New Brunswick’s attorney general is proposing regulatory changes that will get rid of civil jury trials, except in a few types of actions.
If the proposal becomes law, litigants will have to foot the bill for jury costs in civil actions where a jury trial is an option.
The proposal, which is open to public review and feedback until April 12, is both “aggressive” and “ridiculous,” say lawyers.
“It’s a huge step backwards,” says Barry Mason, a partner at Pressé Mason in Nova Scotia.
“The real value of the jury system is that it keeps the judicial system in line with what society is thinking. Judges alone don’t always have the pulse of the community,” adds Mason, who also works on cases in New Brunswick.
The proposal is looking to do away with juries in all civil cases except slander, malicious arrest, malicious prosecution, and false imprisonment actions if the court is satisfied it is “just and convenient.”
But even in the cases covered by the exception, “if a trial by jury is ordered under paragraph (2), the costs of the jury are to be borne by the parties and the motion judge may determine what proportion of those costs each party is to pay, if any, or leave that determination to the trial judge,” the proposed amendment reads.
The proposal is an affront to access to justice, says Mason, adding legal costs are already prohibitive to litigants in the civil justice system without the added requirement of paying juries.
“There’s already enough costs in the system, you don’t need to be burdening people even more,” Mason adds.
To Brian Awad, a partner at McInnes Cooper’s the litigation team, the proposal to do away with juries in a swath of actions is more drastic than the plan to charge for juries. While charging for the cost of juries is “offensive,” eliminating the option of a civil jury trial is “the really aggressive provision,” he says.
If the proposal passes, Awad says the option to be heard by juries will go away for his entire practice.
“As a lawyer, I’d prefer to continue to have that option,” he says. “I don’t think it’s necessarily the case that in all cases, a judge is the better judge than seven citizens,” he says.
Awad, who practises in Nova Scotia, says it’s hard to understand the rationale for the proposal since there aren’t many civil jury trials in N.B. anyway.
“Why are they doing this? There’s not a flood of jury trials in New Brunswick as far as I’m aware,” he says. “Why take such a strong position that’s going to upset people...to save what seems to be very little money?”
The N.B. attorney general’s office admits the civil jury system is rarely used. In fact, according to an e-mail from office of the Attorney General spokeswoman Anne Bull, there may have been one trial by jury in the province in the last 15 years.
“The existing rule on civil juries dates back to the 1930s. If used, it lengthens civil proceedings and adds complexity for the parties involved in a dispute, compared to the usual procedure of civil trials by judge. The procedure has been abolished in Quebec and at the Federal Court level. Further, provisions requiring the parties to pay the cost of civil juries exist in most Canadian jurisdictions,” says Bull.
The proposed regulation comes after discussions between the AG’s office, the Rules Committee established under the Judicature Act, and the bar, says Bull.
“It is important to note as well that these are draft regulations only and have been posted for public review. We welcome all suggestions and will take them into consideration when the final version of the regulations is drafted,” she adds.
Jurors in New Brunswick are paid $20 for a half-day’s attendance or less than four hours and $40 for full day’s attendance. If a trial last 10 days or longer, a juror will be paid $40 for each half day and $80 for each full day of attendance starting on day 10 of the trial. Juries may also be compensated for meals and travel expenses.
