Court of Appeal for Ontario

Date: 20220309 Docket: C69134

Before: Simmons, Pardu and Brown JJ.A.

Between:

Rhonda Hong-Ching Cheung a minor by her Litigation Guardian, Yuen Ni Cheung-Kwan, Ronald Chun-Pok Cheung, Raymond S.H. Cheung and the said Yuen Ni Cheung-Kwan personally Plaintiffs (Appellants)

And:

D. Samra, J. Ma, A. Joglekar, A. Madikiza, Rouge Valley Health System- Centenary Health Centre Site, G. Mitchell, S. Treuer, P. Taylor, J. Moses, A. Bartlay, M. Jacobs, A. Tranter, S. Reno Defendants (Respondents)

Counsel:

Gavin MacKenzie and Hilik Elmaleh [1], for the appellants Darryl A. Cruz and Meghan S. Bridges, for the respondents Alexi Wood and Laura Maclean, for the intervener Canadian Chiropractic Protective Association Barbara A. Macfarlane, for the intervener Ontario Trial Lawyers Association

Heard: February 7, 2022, by video conference

On appeal from the order of the Divisional Court (Justices David L. Corbett, Thomas R. Lederer and R. Cary Boswell), dated August 27, 2020, with reasons reported at 2020 ONSC 4904, affirming the order of Justice Darla A. Wilson of the Superior Court of Justice, dated June 5, 2018, with reasons reported at 2018 ONSC 3480.

Pardu J.A.:

(1) Overview

[1] Following a difficult birth, Rhonda Cheung suffered a seizure at two and a half months old and serious disabilities became evident. 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 Rhonda’s disabilities. Although the trial judge concluded that there was evidence capable of supporting the jury’s decisions, she refused to enter judgment in accordance with the verdict on the ground that the particulars of causation given by the jury were insufficient and failed to explain the physiological mechanism of the injury.

[2] The trial judge erred in refusing to give effect to the jury verdict. I would set aside her order requiring a new trial and substitute judgment in favour of the plaintiffs in the agreed sum of $14.9 million, as set out in the minutes of settlement reflecting the agreement as to the amount of the damages, approved by the order of Archibald J. of March 15, 2018.

(2) Background

Medical history

[3] At the 35th week of the pregnancy, Rhonda was diagnosed as suffering from intrauterine growth restriction (IUGR). Repeated tests indicated that this condition continued to worsen over the following weeks. Babies with IUGR are at risk of serious complications, including asphyxia, abnormal fetal heart rate, cerebral palsy and developmental delay. Test results were increasingly concerning, but the mother was sent home on April 21, 2006. On April 22, 2006, the mother returned to hospital with vaginal bleeding. The baby’s heart rate showed that she was in distress and an emergency C-section followed.

[4] Rhonda was born in very poor condition. She was pale, blue, limp and made no effort to breathe. For 28 minutes she had almost no heartbeat; her first breath was at 30 minutes of age. She had a long and difficult resuscitation, with chest compressions, intubation, ventilation and administration of drugs to reverse cardiac arrest.

[5] When Rhonda was discharged from hospital on May 3, 2006, she was able to feed by breast and bottle. An EEG performed on April 25, 2006 and an MRI performed on April 26, 2006 were normal. Rhonda responded normally to sensory stimulation and the prognosis looked good.

[6] In July 2006 Rhonda suffered a seizure and was admitted to hospital. She could no longer feed independently or control her head.

[7] She has severe brain damage and has been diagnosed with hypotonic cerebral palsy and developmental delay. She cannot walk, talk or eat and must be fed through a tube. She needs help with every activity.

[8] There is no challenge to the jury findings that the failure to advance the delivery to an earlier date was a breach of the standard of care.

[9] The trial evidence about causation featured opposing theories by the plaintiffs and the defendants. The plaintiffs’ position was that Rhonda suffered a brain injury caused by deprivation of oxygen to the brain in the period immediately before birth. The defendants’ position was that Rhonda’s brain injury occurred more than two months after birth, possibly as a result of a genetic disorder, and that her impairments are not attributable to the management of her pregnancy or delivery.

The plaintiffs’ experts

[10] The plaintiffs’ experts advanced different explanations for the mechanism of injury.

