- TLA expects better times in the coming year - April 28, 2021
- Justice Act amendments come up short on judiciary selection - March 16, 2021
- ‘It’s not a pirouette’ but our justice system pivoted in a new direction - February 19, 2021
By Paul Russell, LegalMatters Staff • There are better ways to increase the efficiency of the judicial process than eliminating juries from civil trials, says Brett Harrison, president of the Toronto Lawyers Association (TLA).
He was responding to a recent letter from Ontario Attorney General Doug Downey, seeking input from key stakeholders in the legal community about that potential step, as a way to deal with the backlog caused by the COVID-19 lockdown.
“We don’t think there should be a blanket elimination of all jury trials at this time,” Harrison tells LegalMattersCanada.ca. “There has never been an analysis showing their elimination would create a net benefit to the judicial process.”
In a letter to the attorney general, he states court “already has a broad discretion to compel a trial without a jury in cases where the judge concludes that trial by jury is inappropriate. If the ministry is seeking to gain efficiencies by reducing the use of jury trials in complex or otherwise inappropriate cases, it is the TLA’s view that judges are in a better position to decide which actions, if tried by a jury, would create disproportionate inefficiencies in our courts.”
Wait to see effect of Rule 76
Harrison says the TLA is urging the government to wait on making changes to when jury trials can be called, until a reassessment can be carried out about the impact of Simplified Procedure, Rule 76 of the Rules of Civil Procedure. It came into effect in January 2020, and eliminates juries for cases with a monetary limit of up to $200,00.
“The Ministry, courts and the profession have not yet had a reasonable opportunity to study the effects of these changes on trial outcomes and improving courtroom efficiencies,” he states in his letter.
“Although not tested by empirical data, civil jury trials often conclude with damages awards of less than $200,000. If the amendments to Rule 76 result in many cases being properly brought under that Rule, there should be no concern about civil jury trials causing undue inefficiencies in our system because they will occur with less frequency.”
Harrison says another major advantage to juries is that they mirror society, since jurors are of different races, ages and socio-economic status.
Juries reflect our society
“There is much to be said for the diversity of perspectives that a jury brings,” he says. “By any measure, juries better reflect our society as a whole than the judiciary.”
Harrison points out that judges all earn incomes well above the provincial average and they are all former lawyers.
“There is nothing wrong with that, but their perspectives will be different than if you have a jury made up of people with mixed backgrounds,” he says. “At a time when we are looking to bring broader viewpoints into our judicial system, juries can provide that much-needed diversity.”
In his letter to Downey, Harrison notes that “civil juries provide a vast array of life experiences including different socioeconomic, racial, cultural and gender-based perspectives. Jurors inherently bring with them community values and approach cases with their own unique lens. To eliminate civil juries in Ontario, in whole or in part, would erode the development of law based upon the evolving social values of the populations to which the law applies.”
COVID has improved court technology
To help ease the backlogs in the judicial system, Harrison says the province should embrace the technological advances put in place in courts during the COVID-19 lockdown.
“Let’s keep doing more virtual hearings and having matters heard in writing, as that will free up courtrooms for jury trials,” he says. “Our legal system is very antiquated and there has not be much of an investment in recent years. Thanks to COVID, that investment in technology has finally been made.”
Harrison says that the government is conducting a review of the court’s processes which will provide detail about what improvements are needed in provincial courtrooms so they can take advantage of electronic filing and other electronic services.
“The province is doing its best to open the courts, and we are discussing with them how many need to be open and for what purpose,” he says. “If a lawyer is simply making submissions to the judge, it really isn’t necessary to be there physically.
“During COVID, there are a lot of things that have happened that should increase access to justice and efficiency, such as the remote witnessing of affidavits and electronic filing,” Harrison adds. “And please, let’s move away from the use of ancient technology such as fax machines.”
Input given on Bill 161
He notes that Bill 161, Smarter and Stronger Justice Act, recently was given Royal assent by the government, bringing significant changes to various pieces of provincial legislation
“The government sought input from the bar on the bill, and the TLA’s viewpoints seem to have been taken into account,” says Harrison, on such issues as Legal Aid and changes to the rules around class actions.
“The availability of Legal Aid and access to justice are such huge issues for all citizens,” he says.
Harrison and other TLA member recently had an hour-long Zoom call with Downey about how changes set out in the bill are to be implemented across the province.
“We had a really positive talk with the attorney general about what is coming,” says Harrison. “The government has a lot on the go right now, and it sounds like they are going to try to maintain as much as the progress as possible, in advancing the use of technology in the delivery of court services in the province, which is great.”