Brochu v. Pond
Citation: 62 O.R. (3d) 722, [2002] O.J. No. 4882, Docket No. C35180 Court: Court of Appeal for Ontario Judges: Rosenberg, Sharpe and Cronk JJ.A. Date: December 19, 2002
Civil procedure -- Trial -- Charge to jury -- Trial judge in civil action for damages for personal injuries not required to describe evidence of each witness in detail in charge to jury -- Trial judge clearly identifying issues in medical malpractice action and relating issues in summary way to positions of parties as established by evidence and to applicable legal principles -- Charge not materially deficient although trial judge could have expanded upon evidence and linking of evidence to issues.
Civil procedure -- Trial -- Jury addresses -- Defence counsel in medical malpractice action making references in opening address to jury to taking stand against frivolous lawsuits that were undermining health care system and to shortage of physicians in local community -- Comments inappropriate -- Trial judge instructing jury to disregard opinions expressed by counsel and to decide case on basis of evidence -- Trial judge specifically stating that state of health care in community was not issue -- Trial judge's instruction sufficient to remedy any prejudice that may have arisen from opening address.
The plaintiff sustained an ankle injury when she fainted while alone in the defendant gynaecologist's examining room after a pelvic examination. She brought an action for damages, alleging that the defendant was negligent in, among other things, leaving her unattended in the examining room, failing to take a proper medical history and failing to identify the signs and symptoms of an impending faint. The jury found that the defendant had not been negligent in his care of the plaintiff. The plaintiff appealed, arguing that the opening and closing addresses of defence counsel were inflammatory, appealed to the emotions of the jurors and reflected the personal opinions of counsel, and that those deficiencies deprived the plaintiff of a fair trial. The plaintiff also argued that the trial judge erred in his charge to the jury by failing to review the evidence of the witnesses at trial and the positions of the parties and by failing to relate the applicable law to the issues and the issues to the evidence.
Held, the appeal should be dismissed.
In her opening address to the jury, defence counsel stated that "this case is really about taking a stand against cases that are frivolous, that are undermining our health care system", and pointed out that the defendant was one of only two gynaecologists in the local community. These comments were inappropriate because they appealed to the emotions and fears of the jurors and encouraged them to consider factors irrelevant to the basic issues in this case. However, following dismissal of the plaintiff's motion for a mistrial, the trial judge instructed the jury to base their verdict on the evidence and to disregard the opinions expressed by counsel. The trial judge specifically stated that the case was not about the state of health care in the community. This instruction clearly addressed the material errors made by defence counsel in her opening address and left no uncertainty as to the proper way in which the jurors were to approach their task. The instruction was sufficient to remedy any prejudice that may have arisen from the opening address of defence counsel.
While the plaintiff also attacked statements made by defence counsel in her closing address to the jury, many of the challenged statements were matters of argument grounded in the evidence or directly linked to the issues in question. In other instances, while the language employed by defence counsel was unfortunate or imprudent, her comments did not deprive the plaintiff of a fair hearing or otherwise result in a miscarriage of justice.
The trial judge did not review all of the testimony at trial in his charge to the jury. Similarly, in directing the jurors on the issues to be determined, he did not review all of the evidence relating to those issues. However, he was not required to do so. The standard to be met by trial judges in their charges to the jury in a civil action for damages for personal injuries does not require that the evidence of each witness on particular issues be described in detail. A trial judge discharges his or her function adequately if the position of the parties concerning the testimony at trial are outlined, if attention is drawn to the issues of fact as they arise from the evidence and to the evidence bearing upon those issues and if those issues are related to the relevant legal principles. In this case, the issues were clearly identified by the trial judge and related in a summary way to the positions of the parties as established by the evidence and to the applicable legal principles. A new trial in a civil case should not be ordered unless the interests of justice plainly require this to be done. While it would have been better in this case for the trial judge to have expanded upon the evidence and the linkage of the evidence to the issues, the charge was not materially deficient.
APPEAL from a judgment dismissing an action for damages for personal injuries.
Cases referred to Arland and Arland v. Taylor, [1955] O.R. 131, [1955] 3 D.L.R. 358 (C.A.); Hall v. Schmidt (2001), 56 O.R. (3d) 257, 2002 I.L.R. 1-4021, 15 C.P.C. (5th) 121 (S.C.J.); Hesse v. Saint John Railway Co. (1899), 30 S.C.R. 218; Martin v. Pacific Western Airlines Ltd. (1981), 24 C.P.C. 237 (B.C.S.C.); R. v. Boucher (1954), [1955] S.C.R. 16, 20 C.R. 1, 110 C.C.C. 263, [1954] Que. Q.B. 592; R. v. Finta, [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513, 165 N.R. 1, 20 C.R.R. (2d) 1, 88 C.C.C. (3d) 417, 28 C.R. (4th) 265, affg (1992), 92 D.L.R. (4th) 1, 9 C.R.R. (2d) 91, 73 C.C.C. (3d) 65, 14 C.R. (4th) 1 (Ont. C.A.); R. v. Swietlinski, [1994] 3 S.C.R. 481, 119 D.L.R. (4th) 309, 172 N.R. 321, 24 C.R.R. (2d) 71, 92 C.C.C. (3d) 449, 33 C.R. (4th) 295 (sub nom. Swietlinski v. Ontario (Attorney General)); Smith v. Wheeler (1974), 1 O.R. (2d) 329, 40 D.L.R. (3d) 209 (C.A.); Stewart v. Speer, [1953] O.R. 502 (C.A.); Thompson v. Fraser Companies Ltd., [1930] S.C.R. 109, [1929] 3 D.L.R. 778
Authorities referred to Halsbury's Laws of England, 4th ed., vol. 37 (London: Butterworths, 1982) Lubet, S., adapted for Canada by S. Block and C. Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000) Olah, J.A., The Art and Science of Advocacy, looseleaf, Vol. 1 (Toronto: Thomson Carswell, 1990) Sopinka, J., D.B. Houston and M. Sopinka, The Trial of an Action, 2nd ed. (Toronto and Vancouver: Butterworths, 1998)
Almeda Wallbridge, for appellant. Charles T. Hackland and François Baril, for respondents.
