COURT FILE NO.: CV-09-4318-00 DATE: 20170316
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PREETI KAPOOR v. RADOJE KUZMANOVSKI also known as RADOJA KUZMANOVSKI, KRASIMIR PETROV, JASON AGUILAR, and UNIFND ASSURANCE COMPANY
BEFORE: Daley RSJ.
COUNSEL: Jeffrey Wm. Strype, Jason E. Brown and Mark A. De Sanctis, for the Plaintiff No one appearing for the Defendant, Jayson Aguilar K. Bruce Chambers, for the Defendants, Kuzmanovski and Petrov Elie Goldberg, for the Defendant, Unifund Assurance Company
Heard: March 10, 2017
E N D O R S E M E N T
Motion to Exclude Potential Jurors for Conflict of Interest/Challenge for Cause in Civil Jury Selection
[1] The plaintiff has brought a motion for:
(a) an Order excluding potential jurors who drive and pay for automobile insurance premiums or have automobile insurance premiums paid on their behalf from the jury pool in this action due to an inherent conflict of interest;
(b) in the alternative, an Order removing all potential jurors who are ratepayers of automobile insurance premiums from the jury due to an inherent conflict of interest;
(c) in the alternative, an Order permitting the Plaintiff to challenge potential jurors who pay for automobile insurance premiums or have automobile insurance premiums paid on their behalf for cause;
(d) in the alternative, an Order permitting the Plaintiff to challenge potential jurors who pay for automobile insurance premiums for want of eligibility; and
(e) in the alternative, an Order striking the Jury Notices in this action.
[2] This action was scheduled to proceed to trial at the January 2017 concentrated sittings, however as a result of this motion by the plaintiff, the case was struck from the trial list in order to allow for this motion to be argued and considered.
[3] At the heart of the plaintiff’s motion is the assertion that prospective jurors in civil motor vehicle accident cases, who drive motor vehicles and are insured under the Ontario provincial motor vehicle insurance legislation, are inherently in a conflict of interest as they have a personal interest at stake adverse to a plaintiff and as such cannot carry out their duties as jurors in an impartial manner. The alleged personal interest giving rise to the conflict of interest is each prospective juror’s financial obligation to pay motor vehicle liability insurance premiums.
[4] As it was determined that the issues raised could not properly be determined in a summary manner, and as the potential impact of the determination of the plaintiff’s motion may have an effect far beyond the interests of the litigants in this action, counsel were invited to make submissions to the court as to whether or not other individuals or organizations should be allowed to intervene or be invited to provide submissions as a friend of the court in accordance with Rules 13.01 and 13.02 of the Rules Of Civil Procedure. These rules read as follows:
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party, if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding,
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
LEAVE TO INTERVENE AS FRIEND OF THE COURT
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
[5] At my request counsel for the parties appeared before the court to make submissions with respect to the possible involvement of an intervenor or friend of the court. Counsel for the plaintiffs and counsel for the defendants Kuzmanovski and Petrov agreed that this is a case where counsel for interested legal organizations could participate as a friend of the court for the purpose of rendering assistance to the court by way of argument. Counsel for the defendant Unifund Assurance Company, while not opposing the appointment of a friend of the court for the purpose of this motion or the involvement of an intervenor urged that given the age of this case the matter should move to trial as quickly as possible.
[6] It was suggested by me to counsel that Her Majesty the Queen in the Right of the Province of Ontario may have an overarching interest in the issues at stake on this motion as the Juries Act, R.S.O. 1990, c. J.3 does not provide the litigants in a civil action with a right to challenge for cause an eligible juror empaneled in accordance with that Act.
[7] As part of the relief sought on the plaintiff’s motion is a right to challenge for cause potential jurors who have motor vehicle liability insurance, as to their potential conflict of interest or permitting the parties to challenge the array of potential jurors for want of eligibility to sit as a juror based on inherent conflict of interest, Her Majesty the Queen in the Right of the Province of Ontario may wish to seek leave to intervene on this motion in accordance with Rule 13.01.
[8] While no representations were available from the Crown it may successfully demonstrate that it has an interest in the subject matter of the proceeding, namely the possible introduction of a challenge for cause process in the selection of civil juries, within the terms of Rule 13.01 (1) (a) and as such it may wish to seek leave to intervene.
[9] Although the issues at stake in this action involve the private rights of the litigants, the motion relief sought by the plaintiff involves much broader considerations that may impact the rights of other parties involved in motor vehicle accident cases as well as possibly the rights of citizens of Ontario to sit as jurors in those cases.
[10] As provided for in Rule 13.01 (2) on any motion where a party seeks intervenor status, the court must consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. Counsel for the defendant Unifund Assurance has argued that his client wishes to have this matter proceed on to trial as soon as possible and that it not be delayed by this motion.
[11] The proper test to be applied in determining whether a person or organization should be granted leave to intervene under Rule 13 is the one articulated by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 at p. 167; see also Peixeiro v. Haberman (1994), 20 O.R. (3) 666 where Dubin C.J.O. stated as follows:
Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
[12] I have concluded that it would be appropriate for counsel for the plaintiff to serve the present motion upon the Office of the Attorney General for the Province of Ontario, on behalf of Her Majesty the Queen in the Right of the Province of Ontario in order to give the Crown notice of the relief sought so as to allow it to determine whether or not it wishes to seek intervenor status in accordance with Rule 13.01.
