Ontario Civil

Civil Practice and Procedure


Jury trial

No authority to expand pre-screening process to identify potential partiality

Plaintiff and defendant were preparing for jury trial to resolve issues arising from 2010 MVA. Plaintiff sought to pre-screen potential jurors for “connections” to one or both of parties’ insurers. Plaintiff brought motion for order that names of parties’ respective auto insurers be included in list made available to jury members of “persons involved” in case in pre-screening process. Motion dismissed. Plaintiff provided no authority for trial judge to exercise discretion to expand pre-screening process to identify potential partiality on any basis other than racial bias. Juries Act did not give trial judge discretion to expand scope of pre-screening process and Supreme Court had made it clear that trial judge could not take over challenge process by deciding controversial questions of partiality. Mention of insurers from outset could lead jury to conclude that matter was dispute between insurers or that plaintiff will ultimately be compensated by insurance company, as opposed to defendant personally, conclusion which would ignore possibility of personal exposure for defendant in event of award of damages in excess of third party liability limits available to defendant. In selection of jury for civil case, there was no statutory equivalent to challenge for cause as in criminal process, but there was presumption that jurors were capable of fulfilling their responsibilities in impartial manner which was important feature of legal system and difficult to rebut. Plaintiff led no evidence to establish that connection with insurers other than that of employee-employer created “realistic potential for existence of partiality,” so even if court could perform such pre-screening, there was no evidence upon which to base finding that connection created realistic potential for partiality. Although it was no longer case that mere mention of insurance before jury would result in its discharge, law had not evolved to point that names of parties’ insurers in MVA litigation had to be disclosed as part of pre-screening process generally or in effort to avoid partiality on part of prospective juror. Risk of “partial” juror could be dealt with by asking about juror’s employers. Jurors were instructed at least three times as to impartiality, so risk of juror with undisclosed connection to insurer remaining silent and participating through deliberations failing to follow instruction was small.

Nemchin v. Green (2017), 2017 CarswellOnt 5112, 2017 ONSC 2126, Sylvia Corthorn J. (Ont. S.C.J.).


cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

A Law Society of Ontario tribunal has ruled that a lawyer charged with offences related to child pornography should not be subject to an interlocutory suspension. Do you agree with this decision?