[11] Dr. Oppenheimer, an obstetrician, testified that the severe IUGR was due to placental insufficiency, and that at some point the umbilical cord became occluded, preventing oxygen from reaching the baby. Because of the placental insufficiency, which had been ongoing for weeks, Rhonda had no compensatory reserve left to protect against the effects of cord occlusion. He testified that had the baby been delivered before April 21, it is likely that brain damage would have been avoided.

[12] Dr. Perlman, a neonatologist, testified that Rhonda had a severe brain injury caused by deprivation of oxygen during the 30 minutes preceding her birth. Had she been born 30 minutes earlier, she probably would be normal today. Blood tests started at 2.5 hours of age showed a high level of lactic acid which did not abate for almost three days, indicating a severe lack of oxygen.

[13] Dr. Hill, a pediatric neurologist, testified that the IUGR was due to placental insufficiency, which, combined with compression of the umbilical cord just before delivery, caused a severe deprivation of oxygen that caused her resulting disabilities.

[14] Dr. Naidich, a neuroradiologist, testified that imaging studies done during the first three years of Rhonda’s life show severe permanent injury to her brain, caused by deprivation of oxygen. He discounted the significance of an MRI done shortly after birth, saying that 25-50% of MRI scans done after birth appear normal, even when there has been a brain injury caused by lack of oxygen.

[15] Dr. Cohn, an expert in pediatric genetics and children with neuromuscular and neurogenetic disorders, testified that it was unlikely that a primary genetic disorder caused the disabilities. He attributed the disabilities to the lack of oxygen and distress before, during and following delivery.

The defendants’ experts

[16] The defendants’ experts testified that Rhonda had not suffered a brain injury caused by deprivation of oxygen, and that her impairments are unconnected to anything occurring at or immediately before her birth.

[17] Dr. Vezina is a neuroradiologist. He relied on the MRI scans taken after her birth to conclude that no brain injury had occurred from deprivation of oxygen around the time of her birth, but that her impairments are more likely related to genetic, metabolic or seizure disorders, although no such disorder has been specifically identified.

[18] Dr. Tarnopolsky is an expert in pediatric genetics and neuromuscular, neurometabolic and neurogenetic disorders. He testified that Rhonda’s impairments were likely genetic in origin, and that she had recovered well from the trauma associated with her birth. The fact that the impairments did not manifest until 2.5 months of age indicated to him that they were consistent with a genetic disorder.

[19] Dr. Saigal, a neonatologist, testified that Rhonda did not suffer a brain injury caused by lack of oxygen around the time of her birth.

[20] Dr. Yager, a pediatric neurologist, testified that she had not suffered a brain injury due to deprivation of oxygen around the time of her birth, and that her impairments are likely genetic or metabolic in origin. He said no evidence of such injury manifested in the first 3 months of her life.

[21] None of the defendants’ experts identified the genetic or metabolic disorder which they say might have been responsible for Rhonda’s disabilities.

The trial judge’s decision

[22] There is no challenge to the jury charge on causation. The trial judge instructed the jury that the plaintiffs had to establish on the balance of probabilities that the failure to deliver the child earlier was a necessary cause of the brain damage, and that the injury would not have occurred without the defendant’s negligence. She instructed that scientific precision was not required to find causation and that they were entitled to consider all the facts and circumstances established by the evidence. Direct evidence of causation was not necessary, and they were entitled to draw an inference of causation through the application of reason and common sense. It was not sufficient for the plaintiffs to prove that adherence to the standard of care would have given Rhonda a chance to avoid the injury. To establish causation the plaintiffs had to establish that it was more likely than not that Rhonda would not have sustained brain damage, but for the substandard medical care. The trial judge pointed out that the experts had different opinions about what caused Rhonda’s condition. The plaintiffs’ experts related the brain damage to events around the time of birth, while the defendants’ experts disagreed and attributed her condition to genetics perhaps, or a metabolic disorder.

[23] The trial judge gave the jury questions to answer. If they found that a doctor’s care caused the brain damage, she instructed them to explain how the breach of care caused the injuries, with “clear and specific answers.”

[24] The jury returned with answers indicating that they were satisfied on the balance of probabilities that but for the breach of the standard of care, Rhonda would not have sustained brain damage.