The judgment of the court was delivered by
1CRONK J.A.: -- The appellant sustained injuries to her left ankle when she fainted while alone in a physician's examining room after a pelvic examination. She unsuccessfully sued the examining physician and his secretary, claiming damages for her injuries. On this appeal she challenges the propriety of comments by defence counsel in her opening and closing addresses to the jury, and the adequacy and fairness of the trial judge's charge to the jury.
A. BACKGROUND
2The respondent Donald G. Pond is a gynaecologist and obstetrician who practises medicine in Timmins, Ontario. The appellant is also a resident of Timmins. At the relevant time, the respondent Carole Lajoie was Dr. Pond's secretary.
3In February 1997, the appellant twice attended at Dr. Pond's offices for medical care concerning her gynaecological condition. On each occasion, Dr. Pond conducted a pelvic examination of the appellant without incident. In December 1997, the appellant again attended at Dr. Pond's offices, seeking information about her condition. Although initially hesitant to do so, the appellant agreed to undergo a further pelvic examination. When that examination was completed, Dr. Pond left the examining room. In his absence, the appellant fainted. When Dr. Pond returned several minutes later, he discovered the appellant lying on the floor, with an injured ankle.
4In her statement of claim, the appellant alleged, among other matters, that Dr. Pond was negligent in: (i) leaving her unattended in his examining room; (ii) failing to take a proper medical history; (iii) failing to identify the signs and symptoms of an impending faint, seizure or vasovagal response by the appellant to the pelvic examination; (iv) responding unprofessionally to the appellant's behaviour and concerns during the pelvic examination; and (v) failing to note and record the appellant's alleged statement on previous attendances that she had a tendency to pass out, or faint. The appellant further claimed that Dr. Pond was negligent in failing to instruct Ms. Lajoie to attend with the appellant; in the alternative, she asserted that Ms. Lajoie was negligent in failing to respond immediately to instructions from Dr. Pond to attend with her. The appellant claimed damages for pain and suffering, loss of income from employment, medical expenses and treatment, and loss of enjoyment of the amenities of life.
5The evidence at trial established that the appellant had experienced fainting episodes, including during pelvic examinations, on occasions prior to her attendances with Dr. Pond. She failed to disclose that medical history to Dr. Pond prior to his examinations of her in 1997. Consequently, and because the appellant allegedly manifested no evident signs of a potential faint while he was present in the examining room, Dr. Pond claimed that he could not have predicted or prevented the appellant's faint and resulting ankle injury.
6The appellant abandoned her claims against Ms. Lajoie upon the completion of the evidence at trial, and before the closing addresses to the jury.
7The jury found that Dr. Pond had not been negligent in his care of the appellant. It assessed general damages, including damages for pain and suffering and loss of amenities of life, in the sum of $25,000 and damages for loss of income in the sum of $20,000. Based on the jury's verdict, the trial judge directed a dismissal of the action, with costs.
B. ISSUES
8The appellant makes two arguments in support of her appeal. First, she contends that the opening and closing addresses of the respondents' counsel were inflammatory, appealed to the emotions of the jurors, painted the appellant as "an enemy of the state", reflected the personal opinions of the respondents' counsel, and invited the jurors "to ask what they would do in the appellant's case". The appellant submits that those deficiencies deprived the appellant of a fair trial.
9Second, the appellant challenges three aspects of the trial judge's charge to the jury. She maintains that: (i) the trial judge misdirected the jury on the upper limit of general damages, the application of employment insurance benefits, the calculation of loss of competitive advantage and the failure of the appellant to attend for a defence functional capacities evaluation; (ii) overall, the charge was unfair and slanted against the appellant; and (iii) the trial judge erred by failing to review the evidence of the witnesses at trial, including the testimony of the expert witnesses, and the positions of the parties concerning the opinion evidence, and further, by failing to relate the applicable law to the issues and the issues to the evidence.
10For the reasons that follow, I conclude that the appellant has failed to demonstrate any reversible error by the trial judge, or that she was deprived of a fair trial by reason of the comments of the respondents' counsel. Accordingly, I would dismiss the appeal.
C. ANALYSIS
(1) Addresses to the Jury
11The purpose of opening and closing addresses to a jury in a civil trial differ, as do the limitations of each.
