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[56]           Second, in my view the supposed purpose of civil jury trials suggested by Justice Myers, together with any corresponding suggestions of inherent injustice supposedly inflicted by the civil jury system, fly in the face of repeated indications by the Supreme Court of Canada and our own Court of Appeal that civil jury trials ensure our system of justice benefits from the “wisdom of … collective life experience”, “a healthy measure of common sense” and a “reflection of societal values” that jurors bring to trials, and that “one of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities”.  I do not think those appellate statements, emphasizing the true purpose and contributions to justice of the civil jury system, should or can be effectively dismissed as some form of sham or meaningless verbiage.  To the contrary, those appellate views are binding on the judges of this court.  Moreover, the wisdom and accuracy of those appellate views seems readily apparent when one considers precedents dealing with motions to strike jury notices extending decades into the past; precedents which seem to suggest periods when such motions were brought predominantly by defendants, and other periods, (including the experience of recent years), wherein such motions have been brought primarily by plaintiffs.  If defendants and plaintiffs, over time, successively perceive their preferences to be out of step with current jury verdict trends, (i.e., because jurors appear to be giving expression to an outlook on underlying realities and society values not favoured at the time by defendants or plaintiffs, as the case may be), one legitimate inference is that the civil jury system is not broken but instead working as intended.

[57]           Third, I do not think the comments of Justice Myers were meant to suggest that insurers were somehow cynically intent on using the jury system to work injustice, as opposed to choosing the mode of trial they thought most likely to result in true justice in particular cases.  In any event, to the extent the comments of Justice Myers have been perceived to have that meaning by plaintiff counsel, I disagree with them.  Appellate courts repeatedly have emphasized that trial judges should not permit counsel, in submissions to a jury, to demonize or impugn a litigant’s motives or morality, as such considerations lead to flawed and prohibited reasoning.  In my view, judges should not engage in any similar process or reasoning in relation to an insured defendant’s filing of a jury notice, in the absence of clear evidence to support accusations of wrongful intent.

[58]           Fourth, and more generally, to the extent the comments of Justice Myers suggest that chronic pain claimants are incapable of receiving a fair and favourable verdict from a jury, (including substantial damage awards in appropriate cases, where the subjective claims of a plaintiff are found to be credible), that is not my view or experience for the reasons outlined above.

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S. M. T. c R. C., 2018 CanLII 103928 (ON HPARB), <http://canlii.ca/t/hvx42 

1.           It is the decision of the Health Professions Appeal and Review Board to return the decision to the Inquiries, Complaints and Reports Committee of the College of Occupational Therapists of Ontario as unreasonable, and to require it to reconsider its decision to order  S. M. T. (the Applicant) to complete a Specified Continuing Education and Remedial Program (“SCERP”). The terms of the SCERP are as follows:

The provisions of the SCERP designed for [the Applicant] are to be completed within three months of the conclusion of the complaints review process and include the submission of a reflective essay of approximately 1,500 words to the satisfaction of the Registrar. In this essay, the panel expects [the Applicant] to reflect on the Colleges Standards for Occupational Therapy Assessments and in particular the importance of ensuring that information contained in the occupational therapy assessment report is thorough, that it accurately reflects a claimant’s functional abilities and that it is supported by objective measures.

In addition to reflecting on what steps [the Applicant] has taken to educate herself on how to properly document the steps taken to reach an overall conclusion in an assessment report, the reflective essay to be prepared by [the Applicant] should explain how to properly perform active and passive range of motion, and strength testing.

2.           This decision arises from a request made to the Health Professions Appeal and Review Board (the Board) by S. M. T., OT to review a decision of the Inquiries, Complaints and Reports Committee (the Committee) of the College of Occupational Therapists of Ontario (the College). The decision concerned a complaint by R. C. (the Respondent) regarding the conduct and actions of the Applicant. The Committee investigated the complaint and determined that a Specified Continuing Education and Remedial Program (“SCERP”), as set out above, was required.