[25] On the request for particulars of causation for Dr. Samra, the treating obstetrician, the jury replied:

2(b) If your answer to question 2(a) is yes, how did Dr. Samra’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:

“Dr. Samra’s failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.”

For Dr. Ma, the emergency obstetrician who saw the mother on April 21, 2006 and delivered Rhonda on April 22, 2006, they answered,

4(b) If your answer to question 4(a) is yes, how did Dr. Ma’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:

“Dr. Ma’s 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.”

[26] After the jury was discharged, the defendants moved for two alternative remedies: an outright dismissal of the action on the ground that the plaintiffs had failed to lead evidence that an earlier delivery would have led to a different outcome, or alternatively that the trial judge refuse to enter judgment and order a new trial on the ground that the jury’s answers as to how causation was established were insufficient.

[27] The trial judge refused to dismiss the action, holding at para. 62 of her reasons:

It was open to the jury to accept the evidence of Dr. Oppenheimer and Dr. Perlman in particular and find that Rhonda should have been delivered earlier than 7:07 on April 22 and had she been, she would not have suffered the brain damage. The jury could have accepted the expert evidence on cord compression or cord occlusion or placental insufficiency, even though it was lacking in detail. It is possible that inferences could have been drawn from the evidence, including the exhibits, using a robust, liberal approach to the evidence. Whether there was sufficient evidence to establish causation on a balance of probabilities is not for me to decide. I am not persuaded the verdict is devoid of any evidentiary support, which is what must be demonstrated on this motion.

[28] However, the trial judge found that the jury’s answers to the questions asking for particulars of causation were insufficient because they “fail[ed] to identify the mechanism of injury”. She indicated that the answers of the jury made no reference to the expert evidence, including evidence that favoured the defendants. She held that “[c]onclusory statements do not explain how the negligence led to the damage. A theory of causation must be rooted in hard evidence from experts. We are left with answers that do not explain the causal link between the negligence and the harm.” She held that the causation answers were “contrary to the law, do not explain the causal link between the negligence and the result, and cannot form a foundation for judgment. At best, the jury was confused and conflated the issues of standard of care with causation.”

Appeal to the Divisional Court

[29] The plaintiffs obtained leave to appeal to the Divisional Court from the decision of the trial judge refusing to grant judgment. The defendants cross-appealed the refusal to dismiss the action.

[30] The Divisional Court was unanimous in dismissing the defendants’ cross-appeal, concluding that there was more than sufficient evidence to allow a jury, acting reasonably, to find that causation had been established.

[31] The Divisional Court was divided on the issue of insufficient jury answers on causation. The majority upheld the trial judge’s decision to order a new trial.

The majority decision in the Divisional Court

[32] The majority held that the plaintiffs’ assent to the form of the question put to the jury signified that they had agreed that the jury was to provide reasons for its decision, and that they were not content to rely on the presumption that the jury understood and properly applied the instructions given to it. The court accordingly was charged with assessing the sufficiency of those reasons. The majority acknowledged that jurors were laypeople without legal training, and that the answers had to be considered in that context. Drawing from Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, it noted “a jury’s answers should be given the fullest possible effect and supported, if possible, by any reasonable construction.” The majority noted that the purpose of asking a jury to provide reasons was “to ensure that they have understood the instructions given to them, that they have correctly applied those instructions, and that they have not missed an essential issue”. The majority held that a trial judge “will only be justified in rejecting the verdicts and ordering a new trial where the reasons provided undermine the integrity of the verdict.”

[33] The majority held that the reasons given were so conclusory as to be non-responsive and did not provide the necessary reassurance that the verdicts were based on solid footing.

The dissent in the Divisional Court

[34] Corbett J. dissented on the issue of causation. In his view the answers to the question were conclusory but were not inconsistent with the verdict. The answers showed that the jury accepted the plaintiffs’ theory of causation and rejected the defendants’ theory. The path to their reasoning was not based on impermissible reasoning nor was it contrary to any principle of justice. He concluded that the defendants were not entitled to reasons for decision from the jury and suffered no injustice in not receiving them. The conclusory nature of the answers did not mean that they were non-responsive or wrong or that they applied a wrong principle.