12The following statement in Halsbury's Laws of England, 4th ed. (London: Butterworths, 1982), vol. 37 at para. 513, quoted in John Sopinka, Donald B. Houston and Melanie Sopinka, The Trial of an Action, 2nd ed. (Toronto and Vancouver: Butterworths, 1998) at p. 74, aptly describes an opening address:
The object of an opening is to give the court a general notion of what will be given in evidence. . . . In his opening, counsel states what he submits are the issues and the questions between the parties which have to be determined, what are the facts of the case, the substance of the evidence he has to adduce and its effect on proving his case, and he will refer to the relevant correspondence between the parties and other documents. He will remark upon any point of law involved in the case, but the opening is not the occasion for detailed argument on legal questions or an extensive examination of the authorities. In opening, counsel may refer to those facts of which the court takes judicial notice. Neither in the opening nor at any stage of the trial may counsel assert his personal opinion on the facts or the law, or mention facts which require proof but which it is not intended to prove, or which are irrelevant to the issue to be tried.
(Emphasis added)
See also Steven Lubet, adapted for Canada by Sheila Block and Cynthia Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000), at pp. 338-40 and 379-80.
13Sopinka, Houston and Sopinka, in The Trial of an Action, further caution at p. 78:
Extravagant and inflammatory statements should be avoided in the opening as a matter of tactics. In the former case they may not be supportable and in the latter they may bring down the ire of the judge. In jury trials, this may result in a mistrial.
(Footnotes omitted)
14John A. Olah, in The Art and Science of Advocacy, looseleaf (Toronto: Thomson Carswell, 1990), vol. 1 at pp. 8-5 to 8-6 suggests that an opening address has the narrow and limited function of "defin[ing] the issues in the case and [outlining] those facts that will be adduced to establish the allegations advanced by the party". (Footnotes omitted)
15Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence. See R. v. Finta (1992), 92 D.L.R. (4th) 1, 73 C.C.C. (3d) 65 (Ont. C.A.), affd [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513; R. v. Boucher (1954), [1955] S.C.R. 16, 20 C.R. 1; and Lubet, adapted for Canada by Sheila Block and Cynthia Tape, Modern Trial Advocacy: Canada, at pp. 426-27.
16Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are "inflammatory", in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. See, in the criminal law context, R. v. Swietlinski, [1994] 3 S.C.R. 481, 119 D.L.R. (4th) 309, at pp. 506-10 S.C.R. Olah, in The Art and Science of Advocacy, at p. 8-8 also states that requesting a jury to act in a representative capacity will result in a mistrial.
17Within those general constraints, however, and in contrast to opening addresses to a jury, counsel is afforded considerable latitude in a closing address: Sopinka, Houston and Sopinka, The Trial of an Action, at p. 130. In Stewart v. Speer, [1953] O.R. 502 (C.A.) at p. 508, Hogg J.A. commented for this court concerning closing addresses:
It was said by Mr. Justice Riddell in Dale v. Toronto R.W. Co. (1915), 34 O.L.R. 104 at 108, 24 D.L.R. 413, that: ". . . a jury trial is a fight and not an afternoon tea." He further said that counsel has the right to make an impassioned address on behalf of his client and that in some cases it is his duty to do so, so long as it does not offend in other respects, and the Court should extend considerable latitude, "even to extravagant declamation". But the learned judge qualified this statement by stating that an unfair presentation to the jury should at once be checked and would warrant the trial judge in trying the case alone.
There is truth in the observation made by Mr. Justice Riddell that a jury trial is a fight but, giving this remark its full value, there are certain rules which must be complied with, designed to ensure fair play to the opposing parties, whether in a fight or in a lawsuit. Although rhetoric which verges on the extravagant may be made use of by counsel, there is a general rule which common sense alone dictates, and that is that the language of counsel to a jury should not be of such character as is likely to prejudice the cause of an opponent in the minds of honest men of fair intelligence to such an extent as to work an injustice.
One of the principal questions to be considered by this Court is whether that portion of the address of counsel with regard to which complaint is taken is merely an earnest plea to the jury, although perhaps an exaggerated one . . . or whether it is prejudicial to the appellant's case to the extent that the jury were influenced by it to reach a verdict without due and just consideration of the evidence.
(Emphasis added)
(a) The opening address of the respondents' counsel
18The appellant's counsel objected at trial to various parts of the opening address to the jury by the respondents' counsel (not counsel on this appeal), and moved for a mistrial. The trial judge dismissed the motion and immediately gave a correcting instruction to the jury.
19On appeal, the appellant renews her challenge of the respondents' counsel's opening address. Specific objection is made to the statements that:
(i) "this case is really about taking a stand against cases that are frivolous, that are undermining our health care system . . .";
(ii) the case "is about supporting medical doctors in your community who are working hard, like Dr. Pond does, to try to service their patients as best as they can . . . [sic]";
(iii) the appellant was "blaming" and trying to "pin . . . the blame" on Dr. Pond for her injury;
(iv) Dr. Pond was required to continue his practice during the trial or he would "put his own patients -- obstetrical patients and ill women at risk of their health" by being required to attend at trial; and
(v) Dr. Pond is "one of only two obstetrician/gynecologist[s] in Timmins".
