be noted that the 15.6 percent of 
employed persons who do not receive their normal wages reported that they lost 
an average of $497 . 



In addition to lost income, jurors reported incurring expenses in the course 



44 



of their service. The daily average for expenses reported by jurors was 



45 



$16.86. The average of the total expenses reported by jurors, for their complete 



46 



term of service, was $61.55. This figure applies equally to those who continue 



43 



44 



45 



46 



It should be noted that the figures reported by those who were self-employed were often 
estimates— for example, a real estate agent cannot say for sure how much he or she might have 
earned in a given week. The figures provided by those who were employed, however, are more 
likely to be accurate. 

The expenses that were most often listed were for parking, meals, transportation, and child care. 
The largest average expense reported was for meals, while the lowest average expense was for 
child care, since 92% of all respondents reported no child care expenses. 

The daily average for expenses was higher in Toronto at $19.52, as compared to an average of 
$14.36 at the other court houses. It should also be noted that 78% of all jurors reported average 
daily expenses of less than $20, which seems to indicate that the daily average applies to most 
jurors. 

Interestingly, the total average figure of $61.55 is lower than the average daily rate of $16.86 
multiplied by 5.4 days, which is the average length of a trial as reported by the jurors. This 
discrepancy might be the result of the fact that jurors might not have sat for 5.4 full days. 



66 



to earn their salary while serving and those who do not, but is obviously more of 
a hardship for the latter. 

Jurors who served on a jury reported that their trials lasted an average of 5.4 
days. Table No. 2 below illustrates the responses received from jurors who 
served on a jury, in Toronto and other locations, with respect to the number of 
days served. The fact that the mean and the median figures are so close to each 
other further substantiates the fact that the typical jury trial takes about four to 
five days. 

Table No. 2 
Days Served on Jury 





Mean 


Median 


Range 


Toronto 


4.8 


4.0 


0-22.5 


Other 


6.0 


5.0 


0-25 


All 


5.4 


5.0 


0-25 



(b) Jurors' Experience and Impressions 

In addition to obtaining statistical and demographic information, the survey 
attempted to gauge juror satisfaction. Previous studies have shown that jurors 
have a great dislike for being required simply to wait in the courthouse. In the 
Commission's study, those who were summoned for jury duty were asked the 
percentage of their time at the courthouse that was spent waiting. As can be seen 
in Table No. 3, 32.8 percent of the respondents spent over half of their time 
waiting. The table sets out the responses according to whether or not the 
individuals served on a jury. This reveals that those who did not serve on a jury 
spent considerably more time waiting. For example, 28.1 percent of those who 
did serve on a jury, as opposed to 53.9 percent of those who did not serve on a 
jury, spent over half of their time waiting— a ratio of almost two to one. 

Table No. 3 
Percentage of Time Spent Waiting 





Served on Jury 


Time Waiting 


Yes 


No 


All 


0-25% 


43.2% 


22.4% 


39.6% 


26 - 50% 


28.8% 


23.8% 


27.7% 


51 -75% 


18.1% 


24.5% 


19.1% 


over 75% 


10.0% 


29.4% 


13.7% 



The above data demonstrate that the time of those who are summoned for 
jury duty is used most efficiently once they are selected for a trial. Similarly, the 
Commission's study confirms, as one would expect, that, as trial length 



67 



increases, the percentage of time jurors spend waiting decreases. Table No. 4 
demonstrates, for example, that persons who reported spending twenty-five 
percent or less of their time waiting spent an average of 5.9 days on the jury. On 
the other hand, those who reported spending over seventy-five percent of their 
time waiting spent an average of one day on the jury. The disproportionate 
amount of time spent waiting by those whose service was limited to one day 
would appear to be the result of the time taken to select the juries, a process that 
a great number of jurors reported to be most inefficient. 

Table No. 4 
Time Waiting and Days on Jury 



Time Waiting 


Mean Days on Jury 


0-25% 


5.9 days 


26 - 50% 


4.9 


51 -75% 


3.1 


over 75% 


1.0 


ALL 


4.4 



Waiting seems to have the effect of decreasing jurors' enthusiasm for jury 
service. The data collected by the Commission indicate that the more that jurors 
are kept waiting, the less sympathetic they are to the preservation of the civil 
jury. When asked whether the jury should continue to be available for most civil 
trials, 73.7 percent of those who waited twenty-five percent of their time or less 
answered affirmatively. On other hand, only 59.8 percent of those who waited 
seventy-five percent of their time or more answered in the affirmative. The 13.9 
percent difference suggests that excessive waiting leads to disenchantment with 
the jury. 



As Table No. 5 below reveals, those who spent twenty-five percent or less 
of their time waiting were above average in their approval of the jury. Those 
who waited more than twenty-five percent of their time, however, were below 
average in their approval of the jury. Those most supportive of continuing the 
availability of the civil jury appear to be those who have been utilized most 
efficiently. 



68 



Table No. 5 
Time Waiting and Approval of the Jury 





Percentage of Time Spent Waiting 


Continue jury trials 


0-25% 


26-50% 


51-75% 


over 75% 


ALL 


Yes 


73.7% 


61.1% 


54.8% 


59.8% 


64.5% 


No 


20.7% 


32.6% 


37.3% 


35.6% 


29.2 


Depends 


5.6 


6.3 


7.9 


4.6 


6.2 


ALL 


39.6 


27.7 


19.1 


13.7 


- 



The findings of the Commission's study with respect to the effect of waiting 
are in accord with the conclusions of other studies. As has been indicated, other 
research into juror satisfaction reveals that the aspect of the job that jurors most 
dislike is the waiting. In the Law Reform Commission of Canada's survey of 
jurors, 51.8 percent of the respondents stated that waiting was the aspect of the 
job that they disliked the most. While the national figure was 51.8 percent, the 
percentage of jurors surveyed in Toronto— the only Ontario region included in the 
study— who identified waiting as the aspect of the job that they disliked the most 

48 

was considerably higher, at 72.6 percent. The fact that such a high percentage 
of jurors in Toronto expressed dissatisfaction with waiting is particularly 
noteworthy since a majority of the civil jury trials in the province are held in 
Toronto. The current practice at the Toronto courthouse is to keep prospective 
jurors on hand for a full week before releasing them. Obviously, this practice can 
result in some individuals being required to wait for a considerable amount of 
time before possibly being selected for a trial. While this is the practice in 
Toronto, practices vary throughout the province. 

The findings of the federal Commission seem to be in accord with jury 

49 

Studies conducted in the United States. In the American study referred to above, 
"long periods spent waiting in the jury lounge" was the aspect of the job that 
respondents most disliked. On the basis of their findings, the authors concluded 



47 



48 



49 



50 



Supra, note 34, at 54. It should be noted that, at 5L8%, "waiting" was the most common 
complaint by a substantial margin. By comparison, the next most common complaint, "job 
neglect", was mentioned in only 7% of the responses. 

Ibid. The higher proportion of Toronto respondents who disliked waiting is probably a result of 
the fact that 89.2% of respondents reported spending a "moderate" or "large amount" of time 
waiting. These figures are substantially higher than the figures from any of the other six 
locations surveyed. See ibid. 

See Pabst, Munsterman, and Mount, supra, note 37. 

Ibid., at 164. 



