Court File and Parties

2023 ONSC 4103

Court File No.: CV-4405-00 and CV-18-4440-00 Date: 2023 05 25

Ontario Superior Court of Justice

B E T W E E N:

KENISHA DESMOND Plaintiff Lisa Bishop, for the Plaintiff

- and -

EVAN HANNA and RONETYA YOUSUF Defendants Keith Smockum, for the Defendants

HEARD: May 24, 2023

- and - B E T W E E N:

SHIAN HENRY Plaintiff Lisa Bishop, for the Plaintiff

- and -

EVAN HANNA and RONETYA YOUSUF Defendants Keith Smockum and S. Desai, for the Defendants

HEARD: May 24, 2023

NOTE: Not to be Uploaded to any Public Database or Released Publicly Until the Jury has Rendered its Verdict.

Trial Ruling #3: Desmond v. Hanna Jury Questions

Trimble J.

The Motion

[1] Notwithstanding my request made at two pretrial trial management conferences that the parties provide at the opening of trial their agreed-to jury questions or, failing agreement, a written statement of questions agreed to and disagreed to, no such jury questions were produced at the beginning of trial.

[2] In response to my several requests through the 12 days of trial between 8 and 24 May, I was assured that the agreed-to jury questions were coming but that there were some minor wording discrepancies that had to be worked out.

[3] On 19 May, I demanded the jury questions.

[4] I received draft jury questions from each side and heard submissions with respect to each of the jury questions. The parties cannot agree on the jury questions. There disagreements are more than minor wording issues.

The Law

[5] Neither party referred to any law on the argument with respect to jury questions.

[6] In reaching my decision about the jury questions, I rely on Sacks v. Ross, 2017 ONCA 773, a medical malpractice case in which the court opined broadly on civil jury instructions and civil jury questions. The Court of Appeal at para. 55 et seq., set out the following principles applicable to civil jury questions:

a. Jury instructions and jury questions work hand in glove.

b. Jury questions should be tailored to the specific findings of fact that the jury must make to decide the case. They should respond to the facts and be organized in a logically sequential way. They should be in neutral, simple, and clear language, avoiding compound questions or questions that contained embedded assumptions. The best questions are answered “yes” or “no”, followed by a blank space in which the jury can insert a damages figure if it finds liability, and particulars of the negligence, if called for. The question should never ask for the jury’s reasons.

c. The jury’s answers should permit the judge to complete the judgement (see: Bassandra v. Sforza, 2016 ONCA 251).

d. While the court should always invite counsel to propose jury questions and hear counsels’ submissions, the trial judge has the overriding gatekeeping function to carefully scrutinize the draft jury questions submitted by counsel and set the questions that reflect the criteria, above, the answers to which permit the judge to enter judgement at the end of the trial. The court is not bound by any agreement of the parties.

e. Requesting the jury to provide particulars of its reasons for any finding of negligence is generally limited to complex cases such as medical malpractice cases. In those cases, the question to the jury with respect to particulars of the liable defendant’s negligence will reveal whether the jury has understood and applied the judge’s instructions that it must accept the standard of practice as the legal standard against which the defendant’s conduct must be measured. The answer to the particulars question will also ensure that the standard of care which the jury has adopted is not unreasonable or unknown in law (see: ter Neuzen v. Korn, [1995] 3 SCR 674, at para. 53.

f. The purpose of civil jury instructions is to explain to the jury what their role is in the trial and their corresponding duties. They are told that they are the triers of the fact, or the exclusive judges of the facts, and the trial judge’s job is to determine and prescribe the law that must be applied.

[7] Sacks was medical malpractice case. It discusses the nature of the jury questions, and in particular the request that the jury provide particulars of the negligence and how it was breached, within the context of complex medical malpractice cases.

[8] There is a danger in using the question asking for particulars of negligence is shown in Cheung v. Samra, 2022 ONCA 100. In that medical malpractice case, the jury was asked to provide particulars about the how the negligence of each of two doctors caused or contributed to the Plaintiff’s brain damage. The question asked: “please provide clear and specific answers.” The jury provided the particulars of negligence.

[9] D. Wilson, J., refused to dismiss the action. However, she found that the jury’s answer to the question asking for particulars of negligence causing the injury were insufficient because they fail to identify the mechanism of the injury, and made no reference to the expert evidence including evidence of favour the defendants. She found that the particulars did not explain how the negligence led to the damage. Ultimately she held that the causation answers were contrary to the law, did not explain the causal link between the negligence and the result, and cannot form a foundation for judgement. She thought that the jury was at best confused. It conflated the issues of standard of care with causation.