[13] In the event the Crown, following service of the plaintiff’s motion moves to seek intervenor status, all of the requirements under Rule 13.01 will be taken into account as well as those considerations set out in sub rule 13.01 (2) and any party to this action seeking to oppose that motion will be given a full opportunity to do so.
[14] As to inviting the assistance of a friend of the court under Rule 13.02, in my view the same considerations must be examined as to when the court considers a motion by a nonparty seeking intervenor status under Rule 13.01 as well as those arising under Rule 13.02. Those considerations include:
(1) the nature of the case;
(2) the issues which will arise on the plaintiff’s motion in this case; and
(3) whether the proposed friend of the court will render assistance to the court by way of argument which would make a useful contribution to the determination of the issues on the plaintiff’s motion, without causing any injustice to the immediate parties in the action.
[15] With respect to the first and second considerations listed above, while the action in which this motion has been brought is a relatively common type of case involving claims for damages as a result of a motor vehicle accident, the plaintiff’s motion raises novel and significant issues as to the rights of parties involved in motor vehicle accident cases to have the action tried by an impartial jury. As noted, the issues include as well a determination as to whether persons insured under motor vehicle liability insurance policies in Ontario have an inherent conflict of interest with those seeking damages in these types of cases, given their obligation to pay motor vehicle liability insurance premiums.
[16] Other issues that arise from the plaintiff’s motion also include the rights of citizens of the province of Ontario to sit on juries in civil trials arising from motor vehicle accidents and further whether in the jury selection process provided for in the Juries Act, R.S.O. 1990, c. j.3, the parties to the action would be entitled to challenge prospective jurors for cause, in the event they were insured under an Ontario motor vehicle liability insurance policy.
[17] As to the third consideration of whether the proposed friend of the court will render assistance to the court by way of argument which would make a useful contribution to the determination of the issues on the plaintiff’s motion, McMurtry C.J.O. (in chambers) in Childs v. Desormeaux in a motion by Mothers Against Drunk Driving Canada to be added as a friend of the court, in a pending appeal, noted as follows at para [13] – [15]:
[13] Today most intervenors who intervene as a friend of the court articulate a position that may generally be aligned with one or another side of the argument. The submission of the respondents that a “friend of the court” must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected. In the United States, the author Samuel Krislov, in “The Amicus Brief: From Friendship to Advocacy” (1963) 72 Yale L.J. 694 at p. 704, stated:
The Supreme Court of the United States makes no pretense of such disinterestedness on the part of “its friends”. The amicus is treated as a potential litigant in future case, as an ally of one of the parties, or as the representative of an interest not otherwise represented … thus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy.
[14] While the law of Ontario has not, perhaps, expanded the role of the friend of the court this far, David Scriven and Paul Muldoon, wrote as long ago as 1985, in their article “Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure” (1986) 6 Advocates’ Q. 448, at pp. 456-57:
While the old case law implicitly assumes that a friend of the court cannot provide “assistance” when it intends to advocate its point of view, the language of Rule 13.02 appears to deny this traditional argument. The rule states that any person may intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. The term “argument” literally means to “persuade by giving reasons” and thus directly imports the notion of advocacy in such applications.
[15] Since the publication of this article the law of this province has developed to recognize the valid and important contribution that can be made in appropriate cases by friends of the court who may be advocates for a particular interpretation of the law.
[18] Counsel for the plaintiff urged that if I was considering inviting the assistance of a friend of the court that counsel on behalf of the Ontario Trial Lawyers Association should be invited to participate in that role. I disagree with this submission.
[19] Although I am mindful of the words of McMurtry C.J.O. in Childs, in my view, counsel chosen by The Advocates’ Society would be better placed to provide assistance and advice to the court in accordance with Rule 13.02, as the membership of the Society includes lawyers who practice in all areas of civil litigation and not simply as a member of the plaintiff’s or defence bars in the area of personal injury litigation. It would be expected that counsel chosen by The Advocates’ Society, to act as a friend of the court, would not be acting in the more traditional role of a neutral amicus curiae, but rather as an advocate by way of “argument” within the terms of Rule 13.02.
[20] In the result, I have concluded that an order shall issue in the following terms:
(1) the plaintiff’s motion is adjourned to a date to be set;
(2) the plaintiff shall serve his motion and supporting materials upon the Office of the Attorney General for the Province of Ontario, on behalf of Her Majesty the Queen in the Right of the Province of Ontario, along with a copy of this endorsement;
(3) counsel for the plaintiff shall serve upon The Advocates’ Society, care of its president, a copy of this endorsement, along with the plaintiff’s motion and supporting materials;
(4) The Advocates’ Society is hereby invited to appoint counsel to intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument on this motion, in accordance with Rule 13.02;
(5) the Attorney General and The Advocates’ Society shall advise counsel for the plaintiff as to their respective positions following receipt of this endorsement and the plaintiff’s motion materials and counsel for the plaintiff shall in turn report in writing to this court; and
(6) following the service of the documents mentioned and counsel being appointed for the nonparties, the court will then reconvene a case management conference for the purpose of receiving submissions as to the scope of involvement of the intervenors, timetabling the filing of responding materials, and the setting of the return date for the motion.
Daley RSJ.
DATE: March 16, 2017