69 



that "[j]urors' favourable reactions [to serving] are diminished not by small fees 



or loss of income but by the inefficient and wasteful practices of some courts" 



51 



In an attempt to assess the impact of service on jurors' views of the jury, 
jurors were asked for their impression of the jury and jury service both before 
and after they had served. As Table No. 6 demonstrates, a majority of those 
surveyed had a favourable view of the jury prior to serving, while only 11.6 
percent had an unfavourable view prior to serving. 

Table No. 6 
Impression of the Jury and Jury Service Before Serving 



Favourable 


56.1% 


Unfavourable 


11.6% 


No opinion 


32.3% 



While the Commission's study shows that the citizens of Ontario are 
generally favourably disposed towards the jury, actual service on the jury seems 
to increase their approval. A review of Table No. 7, below, indicates that actual 
involvement with the jury tends to give people an even more favourable 
impression of it. Of those who had a favourable impression of the jury before 
serving, 40.2 percent became more favourable, while only 20.2 percent became 
less favourable— a ratio of approximately two to one. On the other hand, of those 
who had an unfavourable impression of the jury before serving, 37.2 percent 
became more favourable, while 34.6 percent became even less favourable. Thus, 
the ratio of change amongst those whose view of the jury was unfavourable prior 
to service was approximately one to one. However, perhaps the most significant 
statistic generated by this comparison is the fact that, of those who had no 
opinion of the jury before serving, 51.6 percent became more favourable, while 
only 18.1 percent became less favourable— a ratio of approximately three to one. 

The main conclusion that may be drawn from this comparison is that 
involvement with the jury tends to increase public appreciation of the system. As 
the statistics demonstrate, those who have no opinion or a favourable impression 
of the jury prior to service have a strong tendency to become more favourably 
disposed towards the jury after service. In addition, even those who have an 
unfavourable impression of the jury prior to service are just as likely to become 
more favourable after service. This leads to the conclusion that service on the 
jury makes members of the public even more favourably disposed to the jury than 
they would be otherwise. This finding is in accord with the conclusions of an 



'■ IM^ 



70 



American study of 8,468 jurors in sixteen federal and state jurisdictions, which 
found that sixty-three percent of the jurors reported having a more favourable 

52 

attitude to jury duty after servmg. 

Table No. 7 
Impression of the Jury and Jury Service After Serving 





Favourable 
Before Service 


Unfavourable 
Before Service 


No Opinion 
Before Service 


ALL 


More Favourable After 
Service 


40.2% 


37.2% 


51.6% 


43.6% 


Less Favourable After 
Service 


20.2% 


34.6% 


18.1% 


21.4% 


No Change 


39.6% 


28.2% 


30.2% 


35.0% 



Although a majority of the respondents had a favourable impression of the 
jury both before and after their service, most still found the experience at least 
somewhat inconvenient. As can be seen in Table No. 8, below, 43.3 percent of 
the respondents found their experience with the jury system either "moderately" 
or "extremely" inconvenient. On the other hand, a majority of the respondents 
were only "slightly" or "not at all" inconvenienced. The extent of the 
inconvenience experienced by the respondents appears to have a direct 
relationship with their views about the future of the civil jury, as will be 
discussed in greater detail below. 



Those who are hiost likely to have a favourable impression of the jury before 
service are unemployed persons, students, and retired persons. Those who are 
most likely to have an unfavourable impression of the jury before service are 
persons who are employed on a part-time basis. 



52 



53 



54 



Munsterman et al., The Relationship of Juror Fees and Terms of Service to Jury System 
Performance (1991), appendix C, citea in Diamond, "What Jurors Think: Expectations and 
Reactions of Citizens Who Serve as Jurors", in Litan (ed.), Verdict[:] Assessing the Civil Jury 
System (1993) 2^2, at 285. 

The survey did not actually contain a "Not at All" category, as it was assumed that everyone 
was at least slightly inconvenienced. Nevertheless, 7.9% of the respondents created this fourth 
category, an apparent testament to the fact that jury duty really does fit into some people's lives 
(most likely the retired and those employed in the evening). 

See infra, this sec. 



71 



Table No. 8 
Extent to Which Jurors Were Inconvenienced by Jury Duty 



Not at All 


7.9% 


Slightly 


48.8% 


Moderately 


28.8% 


Extremely 


14.5% 



Finally, those who were involved with jury duty were asked whether they 
thought that the jury should continue to be available for most civil trials. Given 
that jurors are compelled to attend, the Commission was interested to learn about 
their views on the future of the jury. As Table No. 9 discloses, those surveyed 
approved of the continuation of the civil jury for most actions at a rate of over 
two to one. Notwithstanding the less than ideal circumstances in which 
individuals are required to serve as jurors, 64.5 percent of the respondents 
remained in favour of the continued availability of the jury for most civil actions. 
Jurors were also asked whether they would request a jury if they were involved 
in a civil law suit that proceeded to trial. The responses to this question were 
almost identical to the responses to the question concerning the future of the jury, 
with 61.6 percent of the respondents stating that they would prefer a judge and 
jury, thirty percent stating that they would select a judge alone, and 8.4 percent 
stating that their decision would depend on the particular case. 



Table No. 9 
Jurors' Views as to Whether Jury Trials Should Continue to be Available 





AREA 


Continue Jury Trials 


Toronto 


Other 


ALL 


Yes 


59.1% 


68.3% 


64.5% 


No 


33.5% 


26.3% 


29.2% 


Depends 


7.5% 


5.4% 


6.2% 



Although a majority of the respondents were in favour of continuing the 
availability of the civil jury, a close relationship exists between approval of the 
jury and the level of inconvenience experienced by the respondent. As Table No. 
10 illustrates, those who were not inconvenienced, or were only slightly 
inconvenienced, were above average in their approval of the continued 
availability of juries in civil matters. On the other hand, only 38.7 percent of 
those who were extremely inconvenienced by the experience were in favour of 
the continued availability of the civil jury, which is substantially below the 
average of 64.5 percent. While the correlation between the level of 
inconvenience experienced by the jurors and their approval of the jury is not 
surprising, it underscores the need for improvements in the terms and conditions 
of service. 



72 



Table No. 10 

Jurors' Views as to Whether Jury Trials Should Continue to be 

Available and Extent Jurors Inconvenienced 





Extent Inconvenienced 


Continue Jury Trials 


Not at All 


Slightly 


Moderately 


Extremely 


ALL 


Yes 


88.7 % 


72.0 % 


56.9 % 


38.7 % 


64.6% 


No 


11.3% 


20.7% 


37.4% 


53.8% 


29.2% 


Depends 


0.0% 


7.3% 


5.6% 


7.5% 


6.2% 



(c) Jurors' Comments 

In addition to the above questions, former jurors were invited to comment on 
their experiences. The comments ranged from extremely positive, to extremely 
negative. ^^ Generally, however, the responses that included comments contained 
constructive thoughts on how jury service and the jury system could be 
improved. While the comments were not tabulated mathematically, certain 
comments appeared more frequently than others. 

The two complaints that were repeated most often were (1) that jurors were 
not compensated adequately; and (2) that too much time was wasted, particularly 
during the selection process. The view that jurors deserve better remuneration 
was advocated by those who continued to receive their salaries, as well as by 
those who did not. A number of respondents suggested that the provincial 
minimum wage ought to be the minimum that jurors are paid. This standard, as 
we noted above, ^^ is employed elsewhere in Canada, and was the remedy that 
was favoured by many of the respondents to deal with the dissatisfaction 
concerning the adequacy of the remuneration. Other respondents expressed the 
view that employers should be required to pay the salaries of their employees 
who are required to serve. A further suggestion was that jurors' expenses should 
be made deductible for income tax purposes. 



