What Trial Juries Aren’t Told: Verbal and Monetary Thresholds
According to Rule 47 of the Rules of Civil Procedure (as well as section 108(1) of the Courts of Justice Act for Superior Courts), any party to a civil suit has the substantive right to have the action tried by both judge and jury. After the trial has been conducted in the presence of six jurors, the presiding justice closes with a ‘Charge to the Jury,’ which is effectively a set of legal rules for the jury to follow in their deliberation.
These charges generally include a clear and explicit exposition of the law that applies to the facts of the case. A typical charge for damages would be expressed as so:
“I now turn to the question of damages. “Damages” is a term that simply means monetary or financial compensation ordered by a court for the injury or loss one person has caused another … You the jury are responsible for deciding the amount of compensation [THE DEFENDANT] should pay to [THE PLAINTIFF]…”
Civil Jury Instructions, The Continuing Legal Education Society of British Columbia (2018), s. 13.01.1.
This would be followed by more specific legal concepts, including the heads of damages, the burden/standard of proof, and remoteness. There are, however, certain essential concepts that juries are not informed of, such as the verbal threshold and monetary deductible. These doctrines have the potential to drastically affect the outcome of a trial.
Verbal Threshold: A plaintiff cannot recover general damages (i.e. non-pecuniary, intangible, pain and suffering etc.) unless they pass the verbal threshold established by section 267.5 of the Insurance Act. Ontario Regulation 461/96 sets out the criteria for determining whether an intangible injury sustained in an automobile incident qualifies under the Act. It essentially requires a “permanent serious impairment of an important physical, mental, or psychological function.”
After the jury award has been granted at the conclusion of trial, defence counsel is entitled to bring a “threshold motion” in front of the judge alone to determine whether or not the plaintiff’s injuries meet this standard. In Meyer v. Bright, 1993 CanLII 3389, the Court of Appeal helpfully outlined the sequential questions that must be proven by the plaintiff:
1. Has the injured person sustained permanent impairment of a bodily function by continuing injury which is physical in nature?
2. If the answer to question number 1 is “yes”, is the bodily function, which is permanently impaired, an important one?
3. If the answer to question number 2 is “yes”, is the impairment of the important bodily function serious?
This must be done at the trial`s conclusion and without the jury. A Superior Court of Justice decision, Clark v. Zigrossi, 2010 ONSC 5403 (CanLII) states that this best avoids the possibility of inconsistent findings of fact by the trial judge and by the jury, so long as it is accompanied by a high standard. This is meant to ensure that the right to a jury is not emasculated (see also G.W. v Rawlins, 2016 ONSC 705 (CanLII)).
Monetary Deductible: Awards with general damages face a monetary deductible for quantums that fall beneath a certain threshold. After the net damage award is assessed by the jury, the deductible is applied. The deductible’s exact amount is indexed to inflation and updated annually ($38,818.97 in 2019). Therefore, if the plaintiff’s net non-pecuniary award is $100,000, then $38,818.97 is subtracted from the original award and the total becomes $61,181.03.
Fortunately for plaintiffs, there is threshold at which the monetary deductible does not apply. This quantum is also indexed to inflation ($129,395.49 in 2019). Therefore, if the plaintiff’s net non-pecuniary award is $150,000, then the Act’s threshold is met, and the deductible does not apply.
Evidently, the monetary deductible has influential implications if a plaintiff’s non-pecuniary damages is projected to land around it. Landing on one side of the threshold could disproportionately decrease general damages since it will subject the award to the deductible. For instance, a $1,000 increase from a $129,000 to a $130,000 general damage award is not merely a $1,000 increase, but rather an increase of $39,818.97, as the deductible becomes inapplicable.
This is the process established by section 267.5(7) of the Insurance Act, which explicitly enumerates that the damage calculation is to occur before the deductible. Therefore, judges do not charge the jury with this information and through longstanding practices (i.e. cannot mention many insurance relevant facts), the jury is never notified of the deductible.
Both thresholds and the deductible were installed in the public interest, with the goal to keep smaller cases out of the system by denying plaintiffs lesser awards and keeping automobile premiums under control. However, these tools have negative consequences for access to justice, as both restrict access by providing an economic disincentive to injured plaintiffs.
These consequences are exacerbated by the fact that juries are unaware of the thresholds throughout the trial; a scenario that results in decreased compensation for the plaintiff. If juries were made aware of the monetary threshold and deductible, not only would they be cognizant of the plaintiff’s true damage award after the deductible is applied, but could also adjust the quantum to account for it. Furthermore, the verbal threshold provides an opportunity for the court to directly override a verdict or damage award granted by the jury, despite the jury being unaware of the criteria in the first place. This substantially undermines the jury`s role in the system.
If we are charging the jury to come up with the true financial compensation for the plaintiff as a result of the injuries incurred on behalf of the defendant, shouldn’t they be aware of an impending deduction and threshold motion? If we accept that the goal of the civil system is just recompensation for injury, then this question must be answered affirmatively.