Nuances Between Judge-Alone And Jury Trials

• Published date: 12 September 2022
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Trials & Appeals & Compensation, Personal Injury
• Law Firm: McCague Borlack LLP
• Author: Mr Van Krkachovski and Maxwell Gill

During the COVID-19 pandemic, the courts were unable to hold jury trials for many civil claims, particularly MVA and tort cases. This ended in May 2022, and jury trials for civil cases have since resumed. During this time, many decisions proceeded before only a judge. This paper will outline the major differences between judge-alone and jury trials.

Statutory Deductible, Hidden by Statute

The Insurance Act requires that any award of damages against an insurer, under $138,343.86, is reduced by an amount established by statute, known as the "statutory deductible."¹ This deductible increases every year, and, as of January 1, 2022, it is $41,503.50.² Under this scheme, if a plaintiff is awarded $50,000 in an insurance claim, they only receive $8,496.50. There are a variety of rationales for this deductible, like a means to reduce frivolous claims,³ but they are beyond the scope of this paper. For our purposes, this value is important for one reason; most jurors do not know about it, and neither party is allowed to tell them.

The motivation for not informing the jury of the deductible is explained in a 2021 decision, Rumney v. Nelson.⁴ In this case, the plaintiff asked for an order that the jurors be advised of the statutory deductible. The plaintiff relied on the fact that the statute requires the jury to award damages without regard to the statutory deduction, and not necessarily without knowledge of it.⁵ The judge refused to grant this order. This is because, as stated by the judge, the role of the jury is to "decide liability, apportion liability if applicable, and assess damages without regard to the statutory deductible or other amounts that may be deducted."⁶ It is not the role of the jury to change their awards in order to reflect the plaintiff's perceived entitlement to certain amounts; they are intended to determine the liability and the damages that result from it.⁷ Once the damages are determined, it is the role of the judge to interpret the necessary legal framework and alter the awards if necessary.

This provides the strongest structural guarantee possible that any potential juror will not modify their award based on their knowledge of the statutory deductible, yet there is no similar guarantee for judges. Any jury award comes with the strongest structural guarantee that the amount awarded was not influenced by consideration of the deductible. When a jury awards $50,000, it is easy to believe they understood the plaintiff was entitled to $50,000. However, when a judge awards $50,000, there is no similar guarantee. Each party must take the judge at his word that the amount awarded was chosen "without regard to [the statutory deductible]."⁸

This is highly beneficial to defendants. Defense lawyers may claim the plaintiff is entitled to $30,000 or at most $40,000, and appear sympathetic to the jury, when they know the statutory deductible will reduce the claim to nothing. This benefit is even noted in case law, when, in the 2016 decision on Mandel v Fakhim,⁹ the judge noted:

"Jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers."¹⁰

...a jury trial does not guarantee low damages...

Despite these claims, a jury trial does not guarantee low damages, just like a judge-alone trial does not guarantee high damages. Rather, the focus should be on the structural safeguards in place to ensure one party does not account for the deductible in its determination, and the lack of an equivalent safeguard for judges.

Provision of Reasons for the Verdict

Another important distinction between judge-alone decisions and jury trials is the...