COURT FILE NO.: 12-56112 DATE: 2017/04/11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

TATIANA NEMCHIN Plaintiff – and – YVONNE GREEN Defendant

Counsel: Joseph Obagi and Adam Aldersley, for the Plaintiff Thomas Ozere and Kim Dullet, counsel for the Defendant

HEARD: February 13, 2017

RULING

Motion No. 2 Pre-screening for Insurers

CORTHORN J.

Introduction

[1] The plaintiff’s claim arises from a motor vehicle collision that occurred in December 2010 in the City of Ottawa (the “collision”). At the date of the accident, the plaintiff’s vehicle was insured by Belair Direct Insurance (“Belair”) and the defendant’s vehicle by Aviva – Traders General Insurance Company (“Aviva”).

[2] Prior to the jury selection process, the plaintiff brought a motion for an order that the list of “persons involved” in the case to be identified to the members of the jury panel (the “panel”) include, not only the witnesses to be called by the parties, but also four insurance entities. The insurance entities whom the plaintiff sought to have included for the purpose of pre-screening were:

a) Sun Life Assurance Company (“Sun Life”) − the long-term disability (“LTD”) benefits insurer for the plaintiff;

b) The Société de l’assurance automobile du Quebec (“SAAQ”) − the provincial body through whom the plaintiff received certain benefits and a non-pecuniary general damages award following the collision;

c) Belair − the plaintiff’s motor vehicle insurer; and

d) Aviva –− the defendant’s motor vehicle insurer.

[3] The defendant consented to the inclusion of the SAAQ and Sun Life in the list of persons involved to be identified to the panel prior to jury selection. The defendant opposed the inclusion of the motor vehicle insurers of each of the parties to the action (the “insurers”).

[4] The plaintiff specifically requested that the panel be asked to identify if they have a “connection” to either of the insurers. The plaintiff submitted that a “connection” would not include being insured by one of the insurers. The plaintiff proposed that:

a) As part of the pre-screening process the panel would be instructed that a “connection” did not include being insured by one of the insurers, and

b) Otherwise, “connection” would not be more precisely defined in relation to the insurers than it would be with respect to anyone else whose name was identified to the panel.

[5] Prior to the selection of the jury I denied the plaintiff’s request and gave oral reasons for doing so. This ruling is in follow up to the oral reasons given at the time and is released subsequent to the delivery of the jury’s verdict.

Background

[6] In their respective affidavits of documents, each of the parties included as a Schedule ‘A’ document a copy of the repair estimate for the damage to their respective vehicles as a result of the collision. Each repair estimate bears the name of the party’s insurer.

[7] The repair estimates were included in at least one of the party’s notices pursuant to section 35 of the Evidence Act, R.S.O. 1990, c. E.23. As a result, it was anticipated that, subject to any order the Court might make, the repair estimates would be (a) admitted as evidence, (b) entered as exhibits, and (c) available to the jury as evidence of the damage to each of the vehicles involved in the collision.

[8] As noted above, the insurers were but two of four insurance entities whom the plaintiff sought to have included for pre-screening purposes. The other two insurance entities were the SAAQ and Sun Life.

[9] The plaintiff was a resident of Quebec on the date of the accident. She received accident benefits (in particular with respect to loss of income) from and was paid a non-pecuniary general damages award by the SAAQ. It was anticipated that reference would be made to the SAAQ for at least two reasons.

[10] First, it was expected that evidence would be given with respect to the benefits the plaintiff received from the SAAQ with respect to loss of income. Second, there was the potential for evidence to be given with respect to the damages award paid to the plaintiff by the SAAQ. Third, there was the possibility that the defendant would call Dr. Berthiaume as a witness. He was retained by the SAAQ to conduct a medical assessment of the plaintiff. It was anticipated that if Dr. Berthiaume testified, the jury would hear evidence as to the nature of his retainer.

[11] Sun Life was “involved” in the matter as the LTD benefits insurer for the plaintiff. Once again, it was anticipated that in the context of the plaintiff’s claim for damages for loss of income, reference would be made to Sun Life and the LTD benefits paid to the plaintiff. In addition, it was the plaintiff’s intention to call Dr. Evans to give evidence. She was retained by Sun Life to carry out a medical assessment of the plaintiff with respect to the issue of entitlement to the LTD benefits.