20The appellant argues that those statements were designed to appeal to the emotions of the jury, which was composed of residents of the Timmins area, a community known to then suffer from a shortage of physicians. She submits that the statements tainted the jury by creating the impression that the appellant's case presented a general threat to the health care system, the health of patients, and hardworking physicians in the Timmins community, which required a solution by the jury that was responsive to the community's social problem. She maintains that the statements reflected, in part, the personal opinions of the respondents' counsel, and painted the appellant as an "enemy of the state" in respect of whom the jury should take a protective stance.
21For her part, the appellant's counsel indicated during her opening address to the jury that Dr. Pond was a former academic and administrator who came to Timmins "for financial reasons only, to make money" and "for the purpose of making money".
22To the extent that the statements by the respondents' counsel characterized the case as one which required a response supportive of physicians in the Timmins community, and which warranted the jurors "taking a stand" against "frivolous" cases "that are undermining our health care system", they embodied the personal opinion of counsel concerning the merits of the appellant's case, and invited the jurors to act as representatives of the community at large to curtail unmeritorious malpractice suits and to protect an endangered health care system. The statement that Dr. Pond is "one of only two obstetrician/gynecologist[s]" in the Timmins area, and the suggestion that his absences from his office to attend trial would endanger the health of his patients, reinforced that invitation to the jury. Such comments were inappropriate because they appealed to the emotions and fears of the jurors and encouraged them to consider factors irrelevant to the basic issues in the case, namely, the cause of the appellant's injuries, the standard of care applicable in the circumstances, and the adequacy of the care provided to the appellant by Dr. Pond. See Martin v. Pacific Western Airlines Ltd. (1981), 24 C.P.C. 237 (B.C.S.C.).
23In addition, in my view, certain of the comments made by the appellant's counsel in her opening address were inappropriate. Her suggestions to the jury that Dr. Pond left an academic and administrative position to come to Timmins "for financial reasons only" and "to make money", impugned the professional integrity of Dr. Pond, and portrayed him as mercenary and uncaring. They also implied that he lacked clinical experience. Such comments were inflammatory and prejudicial.
24Trial judges have a wide discretion to control opening addresses. When an opening address exceeds permissible limits, the trial judge, in his or her discretion, may caution the jury, strike the jury and conduct the trial by judge alone, or declare a mistrial. See, for example, Hall v. Schmidt (2001), 56 O.R. (3d) 257, 15 C.P.C. (5th) 121 (S.C.J.) at p. 268 O.R. In this case, following dismissal by the trial judge of the appellant's motion for a mistrial, the trial judge gave the following blunt instruction to the jury:
Welcome back. I remind you of something I've said to you twice already this morning, that you will base your verdict on evidence that is given through witnesses who take the stand and are sworn and are examined and cross-examined, and also through exhibits or documents that will be produced by counsel from time to time. . . . And it's based on what you hear in the stand, and what you see in those exhibits that you are to make your decision. This morning you heard the addresses of counsel, and I cautioned you before the addresses that they are meant to assist you in preparing you for what to expect in the trial. They are meant as a road map, so that as witnesses are called, and as testimony is given you get a sense or a feeling for where it's going and what is about to happen, and it gives you a little bit of context about what the matter is all about. In the addresses that were given to you this morning much leeway was taken by both counsel, and I allowed it to go on . . . but the purpose of an address, as I've said, is simply to tell you "You will hear from so and so and he will say this", and "You will hear from so and so and he will say that." Generally lawyers are not to advance -- make their arguments when they make these addresses. These addresses should be restricted to facts on what you expect to see and what you expect to hear. Arguments of counsel comes [sic] later on after you've heard all of the evidence and after they're trying to put their best case forward to you. That's when they should be making their arguments. There were arguments made here and there were opinions expressed by both counsel this morning. You should disregard all that. You remember that what is important is what you will hear in the box, what you will see in the exhibits. And as an example of that there was some comment made this morning about "This is an invitation to take a stand. Take a stand about health care. You know, your hard working doctors in the community." There were comments made of that nature. Those comments really are not relevant to this case. This case is not about health care. It's not about whether doctors work hard or don't work hard. It's not about the state of health care in our community. This case is about very specifically what happened on December 22nd, '97 in Dr. Pond's office. What happened? Who's responsible, if anyone is responsible? What are the damages? What are the consequences that flow from that? That's what this case is about. It has nothing to do with whether doctors work hard or don't work hard. It has nothing to do with health care. It has to do with these individuals. The claim made by Ms. Brochu against Dr. Pond and Carole Lajoie, and that's all this is about. You are not being asked to make some far sweeping reforms or far sweeping opinions on the health care system. So that's one of the examples. I'm going to repeat it to you one more time. Opening addresses are simply to give you some guidance as to where this case is going. It's to prepare you for the evidence and the testimony that you're going to hear. When you make your final verdict, when you make your final decisions, it has to be based not on what the lawyers say, not what they said this morning and not what they'll say to you at the end of two weeks, it will be based on what you have heard through the witness box, what you have seen in the exhibits, and you make your decisions based on those because that's the evidence. Not what the lawyers say, not what I say either. That's not evidence.
(Emphasis added).
25The appellant argues that that instruction was inadequate to remedy the prejudice arising from the impugned statements by the respondents' counsel in her opening address, that the curative effect of the instruction was neutralized by reference to inappropriate comments by both counsel in their opening addresses, and that no correcting instruction would have been sufficient here, given the known concern in the Timmins community regarding the scarcity of physicians. I disagree.
