In Ontario, the vast majority of personal injury and car accident cases settle without the necessity of having a trial. When a personal injury case does proceed to trial, most victims want their case decided by a jury rather than a judge alone. The right to a jury trial is very important because it allows the parties in a dispute to have their disputes settled and resolved by ordinary people in the community. While our judges are also fair and reasonable, for an injured victim there is generally greater peace of mind that a just and fair result has been achieved when the verdict is passed down by a group of their fellow citizens comprised of laypeople.
Unfortunately, in Ontario jury trials arising out of motor vehicle accident injuries, the people selected to decide the case (i.e. the jury) are not provided with all of the information. The Information that is withheld from the jury is, for the most part, for the benefit of large insurance companies. Settlements and verdicts in personal injury claims are almost always paid by insurance companies. Nonetheless, the insurance company seeks to remain invisible to the jury, and create the illusion that the individual defendant will also be a victim if the jury awards the injured person with full compensation.
Here are some of the top things that a jury is not allowed to know in the context of a Ontario car accident jury trial:
1. Insurance. The jury is never told that the defendant has insurance to pay for the claim. This is despite the fact that, in Ontario, automobile insurance is mandatory. Many, if not most, auto insurance policies provide for $1 million in liability coverage. Furthermore, it is the insurance company that hires and pays for the defense lawyer, litigation expenses, surveillance, expert reports, etc. It is the insurance company that decides whether or not to pay a claim or force a trial. Nonetheless, the insurance company defense strategy will include having the individual defendant paraded into the courtroom to sit there looking scared and worried about the outcome of the case. They do this so that the jury will believe that the individual defendant is also, in some way, a victim that has been dragged through a trial and litigation process. There is nothing further from the truth. The fact is, the individual defendant has had virtually no involvement in the case whatsoever. It is controlled and managed by the insurance company, their adjuster, and their defense lawyers. The insurance companies have in-house lawyers, and law firms that they routinely use to defend car accident cases. Nonetheless, insurance companies and their defense lawyers routinely try to mislead juries and make them think that the defendant has no insurance. The jury will never hear any mention of the defendant's insurance or the policy limits available.
2. The threshold. This is something that most people in Ontario have never even heard about. Thanks to the insurance industry lobby, victims that have been injured in car accidents are unable to obtain compensation for future medical expenses and pain and suffering unless, and only if, they are able to convince the judge that their injuries are serious and permanent. In a recent trial, a jury fairly and reasonably awarded a 66-year-old victim $75,000 for her pain and suffering. Nonetheless, after the jury verdict was rendered and the members of the jury were discharged, the judge made his own finding that the injuries were not serious and permanent. On that basis, the judge wiped out/erased the entire award for pain and suffering and for future medical. The jury was never told about the threshold and they had no direct input whatsoever on making any finding or recommendation on whether they believed that the victim in fact sustained a permanent and serious impairment. Nonetheless, even the judge acknowledged that the award of $75,000 must have meant that the jury believed that the victim's injuries were permanent and serious. At the end of the day, however, the jury finding was ignored by the judge.
The threshold, like so many other rules in car accident injury cases, exists for the sole purpose of protecting the profits of large insurance companies at the expense of victims. The insurance companies propagate the misconception that people bring frivolous claims in an effort to defraud insurance companies and drive up our premiums. That is such a crock. It's not the victims that are afraid to share all of the facts with the jury and let them decide the merits of a claim. The victim in a personal injury case is forced to divulge personal information about their lives, and medical history and treatment to a jury six strangers. The victim is subjected to surveillance and invasive medical examinations on behalf of the insurance company. The jury is made up of ordinary people and, one would expect that the six people could fairly decide whether a person deserves compensation or not. I certainly believe in the jury system, and feel that the jury can find the truth. I don't think that there is a lawyer in Ontario that would have the guts to bring a frivolous case in front of a jury. Let's get real, it's expensive to have a trial, pay for doctors and accountants to attend at trial to testify, etc. A lawyer that takes a case to trial has to absolutely believe in the merits of his case and client. But here's another point, the threshold only exists in car accident cases where the money on the line belongs to some massive insurance company. If you or I were in a dispute over money and brought our case the court, we wouldn't have the benefit of anything like the threshold - no one in is looking to protect your hard earned money.
3. The deductible. Here again the big insurance lobby has successfully managed to get a law that allows them to to save money at the expense of the victim. In short, the insurance company gets to deduct $30,000 from the pain and suffering awarded by the jury. Again, the jury is not allowed to hear or learn anything about the existence of this deductible. How can this be just and fair? At the end of the trial, the jury will be asked to decide how much the victim should be awarded for her pain, suffering and loss of enjoyment of life. The jury will be left with the impression that the value they decide upon will actually be awarded to the victim. In reality, after the jury is discharged and sent home, the judge will apply the $30,000 deductible and enter a judgment accordingly. As such, where a victim is awarded $75,000 by the jury, the actual judgment will be reduced to $45,000. The jury is not allowed to know this because, obviously, the jury would likely increase the award in order to be fair to the victim at the expense of the insurance company.
As you can see, the rules that apply in car accident injury cases are heavily skewed in favor of protecting insurance companies and their profits.
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