[10] The essential question was whether the jury made “no finding on which the judgement can be granted” or whether it answered “some but not all of the questions directed to it… so that judgement cannot be granted on its findings.” The Divisional Court affirmed Wilson, J. The Court of Appeal reversed.

[11] The Court of Appeal began with the presumption that juries understand and properly apply trial judges’ instructions and that juries’ answers are the result of a proper consideration of the evidence and the issues, and an adherence to the legal instructions provided by the trial judge (see paragraph 49). Further, the court assumed that when a jury is asked to provide particulars of a finding of causation, it is sufficient that five of the six jurors agree to the “bottom line” (see paragraph 51).

[12] The Court of Appeal found that it was not necessary that each juror come to the same conclusion about the mechanism of injury. Therefore, there answers in this case gave no reason to doubt the integrity of the verdict based on the particulars of negligence and causation provided. The jury’s answers to the questions may well have reflected a bottom-line consensus achieved through various paths which they expressed succinctly. They provided seven lines of handwritten notes to explain their finding on causation. The jury was not instructed that if they decided causation by different pathways they were to list all of the reasons. Therefore, the judge did not have discretion to refuse to give judgement in accordance with the verdict of the jury.

Analysis

[13] Applying the above principles, I turn now to specific issues arising between counsel. I assume that the analysis will also apply to the jury questions in the Henry action, although it is premature to say, at this point.

Separate Questions for Past and Future Losses

[14] It is necessary to have a separate instruction with respect to past v. future losses, and med/rehab v. housekeeping and home maintenance for the following reasons:

a. There are differences in burdens of proof such as between past and future losses,

b. Some losses attract interest, some do not,

c. Losses such as medical and rehabilitation costs, housekeeping, home maintenance, and other similar benefits, must be separated in order to facilitate the judge in making the appropriate setoffs required by the Insurance Act, and

d. some pecuniary losses such as health care costs, are affected by the threshold, others not.

Use of the Word “Negligence” or Similar Terms

[15] The plaintiff suggests that asking the jury to determine whether Mr. Hanna was “negligent” is inappropriate for two reasons: first it requires them to make a legal determination which is not their role, and second, it is a technical term of art. The Plaintiff suggests asking the jury if Mr. Hanna is “liable”.

[16] Asking a question about whether he is “liable” for the accident is subject to the same criticism. The word should be not “responsible”.

[17] There is nothing wrong with the word “negligent”. It is explained in the final instruction as an action that falls below the standard of care expected of a driver following another.

Causation Question

[18] A separate question must be inserted with respect to whether the accident caused any of the plaintiff’s injuries. The Plaintiff’s questions subsume causation with negligence, which is improper.

Particulars of Negligence Question

[19] The plaintiff argues that there should be no question that asks the jury to provide particulars of Mr. Hanna’s negligence, should they find him so. The defence says that a particulars question is a standard jury question in negligence cases.

[20] The problem with a particulars question is that a jury may agree that Mr. Hanna was negligent and responsible for the accident but may not agree as to why. By way of example, some jurors may conclude he was speeding, others may conclude he was travelling too fast, others may conclude he was following too closely to be able to stop, and others may find a combination of all of these factors.

[21] No question about providing particulars of Mr. Hanna’s negligence will be put to the jury for the following reasons:

a. Sacks and Cheung both illustrate the danger of using a question that requires the jury to state particulars of negligence. While neither of those cases said that a particulars question should not be used, they illustrate the difficulty in using one.

b. Particulars questions are more necessary in complex cases.

c. This is a straightforward motor vehicle, rear end collision case. Unlike in Sacks and Cheung, this case is not so complex that the question asking for particulars of negligence or particulars of causation is required to understand whether the jury understood the instructions or whether their decision has any foundation in law.

d. It is often said that in rear end collision cases there is a reverse onus on the defendant to prove he was not liable. In truth, the driver following who strikes the driver ahead has a heavy onus of explanation - to explain that the accident did not occur because of his negligence (see: Mortimer v. Myslik, 2012 ONCA 53, at para. 31; Graham v. Hodgkinson, (1983) 4 O.R. (2d) 697, at para. 22; and Beaumont v. Ruddy, [1932] O.R. 411, at page 442).