26The trial judge's instruction clearly addressed the material errors made by the respondents' counsel in her opening address. He cautioned the jury that the offending comments were irrelevant. He indicated on at least two occasions that the jurors were to base their decisions strictly on the evidence adduced in the case and not on comments made by either counsel. He referred, correctly in my view, to the fact that both counsel improperly engaged in argument in their opening addresses.
27In my opinion, the trial judge's correcting instruction was thorough and unequivocal. It properly focused primarily on the impugned comments of the respondents' counsel, but also emphasized that neither opening address was free of defects, and that both counsel made unfortunate remarks. The instruction was given to the jury promptly after completion of the opening addresses, when counsels' remarks were fresh in the minds of the jurors and before any witnesses were called to give evidence. The instruction left no uncertainty as to the proper way in which the jurors were to approach their task. I conclude that the instruction was a proper exercise by the trial judge of his discretion to control the opening addresses, and was sufficient, in the circumstances, to remedy any prejudice that may have arisen from the opening address of the respondents' counsel. Accordingly, I would not give effect to this ground of appeal.
(b) The closing address of the respondents' counsel
28The appellant also argues that several statements by the respondents' counsel during her closing address to the jury were prejudicial and had the effect, when viewed in combination with the challenged statements by the respondents' counsel during her opening address, of undermining trial fairness. Particular objection is taken to statements by the respondents' counsel:
(i) referencing the date that the appellant's statement of claim was issued;
(ii) that Ms. Lajoie was "an innocent bystander" who had been "dragged through these proceedings as a party, and the . . . stress that . . . causes to anybody, for no apparent reason";
(iii) that the appellant's expert medical witness at trial "should not be throwing stones", and that he would be "slapped in the face and reported to the College for inappropriate questioning";
(iv) that Dr. Pond was "a conscientious doctor with [eminent] qualifications in his field, and someone who cares about his patients";
(v) that the appellant's counsel had suggested answers to the appellant during her examination-for-discovery;
(vi) that doctors were "the subject of lawsuits frequently . . . and that people are becoming more conscious of litigation, and more litigious";
(vii) referencing the maximum amount for general damages available under Canadian law and how that amount should be applied in the appellant's case; and
(viii) asking the jurors to consider what they would do if they were in the same position as the appellant.
The appellant's counsel objected at trial to each of the impugned statements, save for the comment referenced above in sub-para. 28(viii).
29In my view, whether viewed singly or in combination, or in combination with the opening address of the respondents' counsel, the challenged statements did not result in a miscarriage of justice or such prejudice to the appellant as to warrant intervention by this court.
30I have already concluded that the complained of statements in the opening address of the respondents' counsel were remedied to the extent necessary by the trial judge in his correcting instruction to the jury immediately after the completion of the opening addresses. I think that many of the challenged statements in the closing address of the respondents' counsel are matters of argument grounded in the evidence or directly linked to the issues in dispute. In other instances, while the language employed by the respondents' counsel was unfortunate or imprudent, I am unable to conclude that her comments deprived the appellant of a fair hearing or otherwise resulted in a miscarriage of justice. I reach those conclusions for the following reasons.
(i) Reference to the date of issue of the appellant's statement of claim
31The appellant's statement of claim was issued within two months of the date of the incident in Dr. Pond's office. The appellant submits that the respondents' counsel disclosed that fact to the jury in an attempt to underscore the suggestion that the appellant's action was frivolous. I am unable to accept that submission.
32The date of issue of the appellant's statement of claim was put to the appellant during her cross-examination at trial. The full context of the respondents' counsel's subsequent reference to the pleading in her closing address indicates that it was designed to undermine the credibility of the appellant's claim that she made significant efforts to mitigate her loss of income. The appellant's mitigation duty, and the question of whether she had discharged that duty, were live issues at trial. The trial judge concluded that no correcting instruction to the jury was warranted. I agree. In my view, a single reference to the pleading in a lengthy closing address, while inadvisable, gave rise to no real prejudice to the appellant.
(ii) Statements concerning the involvement of Ms. Lajoie in the proceedings
33The appellant's abandonment of her claims against Ms. Lajoie did not occur until an 11-day trial was virtually concluded, and after Ms. Lajoie had testified. In her closing address, the respondents' counsel described Ms. Lajoie as "an innocent bystander" who had been "dragged through these proceedings as a party, and the . . . stress that . . . causes to anybody, for no apparent reason". She also indicated that Ms. Lajoie could not be "connected to whether or not the plaintiff has suffered any injuries or damages".
34In his jury charge, the trial judge cautioned the jurors not to draw a negative inference against the appellant from the fact that Ms. Lajoie had been named as a party to this action, or from the fact that the claims against her were subsequently abandoned.
35While the reference to Ms. Lajoie as having been "dragged through [the] proceedings" was regrettable, I conclude that any prejudice arising therefrom was adequately addressed by the trial judge's charge to the jury. His instruction on the point was quite clear and specific. In addition, as argued by the respondents' counsel at trial, and as supported by the abandonment of all claims against Ms. Lajoie, the evidence failed to link Ms. Lajoie's conduct to the appellant's injuries. In that respect, the second statement by the respondents' counsel concerning Ms. Lajoie was accurate.
