the denver post office and federal court house

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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.

(Views are my own and do not reflect the views of any organization. This post was originally posted on slaw.ca)