[12] I pause to note that copies of the repair estimates for each of the vehicles were made exhibits at trial; Dr. Berthiaume was not called as a witness by the defendant; and Dr. Evans was called as a witness by the plaintiff.

The Issue

[13] The sole issue to be determined on this motion was whether Belair and Aviva were to be included as “persons involved” in the matter so as to pre-screen the potential jurors for any “connection” they might have to one or both of the insurers.

The Positions of the Parties

a) The Plaintiff

[14] The plaintiff’s position was that the law has evolved well past the historical situation in which the mention of insurance in the presence of the jury warranted the discharge of the jury. The plaintiff submitted that the public-at-large is well aware of the existence of mandatory automobile insurance. As a result, the disclosure to the panel of the names of two motor vehicle insurers would in no way be prejudicial to the defendant.

[15] The plaintiff submitted that absent pre-screening of the panel for a “connection” with the insurers there was the potential for (a) one or more of the jurors to identify such a connection after disclosure of the names of the insurers during the trial, and (b) the loss of such juror(s) and/or the impartiality of the juror. The plaintiff’s position was that the risk in that regard far outweighed any potential prejudice to the defendant, or to the parties collectively, by the mention of the names of the insurers in the pre-screening process. In that regard, the plaintiff relied on what she submitted was the extent of public awareness of the existence of mandatory motor vehicle insurance.

[16] The plaintiff’s position was that identifying whether any one of the potential jurors was employed by one of the insurers would be insufficient. The plaintiff’s concern extended beyond the employment of a potential juror by one of the insurers. The plaintiff was also concerned about potential jurors who might in some way be related to someone who was employed by one of the insurers.

[17] The plaintiff submitted that there is nothing to prohibit the type of pre-screening proposed given that, in a civil case, the pre-screening questions posed to the panel are entirely within the discretion of the trial judge.

b) The Defendant

[18] The defendant’s position was that the mention of the names of the insurers as part of the pre-screening process would cause more “mischief” than was suggested by the plaintiff. The jury selection process would be fraught with difficulty; it would be lengthier; and the mention of the insurers would be potentially prejudicial to the defendant.

[19] The defendant submitted that when the damage estimates were entered as exhibits, and despite the references to the names of the insurers, it might not even be necessary for the jury to be given a mid-trial instruction with respect to the presence of the names of the insurers on the documents. In this regard, the defendant relied on the existence of mandatory insurance and the knowledge of the public-at-large that the majority of vehicle owners carry some form of motor vehicle insurance.

[20] The defendant’s position was that the “connection”, if any, of a potential juror to the insurers could be addressed by questions to clarify the potential juror’s occupation. If the occupation identified in the panel list was not sufficient to satisfy one or both of the parties as to a potential connection to the insurers, it remained open to the party or parties to request that the potential juror identify his or her specific employer. Through that process any potential juror employed or formerly employed by one of the insurers would be identified. The potential juror could be excused by the trial judge.

[21] It was the defendant’s position that any connection other than that of employee-employer was too remote to warrant inclusion of the insurers in the pre-screening process.

The Jury Selection Process

a) The Relevant Statutes

[22] The jury selection process for a civil trial in Ontario is governed by provincial legislation – the Juries Act, R.S.O. 1990, c. J.3 and the Courts of Justice Act, R.S.O. 1990, c. C.43. In the selection of a jury for a civil case, there is no statutory equivalent to the challenge for cause process prescribed by the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) for criminal jury trials. Challenges in a civil matter are, in part, addressed on the basis of eligibility to serve as a juror as defined by the Juries Act.

[23] Eligibility to serve as a juror is addressed in sections 2 to 4 of the Juries Act. Section 2 defines an “eligible juror” as follows:

2. Subject to sections 3 and 4, every person who,

(a) resides in Ontario;

(b) is a Canadian citizen; and

(c) in the year preceding the year for which the jury is selected had attained the age of eighteen years or more,

is eligible and liable to serve as a juror on juries in the Superior Court of Justice in the county in which he or she resides.

