Legal groups concerned about possible abolition of civil juries in B.C.

  • August 27, 2021

Critics say civil juries are costly, lengthy, unpredictable and have an increased likelihood of mistrial and the necessity for retrial.

By Keith Fraser for The Vancouver Sun

Your chances of sitting on a jury in a civil court case might be over if the B.C. government decides to abolish civil juries, which have been suspended since COVID-19 hit last year.

Two legal groups — the Trial Lawyers Association of B.C. and the Canadian Bar Association (B.C. branch) — are concerned that the government might just go ahead with a proposal to have civil cases only heard by judges.

In November, the Ministry of Attorney-General asked the B.C. Law Institute to carry out legal research on civil juries and outline options for reform that might extend beyond the pandemic.

Civil juries were suspended in March last year in order to protect the health and safety of people using the courts and will remain suspended until at least October 2022. Criminal juries are constitutionally protected and not under review.

The institute produced a paper with a number of options, including retaining civil juries, restricting jury trials to specific causes of action and the abolition of civil juries altogether. The government has asked the public to make submissions on the issue and has set a deadline of Sept. 30.

The pros-and-cons of civil juries have been debated for years with proponents saying juries are a democratizing institution, as well as a safeguard against the abuse of power, and bring community standards to bear on dispute resolution in addition to leading to more settlements.

The critics say they’re costly, lengthy, unpredictable and have an increased likelihood of mistrial and the necessity for retrial. Jury notices are also said to be used for tactical purposes.

Kevin Gourlay, president of the trial lawyers association, said that his group believes that access to justice and access to the jury system remains an “integral part” of civil justice in B.C. He said that his group supported the pandemic suspension as part of broader measures in public safety, but assumed that the measures weren’t part of a policy effort to permanently eliminate civil juries.

“Serving on a civil jury remains really the most direct way of members of the public to take part in the justice system,” he said.

The government hasn’t indicated which option it prefers and Attorney-General David Eby wasn’t available to comment, but Gourlay is concerned that they’ll decide to scrap civil juries. He said he’s concerned about what he calls the erosion of the public’s access to justice including the creation of tribunals that limit an individual’s right to access the courts.

“We’ve really seen an erosion of those rights in recent years and decades, and the loss of the civil jury would be another step towards the elimination of those rights and that is a concern.”

Jennifer Brun, president of the bar association (B.C. branch), said the starting point is that the civil jury is a substantive right of great importance that an individual shouldn’t be deprived of except for cogent reasons.

“And in our view those reasons must be based on empirical evidence. And what we know is that there is a lack of data out there, so whether or not to abolish civil jury trials should be based on actual statistics in our view,” she said.

Brun said that her association conducted a recent online survey that found the membership was split on the issue of whether civil juries should continue. She said that she thinks there’s a “real, live possibility” that the government will abolish civil juries, making B.C. only the second province in Canada, after Quebec, to do so.

“I think because of the steps we’ve seen taken and because of the trend that we’ve observed of moving away from the adjudication of disputes in the courts, more towards private administrative tribunals, I see rights being taken away and that is concerning to me,” she said.