A different approach to deal with the inadequate remuneration received by 
jurors was advanced by a number of respondents. It was suggested, in at least ten 
responses, that only individuals who receive a pension and unemployed persons 
should be required to serve on a jury. Such a proposal, of course, would raise 
considerable problems with the representativeness of the jury. 



55 



56 



57 



For example, one juror commented that "[i]t was an honour to participate in a jury verdict' 
For example, one juror commented that the experience was "a total waste of time". 
Supra, this ch., sec. 2. 



73 



In addition to the inadequacy of the remuneration, jurors expressed concern 
about the selection process, which most perceived to be conducted in an 

58 

inefficient manner. As noted above, more time is spent waiting by those who 
do not serve on a jury. One respondent from Toronto informed the Commission 
that he had been required to wait for an entire week without being selected for a 
trial. Experiences such as this tend to irritate individuals, who otherwise appear 
not to mind giving up their own time, if they are able to make a contribution. 
Being required to attend, and to wait for an extended period of time without 
being asked to serve, is understandably annoying. A number of respondents 
reported having to waste the better part of a day before being told that they would 
not be selected for a jury. 

Respondents also expressed their dislike for not being selected to serve on a 
jury. This is particularly so given the fact that individuals can be required to wait 
or remain "on call" for jury duty for two weeks or more, depending on the 
region and, at the end of this prolonged process, might not be given the 

59 

opportunity to serve. In response to this problem, some American jurisdictions 
have instituted a "one day-one trial" policy whereby individuals who are not 
selected for a trial on the first day on which they have been notified to appear are 
automatically dismissed from further duty. The "one day-one trial" practice has 
the decided advantage of giving individuals a prompt indication of whether they 
will be needed and thus allows people to plan their affairs more easily. As well, 
the practice insures that those individuals who are required to give up more than 
a day of their time will actually participate in a trial. In effect, the practice 
manages to deal with two of the most disliked aspects of jury service by reducing 
waiting substantially and by guaranteeing a trial for those who are required to 
return. An American study of the civil jury system undertaken jointly by the 
Brookings Institution and the American Bar Association strongly recommended 
that courts should follow the "one day-one trial practice". 

A number of respondents made a further suggestion concerning the effective 
use of jurors' time, that is, that the court should sit longer hours each day. Most 
court sittings begin at 10:00 a.m. and end at 4:30 p.m., including lunch and other 
breaks. Many jurors reported that they were prepared to work longer days, and 



58 
59 



60 
61 



Supra, this ch., sec. 3(b). 

Whereas in Toronto the practice is to keep prospective jurors at the counhou.se for up to a week 
before releasing them from jury duty, the Sheriff at Brampton tells all prospective jurors that the 
selection process takes "at least two weeks". The prospective jurors are not obliged to be at the 
courthouse for this entire period, although they are required to be available to attend as required. 

Supra, note 33, at 29. 

Ihid. 



74 



f\1 

expressed annoyance with the shortness of the court day. Similarly, many 
jurors reported being frustrated by numerous delays in the presentation of 
evidence. 

In addition to the concerns about the adequacy of the remuneration and the 
effective use of the their time, the respondents to our survey expressed concerns 
about courthouse conditions and the way that they were treated by court officials. 
Court facilities in the province are housed in buildings averaging over fifty years 
of age. As a result, many of the courthouses in the province are in need of 
upgraded facilities for jurors. The lack of adequate facilities formed the basis of 
numerous complaints. A number of respondents complained about the chairs in 
which they were required to sit. Others expressed the view that more comfortable 
waiting rooms would alleviate at least some of the discomfort of waiting. Jurors 
also requested better access to telephones, while a considerable number 
expressed astonishment that they were not provided with coffee or tea. A smaller 
number of respondents suggested that meals should also be provided. 

The treatment that some jurors received from court officials was also the 
subject of numerous comments. A number of jurors reported being treated with 
disrespect by court officers, and in some instances by lawyers and judges. On the 
other hand, at least as many jurors wrote positively of the treatment received 
from everyone involved with their trial. Nevertheless, the number of jurors who 
did complain suggests that measures need to be taken to ensure appropriate 
treatment of jurors by court officials. 

The positive comments and the negative comments received by the 
Commission were relatively evenly distributed. Many of the critical comments, 
however, were made by respondents who expressed the view that the civil jury 
ought to continue to be available. In general, these critical comments were 
constructive. These respondents offered suggestions to improve an institution that 
they valued. A smaller number of critical comments were received from 
individuals whose perception of the jury was unfavourable, and who took the 



62 



63 



64 



One disgruntled respondent stated, "I start my work day at 7:30 and work until 6:00, so I don't 
see what would be so hard for court to run from 9 to 5". 

A number of recommendations to improve the facilities for jurors in the province were made in 
a relatively recent report to the Courts Administration Management Committee of the Ministry 
of the Attorney General. The report notes that some courthouses lack proper jury assembly 
facilities, as well as adequate facilities for parking, food and drink. See Ontario, Report of the 
Juries Act Project (1992), at 20-21. 

As one juror explained, "It's bad enough that I have to be away from the office, the least they 
could do is provide a phone for me to call in at the breaks". 



75 



opportunity to recount their experience of inefficiency and express their view that 
the jury should be abohshed. 

In general, the Commission's survey disclosed that, after serving on a jury, 
a considerable majority of former jurors are supportive of the institution. 
Nevertheless, even supporters admit that there are problems with the treatment of 
jurors that require attention. 

4. CONCLUSIONS 

Although some people who serve on juries might not have done so if service 
was voluntary, after serving, most people look back on the experience 
favourably. This does not mean that the conditions in which jurors serve could 
not be improved. Jury service, as has already been described, can make 
considerable demands on people's time, finances and general well being. 
Currently in the province there is a regional disparity in the treatment of jurors. 
While some courts ask prospective jurors to attend at the courthouse every day 
for a week, others require them to be on call for three weeks or more. 

There are a number of other ways in which the experience of jurors might 
be improved. For example, on a motion to strike a jury notice the impact of a 
long trial on the lives of the jurors might be considered. This would balance the 
needs of prospective jurors with the needs of the litigants. Similarly, provisions 
for improved juror remuneration would mitigate the impact of conscription, and 
signal to jurors that their contributions are valued. Finally, improving the 
empanelling process and providing better facilities would demonstrate to jurors 
that their time and comfort are important concerns. Serving as a juror might be 
the fulfillment of an important social duty, but individuals ought to be able to 
fulfil that duty in a more convenient and comfortable fashion than currently 
appears to be the case. 



65 
66 



See supra, notes 37 and 52, at 164 and 285, respectively. 

The stress associated with jury service is often overlooked. In Hafemeister and Ventis, "Juror 
Stress[:] What Burden Have We Placed on Our Juries?" (1993), 56 Tex. B.J. 586, the authors 
describe the myriad of ailments complained of by jurors, including insomnia, stomach distress, 
heart palpitations, and depression. While the stress suffered by jurors is often magnified in 
criminal proceeding, stress plays a role in all situations in which individuals are asked to make a 
difficult decision that will effect people's lives. See, also, Kelley, AcUlressin\> Juror Stress: A 
TrialJudge's Perspective (1994), 43 Drake L. Rev. 97. 