(iii) Statements concerning the appellant's expert medical witness
36The appellant called Dr. D.M. O'Brien as an expert medical witness at trial. He testified that Dr. Pond had breached the standard of care owed to the appellant in several respects, including by failing to obtain a reasonable medical history from the appellant which would have disclosed her prior difficulties with pelvic examinations or her tendency to faint. In particular, he expressed the opinion that Dr. Pond should have questioned the appellant concerning her prior sexual practices and partners, and recorded her responses to those questions. In contrast, the respondents adduced opinion evidence from Dr. J.P. O'Neill that the line of questioning proposed by Dr. O'Brien was unnecessary, and perhaps inappropriate in this case.
37In the course of reviewing that conflicting opinion evidence during her closing address, counsel for the respondents made two statements concerning Dr. O'Brien which are challenged on this appeal. First, she suggested that he "perhaps should not be throwing stones". Second, she stated: "this young woman likely would have taken offence to such questions, and rather than answering him she probably would have slapped him in the face and reported him to the college [the College of Physicians and Surgeons of Ontario] for any inappropriate questioning." The appellant argues that both statements were inflammatory and improperly reflected the personal beliefs and opinions of counsel.
38In my view, the first statement concerning Dr. O'Brien was a simple colloquialism which suggested that Dr. Pond could not legitimately be criticized for conduct also engaged in by other medical practitioners. The statement was inconsequential.
39The second statement concerning Dr. O'Brien was of a different character because complaints to the governing body of the medical profession engage issues of professional misconduct and incompetence. However, the statement was rooted in the dispute between the medical experts concerning the necessity for the questioning of the appellant proposed by Dr. O'Brien. Viewed in that context, the statement was perhaps an intemperate rhetorical excess. While the remark was best left unsaid, I do not think that it was likely to so prejudice the jurors against the appellant or her expert witness as to cause an injustice: see Stewart v. Speer, supra.
(iv) Statement concerning Dr. Pond's qualifications and attributes as a practising physician
40Credibility was a central issue in this case. Dr. Pond's counsel addressed his credibility during her closing address. She stated that Dr. Pond "appears to be a conscientious doctor with [eminent] qualifications in his field, and someone who cares about his patients". Although the appellant's counsel argues that the statement was improper because it lacked an evidentiary foundation, in fact, the statement was grounded in the evidence. Dr. Pond testified at trial and his curriculum vitae was admitted into evidence as an exhibit. His credibility, skills, and practices as a physician were put in issue at trial by the appellant. Accordingly, it was open to Dr. Pond's counsel to refer during her closing address, as a matter of argument, to Dr. Pond's qualifications and attributes as a practising physician. Indeed, in my view, it would have been surprising had counsel for Dr. Pond not done so.
(v) Statement that the appellant's counsel had suggested answers to the appellant during her examination-for-discovery
41During the trial, the respondents' counsel read-in, without objection from the appellant's counsel, a portion of the appellant's discovery testimony. Based on the exchange which occurred during the appellant's discovery, the respondents' counsel told the jurors in her closing address that the appellant's counsel had suggested answers to the appellant during her discovery testimony.
42The appellant's counsel objected at trial to that statement on several grounds. She denied that she had suggested answers to the appellant, and argued that she had interjected during the discovery to ensure that the transcript indicated the tone of voice used by the appellant while testifying. She submitted that the statement made by the respondents' counsel improperly focused on the behaviour of the appellant's counsel, and implied that she had wrongly directed or manipulated the evidence given by the appellant on discovery. She also objected to the tone of voice used by the respondents' counsel when the impugned statement was read to the jurors. In contrast, the respondents' counsel maintained that her statement was not intended to denigrate the appellant's counsel. Rather, it was designed to illustrate why the relevant portion of the appellant's testimony should be given little weight.
43The trial judge did not regard the challenged statement as a personal aspersion against counsel, or as sufficiently prejudicial to warrant the granting of a mistrial. He also concluded that any correcting instruction by him to the jurors would "unfortunately draw attention to something that may not be so important in their mind".
44The relevant portion of the discovery transcript is ambiguous and is capable of supporting the conflicting interpretations placed upon it by both counsel. The issue on this appeal is whether, in those circumstances, the respondents' counsel's characterization of what occurred, and her manner of advancing that characterization before the jury, so prejudiced the appellant as to undermine fundamental trial fairness.
45Dr. Pond's conduct after he learned that the appellant had fainted was a matter in dispute at trial. The appellant's discovery testimony was relevant to that issue. This court cannot determine whether the respondents' counsel used an inappropriate tone of voice in referencing the appellant's discovery testimony. The trial judge was in the best position to evaluate the impact of the challenged statement on the jury. In my view, there is no basis on which to interfere with the trial judge's conclusion that it had little overall significance.
(vi) Statement concerning the increasing frequency of lawsuits against physicians
46Towards the end of her closing address, the respondents' counsel referred to a letter which had been written by Dr. Pond to his file shortly after the appellant was injured. She told the jurors:
[The appellant] also wants you to believe that all he could think about was litigation, that's why he did that note. Well, I'm going to suggest to you that in these days where litigation is common, where doctors know that they are the subject of lawsuits frequently, generally among the population of doctors, and that people are becoming more conscious of litigation, and more litigious, and it's not out of turn for the doctor to want to record his recollection at the time to put it in his file. In my suggestion there's no negative inference to be made from that, and in any event it has nothing to do with the decision that you actually have to make in this case.