[24] Sections 3 and 4 of the Juries Act set out the basis for ineligibility to serve – specified occupations (section 3(1)); witness or a potential witness in a separate proceeding to be tried at the same sittings (section 3(3)); previous service as a juror within the preceding three years (section 3(4)); personal reasons such as physical or mental disability (section 4(a)); and conviction for an indictable offences (section 4(b)).

[25] Nothing in sections 3 or 4 of the Juries Act speaks to either impartiality or partiality.

[26] The bases upon which a potential juror in a civil case in Ontario may be challenged are restricted to those prescribed by sections 32 to 34 of the Juries Act. Those sections provide as follows:

Lack of eligibility

32. If a person not eligible is drawn as a juror for the trial of an issue in any proceeding, the want of eligibility is a good cause for challenge.

Peremptory challenges in civil cases

33. In any civil proceeding, the plaintiff or plaintiffs, on one side, and the defendant or defendants, on the other, may challenge peremptorily any four of the jurors drawn to serve on the trial, and such right of challenge extends to the Crown when a party.

Ratepayers, officers, etc., of municipality may be challenged

34. In a proceeding to which a municipal corporation, other than a county, is a party, every ratepayer, and every officer or servant of the corporation is, for that reason, liable to challenge as a juror.

[27] It is well-established law that these statutory provisions do not give rise to the right to challenge jurors for cause in a civil case in Ontario.

[28] The Courts of Justice Act addresses impartiality. Section 108(7) of that Act provides as follows, “[t]he judge presiding at trial may discharge a juror on the ground of illness, hardship, partiality or other sufficient cause.” Pursuant to this statutory provision the trial judge in a civil trial is seized of the issue of impartiality.

[29] Yet, “impartiality” is not defined in the Courts of Justice Act; nor is it defined in the Juries Act.

b) Principles of the Jury Selection Process

[30] To understand what is expected in terms of the impartiality of a juror in a civil action, it is helpful to consider (a) the principles upon which the jury selection process generally is based and (b) the differences between the jury selection process in criminal and civil cases.

[31] In R. v. Find, 2001 SCC 32, the Supreme Court of Canada reviewed the history of and purposes served by the jury selection process. Find deals with a criminal case and, more specifically, the challenge for cause process pursuant to the Code. The decision is, however, helpful because of the detailed discussion of the jury selection process.

[32] Writing for the majority, McLachlin C.J. said that the two-stage process by which a jury is selected embodies “procedures designed to ensure jury impartiality.” Find, at para. 20. The first stage is the pre-trial process. It involves the organization of a panel of prospective jurors from which the jury or juries for a particular sitting of the court are selected. That process is governed by the Juries Act, which includes provisions addressing qualifications to serve on a jury; compiling the jury list; summoning panel members; selection of potential jurors from the panel; and conditions for being excused from jury duty. It is through this process that to the extent possible the potential jurors who comprise the panel are representative of the community. Find, at para. 20.

[33] The second stage of the jury selection process is the in-court process, which occurs once the names of potential jurors have been selected from the panel. The decision in Find focuses on the challenge for cause process pursuant to sections 626 to 644 of the Code. The challenge for cause is one of the two processes by which a member of the panel may be excluded from the jury during the empanelling process in a criminal case. The second method is the judicial pre-screening process, available in both criminal and civil matters.

[34] In her decision, the Chief Justice summarized the judicial pre-screening process as follows:

[T]he trial judge enjoys a limited preliminary power to excuse prospective jurors. This is referred to as “judicial pre-screening” of the jury array. At common law, the trial judge was empowered to ask general questions of the panel to uncover manifest bias or personal hardship, and to excuse a prospective juror on either ground. Today in Canada, the judge typically raises these issues in his remarks to the panel, at which point those in the pool who may have difficulties are invited to identify themselves. If satisfied that a member of the jury pool should not serve either for reasons of manifest bias or hardship, the trial judge may excuse that person from jury service. Find, at paras. 22 and 23.

[35] The Chief Justice also reviewed the history of the judicial pre-screening process and, in doing so, highlighted the following:

• At common law, judicial pre-screening developed as a summary procedure for expediting jury selection where the prospective juror’s partiality was uncontroversial, for example where he or she had an interest in the proceedings or was a relative of a witness or the accused.