CHAPTER 8 



CONCLUSIONS AND 
RECOMMENDATIONS 
FOR REFORM 



1. GENERAL 

As we noted earlier/ the Commission made a tentative recommendation in 
its Consultation Paper on the Use of Jury Trials in Civil Cases, that "juries 
should be available, upon judicial order, only where the predominant issues in the 
action concern the values, attimdes or priorities of the community and the ends of 
justice will be best served if the fmdmgs of fact or assessment of damages are 
made by a jury". 

The tentative recommendation was based primarily on the assumption that 
jury trials cost significantly more than trials by a judge alone and, to a lesser 
extent, on the perception that juries are more unpredictable than judges. Since the 
publication of the consultation paper, the Commission has had an opportimity to 
conduct further research into these assumptions. The study of the relative length 
and cost of civil jury trials, discussed above, demonstrated that, while the 
administrative cost of a jury trial of average length is approximately $1,600 more 
than for a trial conducted by a judge alone, this additional cost has to be balanced 
against the potential savings associated with the jury's apparent effect on 
settlements, both before and during trial. When accoimt is taken of the tendency 
of the jury to induce settlements, the overall cost of the jury does not appear to 
be substantial. Indeed, it is not clear that abolition of the civil jury would produce 
a net cost savings. 

With respect to the second argument made in the consultation paper in 
support' of the tentative recommendation— that is, the purported unpredictability 



Supra, ch. 5, sec. 1. 

Ontario Law Reform Commission, Consultation Paper on the Use of Jury Trials in Civil Cases 
(1994). 

Ibid., at 33. 

Supra, ch. 6. 



[77] 



78 



of the jury— other views received during the consultation process suggested that 
this is not a sufficient basis for eUminating the civil jury. While a number of 
lawyers and judges suggested to the Commission that the impact of the jury on 
settlement rates is a result of its perceived unpredictability, other respondents 
suggested that judges are equally unpredictable. Still other respondents noted that 
cases that are truly "predictable" are likely to settle before trial. Accordingly, 
cases that reach trial are "unpredictable" by definition. 

While the debate concerning the question whether juries indeed are 
unpredictable has many viewpoints, there is little empirical evidence available to 
resolve the issue. It might be noted, however, that the studies that have attempted 
to evaluate jury competence have concluded that juries have a strong tendency to 
arrive at the same conclusions as judges. In light of this conclusion, it is unclear 
what the factual foundation might be for the perception of jury unpredictability. 
Given the questions that remain unanswered with respect to the perception that 
juries are unpredictable, the Commission has concluded that perceived 
unpredictability is not a compelling argument for restricting the availability of the 
civil jury. 

As a result of the further consultations and empirical research conducted by 
the Commission, subsequent to the publication of the consultation paper, it would 
appear that the arguments advanced in support of the Commission's tentative 
recommendation have lost their persuasive force. However, a further argument 
against the use of juries in civil cases emerged as a result of the consultation 
process. The fact that the jury is composed of conscripted individuals, many of 
whom suffer serious disruptions in their personal and business lives by serving, 
required further consideration as a possible argument for circumscribing the 
availability of civil juries. 

In order to assess the views of those who have experienced this conscription, 
the Commission conducted a comprehensive survey of former jurors. As 
discussed above, the survey revealed that, notwithstanding the hardships that 



Judges, who are professional adjudicators, make numerous decisions, many of which are 
reported or known to the legal community. This enables lawyers to attempt to "predict" the 
future decisions of individual judges. Juries, on the other hand, are constituted for a limited 
period, and for a single function. Given the unique composition of every jury, it is impossible to 
predict their decisions. This inability to predict a jury's verdict, is offered by supporters of the 
jury as one of its primary virtues, as it is indicative of the fresh non-professional {perspective that 
each jury brings to its adjudicative task. 

See, for example, Kalven and Zeisel, The American Jury (1966), at 58. 

Supra, ch. 7, sec. 3(b). 



79 



jury duty can cause, 64.5 percent of those who had been summoned to serve 
were in favour of the continued availabihty of jury trials for most civil actions, 
whereas only 29.2 percent were of the view that civil jury trials should be 
abolished.^ Therefore, the survey strongly suggests that, in general, the members 
of the public that have served as jurors are in favour of maintaining the civil jury. 
However, former jurors did identify a number of changes that, in their view, 
would improve the experience of serving. 

Thfe further research and consultation conducted by the Commission 
established that many of the arguments made for abolishing the civil jury were 
based on assumptions that lack an empirical foundation. Our research suggests 
that civil jury trials do not cost taxpayers a significant amount, and do not result 
in increased use of courtroom facilities. Moreover, consultations with judges, 
lawyers, and jurors indicated that the individuals actually involved in such trials 
are in favour of their continued existence by an approximate ratio of two to one. 

Opponents of the civil jury often assert that juries are not competent to make 
determinations, particularly with respect to the assessment of damages. Given the 
lack of data demonstrating that juries are not competent to assess damages, 
opponents of the civil jury, in our view, have failed to meet the burden of proof 
necessary for abolishing this institution, which appears to enjoy considerable 
public support. As a result, the Commission has concluded that the jury should 
continue to be available in civil cases. Accordingly, the Commission 
recommends that, subject to the recommendations made below, the present law 
respecting the availability of the civil jury should not be amended. 

While, in the Commission's view, there would appear to be no sufficient 
justification for further restricting the availability of civil juries, there would 
appear nevertheless to be room for some improvements. To this end, the 
Commission makes a number of recommendations, below. 

2. JURY USER FEES 

Q 

As we discussed above, many other provinces in Canada have legislation 
that requires the party who requests a jury to pay the additional costs associated 
with it. However, the methods adopted for calculating jury fees vary from 
province to province. The amount usually required varies from approximately 
$1,000 to $2,000, depending on the length of the trial and the method of 



The other 6.2% stated that their view would def)end on the circumstances and the kind of case. 

9 

Supra, ch. 3, sec. 3. 



80 



calculation. The Commission's study estimated that a four-day jury trial^' in 
Ontario would cost an average of approximately $1,600 more than if the matter 
were heard before a judge alone, assuming the current rate of juror 
remuneration. Thus, if a jury fee were introduced in Ontario, a party requiring a 
civil jury would have to pay approximately $1,600, depending on the length of 
the trial. 

While the introduction of a jury fee would help offset the additional 
administrative costs associated with the jury system, it has certain inherent 
disadvantages. The most significant problem with implementing a user-pay 
scheme for the civil jury is that, in some instances, it might act as a financial 
deterrent that would prevent individuals from having access to the mode of trial 
of their choice. When added to the high cost of a trial, the introduction of a jury 
user fee might make the jury too expensive for some litigants. As a result, the 
Commission recommends that the present law should not be amended to impose a 
user fee on a party to an action who requires that the action be tried with a jury. 
This would prevent the ability to pay from interfering with a litigant's right to 
choose his or her own mode of trial. 



3. THE TREATMENT OF JURORS 

Although a majority of the individuals who responded to the Commissions' 
survey of former jurors expressed the view that the jury should continue to be 
available for most civil actions, the survey also revealed that the remuneration 
jurors receive, and the conditions under which they serve, require 
improvement. 

