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Jurors In a Personal Injury Trial … What They Don’t Know

In Ontario, if someone injures you in a car accident, you have a legal right to seek compensation for your injuries from their insurance company. Personal injury claims are usually settled out of court through informal mediation and negotiation proceedings. In these proceedings, plaintiff and insurance company lawyers enter into meaningful discussions in an attempt to compromise and reach a settlement acceptable to all parties.

When a Jury Trial Is The Only Option

No injury victim wants to endure the hardships and uncertainty of having a jury trial. The lives of injury victims are often turned upside down physically, emotionally, mentally and financially. For many, the thought of enduring a jury trial is unbearable. Cases only go to trial when no meaningful settlement could be reached through negotiation or mediation. Without fair and meaningful compensation, most accident victims would be unable to medically recover or live anything resembling a normal life. When insurers refuse to provide proper compensation, car accident victims are forced into taking their claims to trial.

Jury Summons

Potential jurors in a personal injury trial will receive a notice in the mail. Several hundreds of notices are sent out to prospective jurors. To be eligible to be a juror, individuals must be a Canadian citizen, reside in the province of Ontario, and be a minimum of 18 years of age. As a Canadian citizen, it is considered your civic duty to follow the instructions on the summons and show up in court at the date and time listed.

Once potential jurors arrive at the courthouse on the day of attendance, they become a member of the jury panel from which any number of juries can be selected. As a potential juror, they may be selected to serve as a juror in either a criminal or civil trial. Most personal injury claims that go to a jury trial are the result of a motor vehicle accident, which is classified as a civil trial.

Plaintiff and insurance defence lawyers in the trial are provided with a list of potential jurors that will include the potential jurors’ name and occupation. No other information about the potential juror is provided. Potential jurors will hear a list of names of those parties involved. These names will include the plaintiff, defendant, witnesses and lawyers. Any juror that has a potential conflict of interest will not be selected for that jury.

In most circumstances, juror numbers are picked at random from a box and called forward. The judge will ask the selected juror if there is any reason they cannot serve on the jury. This is the time when any conflict of interest, serious hardship or illness should be explained. The judge presiding decides who may or may not be excused or transferred as a juror to another panel. Those potential jurors who are not excused by the judge are then presented to the lawyers for both sides.

The Jury Selection Process

Plaintiff and insurance defence lawyers receive four “juror challenges” to remove a juror. The lawyers do not need to provide a reason as to why they want a juror removed. In civil trials such as those involving car accidents, six jurors are chosen. Those jurors will then be responsible for determining questions of fact in court.

Insurance Companies in Ontario Request a Jury Trial 99% of the Time.

Car accident injury law in Ontario allows for a jury trial if it is requested by either the plaintiff or the defendant insurance company. Statistically, insurance companies in Ontario request a jury trial over a judge-alone trial 99% of the time. This is because juries usually award lower settlement awards than a judge would. Insurance companies continue to lobby the government to keep juries in civil courts and create other laws that disadvantage injury victims.

The Insurance Company Representing the Defendant is Never Mentioned

When an injury claim goes to court, the case is presented in the name of the plaintiff and the individual name of the at fault driver known as the defendant.  For example:  Smith v. McDonald  rather than Smith v. Insurance company XYZ. The jury is never made aware of the fact that McDonald, the at fault driver, is actually represented by his or her insurance company. This can be confusing for a jury who will hear the defendant referred to as McDonald instead of the insurance company and its name. Except in exceptionally rare circumstances, it is the insurance company that has to pay the Plaintiff the money that a jury awards.

Defense Lawyer Fees Are Paid For By The Insurance Company

The “defendant’s” lawyers are specifically chosen and fully paid for by his or her insurance company. The entire defense of the claim is controlled and directed by the insurance company’s appointed lawyers from beginning to end. No one is permitted to tell the jury these facts at any time during the trial.

The Defendant’s Insurance Policy Limit is Kept Secret

In Ontario, compensation awards for car accident injuries are paid for by the at fault drivers insurance company. Injury awards are based on the principle of loss. Awards are designed to compensate car accident victims for their economic losses, such as those from the inability to work, for on-going medical care, rehabilitation and support. Over a life time, these costs can be enormous.

By law, all drivers in the province of Ontario must have car insurance. Drivers typically have a minimum of 1 million dollars in liability insurance coverage. Many drivers choose to upgrade their insurance policies. For a nominal monthly fee, liability insurance coverage is often raised to 2 million dollars.  Liability insurance is meant to protect at fault drivers from any personal financial loss in the event that they negligently injure someone. The amount of the defendant’s insurance policy will never be divulged to the jury during a trial.

The Ontario Court System is Currently Severely Backlogged

The Ontario court system is currently suffering from serious backlogs, case delays, and a lack of judges. These delays put Plaintiffs at a disadvantage and reduce their ability to access justice. It takes 3-4 years for car accident victims to be given a trial date. Due to the backlogs in Ontario courts, civil trials are often adjourned for another 1-2 years on top of the original 3-4 years to make way for criminal cases that are at risk for being thrown out for taking too long to reach trial. Waiting 5-6 years for fair compensation is very difficult for individuals who are seriously injured.

“Take it now, or take your chances in court” Approach.

More and more often, insurance companies are choosing very aggressive strategies, and refuse to offer anything remotely close to a fair settlement amount. The insurance company’s clear strategy is to increase the financial risk to which the plaintiff is exposed. The longer an injury claim drags on – the better it is for the insurance company.  When a plaintiff’s day in court is delayed, they are often forced to settle for less than their claim is worth, as they cannot survive financially without any money. For cases that do proceed to trial, insurance companies have deep pockets, post record breaking profits year over year, and can afford the risk of losing in court – unlike accident injury victims.

Settlement Awards Are Subject to a Monetary Deductible

Juries are never told that awards to personal injury victims are subjected to a monetary “deductible” which increases each year to account for inflation. Currently, any general damages amount that a jury awards will be reduced by $38,818.97. The defendant’s insurance company gets to keep this money.

The only way that a jury’s general damages award will not be reduced is if it exceeds $129,395.49. These amounts are subject to inflation and increase every year. Jurors are never told of these facts as a way to protect insurance companies.

So, if a Plaintiff is awarded $100,000 for general damages, they will only receive approximately $61,000. When going to trial, the system in place puts the injury victim at a clear disadvantage, in favour of the insurance company representing the at-fault driver. The insurance companies have an advantage, because the current system prevents jurors from knowing all of the facts.

Laws Protecting Insurance Companies

Ontario has unique laws to protect insurance companies in motor vehicle accident injury cases. One such law is that plaintiffs can only recover 70% of the income they lost because of the injuries someone else caused. Another special law for motor vehicle accidents is that insurance companies only have to pay
pre-judgement interest at a very low rate – usually around 1%. Meanwhile insurance companies earn significant returns on their investments – often as high as 8-10% or more. As a result, insurance companies delay resolving victim claims for as long as possible.

Pain & Suffering – Only For Those Injuries Determined To Be Permanent & Serious

There is another significant fact that the jury cannot be told. It’s called the “Verbal Threshold”. The “Verbal Threshold” stipulates that a Plaintiff cannot recover damages for pain and suffering unless their injuries are determined to be both “permanent and serious”.

At the end of the trial defense lawyers may bring a threshold motion before the judge. The jury is not permitted to hear this motion. The judge determines if the Plaintiff meets the threshold without input from the jury. In some circumstances, injury victims leave court with nothing because of the judge’s ruling on a threshold motion.

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