[35] Corbett J. referred to s. 108(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 which provides that “it is sufficient if five of the jurors agree on the verdict or the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer.” He observed that while all six jurors found that the plaintiffs had established causation on a balance of probabilities, each could have arrived at that conclusion by different paths or reasoning, and posited possible paths each could have taken at para. 200 of his reasons:

a. Juror 1: accepts the opinion of Dr. Oppenheimer. b. Juror 2: accepts the opinion of Drs. Perlman and Hill. c. Juror 3: accepts the opinions of Drs. Oppenheimer, Perlman and Hill, and finds that they lead to the same conclusion on liability. d. Juror 4: prefers the evidence of Dr. Naidich to the evidence of Dr. Vezina, and the evidence of Dr. Cohn to the evidence of Dr. Tarnopolsky, and concludes that, between the two theories of causation from the experts, the plaintiffs’ expert opinions are more probably correct. e. Juror 5: finds the defence radiological evidence to be compelling and troubling, but is persuaded by the absence of any documented genetic cause and Rhonda’s well-documented perinatal condition that it is more likely than not that the plaintiffs’ theory of causation is correct. f. Juror 6: did not believe the defence experts and thought that they were being less than candid in their opinions in order to help out other doctors. The injury had to be caused by something, and there is strong documentation for Rhonda’s acute perinatal condition and it is only logical that this must have caused the injury.

[36] Thus, each of the jurors could have reasoned differently, but arrived at the same conclusion. The jury was instructed that they need not be unanimous, but if they could arrive at an answer to a question on which five of them agreed, that would be sufficient to enable the foreperson to record that answer.

[37] Corbett J. observed that if the members of the jury reached findings of causation by different paths of reasoning they would have to find the common basis for the decision upon which they agreed. He concluded that it would be reasonable to infer that the jury did exactly what it was asked to do and that the answers were the common account of causation upon which they could all agree: the conclusion.

[38] He went further and noted that the trial judge had instructed the jury that their deliberations were secret, so that they could have full and frank discussions with each other in complete privacy. To ask a jury for reasons for its conclusion on causation would impinge on the secrecy of jury deliberations.

[39] Corbett J. concluded that the trial judge erred in refusing to grant judgment in accordance with the verdict of the jury.

Leave to appeal

[40] A panel of this court granted leave to appeal to this court from the decision of the Divisional Court.

(3) Arguments on appeal to this court

[41] The appellants argue that the trial judge erred in law in refusing to grant judgment in accordance with the verdict. They say that the answers provided a legal foundation for judgment and the trial judge had a duty to enter that judgment. Sufficiency of reasons was not a basis to refuse to do so. It was reasonable to infer that the answer given was the common outcome to which they all agreed.

[42] The defendants argue that the trial judge’s decision to require a new trial was a discretionary decision to which deference is owed. They submit that the answers given were not responsive, and that the trial judge’s instructions to provide specific particulars were not answered. They argue that the absence of responsive answers means that there was not a foundation for judgment within the meaning of Rule 52.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Failure to provide reasons undermines the integrity of the verdict and requires a new trial.

(4) Analysis

[43] The Courts of Justice Act provides that a judge may require a jury to either give a general verdict or to answer specific questions.

[44] Subsections 108(4), (5) and (6) of the Courts of Justice Act provide as follows:

(4) Where a proceeding is tried with a jury, the jury shall be composed of six persons […]

(5) Where a proceeding is tried with a jury,

(a) the judge may require the jury to give a general verdict or to answer specific questions […]

(b) judgment may be entered in accordance with the verdict or the answers to the questions.

(6) It is sufficient if five of the jurors agree on the verdict or the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer.

[45] 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 of this court.

[46] Rule 52.08 provides,

52.08 (1) Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(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,

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. [Emphasis added.]

[47] Here the essential questions are whether the jury made “no finding on which judgment can be granted” or whether it answered “some but not all of the questions directed to it […] so that judgment cannot be granted on its findings.”

[48] A trial judge can disregard the answers which form the jury verdict only if:

1. There is no evidence to support the jury finding; or
2. The jury gives an answer to a question which cannot in law provide a foundation for a judgment: McLean v. Knox, 2013 ONCA 357, 36 C.P.C. (7th) 1, at para. 20.