The most common complaint expressed to the Commission by former jurors 
was that the compensation received was inadequate. As we have noted, many 
Ontarians are required to make a substantial financial sacrifice in order to serve 
as a juror. Further, while the review of remuneration rates for jurors in other 
provinces, described above, '^ reveals that jurors generally are not well 
compensated anywhere in the country, the rate of remimeration in Ontario is 
considerably below the national average, at least for the first ten days of 



10 

11 

12 

13 



Discussed supra, ch. 6, sec. 2. 

Four days is the length of the average jury trial. See the Commission's study of comparative 
trial lengths, supra, ch. 6, sec. 1 . 

The survey is discussed supra, ch. 7, sec. 3. 

Supra, ch. 7, sec. 2. 



81 



service. ^"^ The Commission has concluded, therefore, that the fees paid to jurors 
are lower than is appropriate. At the same time, however, the Commission is 
mindful of the seriousness of the current fiscal crisis in the province. 
Accordingly, the Commission recommends that, as soon as the necessary 
financial resources can be made available, consideration should be given to 
increasing the fees paid to jurors. 

For a number of reasons, however, the Commission is not in a position, at 
present, to recommend the appropriate rate of compensation. Since any 
modification of the fees paid to civil jurors would also affect the fees paid to 
criminal jurors, such a recommendation is beyond the scope of the present 
report. Determination of the appropriate rate of compensation for jurors would 
require, among other things, a review of criminal jurors, including a 
determination of the number of criminal jurors who serve each year, and the 
average length of their service. Moreover, any reform of juror fees should 
address a number of related issues. For example, as we discussed above, both 
the Law Reform Commission of Canada'^ and the Saskatchewan Law Reform 
Commission*^ recommended not only that all jurors should receive remuneration 
based on the provincial minimum wage, but also that employers should be 
required to continue to pay the wages of employees who are required to attend 
for jury duty, and that employees who continue to receive their salaries while 
attending for jury duty should be required to assign the remimeration received 
from the province to their employers. Accordingly, the Commission recommends 
that, at such time as it might be feasible to consider increased juror 
compensation, the Ministry of the Attorney General should undertake the 
necessary studies in order to determine the appropriate rate of compensation that 
should be paid to jurors generally. The Commission further recommends that any 
reform of juror fees should address the following related issues: (a) whether 
employers should be required to continue to pay the wages of employees who are 
required to attend for jury duty; (b) whether the provincial remimeration should 
be paid to all jurors, or only to those jurors who would otherwise receive no 
compensation; and (c) whether employees who continue to receive their salaries 
while attending for jury duty should be required to assign the remuneration 
received from the province to their employers. In the interim, the Commission 



14 

15 

16 

17 



Since the average civil jury trial takes only approximately 4 days, most jurors never receive the 
fee of $40 for each day of service, which applies only after 10 days of service. See R.R.O. 
1990, Reg. 4, s. 1, reproduced supra, ch. 7, sec. 2. 

Supra, ch. 7, sec. 2. 

Law Reform Commission of Canada, The Jury in Criminal Trials, Working Paper 27 (1980), at 
68. 

Law Reform Commission of Saskatchewan, Proposals for Reform of the Jury Act (1979). at 7-8. 



82 



recommends that fmancial hardship should be taken into account more 
consistently as one of the compassionate circumstances that will excuse a person 
from jury duty. 

Other common complaints received from former jurors concerned the 
inadequacy of the available facilities and working conditions.'^ In the 
Commission's view, individuals who are required to attend and participate in the 
administration of justice deserve to be treated with the utmost of respect, and are 
entitled to enjoy at least a minimal level of comfort while serving. Accordingly, 
the Commission recommends that the Ministry of the Attorney General should 
review the conditions at the courthouses throughout the province and develop 
provincial standards for those facilities, as well as for the treatment of jurors. 
These standards should address the concerns expressed by former jurors, 
including a more efficient method for juror selection and the provision of access 
to certain amenities, for example, telephones, food and beverages, and 
comfortable seating. 



4. AVAILABILITY OF THE JURY IN ACTIONS INVOLVING THE 
GOVERNMENT 

One of the arguments that is often invoked m favour of retaining the jury for 
civil matters is that the jury represents a safeguard agamst the abuse of power by 
government and, to a lesser extent, by judges. As we noted above in our 
discussion of this argument,'^ there is little evidence to demonstrate that concerns 
about impartiality motivate parties to issue a jury notice. However, that might be 
a result of the fact that juries are not available for actions agamst the government. 

At present, actions against federal, provincial, and municipal governments 

20 

must be tried without a jury. Litigants in cases mvolving the government, 
however, might prefer that their action be decided by members of the 
community, rather than by an appointee of the government itself. The 
consultation process imdertaken by the Commission revealed that many lawyers 



19 

20 



The complaints received in this respect ranged from the lack of comfortable seating— a 
particular concern for those who suffer from back problems— to the unavailability of telephones. 

Supra, ch. 4, sec. 2(a). 

Juries are prohibited in actions for "relief against a municipality" by s. 108(2)12 of the Courts of 
Justice Act, R.S.O. 1990, c. C.43. Section 11 of the Proceedings Against the Crown Act, 
R.S.O. 1990, c. P. 27, provides that proceedings against the provincial Crown "shall be without 
a jury". Similarly, with respect to the federal Crown, see the Crown Liability and Proceedings 
Act, R.S.C. 1985, c. C-50, s. 26, as en. by S.C. 1990, c. 8, s. 31. The tide of the statute was 
changed by S.C. 1990, c. 8, s. 21. 



83 



in the province are in favour of making the jury available for actions involving 
the government. A number of judges also expressed a positive view of such 
reform. 

It has often been said that it is important that justice not only be done, but 
that it also be seen to be done. For many members of the public, the possibility 
of lay participation in actions involving the government may make our legal 
system seem fairer and thus enhance their respect for the administration of 
justice. Thus, a reform that would make the jury available for actions involving 
the government would strengthen the public's respect for the administration of 
justice, and address any doubts that members of the public might have about 
impartiality. Moreover, it is difficult to discern a stong policy foundation for 
subjecting non-government defendants to jury trials, but not the government 
itself. 

The Commission recommends, therefore, that section 108(2)12 of the Courts 
of Justice Act, which prohibits a jury in an action against a municipality, and 
section 11 of the Proceedings Against the Crown Act, which prohibits a jury in an 
action against the provincial Crown, should be repealed. The Commission further 
recommends that the Government of Canada should be urged to repeal section 26 
of the Crown Liability and Proceedings Act, which prohibits a jury in an action 
against the federal Crown. 

5. MOTION TO STRIKE OUT A JURY NOTICE OR DISCHARGE A 
JURY 

As we indicated above, the Commission is of the view that the jury should 
continue to be available in Ontario for most civil actions. In an effort to preserve 
the presumption in favour of the availability of the jury, while dealing with some 
of the criticisms of the civil jury system expressed in the consultation process, the 
Commission has concluded that certain amendments should be made to rule 
47.02 of the Rules of Civil Procedure. ^^ 



21 
22 



Supra, thisch., sec. 1. 