47The appellant argues that the statement was inappropriate because it invited the jury to decide the case based on irrelevant considerations, namely, an increasingly litigious climate in Canadian society in relation to medical malpractice suits. In the particular circumstances of this case, I disagree.
48When the appellant's counsel objected at trial to the statement, the respondents' counsel responded by pointing out that the appellant's counsel suggested to Dr. Pond during cross-examination that he wrote the letter because he thought that he might be sued. That suggestion clearly implied that there was some self-serving purpose or consciousness of improper conduct evidenced by Dr. Pond's writing of the letter.
49When ruling on the objection, the trial judge concluded that the statement by the respondents' counsel was not a plea to the jurors to act to discourage and curtail malpractice litigation generally; rather, it was designed to present an alternative interpretation of Dr. Pond's testimony concerning the letter. In that context, the trial judge held that the statement was an innocent one. I agree. The cross-examination of Dr. Pond gave rise to the possibility that the jury would draw a negative inference from Dr. Pond's actions, including his letter writing, following the appellant's faint. In those circumstances, it was open to the respondents' counsel to attempt to persuade the jury, by her final argument, that such an inference should not be drawn.
(vii) Statements concerning the maximum amount for general damages available under Canadian law and application of that amount in the appellant's case
50The appellant argues that the trial judge misdirected the jury on the upper limit of general damages, and that references by the respondents' counsel in her closing address to the maximum amount for general damages available under Canadian law, and to how that amount should be applied in this case, were improper.
51The jury found that Dr. Pond had not been negligent in his care of the appellant. I see no basis on which to interfere with that verdict. Accordingly, it is unnecessary for the disposition of this appeal to address the appellant's submissions concerning the references made by the respondents' counsel and the trial judge to the upper limit applicable in Canada to non-pecuniary general damages in personal injury cases for pain and suffering and loss of amenities.
(viii) Statement asking the jurors to consider what they would do if they were in the same position as the appellant
52The appellant admitted on cross-examination that she had not informed Dr. Pond, prior to his December 1997 examination of her, that she had a history of fainting or feeling faint on some prior occasions during pelvic examinations. In addressing the significance of that evidence, the respondents' counsel told the jurors that the concept of contributory negligence was very important in this case, that patients have a duty to act in their own best interests in their dealings with physicians and in following medical advice, and that patients alone know their full medical histories. She then invited the jurors to "use your own common sense and your own experiences to look at this situation and say, 'If I was in the position of being asked questions by a doctor . . . don't I have a duty to give that doctor the information that I know . . . is important to this situation?'"
53The appellant submits that that statement by the respondents' counsel was tantamount to requesting the jurors to approach their decision-making on the basis of their own beliefs or opinions. She relies, in support of that submission, on Hesse v. Saint John Railway Co. (1899), 30 S.C.R. 218. In my view, that case is not determinative of the propriety of the statement at issue here.
54In Hesse v. Saint John Railway Co., the court was concerned with a direction to the jury by the trial judge in which the jurors were told to ask themselves, in relation to the assessment of damages, how much damages they ought to be paid by the defendant if they were in the same position as the plaintiff, and conversely, how much they should pay in damages if they were the defendant. Here, the impugned statement was directed to the issue of contributory negligence rather than the assessment of damages. Further, the statement at issue was made by counsel during final argument. It did not form part of any instruction to the jury.
55Statements by counsel in their addresses to a jury that are designed to engage the emotions or personal beliefs of the jurors are improper and encourage flawed reasoning by the jury. In this case, the contested invitation to the jury by counsel for the respondents was directly linked to the appellant's admission that she had failed to disclose material information to Dr. Pond. Further, it was preceded by the suggestion that the jurors should approach their assessment of contributory negligence using common sense, and with the benefit of their accumulated life experience. That suggestion itself is a matter of common sense and is unobjectionable. No challenge to the statement by the respondents' counsel was made at trial by counsel for the appellant. I am not persuaded that the impugned statement was likely to result in the jurors resorting to extraneous, subjective considerations in their decision-making.
(2) The Charge to the Jury
56The appellant submits that there are three main deficiencies in the charge to the jury. Two of the suggested deficiencies, in my view, may be disposed of summarily.
57First, the appellant argues that the trial judge misdirected the jury on the upper limit of general damages, the application of employment insurance benefits, the calculation of loss of competitive advantage, and the appellant's decision to decline to attend for a defence functional capacities evaluation.
58I have already concluded, in the circumstances of this case, that it is unnecessary to consider the appellant's submissions concerning the trial judge's instruction on the upper limit of non-pecuniary general damages. The trial judge's original directions to the jury on the application of employment insurance benefits and the calculation of loss of competitive advantage were corrected by him, after hearing submissions from both counsel, in his recharge to the jury. His instructions on those issues during the recharge were clear and to the point. In my view, the jury could not have been under any misapprehension, following the recharge, as to the relevant issues and the proper legal principles to be applied to those issues. Moreover, I see no error in the trial judge's instruction concerning the appellant's decision to decline to attend for the requested defence evaluation. Accordingly, this ground of appeal fails.
59Second, the appellant contends that the charge was slanted in favour of Dr. Pond, particularly on the issue of liability. She argues that the appellant's position was "brushed aside". I disagree.
