Should Judges Confront Big Companies for Failing to Pay Jurors for Time Off Work?
Jury duty is an obligation dreaded by some and evaded by others. Medical reasons, familial obligations, travel plans, and the loss of an income are some of excuses used to avoid jury duty.
Recently, Justice Robert Goldstein of the Ontario Superior Court of Justice in Toronto wrote to Canadian Tire about their policy on paying jurors. While presiding over jury selection, a prospective juror told Justice Goldstein that Canadian Tire would not pay them while performing jury duty. In response Justice Goldstein wrote a letter to Canadian Tire’s general counsel, Jim Christie, and Timothy Tallon, the owner of the St. Clair West franchise.
The Toronto Star reports that the letter stated:
I find it surprising that Canadian Tire’s policy is that payment while on jury duty is a ‘company benefit… Citizens who serve on juries are not receiving a benefit; they are doing a civic duty. Trial by jury in serious criminal matters is a fundamental cornerstone of our democracy… It is vitally important that citizens be able to participate in the administration of justice in their communities, with the support of their employers… virtually all large Canadian corporations — including large franchised corporations — pay their employees while they fulfil their civic obligation to do jury duty.
I agree that employers should pay their employees while off work for jury duty. Currently, the Juries Act, RSO 1990, c. J. 3 states that every employer must allow their employee time off work if summoned for jury duty, with pay or without pay (section 41).
I can see how maddening it would be for judges to see large corporations take advantage of a loophole and fail to pay their employees while on jury duty. Especially if that company frequently uses the services of the court. However, is it okay for a judge to call a company out in the absence of a court case?
The Ethical Principles for Judges does not provide specific guidance on this issue. In the commentary, the Ethical Principles for Judges state that “While the ideal of integrity is easy to state in general terms, it is much more difficult and perhaps even unwise to be more specific. There can be few absolutes since the effect of conduct on the perception of the community depends on community standards that may vary according to place and time.”
Although Justice Goldstein’s comments could be seen as crossing a line, I think he raises an important point. Large corporations should be encouraging their employees to perform their civic duty by paying them fairly. Perhaps the problem isn’t the commentary but the law itself. The law needs rewriting.
I agree that Goldstein J raises a good point, and I think its important that Judges speak to issues that affect the administration of justice generally. They are literally on the front line of how the system functions, and see in their courts each day the impact of social legal issues such as jury duty, A2J/self-reps, mandatory sentences, heck, even the ongoing problems of determining if an order is final or not (ie. which court do you appeal to?). Their insights are valuable places to begin inquiries and initiate changes for the better.
That said, I think this judge did cross a line. Firstly, this is a policy and legislative issue – if the law should make paying jurors during their time on duty compulsory, its something that our representative politicians in the legislature ought to address. Its outside of his lane – that separation of powers thing.
Secondly, what exactly does he expect the employer’s counsel to do? A) Its not their call, and technically the company is compliant with the law, and B) does he really expect that a practicing lawyer is going to reply to his letter and disagree or challenge him on his suggestion? “Don’t argue with the judge!” we’re taught from 2L onward. If I were counsel for a company, you’d be the exception if you didn’t worry about how anything other than a compliant reply might reflect on you or your client’s reputation if they ever end up in court later. That’s just reality.
Perhaps it might be more constructive to make this statement in a letter to the Minister of Justice, or a conference, journal article, or maybe even an op-ed. Something broadly speaking that doesn’t put specific counsel on the spot. Again, I agree with this concern – but I do have some concerns about how it was voiced.
If Canadian Tire should pay, are there any employers that shouldn’t? Who gets to decide? And what about the self-employed?
The logical solution it seems to me is that jurors should be compensated for loss of employment income out of the public purse. The same purse that pays the judges.
“Crossing a line” is an understatement. Judges, even in obiter, ought to stick to facts in evidence and those comments should have some relevance to the questions they are required to adjudicate. As for the court having control over its process, judges can excuse jurors who may be unduly burdened… like for example their $300,000 salary being suspended by a free market employer creating a tax base from which judges draw. Let’s have the court’s processes analyzed by experts in business to see what it cost for the judge to control this.