R.R.O. 1990, Reg. 194. Rule 47.02 provides as follows: 

47.02 (1) A motion may be made to the court to strike out a jury notice on the ground 
that, 

(a) statute requires a trial without a jury; or 

(b) the jury notice was not delivered in accordance with rule 47.01 . 

(2) A motion to strike out a jury notice on the ground that the action ought to be tried 
without a jury shall be made to a judge. 



84 



Rule 47.02(2) deals with a motion to strike out a jury notice "on the ground 

23 

that the action ought to be tried without a jury". While the rules do not provide 
a judge hearing a motion under rule 47.02(2) with criteria for determining the 
appropriateness of the jury, the jurisprudence suggests that a jury notice may be 
struck out as being inappropriate, either on the groimd of complexity, or on the 
ground of potential prejudice: 

[A] jury notice may be struck out (prior to trial, at the interlocutory stage) on the 
ground that jury trial is inappropriate, i.e. because the matter is too complex to be 
handled by a jury... or where, because of the circumstances surrounding the case, 
prejudice exists which may result in one of the parties being unable to get a fair trial 
before a jury. 

Complexity may arise in a variety of ways. For example, it has been 
established that a jury notice may be struck out as being inappropriate "on the 
ground that the action raises issues of fact or law which make the action too 
complex to be tried by a jury. Similarly, complexity may arise by reason of the 
form of the action, or the fact diat more than one action is being tried. "^^ Thus, 
jury notices have been struck out where the facts or circimistances of the case are 
foimd to be too complex for a jury, or "where the evidence is likely to be of a 



(3) Where an order striking out a jury notice is refused, the refusal does not affect the 
discretion of the trial judge, in a proper case, to try the action without a jury. 



23 



24 
25 
26 



It is interesting to note that, although r. 47.02(2) does not provide explicitly that, where an 
action ought to be tried without a jury the jury notice may be struck out, this would nevertheless 
appear to be the case. See Watson and Perkins, Holmested and Watson[:] Ontario Civil 
Procedure (1993), Vol. 3, 47§14, at 47-24, which states as follows: 

Oddly, neither s. 108 [of the Courts of Justice Act, supra, note 20] nor Rule 47 
specifically provides, in so many words, for the striking out of a jury notice on the 
grounds that trial by jury is inappropriate. (Section 108(3) simply provides that on 
motion the court may order that issues of fact be tried or damages assessed, or both, 
without a jury, and rule 47.02— which bears the heading 'Where Jury Trial 
Inappropriate'— requires that a motion to strike out a jury notice on the ground that the 
action ought to be tried without a jury shall be made to a judge). However, it is well 
established by the case law that where a trial by jury is inappropriate, either because of 
complexity... or possible prejudice... the court may strike out the jury notice, in which 
case the trial will be by a judge alone. 

Watson and Perkins, ibid., 47§12[1], at 47-20. 

/^/J.,47§14[6](a), at 47-27. 

See, for example, Whether v. Walters (1992), 7 C.P.C. (3rd) 197 (Ont. Gen. Div.), in which 
there were a number of complicating factors. The plaintiff had commenced 4 separate actions 
arising out of 4 separate automobile accidents, each of which had aggravated the injuries 
sustained in the previous accidents. The actions were to be tried together or one after the other. 
In one of the actions there was a crossclaim to determine whether the defendants were insured. 
There was also likely to be complicated medical and actuarial evidence, and damages would 
have to be assessed at different dates. See, also, Irfan v. Lojius (1987), 22 C.P.C. (2d) 277 



85 



technical nature which a jury is likely to have difficulty in comprehending" . 
Jury notices have also been struck out in a number of cases in which difficult 

28 

questions of law were required to be determined. In Fulton v. Town of Fort 
Erie,^^ Krever J., as he then was, held as follows: 

[BJecause of recent developments in the law, the more difficult question, which I 
think is a question of law, is that relating to mental distress. And, where difficult 
questions of law are required to be determined in a civil action, a jury, in my opinion, 
is inappropriate. Put another way, the legal question with relation to mental distress is 
too difficult to make trial by jury an appropriate method of trial. 

More recently, however, the Court of Appeal for Ontario has held that the 
existence of a difficult or unsettled question of law is not in itself a ground for 
discharging the jury. In Murray v. Collegiate Sports Ltd}^ the court held as 
follows :^^ 

We are of the opinion... that the trial Judge erred in discharging the jury. In his 
reasons, he stated that he was motivated by the fact that there were 'serious, difficult 
and unsettled questions of law as to who should bear the onus in this case.' It was his 
obligation to resolve the question of onus and put the appropriate question to the jury. 
If other questions necessarily followed he could put those further questions and if that 
brought about difficulties, the question of discharging the jury could be reconsidered. 

The decision m Murray v. Collegiate Sports Ltd. was followed in Cosford v. 
Cornwall?^ In that case, speaking for the court, Goodman J. A. stated i^"^ 



(Ont. Dist. Ct.), in which the plaintiff had sustained similar personal injuries in 2 motor vehicle 
accidents. A jury notice in the second action was struck out on the ground that it would be 
difficult for the jury to differentiate between and assess the injuries sustained in the 2 accidents. 
In Kovacs v. Skelton, [1966] 1 O.R. 6 (H.C.J) a jury notice was struck out where the case 
involved trying separate issues of damages involving 8 persons injured in an automobile 
accident. 



27 
28 

29 
30 

31 
32 
33 
34 



Arrow Transit Lines Ltd. v. Tank Truck Transport Ltd., [1968] 1 O.R. 154 (H.C.J.), at 155. 

See Fulton v. Town of Fort Erie (1982), 40 O.R. (2d) 235 (H.C.J. ), and MacDougall v. Midland 
Doherty Ltd. (1984), 48 O.R. (2d) 603 (H.C.J.). See, also, Damien v. O'Mulvenny (1981), 34 
O.R. (2d) 448 (H.C.J. ). 

Supra, note 28. 

Ibid., at 237. The decision in Fulton v. Town of Fort Erie was followed in MacDougall v. 
Midland Doherty Ltd., supra, note 28. 

(1989). 40C.P.C. (2d) 1 (C.A.). 

Ibid., at 3. 

(1992), 9 O.R. (3d) 37 (C.A.). 

Ibid., at 47-48. 



86 



The trial judge did not exercise his discretion in dispensing with the jury on the 
ground that the nature of the evidence was too complex or technical for a jury to 
make a proper assessment. On the contrary... he dispensed with the jury on the basis 
that the law to be applied to the facts as found by them was too difficult to explain to 
them. 

In my opinion, he erred in this regard. It was his duty to determine the legal 
principles to be applied in the case and to instruct the jury with respect to those 
principles.... 



. It is my view that the trial judge erred in law in exercising his discretion to 
dispense with the jury on the ground that 'I'm doing that because in my judgment, 
there are issues now involved that aren't properly put to a jury to be decided'. The 
issues to which he referred were issues of law which it was his duty to decide and the 
difficulty in deciding such issues did not form a basis for dispensing with the jury. 
Questions of law are never matters for the jury to decide. 