• Provided the reason for discharge was “manifest” or obvious, the consent of both parties to the judicial pre-screening was presumed.

• If the reason for discharge was not “manifest” or obvious, the challenge for cause procedure applied.

• Pursuant to section 632 of the Code (enacted in 1992), the presiding judge has the discretion, to be exercised at any time before the trial commences, to excuse a prospective juror for personal interest, relationship with the judge, counsel, accused or prospective witnesses, or personal hardship or other reasonable cause. Find, at para. 23.

[36] The pre-screening process in a civil action includes identification of the parties and of the lawyers for the parties. Although it is not statutorily mandated, it is becoming more commonplace for the judge to also read or to ask counsel to read a list of the witnesses and potential witnesses to be called to give evidence. Michelle Fuerst & Mary Anne Sanderson, Ontario Courtroom Procedure, 3rd ed. (Markham, Ont.: LexisNexis, 2012), at p. 638.

[37] Before assuming the role of juror, once selected, the individual chosen is administered an oath as follows:

Do you swear (solemnly affirm) that you shall well and truly try the issues joined between the parties and a true verdict give according to the evidence. So help you God.

(Omit so help you God if affirming)

[38] In R. v. Sherratt, L’Heureux-Dubé, J. writing for the majority said that “a juror must be presumed to perform his/her duties in accordance with the oath sworn,” at p. 527.

[39] The presumption that jurors are capable of fulfilling their responsibilities in an impartial manner is a significant feature of the jury selection process. The importance of this presumption is reflected in the following passage from Find, in which the jury selection process in Canada is contrasted with the jury selection process in the United States:

In both countries the aim is to select a jury that will decide the case impartially. The Canadian system, however, starts from the presumption that jurors are capable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties. This presumption is displaced only where potential bias is either clear and obvious (addressed by judicial pre-screening), or where the accused or prosecution shows reason to suspect that members of the jury array may possess biases that cannot be set aside (addressed by the challenge for cause process) . . .

The American system, by contrast, treats all members of the jury pool as presumptively suspect, and hence includes a preliminary voir dire process, whereby prospective jurors are frequently subjected to extensive questioning, often of a highly personal nature, to guide the respective parties in exercising their peremptory challenges and challenges for cause. Find, at para. 26.

The Case Law

a) Relied on by the Plaintiff

[40] The plaintiff relied on the decision of Browne, J. in [Al-Haddad v. London & Middlessex County Roman Catholic Separate School Board, [1996] O.J. No. 4675 (Gen. Div.)]. Relying on that decision, the plaintiff argued that partiality, in whatever form it may take, is a matter within the discretion of the trial judge and, more importantly, it is open to the trial judge to exercise his or her discretion in that regard by asking prospective jurors pre-screening questions.

[41] In Al-Haddad the plaintiff sought, prior to trial, to strike the jury notice on the basis of potential racial bias against the particular plaintiff. The motion was dismissed. Browne J. concluded that the trial judge would have discretion to address the issue of racial bias by posing the appropriate pre-screening question as part of the jury selection process.

[42] Browne, J. highlighted the difference between the pre-screening process in civil and criminal cases. He identified circumstances in which, in his view, it would be appropriate for a trial judge in a civil case to pose pre-screening questions of potential jurors:

In general pre-screening comments to a jury panel, the presiding justice addresses issues of personal hardship, citizenship, understanding of language and ability to hear. In criminal trials there is a statutory right for challenge for cause with certain procedure[s] being specified. That procedure takes the issue of determination of a juror’s partiality out of the hands of the trial judge and places the issue of partiality in the hands of the jurors (triers). The trial judge in a criminal case cannot usurp this statutory function of the jurors. There is no such statutory right in civil cases. In my view the trial judge in a civil case may ask prospective jurors pre-screening questions. Such pre-screening questions might well be with the consent of counsel and/or agreement as to the particulars of pre-screening questions. But absent such a consent, in my view the presiding justice at a civil trial can pre-screen upon racial bias and might well consider a questions long the following lines:

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the plaintiffs are of _____ descent. If so, please signify and your individual comments will be considered. Al-Haddad, at para. 12.

