Courts losing patience with jury no-shows

Penalties for employers that don’t grant leave can include fines of $10,000, jail for 3 months
By Amanda Silliker
|Canadian HR Reporter|Last Updated: 04/25/2011

Nearly 300 prospective jurors did not show up when summoned for the Jordan Manners murder trial in Toronto in March. (Manners was a Toronto high school student shot at school in 2007.) Almost 50 failed to appear at a Brampton, Ont., murder trial in February. And between 11 per cent and 21 per cent of prospective jurors have avoided appearing for duty in 42 different Brampton trials between September 2010 and January 2011, according to findings by Justice Casey Hill.

“If (so many) individuals are not showing up without providing any reason, then that’s a serious systemic problem,” said Elizabeth Traynor, a partner at Siskinds law firm in London, Ont. “Somehow, the message is not getting out to people that this is a fundamental aspect of their civic duty.”

People might not be showing up for jury duty due to work-related pressures, said Traynor. A person with an admirable work ethic might feel she is unable to miss even a couple of weeks to serve jury duty, she said. If this is the case, a request can be made upon immediately receiving the summon, in writing, to the court office with an explanation of the difficulty, said Brendan Crawley, spokesperson for Ontario’s Ministry of the Attorney General. Then it’s up to the judge to grant exclusion or not.

The submissions must indicate hardship to the employer, above and beyond inconvenience, such as an employee who is at a very high level in an organization or someone scheduled to speak at a conference the following day or week, said Nancy Shapiro, a partner at Koskie Minsky law firm in Toronto.

“It has to be something pre-scheduled that the person is instrumental in carrying out,” she said. “It’s not going to be enough that the person is going to be away from work — it has to be something far more than that.”

When Dick Robinson, president of the Robinson Consulting Group in Calgary, was summoned to jury duty, his employer wrote directly to the judge asking him to be excluded. At the time, he was on the bargaining team for a nursing union and it would have been a serious hardship to the employer for him to be absent from the bargaining table during negotiations, he said.

Unless exclusion is granted, an employer is obligated to give an employee time off to attend the full length of jury duty. In Ontario, an employer’s obligations are outlined in the Jury Act.

“It is fairly similar across the country,” said Traynor. “Some combination of employment standards legislation and legislation related to juries will have the same result, generally, in most provinces.”

If an employer does not follow its obligations, there can be a variety of consequences. In Ontario, if an employer does not grant leave, it may face imprisonment for three months or be fined up to $10,000, or both, said Shapiro.

In addition, if an employer doesn’t grant leave, it can be liable for any loss the employee suffers, said Traynor.

“Employers who discourage employees from attending jury duty open themselves up to a significant liability,” she said. “If the employee does not appear because they have been told they will lose their position, the employer risks being indebted to the employee for any fine that may be applied.”

When an employee returns from jury duty, an employer must reinstate her position with no loss of seniority, wages or benefits, said Shapiro.

However, an employer is not required to pay an employee while on leave for jury duty, which may be another reason an employee might not be interested in showing up at court, said Traynor. In Ontario, those selected for the jury panel receive no compensation for the first 10 days, $40 per day as of the eleventh day and $100 as of the fiftieth day. However, many employers continue to pay employees during their leave.

“There are many employers who see it as a civic duty to support the jury process,” said Traynor. “They know most employees aren’t in a position to lose a considerable amount of pay if called for a lengthy trial.”

There are some additional costs to an employer when an employee is called for jury duty. The employer may need to bring in temporary help to fill the role, which will result in additional salary costs, assuming the employer continues to pay the employee on leave, said Shapiro. And productivity may suffer since the temporary person may not be as productive as the regular employee, said Traynor.

“A very lean organization of any size is going to struggle with releasing someone for jury duty,” said Traynor. “Where employers have already cut to the bone in terms of staffing, losing someone for an additional period, particularly a lengthy trial, is going to be difficult.”

Every employer should have a policy in place surrounding leave for jury duty, said Shapiro. It should outline the compensation, the impact on benefits and the obligations of both the employer and the employee during leave, she said. And it should be signed by employees on an annual basis, said Robinson.

The policy should also make it clear the employer supports the employee and the judicial process.

“It’s a privilege in a democratic society to vote and serve on juries and be a part of the judicial system,” said Robinson. “Given the fact that it’s a citizen’s duty, I would think it’s an employer’s duty to be supportive in any way possible.”

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