As a result of the decisions in Murray v. Collegiate Sports Ltd. and Cosford 
V. Cornwall, there would appear to be very limited scope to strike out a jury 
notice on the ground of the complexity of the legal issues involved. While the 
Commission acknowledges that issues of law are decided exclusively by the 
judge, not the jury, we are nevertheless of the view that there are limited 
circumstances in which the nature of the legal issues involved should be an 
acceptable ground upon which to strike out a jury notice. The Commission has 
concluded, for example, that a jury notice should be struck out as inappropriate 
where the complex or uncertain nature of the law at issue is such that a jury, 
properly instructed, would nevertheless fmd the law difficult to comprehend or 
apply. Similarly, the Commission is of the view that a jury notice should be 
struck out as inappropriate where the substantive issues in the case are issues of 
law and the issues of fact are negligible or are merely incidental, or where the 
issues of law and fact are inextricably interwoven. 

As we noted above, a jury notice may be struck out as being mappropriate 
not only on the ground of complexity, but also on the ground of potential 
prejudice. This ground addresses the concern that, as a result of the 
circumstances surrounding the case, one of the parties might not be able to obtain 
a fair trial before a jury.^^ Such prejudice might arise, for example, where an 
action has been the subject of considerable media attention in advance of die trial. 



35 

Watson and Perkins, supra, note 23, 47§12[1], at 47-20. 



87 



although it would appear that such publicity is no longer an automatic ground for 
striking out a jury notice. 

In addition to the above grounds for striking out a jury notice, the 
Commission has concluded that a jury notice should be struck out where the 
judge is of the opinion that jury service would constitute an unwarranted 
inconvenience to jurors, after considering the nature and importance of the matter 
or matters at issue, the interests in trial by jury expressed by the parties, and the 
likely duration of the trial. This would require a judge to strike out a jury notice 
where he or she is of the opinion, after considering the nature of the case and the 
inconvenience that jury duty entails for many individuals, that a jury trial is not 
warranted. This ground is a response, in part, to those former jurors who 
informed the Commission that they are in favour of the continued availability of 
the civil jury, but who expressed the view that there should be a threshold that 
should be met before a jury may be requested. 

A number of former jurors and judges, who responded to the Commission's 
surveys, suggested that there should be a monetary threshold— that is, a minimum 
amount that must be claimed in an action before a jury may be requested. The 
Commission concluded, however, that the most appropriate method to deal with 
the problem of "minor" or "simple" cases being tried with a jury, and thereby 
inconveniencing individuals unnecessarily, is on a case by case basis. In the 
Commission's view, civil jurors are entitled to have their interests considered, in 
addition to those of individuals who request a jury trial. Our recommendation, set 
out below, addresses this concern. 

In view of the conclusions reached above, and in view of the absence of 
express guidance provided for judges hearing a motion under rule 47.02(2), the 
Commission has concluded that it would be desirable to clarify the grounds upon 
which a judge may strike out a jury notice as being inappropriate. Accordingly, 
the Commission recommends that rule 47.02 of the Rules of Civil Procedure 
should be amended to provide that a judge hearing a motion under rule 47.02(2) 
shall strike out a jury notice where the judge is of the opinion that: 

1. The trial will likely be so complex that a jury will be unable to 
discharge its responsibilities adequately, including complexity arising in 
the following circumstances: 



36 



See Demeter v. Occidental Life Insurance Co. of California (1979), 23 O.R. (2d) 31 (H.C.J.), 
affd 26 O.R. (2d) 391 (Div. Ct.), where the court concluded, at 33, that "publicity does not 
automatically warrant a conclusion that a jury cannot be found that will arrive at a fair 
appj-eciation of the evidence" 



88 



(a) where the facts or circumstances of the case are likely to be too 
complex for a jury; 

(b) where the evidence is likely to be of a technical namre and the a 
jury is likely to have difficulty in comprehending such evidence; 

(c) where the complex or uncertain nature of the law at issue is likely 
to be such that a jury, properly instructed, would nevertheless fmd 
the law difficult to comprehend or apply; 

(d) where the substantive issues in the case are issues of law, and the 
issues of fact are negligible or are merely incidental; or 

(e) where the issues of law and fact are inextricably interwoven. 

2. Potential prejudice exists, such that it is likely that one of the parties will 
not be able to obtain a fair trial before a jury. 

3. Jury service would constitute an unwarranted inconvenience to jurors, 
after considering 

(a) the namre and importance of the matter or matters at issue; 

(b) the interests m trial by jury expressed by the parties; and 

(c) the likely duration of the trial. 

The grounds upon which a judge may exercise his or her discretion at trial to 
try an action without a jury include not only those grounds upon which a jury 
notice may be struck out prior to trial, but also grounds "relating to the conduct 
of the trial, such as inflammatory advocacy or the putting of improper material 
before the jury." For the reasons noted above, the Commission has concluded 
that it would be desirable to clarify the grounds upon which a trial judge may 
discharge the jury at trial. Accordingly, the Commission recommends that the 
Courts of Justice Act should be amended to provide that a trial judge shall make 
an order dispensing with the jury under section 108(3) of the Act where the trial 
judge is of the opinion that: 

1. The trial will likely be so complex that the jury will be unable to 
discharge its responsibilities adequately, including complexity arising in 
the following circumstances: 



^7 

Watson and Perkins, supra, note 23, 47§16[1], at 47-36. 



89 



(a) where the facts or circumstances of the case are likely to be too 
complex for a jury; 

(b) where the evidence is likely to be of a technical namre and the a 
jury is likely to have difficulty in comprehending such evidence; 

(c) where the complex or uncertain nature of the law at issue is 
likely to be such that a jury, properly instructed, would 
nevertheless find the law difficult to comprehend or apply; 

(d) where the substantive issues in the case are issues of law, and the 
issues of fact are negligible or are merely incidental; or 

(e) where the issues of law and fact are inextricably interwoven. 

2. Potential prejudice exists, such that it is likely that one of the parties will 
not be able to obtain a fair trial before a jury. 

3. Jury service would constitute an imwarranted inconvenience to jurors, 
after considering 

(a) the nature and importance of the matter or matters at issue; 

(b) the interests in trial by jury expressed by the parties; and 

(c) the likely duration of the trial. 

4. There has been inflammatory conduct or improper material has been 
placed before the jury. 

Rule 47.02(3) of the Rules of Civil Procedure provides that "[w]here an 
order striking out a jury notice is refused, the refusal does not affect the 
discretion of the trial judge, in a proper case, to try the action without a jury". 
Section 108(3) of the Courts of Justice Act provides that, "[o]n motion, the 
court may order that issues of fact be tried or damages assessed, or both, without 
a jury". While rule 47.02(3) suggests that the trial judge has the discretion to 
discharge the jury in appropriate cases, without reference to the requirement of a 
motion, it has been held that, pursuant to 108(3) of the Courts of Justice Act, the 



38 

Supra, note 20. 



90 



discretion may be exercised only upon a motion of one of the parties. ^^ The 
Commission has concluded, however, that the trial judge should have the power 
to consider and represent the interests of the jurors, who are otherwise 
unrepresented at the trial, and to dismiss the jury on his or her own initiative 
where it would be appropriate to do so in order to protect their interests. 

Accordingly, the Commission recommends that section 108(3) of the Courts 
of Justice Act should be amended to provide that, where the trial judge is of the 
opinion that jury service would constitute an imwarranted inconvenience to 
jurors, after considering (1) the nature and importance of the matter or matters at 
issue; (2) the interests in trial by jury expressed by the parties; and (3) the likely 
duration of the trial, the trial judge shall dismiss the jury, and may complete the 
trial by him or herself, without the necessity of a motion to that effect. 

