Justice and the Jury

A civil trial is generally heard by a judge alone. Nevertheless, in most types of actions, a party has the right to trial by judge and jury and may call for a jury trial by serving a jury notice.

By statute, there are actions that may not be tried by a jury. In BC, jury trials are prohibited in actions against the Crown and in family law proceedings. Personal injury trials however, can be heard by jury.

Having recently finished a two-week personal injury jury trial, I have had ample opportunity to reflect upon justice and its relationship to our court system. While the jury in our case returned a verdict in our favour, it is my opinion that justice is not necessarily served by having a personal injury case heard by jury.

In a jury trial, the judge and jury work together. The jury judges the evidence and the facts arising from the evidence, and the judge clarifies the law. The ultimate decision of the court is in the jury’s hands, and poses no real problems except on one significant point: non-pecuniary damages.

Non-pecuniary damages are a monetary award to compensate the plaintiff for pain, injury, suffering, and loss of enjoyment of life. The award is called “non-pecuniary” because it cannot be compared to a dollar amount as is the case, for example, in a claim for past loss of income.

The Supreme Court of Canada implemented a judicial “cap” of $100,000 on non-pecuniary damages in 1978 through a series of cases known as “the trilogy”. This amount can only be adjusted for inflation and today is approximately $350,000. This maximum cap amount is only awarded for truly catastrophic injuries.

In a judge alone trial, the plaintiff and defendant’s lawyers provide the judge with examples of trial judgments indicating a range or amount of non-pecuniary damages they believe is appropriate to compensate the plaintiff. The judge then determines the amount based upon which case s/he finds most closely reflects the case at trial.

In a jury trial however, the law does not permit the judge or either lawyer to provide the jury with examples of trial judgments, or even mention awards in other cases. The jury must effectively decide what the appropriate non-pecuniary damages will be in a vacuum. In our recent case, the jury actually requested direction from the court on the basis it was unfair not to be given the guidance provided in a judge alone trial. The law however, is clear.

The reasoning appears to be that the jury voices its view to the court, giving it the opportunity to reflect the view of the community and ensure confidence in the justice system and the Rule of Law. That may be a fine sentiment in theory, but in practice, it does not appear to be so.

Scales of Justice

If the jury awards a non-pecuniary verdict over the cap (too much according to the trilogy), it would appear that the community is telling the court the cap is set too low. However, should that happen, what inevitably follows is the trial judge or the Court of Appeal reducing that verdict, effectively ignoring the view of the community.

As one example, in Lee v. Dawson, 2003 BCSC 1012, the jury awarded the plaintiff $2 million in non-pecuniary damages. The trial judge replaced this verdict with the cap adjusted for inflation at the time, which was roughly $294,000. The BC Court of Appeal dismissed the appeal, and the Supreme Court of Canada refused to hear the appeal, providing no reasons for doing so. Whatever the view of the community then, it appears the Court has no appetite to revisit the cap on non-pecuniary damages.

Regardless, without even taking into account the inadequate selection process or the additional time and costs required for a jury trial, is justice served with non-pecuniary verdicts based upon guesswork which may or may not adequately compensate a victim, and then potentially require the additional costs of appealing the verdict?

Can the court reconcile giving a jury no direction on non-pecuniary damages, telling the jury it is the sole judge of the facts and its view of the evidence must prevail, and then substituting a different verdict? How is that fair to the jury or to the plaintiff?

In a personal injury trial, are “justice” and “the jury” mutually exclusive terms?

What do you think?



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Einfeld Law is a highly knowledgeable and experienced BC personal injury law firm specializing in motor vehicle accidents, motorcycle accidents, and other negligence claims involving bodily injury. We have successfully litigated many ICBC and other insurance claims, including out of province, wrongful death, brain injury, spinal cord injury, whiplash, soft tissue injury, and all other bodily injury claims. We have collected millions of dollars on behalf of our clients. We never act for ICBC or other insurance companies.


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