[43] In my view, the decision of Browne J. in Al-Haddad is restricted in its scope. Browne J. referred to pre-screening questions posed in a civil case on the consent or with the agreement of counsel. See also R. v. Sherratt, infra., at para. 67. He otherwise referred to posing questions related only to racial bias, and to doing so only in the absence of an agreement between or the consent of counsel with respect to questions on that basis.

[44] In my view, the decision in Al-Haddad does not serve as authority for the expansion of the pre-screening process as broadly as was requested by the plaintiff in the matter before me.

[45] I note that no case authority was provided to me in which the trial judge was asked to exercise his or her discretion to expand the pre-screening process to identify potential partiality on any basis other than racial bias.

b) Potential Partiality – Racial Bias

[46] There are a number of other cases in which the potential for racial bias on the part of jurors in a civil action was considered. In these cases the potential for racial bias was considered in the context of the judicial pre-screening process or with respect to the jury as a whole, the latter on a motion to strike the jury.

[47] In Thomas-Robinson v. Song (1997), the plaintiff was a person of colour. She was involved in a motor vehicle collision with a man of Asian descent. A jury notice was served by the defendant. At the outset of trial, counsel for the plaintiff requested an order permitting him to question potential jurors with respect to racial bias. The motion was dismissed.

[48] In dismissing the motion, Jennings J. referred to the statutory authority of the Code and the challenge for cause process described therein. He also referred to respective provincial legislation in Alberta and British Columbia, which provide authority for challenges for cause in civil actions.

[49] Jennings J. concluded that, in contrast, there is no provision in the Juries Act that supports a finding that there exists the right to challenge a juror for cause in civil actions in Ontario. He considered the language of section 27(2) of the Juries Act, which provides as follows:

Where an issue is brought on to be tried, or damages are to be assessed by a jury, the clerk shall, in open court, cause the container to be shaken so as sufficiently to mix the names, and shall then draw out six of the cards or papers, one after another, causing the container to be shaken after the drawing of each name, and if any juror whose name is so drawn does not appear or is challenged and set aside, then such further number until six jurors are drawn, who do appear, and who, after all just causes of challenge allowed, remain as fair and indifferent, and the first six jurors so drawn, appearing and approved as indifferent, their names being noted in the minute book of the clerk of the court, shall be sworn, and shall be the jury to try the issue or to assess the damages.

[50] He also considered sections 32 to 34 of the Juries Act (see para. 26 above). Ultimately, he concluded as follows:

Section 32 provides that "want of eligibility is a good cause for challenge". Section 33 provides for peremptory challenges. Section 34 provides for challenges where a municipal corporation is a party. No other provision is made for a challenge unless it is to be found in s. 27(2) which describes the procedure to be followed to empanel six jurors.

In my opinion, the phrase in that section, "after all just causes of challenge allowed" when read in context, must refer to the challenges provided for in ss. 32, 33 and 34. Nor do I believe that the somewhat imprecise language of s. 32, referring as it does to a "want of eligibility" being "a good cause for challenge" (emphasis added), permits me to infer that the legislature intended there be other unspecified good causes for challenge.

In my opinion, by declining to provide for challenge for cause in the Juries Act, the legislature did not believe it necessary to extend that right to litigants in civil cases. Thomas-Robinson, at paras. 10-12.

[51] More recently the issue of potential racial bias in the context of a civil jury trial was considered by the Divisional Court in Kayhan v. Greve (2008). The plaintiff in Kayhan was a Muslim-Canadian woman of Afghan descent. She was involved in a motor vehicle accident in November 1999. Her action was commenced in 2001 and proceeded to trial in Hamilton in 2007. The plaintiff was successful on a motion at trial for an order to strike the defendant’s jury notice on the basis of potential racial bias on the part of jurors.

[52] On appeal, the trial judge was found to have erred in striking the jury notice. In overturning the decision of the trial judge, the Divisional Court referred to the two-part test for bias established in Find: “the attitudinal component (i.e., the existence of a lack of impartiality), and the behavioural link (i.e., that the juror is not capable of setting aside the bias).” Kayhan, at para. 35. The Divisional Court was critical of the trial judge because he had not applied that test and had instead relied on “judicial notice” of inherent prejudices on the part of jurors in a case involving certain minorities.