[49] The analysis must begin with the presumption that juries understand and properly apply the instructions provided by trial judges and that the jury’s answers are the result of a proper consideration of the evidence and the issues and an adherence to the legal instructions provided in the trial judge’s charge: R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Suzack (2000), 30 C.R. (5th) 346 (Ont. C.A.). It would be wrong to assume that juries might disregard the law and instructions; “this line of thinking could seriously undermine the entire jury system”: Corbett, at para. 39.

[50] In Stilwell, this court described the stringent test for appellate review of jury verdicts:

1. “[T]he standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict”: at para. 33.
2. “Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers […] It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them”: at para. 36, citing Wade v. C.N.R., [1978] 1 S.C.R. 1064, at p. 1069, per Laskin C.J.C. (dissenting).
3. “[A] jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances […] Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction”: at para. 34.

[51] Where a jury is asked to provide particulars of a finding of causation, it is sufficient if five of the six jurors agree to the “bottom line”: Surujdeo v. Melady, 2017 ONCA 41, at paras. 114-118.

The trial judge erred in refusing judgment in accordance with the verdict

[52] There were two essential findings that the jury had to make for the defendant physicians to be liable in negligence: first, that they did not live up to the standard of care, and second, that that failure caused the injuries, on the balance of probabilities. The jury made those findings. That they gave a conclusory answer to the particulars the trial judge asked them to provide does not mean that they did not make a finding about an essential matter.

[53] Contrary to what the trial judge found, the answers did not indicate that the jury’s reasoning was clearly erroneous because their answers failed to indicate the physiological mechanism of injury. As indicated in the careful analysis by Corbett J. of the possible reasoning paths a juror might have taken, it was not necessary that each juror come to a firm or the same conclusion about the mechanism of injury. Keeping in mind the presumption that the jury’s answers are the result of a proper consideration of the evidence and adherence to the trial judge’s charge there is no basis to doubt the integrity of the verdict.

[54] Whether a jury verdict is perverse or unreasonable is a matter for appellate courts, not for the trial judge: Lang v. McKenna (2000), 135 O.A.C. 304, at para. 24; Jarbeau v. McLean, 2017 ONCA 115, 410 D.L.R. (4th) 246, at para. 81.

[55] The trial judge could have refused to give judgment if she concluded that there was no evidence to support the finding of the jury, or if the jury gave an answer which cannot in law provide a foundation for judgment: Teskey v. TTC (2003), 3 C.P.C. (6th) 181, at para. 6.

[56] In closing submissions, plaintiffs’ trial counsel suggested to the jury that to provide particulars on causation in response to questions 2(b) and 4(b), they could insert the same answers as they did for particulars of negligence. In her jury address, the trial judge instructed the jury that was not correct and that in answering questions 2(b) and 4(b) they must state how the negligence of either doctor caused Rhonda’s current condition.

[57] In her reasons for refusing to enter judgment in accordance with the jury’s verdict, the trial judge said the jury’s answers indicated they ignored her instructions. However, as Corbett J.’s reasons demonstrate, that conclusion is speculative.

[58] The jury’s answers to the questions may well have reflected a bottom line consensus achieved through various paths, which they expressed succinctly.

[59] The jury must have understood that they were to be brief. The verdict sheet had seven lines for handwritten notes to explain the jury’s finding on causation. The jury was not instructed that if they concluded causation had been proven by following different reasoning paths, they were to list all of those reasons. Rather, they were told that when they answered the questions, they need not be unanimous. It would be sufficient to enable the foreperson to put an answer on the jury sheet if they arrived at an answer on which five of them agreed.

[60] Here the trial judge did not have a discretion to refuse to give judgment in accordance with the verdict given by the jury.

[61] As noted in Salter v. Hirst, 2010 ONSC 3440, 97 C.P.C. (6th) 353, at para. 15, aff’d 2011 ONCA 609, 107 O.R. (3d) 236, “[N]othing could jangle more profoundly against the accustomed role of a trial judge sitting with a jury than to replace their finding with one’s own view of the facts or set aside their verdict where there was some evidence to support it.”