e. The defendants told the jury in opening that they are leading no evidence with respect to liability.

f. While the defendants pleaded as a fact in their Statement of Defence in the Desmond action and as a fact in their Defence of Defence in the Henry action that Ms. Desmond’s actions caused or contributed to both Ms. Desmond’s and Ms. Henry’s injuries, the defendants advance no counterclaim against Ms. Desmond in the the Desmond action, and no cross-claim or third party claim against Ms. Desmond in the Henry action. In short, they seek no relief against Ms. Desmond for the injuries either plaintiff sustained.

g. The proposed jury instructions I received from the defence did not include a question about any negligence by Ms. Desmond.

h. The instructions to the jury will explain that if Mr. Hanna’s negligent actions caused the accident or contributed to it in any material way, then he should be found liable. With damages, the jury instructions will explain that if the accident that Mr. Hanna caused, caused or contributed in any material way to the plaintiff’s injuries, then causation is established.

[22] The jury instructions will explain the but for test as meaning but for the accident with the plaintiff have suffered the injuries alleged. If the answer to that question is yes then the accident did not cause the injuries.

Using the Phrase “Non-Pecuniary General Damages”

[23] The parties agreed that the phrase “nonpecuniary general damages”, or any variation of it is unnecessarily technical. They agreed that instead, a phrase similar to “damages for pain, suffering and/or loss of enjoyment of life” be used.

Question re Loss of Earning Capacity or Competitive Advantage

[24] The defence objects to any question about loss of earning capacity or loss of competitive advantage because there is no economic evidence to support that question going to the jury.

[25] While there may be no evidence from an accountant or an actuary as to the quantum of such loss, there is some evidence which, if accepted, could form the basis of an award for loss of earning capaicy or competitive advantage (although the plaintiff accepts that the evidence is “thin”). I agree. Drs. Wolf and Blitzer make broad statements about the effect of Ms. Desmond’s condition and injuries on her ability to work and there is evidence from her coworker, Ms. Georgoussis, about what she might have been paid had she continued on at her employment at the time of the accident.

Jury Questions

[26] Based on the foregoing, the jury questions will be as set out below, subject to amendment for heads of damages which may not be claimed.

1. Was Mr. Hanna negligent in operating his automobile? Yes or no

2. If your answer to question one is “yes”, did his negligent operation of his motor vehicle cause, in whole or in part, the accident of 27 April 2014? Yes or no.

3. Irrespective of your answers to questions one and two, answer the following questions as if the answer to questions one and two were both yes:

4. In what amount, if any, do you assess Ms. Desmond’s claim for pain and suffering, and/or loss of enjoyment of life due to the car accident?

5. Did Ms. Desmond suffer a past loss of income up to the date of trial, due to the car accident? Yes or no.

6. If your answer to question five is yes, in what amount do you assess the plaintiff’s claim for past loss of income?

7. Has Ms. Desmond suffered a loss of future income arising from the accident? Yes or no.

8. If your answer to question 7 is yes, in what amount do you assess Ms. Desmond’s claim for future loss of income?

9. Has Ms. Desmond suffered a future loss of earning capacity and/or a loss of competitive advantage in her career because of the car accident? Yes or no

10. If your answer to question 9 is yes, in what amount do you assess Ms. Desmond’s claim for loss of earning capacity and/or loss of competitive advantage?

11. Did Ms. Desmond suffer a pass loss of housekeeping and home maintenance because of the accident? Yes or no

12. If your answer to question 11 is yes, in what amount do you assess Ms. Desmond’s claim for past loss of housekeeping and home maintenance?

13. Has Ms. Desmond suffer a future loss of housekeeping and home maintenance arising from the accident? Yes or no

14. If your answer to question 13 is yes, in what amount you assess Ms. Desmond’s claim for future loss of housekeeping and home maintenance arising from the accident?

15. Did Ms. Desmond suffered a past loss of healthcare expenses or other out-of-pocket expenses up to the time of trial, because of the accident? Yes or no

16. If your answer to question 15 is yes, in what amount you assess Ms. Desmond’s claim for past loss of healthcare expenses or other out-of-pocket expenses?

17. Has Ms. Desmond suffered a future loss of healthcare expenses because of the accident? Yes or no.

18. If your answer to question 17 is yes, in what amount do you assess Ms. Desmond’s claim for future loss of healthcare expenses?

Trimble J. Released: May 25, 2023