[53] In my view, the decisions in Thomas-Robinson and Kayhan, individually and collectively, serve to emphasize that the presumption of impartiality (a) remains a significant feature of the jury selection process and (b) is a difficult presumption to rebut in an effort to cause a trial judge in a civil action to exercise his or her discretion, pursuant to section 108(7) of the Courts of Justice Act, to address impartiality in any way other than as strictly prescribed by the Juries Act.

[54] I note that neither the plaintiff nor the defendant referred in argument to any one of Find, Kayhan, or Thomas-Robinson.

[55] I agree with the conclusion reached by Jennings J. in Thomas-Robinson, that (a) in a civil action the only “good cause[s] for challenge” are those specified within the Juries Act and (b) the wording of the statute does not give the trial judge discretion to expand the scope of the pre-screening process to include “other unspecified good causes for challenge.” Thomas-Robinson, at paras. 10-12.

[56] The Supreme Court of Canada made it clear in R. v. Sherratt that “there is absolutely no room for a trial judge to increase further his/her powers and take over the challenge process by deciding controversial questions of partiality.” Sherratt, at p. 534. This statement was made in a criminal law case and emphasized the importance of the trial judge adhering to the challenge for cause process prescribed by the Code. In my view, it is equally as important that trial judges in civil cases adhere to the jury selection process prescribed by the Juries Act.

[57] It is clear from the decision of the Supreme Court in Sherratt that the “threshold question” to be met for a challenge for cause to proceed in a criminal case is:

[N]ot whether the ground of alleged partiality will create such partiality in a juror, but rather whether it could create that partiality which would prevent a juror from being indifferent as to the result. In the end, there must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed. Sherratt, at p. 536.

[58] The plaintiff in the matter before me filed no evidence to establish that a connection with the insurers other than that of employee-employer created “a realistic potential for the existence of partiality”. Sherratt, at para. 64. Therefore, even if it had been open to me to pre-screen the panel for the “connection” to the insurers as proposed by the plaintiff (and I find it was not open to me to do so), there was no evidence upon which to base a finding that such a connection created a realistic potential for the existence of partiality.

c) The ‘Mention’ of Insurance

[59] The plaintiff also relied on the evolution of the law with respect to jury trials and the mention of insurance. It is no longer the case that the mere mention of insurance before a jury will result in the discharge of the jury. It is now entirely within the discretion of the trial judge whether the mention of insurance supports an order discharging the jury.

[60] The test to be applied by the trial judge following the mention of insurance to the jury is set out in the Supreme Court of Canada decision in Hamstra (Guardian ad litem of) v. British Columbia Rugby Union: “[T]he trial judge should consider whether the reference has caused a substantial wrong or mis-carriage of justice, so that it would be unfair to continue with the present jury.” [1997] 1 S.C.R. 1092, at para. 20.

[61] In his decision for the majority in Hamstra, Major. J. referred to the decision of Abbey J. of the Ontario Court (Gen. Div.) in Michaud v. Wales (1991). At pp. 61 − 62 of his decision, Abbey J. said:

. . . essentially as I see it, the court must weigh all of the circumstances of the particular case and determine whether the disclosure which has been made would likely result in real prejudice such that it would be unjust to continue the trial as presently constituted. Ibid.

[62] The case law clearly indicates that the potential for prejudice to a party, the defendant in particular, by reason of the mention of insurance has dissipated over time. However, in my view, the law has not evolved to the point that it is now required, generally or in an effort to avoid partiality on the part of a prospective juror, to disclose as part of the pre-screening process the names of the motor vehicle insurers of parties involved in motor vehicle accident litigation.

[63] There are, in my view, a number of reasons why it is not appropriate to include the names of the parties’ insurers in the pre-screening process. Those reasons include the following:

• The mention of insurers from the outset would take away from the characterization of the dispute as one between citizens – a characterization that is frequently included in the remarks to the panel and remarks to the jury, the latter once selected. The jury might conclude that the matter is a dispute between insurers as opposed to a dispute between citizens of the community; and

• The jury might conclude that the plaintiff will ultimately be compensated by an insurance company, as opposed to the defendant personally. Such a conclusion ignores the possibility of personal exposure for a defendant in the event of an award of damages in excess of the third party liability limits available to the defendant.