There is no basis for this court to set aside the verdict of the jury

[62] It cannot be said that the verdict “is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict”: Stilwell, at para. 33. Here the trial judge and the Divisional Court concluded that there was an evidentiary basis for the verdict.

[63] For ease of reference, I refer again to the answers given as to the particulars of causation:

2(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?

Answer: YES

(b) If your answer to question 2(a) is yes, how did Dr. Samra’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:

Dr. Samra’s failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.

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?

Answer: YES

(b) If your answer to question 4(a) is yes, how did Dr. Ma’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:

Dr. Ma’s 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.

[64] I would not read the reference to “higher risk” in the answer to question 2(b) as an indication that the jury ignored the trial judge’s instructions that loss of the chance to avoid brain damage was not sufficient to establish causation. First, the jury made an unambiguous finding that, but for the breach of the standard of care, Rhonda would not have sustained brain damage. Second, the presumption that juries follow judicial instructions continues to have force whether or not a jury is asked to give reasons or particulars for its findings.

[65] Applying a fair and liberal interpretation to the answer, I would interpret the answer as a finding that Dr. Samra’s breach of the duty of care – his failure to move the C-section to April 18, 2006 – more likely than not caused Rhonda’s brain damage and that the reference to “higher risk” was an incidental comment. As noted by Corbett J., the answer can properly be read as meaning “the breach of the duty of care caused Rhonda to be at greater risk, the higher risk at which Rhonda was placed came to pass, and but for the breach of the duty of care by Dr. Samra, that risk would not have come to pass.”

[66] Similarly, the answer to question 4(b) states a finding that Dr. Ma’s breach of the duty of care – her failure to deliver Rhonda on April 21, 2006 – more likely than not caused Rhonda’s brain damage.

[67] Jurors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary. The trial judge did not ask the jury to identify the “mechanism of injury” or the sequence of events and injuries that led to Rhonda’s brain damage. The trial judge instructed the jury to explain how the breach led to the outcome and informed them that they could draw an inference of causation “through the application of reason and common sense.”

[68] I agree with the observations about the jury’s answers by Corbett J. at paras. 170 and 173 of his dissenting reasons:

They are not inconsistent with the verdict. They show that the jury accepted the plaintiff’s theory of causation and rejected the defence theory of causation. The parties’ causation theories were binary choices. Therefore, even though the jury’s impugned reasons are conclusory, the path to their conclusion is evident. That path is not based on impermissible reasoning nor is it contrary to any principle of justice.

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’s verdict.

[69] There 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: Stilwell, at paras. 33-34.

The interveners

[70] The interveners take opposing positions on whether it is appropriate to continue to ask a jury to provide particulars of its findings. The practice of asking for particulars began with the observations made in ter Neuzen v. Korn, [1995] 3 S.C.R. 674. In that case, the jury verdict was inscrutable, in the sense that the answer did not reveal whether the jury used an unavailable legal route to find a breach of the standard of care. Sopinka J. suggested that to avoid this problem juries could “specify in what respects the defendant was negligent” in order to “reveal whether the jury has understood and applied the judge’s instruction that it must accept the standard practice as the legal standard against which the defendant’s conduct can be measured”: at para. 66.

[71] The Courts of Justice Act does permit a trial judge to put specific questions to a jury. That is a matter for the exercise of discretion of the trial judge in each case, and I would decline to adopt a general rule. Jury 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’s verdict more by infelicities of expression than any real concern for the merits of the jury’s decision or reasoning and may stretch the limits of what a jury can reasonably be expected to give by way of reasons.

(5) Disposition

[72] I would allow the appeal and grant judgment to the appellants in the agreed sum of $14.9 million, as set out in the minutes of settlement reflecting the agreement as to the amount of the damages, approved by the order of Archibald J. of March 15, 2018. I would also award the appellants costs of the appeal and the motion for appeal fixed in the agreed sum of $35,000 inclusive of disbursements and taxes. The issue of the amount of costs of the trial in favour of the appellants is remitted to the trial judge for determination.

Released: March 9, 2022 “J.S.” “G. Pardu J.A.” “I agree Janet Simmons J.A.” “I agree David Brown J.A.”

[1] Mr. Elmaleh did not make oral submissions at the hearing