6. CONCLUSION 

After conducting extensive consultations with members of the bench, the 
bar, and the public, as well as a detailed time and cost study, the Commission 
has concluded that the civil jury does not increase the cost of a trial unduly, and 
is generally well regarded by those who have had experience with the system. 
Moreover, it is worth noting once again that our study revealed that there are 
significantly fewer jury trials conducted in the province than was previously 
thought to be the case. Even many critics of the civil jury admit that the jury is 
appropriate in certain cases, citing as examples actions for defamation and 
actions involving public bodies. It would appear, therefore, that their criticism is 
not that the jury should be abolished, but rather that there are certain kinds of 
action for which the civil jury should not be available. As we noted above, the 
Commission reached the tentative conclusion in the consultation paper that 



39 



40 
41 
42 



Cosford V. Cornwall, supra, note 33. However, the court left open the jwssibihty that the trial 
judge might have the right to dismiss the jury on his or her own initiative in certain limited 
circumstances. The court stated, at 44, as follows: 

If, in a particular case, circumstances relating to illegality, criminality or public policy 
were involved in the question of retention of the jury, then different considerations might 
apply to the right of a trial judge to dispense with the jury on his own initiative. No such 
circumstances exist in the present case and I do not think it appropriate to speculate as to the 
nature of the circumstances which might justify a trial judge in dispensing with the jury. It 
may be that even if such circumstances existed, his right would be limited merely to declaring 
a mistrial. 

See supra, ch. 6, sec. 1(b). 

Supra, this ch., sec. 1. 

Supra, note 2. 



91 



"juries should be available, upon judicial order, only where the predominant 
issues in the action concern the values, attitudes or priorities of the community 
and the ends of justice will be best served if the findings of fact or assessment of 
damages are made by a jury"."*^ In light of the further consultations and 
additional research undertaken by the Commission, we have concluded that it is 
not possible to identify, with any degree of certainty, those cases for which a jury 
trial is particularly appropriate, and that such a standard, therefore, would be 
extremely difficult to apply in practice. Accordingly, in this final report, the 
Commission has sought to identify opportunities for abuse of the right to require 
a jury under the current law, and has made recommendations directed at 
preventing such abuse. As we have indicated, it is our view that this objective 
should be achieved on a case by case basis, in accordance with the 
recommendations set out in this report. 



"^^ Ibid., 2it 33. 



SUMMARY OF RECOMMENDATIONS 



The Commission makes the following recommendations: 



GENERAL 

1. Subject to the recommendations made below, the present law respecting 
the availability of the civil jury should not be amended. 



JURY USER FEES 

2. The present law should not be amended to impose a user fee on a party 
to an action who requires that the action be tried with a jury. 



THE TREATMENT OF JURORS 

3. (1) As soon as the necessary financial resources can be made 

available, consideration should be given to increasing the fees 
paid to jurors. 

(2) At such time as it might be feasible to consider increased juror 
compensation, the Ministry of the Attorney General should 
undertake the necessary studies in order to determine the 
appropriate rate of compensation that should be paid to jurors 
generally. 

(3) Any reform of juror fees should address the following related 
issues: 

(a) whether employers should be required to continue to pay 
the wages of employees who are required to attend for jury 
duty; 

(b) whether the provincial remuneration should be paid to all 
jurors, or only to those jurors who would otherwise receive 
no compensation; and 

(c) whether employees who continue to receive their salaries 
while attending for jury duty should be required to assign 
the remuneration received from the province to their 
employers. 



193] 



94 



4. Financial hardship should be taken into account more consistently as one 
of the compassionate circumstances that will excuse a person from jury 
duty. 

5. The Ministry of the Attorney General should review the conditions at 
the courthouses throughout the province and develop provincial 
standards for those facilities, as well as for the treatment of jurors. 

AVAILABILITY OF THE JURY IN ACTIONS INVOLVING THE 
GOVERNMENT 

6. (1) Section 108(2)12 of the Courts of Justice Act, which prohibits a 

jury in an action against a municipality, should be repealed. 

(2) Section 1 1 of the Proceedings Against the Crown Act, which 
prohibits a jury in an action against the provincial Crown, should 
be repealed. 

(3) The Government of Canada should be urged to repeal section 26 
of the Crown Liability and Proceedings Act, which prohibits a 
jury in an action against the federal Crown. 

MOTION TO STRIKE OUT A JURY NOTICE OR DISCHARGE 
A JURY 

7. Rule 47.02 of the Rules of Civil Procedure should be amended to 
provide that a judge hearing a motion under rule 47.02(2) shall strike 
out a jury notice where the judge is of the opinion that: 

1 . The trial will likely be so complex that a jury will be unable to 
discharge its responsibilities adequately, including complexity 
arising in the following circumstances: 

(a) where the facts or circumstances of the case are likely to 
be too complex for a jury; 

(b) where the evidence is likely to be of a technical nature 
and the a jury is likely to have difficulty in 
comprehending such evidence; 

(c) where the complex or uncertain nature of the law at issue 
is likely to be such that a jury, properly instructed, would 
nevertheless find the law difficult to comprehend or 
apply; 



95 



(d) where the substantive issues in the case are issues of law, 
and the issues of fact are negligible or are merely 
incidental; or 

(e) where the issues of law and fact are inextricably 
interwoven. 

2. Potential prejudice exists, such that it is likely that one of the 
parties will not be able to obtain a fair trial before a jury. 

3. Jury service would constitute an unwarranted inconvenience to 
jurors, after considering 

(a) the nature and importance of the matter or matters at 
issue; 

(b) the interests in trial by jury expressed by the parties; and 

(c) the likely duration of the trial. 

8. The Courts of Justice Act should be amended to provide that a trial 

judge shall make an order dispensing with the jury under section 108(3) 
of the Act where the trial judge is of the opinion that: 

1 . The trial will likely be so complex that the jury will be unable 
to discharge its responsibilities adequately, including 
complexity arising in the following circumstances: 

(a) where the facts or circumstances of the case are likely to 
be too complex for a jury; 

(b) where the evidence is likely to be of a technical nature 
and the a jury is likely to have difficulty in 
comprehending such evidence; 

(c) where the complex or uncertain nature of the law at issue 
is likely to be such that a jury, properly instructed, would 
nevertheless find the law difficult to comprehend or 
apply; 

(d) where the substantive issues in the case are issues of law, 
and the issues of fact are negligible or are merely 
incidental; or 



96 



(e) where the issues of law and fact are inextricably 
interwoven. 

2. Potential prejudice exists, such that it is likely that one of the 
parties will not be able to obtain a fair trial before a jury. 

3. Jury service would constitute an unwarranted inconvenience to 
jurors, after considering 

(a) the nature and importance of the matter or matters at 
issue; 

(b) the interests in trial by jury expressed by the parties; and 

(c) the likely duration of the trial. 

4. There has been inflammatory conduct or improper material has 
been placed before the jury. 

Section 108(3) of the Courts of Justice Act should be amended to 
provide that, where the trial judge is of the opinion that jury service 
would constitute an unwarranted inconvenience to jurors, after 
considering (1) the nature and importance of the matter or matters at 
issue; (2) the interests in trial by jury expressed by the parties; and (3) 
the likely duration of the trial, the trial judge shall dismiss the jury, and 
may complete the trial by him or herself, without the necessity of a 
motion to that effect. 



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