Summary

[64] The Juries Act provides that the panel list shall include the names of the panel members, their places of residence, and their occupation. Section 18(2). The occupation as listed is frequently generic and may include descriptions such as “retired”, “manager”, “engineer”, or “clerk” without identifying the individual juror’s employer by name. Many other occupations as listed are sufficient to permit the reader to determine the precise employer of the panel member.

[65] In the matter before me, where the specific information was lacking on the jury panel sheet, the risk of a ‘partial’ juror could be and was attenuated as the prospective jurors were called forward by asking the name of the juror’s employer, or, if the juror is identified as retired, the name of the juror’s former employer. It was entirely reasonable for the parties to be provided with those particulars. If the answer given warranted the exercise of my discretion to excuse the potential juror or one of the parties to exercise a peremptory challenge (pursuant to section 33 of the Juries Act), that step could be and was taken.

[66] That was not enough for the plaintiff. She submitted that more must be known about the potential jurors. The plaintiff raised the possibility of a juror who was “connected” by marriage, by blood, or by friendship to an individual who works for one of the insurers.

[67] In my view, the risk of such a connection was small. The prospective jurors, once selected from the panel, would be and were instructed on a number of occasions that they were to discharge their duties with impartiality.

[68] First, the remarks to the panel included the following:

It is most important that every juror be impartial. An impartial juror is one who will approach the trial with an open mind. He or she will decide the case based on the evidence at trial, and the instructions on the law from the judge.

[69] It was reasonable to assume that the jurors understood the significance of that obligation and the requirement to advise the Court in the event that circumstances arose that would preclude them from being able to remain impartial if selected.

[70] I agree with the defendant that in all of the circumstances, to include the names of the insurers in the pre-screening process with the panel would result in the jury selection process being “fraught with mischief”.

[71] In addition to the remarks to the panel, the jurors selected heard opening remarks that included the passage set out below. A passage of this kind is typically included in opening remarks to the jurors, even if not in the precise wording which follows:

And now, it is our duty as judges to sit back and be keen, patient listeners; leaving it to the lawyers to present the case to us and to examine and cross-examine the witnesses. At all times, we must remain completely objective, approaching our duties without sympathy, without prejudice, being prepared to decide the case only on the evidence and on the law. If we do that to the best of our ability, our task will be properly carried out and a just and proper verdict will be arrived at in this case.

[72] Lastly, the ‘standard’ wording of a charge to the jury, including the one that I delivered, included the following passage, titled “Necessity of Impartiality”:

You must approach your deliberations fairly and dispassionately. Approach your task without sympathy or favour for one side or the other. We are all human and we all have sympathy for others. Your decision in this case will have an impact on the parties; but this is not a reason to decide a case in one way or another. The law does not favour any person.

Your deliberations must be based on the evidence, bringing to bear your individual and collective common sense and good judgment. In that way you will be assured of arriving at a fair and just verdict in this case.

[73] In summary, the jurors were instructed on at least three occasions of the requirement to approach their responsibilities in an impartial manner. In my view, the risk of the jurors failing to follow that instruction, repeated on a number of occasions, was small.

[74] The risk of a juror with an undisclosed connection to one of the insurers remaining silent and participating through deliberations was also small because there are six jurors and their decisions on each question do not have to be unanimous.

[75] I also note that if one or both of the insurers was mentioned to the jury and either one of the parties was concerned about potential prejudice to their case, whether by reason of lack of impartiality or otherwise, there were a number of potential remedies. Those remedies ranged from a mid-trial instruction being given to the jury to a motion on behalf of one of the parties for an order striking the jury. At the conclusion of evidence, the plaintiff brought a motion to strike the jury, relying on grounds entirely separate from the issues raised on this motion. The plaintiff’s motion to strike the jury was dismissed. Nemchin v. Green, 2017 ONSC 1862.

Order

[76] The plaintiff’s request to include in the pre-screening process the names of the parties’ respective motor vehicle insurers is dismissed.

Madam Justice Sylvia Corthorn

Released: April 11, 2017