Legal Matters with Chris Richard – Potential Bias of Prospective Civil Jurors

1. Legal Matters with Chris Richard – Potential Bias of Prospective Civil Jurors Should persons who pay for automobile insurance premiums be excluded as potential jurors in trials involving injured plaintiffs seeking compensation from insurance companies? Chris Richard, the managing partner of Graves and Richard, the largest personal injury firm in St. Catharines, recently discussed this topic on Legal Matters on Niagara’s 610 Newstalk Radio with host Lee Sterry. He identified the potential b among jurors who hold a belief that awards of damages to plaintiffs in trials causes their insurance premiums to increase, and discussed how our courts are dealing with this important issue. ias in favour of insurance companies The Civil Jury Selection Process A civil jury trial begins with the assembly of a jury panel. Members of the community are randomly chosen to create a jury pool. Unlike the American system, lawyers do not ask questions of potential jurors in Ontario. The only information provided to lawyers about a potential juror is his or her name, age, address and occupation. Both the plaintiff and the defendant can “challenge” four jurors. When a juror is challenged, he or she is taken off the jury panel. A civil jury consists of six members. Because no questions can be asked of jurors, plaintiff and defence counsel do not get an opportunity to explore whether a potential juror has any bias against the parties in the action. Potential Bias of Jurors An important potential bias of jurors in personal injury cases, recently raised in Kapoor v. Kuzmanovski, 2017 ONSC 1709, is created by the belief held by some jurists that lawsuits and awards to plaintiffs are driving up their insurance premiums. In Kapoor v. Kuzmanovski, the plaintiff was injured in a car accident and commenced an action for compensation. At jury selection, the plaintiff brought a motion to get more information about the potential jurors. The plaintiff expressed concerns that some of the potential jurors may have been influenced by information produced by the insurance industry (which is often unbalanced or untrue) about how damages awarded to plaintiffs at trial are driving up insurance premiums. The plaintiff argued that prospective jurors in civil motor vehicle accident cases, who drive vehicles and are insured, are inherently in a conflict of interest as they have a personal interest at stake adverse to the plaintiff, which creates

2. potential bias in favour of the insurance company. Because potential jurors may hold the belief that they will experience a personal disadvantage in the form of their insurance premiums going up if a large damages award was made in favour of the plaintiff, those potential jurors might be disinclined to make a high award, or any award at all. The relief requested by the plaintiff in Kapoor v. Kuzmanovski was that potential jurors who drive and pay for insurance premiums be excluded from the jury. In the alternative, the plaintiff asked to remove all potential jurors who pay automobile insurance premiums. In the further alternative, the plaintiff requested permission to question potential jurors who pay automobile insurance premiums to determine whether bias was present, or to have the jury struck in its entirety and have the case decided by judge alone. The trial judge recognized that novel issues had been raised, which had significant implications to the parties involved, and to the rights of citizens to participate as jurors. The trial judge, therefore, adjourned the case to invite input from the Office of the Attorney General for the Province of Ontario and the Advocates’ Society of Ontario, whose membership includes lawyers practising in all areas of civil litigation. Support in Law for the Plaintiff’s Argument in Kapoor v. Kuzmanovski There is some support in law for the argument the plaintiff made in Kapoor v. Kuzmanovski. The argument that prospective jurors in civil motor vehicle accident cases, who drive vehicles and are insured, are inherently in a conflict of interest and potentially biased in favour of the insurance companies has been made and considered in several cases decided in British Columbia. In Shariatamadari v. Ahmadi (May 4, 2009), Doc. Vancouver S06 1583 (B.C.S.C.), the plaintiff injured in a car accident sued the British Columbia public insurance company ICBC. The court discovered that during jury deliberations, one of the jurors had actually expressed concern that a high damages award would drive up the cost of all of their own insurance rates. Several jury members were questioned by the judge during jury break and it was discovered that one had commented “well… if the plaintiff is asking for all of these medical expenses to be paid by ICBC, our insurance rates will go up, so we can’t let that happen..” This case illustrates that the argument regarding potential juror bias in automobile insurance cases is not necessarily theoretical. The juror actually held the thought that an award of damages will cause his or her insurance rates to go up, expressed it to other jurors, and

3. indicated that his or her decision regarding entitlement to certain expenses would be determined based on this factor alone. In Yates (Litigation guardian of) v. Lee, 2014 BCSC 1298, a six-year-old boy was injured in a car accident, and an action was commenced on his behalf for damages against the ICBC. The ICBC elected a trial by jury. The plaintiff’s lawyers brought an application to strike the jury on the ground that the jury pool had been tainted by a recent letter sent by the ICBC to all policy holders in the province wherein they linked an increase in insurance rates to personal injury damages awards. The plaintiff argued that the letter created a bias among the jurors in favour of the insurance company. The chambers judge dismissed the application on the basis that the plaintiff was unable to prove that the jurors wouldn’t be able to set aside any possible bias. Unlike the judge in Yates (Litigation guardian of) v. Lee, the judge in Norsworthy v. Green (May 30, 2009, Doc. Victoria 06 2644 (B.C.S.C.) accepted the argument of bias. There, the judge commented that every potential juror knows that ICBC funds damages awards, and that this creates the risk that prospective jurors may believe that the higher an award in a given case, the greater the likelihood that their own insurance premiums may rise. The judge observed that such thinking is improper, and would, if disclosed, demonstrate bias. This reasoning has already been applied by the Ontario Legislature with respect to the potential bias by taxpaying jurors in actions involving municipalities, by codifying a rule in s. 108(2) of the Courts of Justice Act that a trial by jury is not permitted in cases involving a municipality. If an action was commenced against the City of St. Catharines for compensation for an injury sustained due to a poorly maintained road, for example, the parties in that case are not permitted to request that a jury decide that case. The reasoning behind this rule is that because jurors are taxpayers in the municipality, they have a personal interest in the outcome of a case against the municipality based on their belief that if damages are awarded against a citizen, they as taxpayers are paying for those damages. Personal injury lawyers are aware that this potential bias among prospective jurors is an active and important issue in any case involving an automobile insurance company, and are mindful to take strategic steps to safeguard the interests of their injured clients. Source: https://www.gravesandrichard.com/legal-matters-with-chris-richard-potential-bias-of- prospective-civil-jurors/