The title for this case summary could have been varied, such as:<\/p>\n
Civil litigation trials with juries are often more challenging to conduct for a variety of reasons.\u00a0 First there is a need to develop the art of jury selection, and then there is a need to develop good stage presence for the jury, because little nuances that perhaps mean very little to the presiding judge, can impact jury members in many different (unknown) ways: talking too fast, or sounding condescending or too rough, or boring them with legalese, or not giving them enough eye contact, etc.\u00a0 Much of this is intangible, but it is still a factor that often separates successful litigation lawyers from the ineffective ones.<\/p>\n
But one of the most challenging features of a jury trial are the instructions to the jury and the list of questions that the jury must \u201canswer.\u201d \u00a0Litigants don\u2019t instruct juries, but litigants must be very attentive to the judge\u2019s instructions to the jury, because if a mistake is made, it should be brought to the judge\u2019s attention, and this can be very challenging.\u00a0 First it is very difficult to quickly identify errors, and often what may seem like an error is clarified or better explained later on in the judge\u2019s instruction.\u00a0 Second, it is always difficult to know whether the clarification you are seeking will actually help or hinder your case.\u00a0 But in the end, if a jury is not instructed correctly, a new trial may have to be ordered. \u00a0<\/p>\n
The list of questions for the jury to answer, however, are typically generated through the effort of the parties and the judge.\u00a0 As such, the parties have more say in the list of formal questions that the jury will have to answer.\u00a0 However, even after you get through an acceptable list of questions to pose to the jury, the final blow can come on interpreting the jury\u2019s answers.\u00a0 Sometimes the answers are not as clear as they could be, especially since jurors for the most part don\u2019t have legal training.\u00a0<\/p>\n
This case is a fantastic illustration of how the jury answers caused a rift of debate, leading the trial judge and first appellate court to effectively nullify the jury’s answers and the jury’s verdict against the defendant doctors, to require a new trial, only to then be reversed on a second appeal whereby the jury\u2019s verdict against the doctors was restored.\u00a0 This resulted in a judgment against the two doctors for just shy of $15,000,000.00.\u00a0<\/p>\n
As is clearly evident, there was a lot on the line over how to interpret the jury\u2019s \u201canswers,\u201d and this represents a striking example of how Jury trials can infuse additional hoops-and-loops for the litigants.<\/p>\n
This case involved alleged negligence of two doctors caring for a pregnant and birthing mother: following a difficult birth the newborn suffered a seizure leading to serious disabilities.\u00a0 A jury concluded that the defendant physicians failed to meet the standard of care required of doctors looking after pregnant patients and that this failure caused the newborn\u2019s disabilities.<\/p>\n
The problem in this case is that although the trial judge concluded that there was evidence capable of supporting the jury\u2019s decisions, the trial judge refused to enter judgment in accordance with the jury\u2019s verdict on the ground that the jury\u2019s explanation on what acts on the part of the doctors caused the injuries were insufficiently laid out.\u00a0 A new trial was ordered.<\/p>\n
The first question is, can the trial judge ignore the conclusions reached by a jury?\u00a0 The answer is yes.\u00a0 The grounds upon which a trial judge may refuse to grant judgment in accordance with a jury verdict are limited both by the Rules of Civil Procedure and by the jurisprudence.\u00a0 Rule 52.08 (1)<\/span> stipulates that:<\/p>\n \u201cWhere the jury,<\/span><\/p>\n (a) disagrees;<\/span><\/p>\n (b) makes no finding on which judgment can be granted; or<\/span><\/p>\n (c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,<\/span><\/p>\n the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.”<\/span><\/p>\n In this case, the trial judge relied on Rule 52.08 (1)(b), on the theory that the jury didn\u2019t sufficiently explain how the conduct of the doctors caused the injuries when they answered the questions as follows:<\/p>\n \u201c2(a) If your answer to question 1(a) is yes, have the plaintiffs satisfied you on the balance of probabilities that, but for the breach of the standard of care, Rhonda would not have sustained brain damage?<\/span><\/p>\n Answer: YES<\/span><\/p>\n (b) If your answer to question 2(a) is yes, how did \u2026(Dr. X\u2019s)\u2026 breach of the standard of care cause Rhonda\u2019s brain damage? Please provide clear and specific answers:<\/span><\/p>\n Dr. \u2026(X\u2019s)\u2026 failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda\u2019s brain damage.<\/span><\/p>\n [. . .]