60I am satisfied that the theory of the appellant on liability and her position on damages, the related factual issues, and the appellant's position concerning the testimony integral to those issues were adequately identified for the jury. In particular, among other matters, the trial judge highlighted for the jury certain evidence that supported the appellant's contentions that she attended at Dr. Pond's offices on the day of the incident only to obtain information and not for a pelvic examination, that the examination was inappropriate on that occasion, that she was exhibiting symptoms indicative of a possible faint which Dr. Pond failed to recognize or act upon, that the medical history taken by Dr. Pond was inadequate, and that Dr. Pond's dealings with the appellant before and after her faint fell below the required standard of care. While this was not a model charge, when considered as a whole, I conclude that the charge was not improperly weighed in favour of the respondents and that the case for the appellant was put to the jury. Accordingly, I would not give effect to this ground of appeal.
61Third, the appellant submits that the trial judge erred by failing to review the evidence of the witnesses at trial, including the testimony of the expert witnesses, and to outline the positions of the parties concerning the opinion evidence. She further asserts that the trial judge erred by failing to relate the applicable law to the issues and the issues to the evidence.
62The trial judge did not review all of the testimony at trial in his charge. Similarly, in directing the jurors on the issues to be determined, he did not review all of the evidence relating to those issues. However, he was not required to do so. In addition, the significance of the suggested non-directions must be assessed in the context of the charge as a whole, the nature of this case, and the issues raised on the evidence.
63This medical malpractice action was relatively straightforward. At its core, it involved a claim for damages for personal injuries sustained as a result of a patient's faint after a routine medical examination. The appellant and the respondents each called one expert medical witness at trial to address the requisite standard of care. The expert evidence, while technical in some respects, was not overly complex. The appellant's position was uncomplicated and the medical issues were clear. It is common ground that the expert evidence was reviewed by counsel for the parties in their respective closing addresses. The jury charge was delivered shortly thereafter.
64The trial judge instructed the jurors that, in considering the standard of care, they were required to consider and weigh the evidence of all of the experts called by the parties. He reviewed for the jury the law concerning the requisite standard of proof in a civil case and the burden of proof attaching to the litigants. He specifically outlined the appellant's position on liability in connection with the standard of care and the alleged breaches of that standard, and he identified the issues for determination. He explained the key issue in these terms:
The more serious [allegation] though, and we all know that the more serious one is when he [Dr. Pond] left the room . . . was she [the appellant] at that moment in time exhibiting signs of vasovagal symptoms that would have caused a prudent practitioner, upon observing of [sic] these signs, to have stayed with his patient. And that really is the critical issue that you're going to have to decide in this case.
The appellant does not contend that the trial judge misstated that key issue.
65Thereafter, the trial judge instructed the jury on causation, contributory negligence and damages. He outlined the legal principles applicable to those issues. He revisited some of those legal principles in his recharge to the jury.
66The appellant's counsel objected at trial to various parts of the charge. While certain misdirections were asserted in connection with discrete legal issues, as I earlier mentioned, none of the objections concerned the suggested non-directions now raised in relation to the evidence or in connection with the law and the evidence applicable to the issues. In Arland and Arland v. Taylor, [1955] O.R. 131, [1955] 3 D.L.R. 358 (C.A.) at pp. 140-41 O.R., Laidlaw J.A. observed for this court that a new trial should not be granted in a civil case on the ground of non-direction by the trial judge if the complaining party had an opportunity at the trial to ask the trial judge to give the required direction to the jury and did not do so. See also Thompson v. Fraser Companies Ltd., [1930] S.C.R. 109, [1929] 3 D.L.R. 778.
67The standard to be met by trial judges in their charges to the jury in a civil action for damages for personal injuries does not require that the evidence of each witness on particular issues be described in detail. A trial judge discharges his or her function adequately if the positions of the parties concerning the testimony at trial are outlined, if attention is drawn "to the issues of fact as they arise from the evidence . . . [and] to the evidence bearing upon those issues", and if those issues are related to the relevant legal principles: Smith v. Wheeler (1974), 1 O.R. (2d) 329, 40 D.L.R. (3d) 209 (C.A.) at p. 331 O.R. per Schroeder J.A. In this case, the issues were clearly identified by the trial judge and related in a summary way to the positions of the parties as established by the evidence, and to the applicable legal principles.
68A new trial in a civil case should not be ordered unless the interests of justice plainly require that to be done: Arland and Arland v. Taylor, supra, per Laidlaw J.A. at p. 140 O.R. While it would have been better in this case for the trial judge to have expanded upon the evidence and the linkage of the evidence to the issues, I am not persuaded that the charge was materially deficient. I agree with the respondents' submission before this court that the charge, although not a model one, "got the job done". I conclude that the non-directions urged by the appellant, considered in combination and in the context of the totality of the charge and recharge, do not give rise to a serious concern as to whether the appellant received a fair trial. The charge, in combination with the recharge, contained no error, non-direction or misdirection that would justify a new trial in the interests of justice, or that occasioned a substantial wrong or miscarriage of justice.
D. DISPOSITION
69For these reasons, I would dismiss the appeal with costs on a partial indemnity basis fixed, with the consent of the parties, in the amount of $25,000 plus assessable disbursements and Goods and Services Tax.
Appeal dismissed.