<\/strong><\/span><\/p>\n 4(a) if your answer to question 3(a) is yes, have the plaintiffs satisfied you on the balance of probabilities that, but for the breach of the standard of care Rhonda would not have sustained brain damage?<\/span><\/p>\n Answer: YES<\/span><\/p>\n (b) If your answer to question 4(a) is yes, how did \u2026 (Dr. Y\u2019s)\u2026breach of the standard of care cause Rhonda\u2019s brain damage? Please provide clear and specific answers:<\/span><\/p>\n Dr. \u2026(Y\u2019s)\u2026 failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more likely than not caused her brain damage.\u201d<\/span><\/p>\n The entire controversy came down to the fact that jury used the term \u201chigher risk,\u201d<\/em> which in legal parlance is technically insufficient to establish \u201ccausation\u201d in law, which requires a conclusion that \u201cbut for\u201d the acts of neglect, the outcome would not have occurred.\u00a0 As such, to say the doctors\u2019 actions put someone \u201chigher at risk\u201d does not quite connect the cause-and-effect<\/em> dots.\u00a0 It was the basis for the trial judge to assert that the answers were insufficient, and that a new trial was required.<\/p>\n The problem, as explained by the Ontario Court of Appeal is that \u201c<\/em>jurors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary.\u201d<\/em>\u00a0 In conclusion, the Ontario Court of Appeal agreed with the following dissenting opinion in the first appeal (before the Ontario Divisional Court):<\/p>\n \u201c(The jury\u2019s answers)\u2026 are not inconsistent with the verdict.\u00a0 They show that the jury accepted the plaintiff\u2019s theory of causation and rejected the defence theory of causation.\u00a0 The parties\u2019 causation theories were binary choices.\u00a0 Therefore, even though the jury\u2019s impugned reasons are conclusory, the path to their conclusion is evident.\u00a0 That path is not based on impermissible reasoning nor is it contrary to any principle of justice.<\/span><\/p>\n [\u2026]<\/span><\/p>\n Where, as here, the reasons are consistent with the verdict and are not premised on impermissible reasoning or a principle inconsistent with justice, the court should enter judgment in accordance with the jury\u2019s verdict.\u201d<\/span><\/p>\n The Ontario Court of Appeal added: \u201cthere is no basis to conclude that the jury proceeded on any erroneous premise or was confused or mistaken as to the instructions given to it. The answers given are not tainted by doubt or ambiguity.\u201d<\/em><\/p>\n Should Juries Be Asked to Give Answers on Causation?<\/strong><\/p>\n The Ontario Court of Appeal addressed whether it is appropriate to continue to ask a jury to provide particulars of its findings, and although not providing any general rule, the appellate court did provide this guidance:<\/p>\n \u201cJury deliberations are not transparent, and there is an element of inscrutability to every jury verdict. Where there are, as here, multiple reasoning paths that could lead to a finding of causation, asking for particulars may undermine the integrity of the jury\u2019s verdict more by infelicities of expression than any real concern for the merits of the jury\u2019s decision or reasoning and may stretch the limits of what a jury can reasonably be expected to give by way of reasons.\u201d<\/span><\/p>\n In the end, seven judges in total had a say in this case, and three sided with having a new trial, and four sided with entering judgment in accordance with the jury\u2019s verdict, all stemming from the use of two words used by the jury: \u201chigher risk.\u201d\u00a0 If the jury question ended at the first question, \u201cbut for the breach of the standard of care, would Rhonda not have sustained brain damage,\u201d<\/em> this long stretch of appeals (including a motion for leave to appeal) would have not been necessary.<\/p>\n However, without some question posed to the jury on causation, it is hard to know whether the jury used an unavailable legal route to find a breach of the standard of care. \u00a0Indeed, it was a recommendation of the Supreme Court of Canada in ter Neuzen v. Korn, <\/em>1995 CanLII 72 (SCC)<\/a>, [1995] 3 S.C.R. 674 that jury\u2019s be asked to \u201cspecify in what respects the defendant was negligent\u201d<\/em> in order to \u201creveal whether the jury has understood and applied the judge\u2019s instruction that it must accept the standard practice as the legal standard against which the defendant\u2019s conduct can be measured.\u201d<\/em><\/p>\n Concluding Comments<\/strong><\/p>\n Moving forward, it would appear that the take-away from this case is that jurors should be asked to provide a modicum of an explanation to ensure that they are relying on some acceptable legal or factual theories, but for judges not to get too hung-up on the words used by the jurors since they are not legally trained professionals.<\/p>\n Cheung v. Samra<\/em><\/strong>, 2022 ONCA 195\u00a0<\/p>\n