Brady v. Lamb

[Indexed as: Brady v. Lamb]

78 O.R. (3d) 680

[2005] O.J. No. 5403

Docket: C41561

Court of Appeal for Ontario,

Laskin, Sharpe and MacFarland JJ.A.

December 16, 2005

Civil procedure -- Trial -- Jury trial -- Discharge of jury -- Plaintiff in personal injury action claiming that injuries had interfered with her ability to care for her baby -- Defence counsel asking her at trial whether there had been discussion before accident about calling in Children's Aid Society -- Trial judge considering line of questioning improper and expressing concern that juror who worked for Children's Aid Society might make inquiries on her own -- Trial judge erring in discharging jury on that basis.

The plaintiff in a personal injury action alleged that her injuries interfered with her ability to care for her child. The defendants served a jury notice. Defence counsel at trial asked the plaintiff whether there had been some discussion before the accident about calling in the Children's Aid Society ("CAS"). The trial judge took strong exception to that line of inquiry, considering it improper and highly prejudicial to the plaintiff. He was particularly concerned because juror number four worked for the CAS, and he considered that there was a substantial risk that juror number four might make independent inquiries about CAS involvement. The trial judge discharged the jury and continued without a jury. The action was allowed. The defendants appealed.

Held, the appeal should be allowed.

The trial judge erred in discharging the jury. Assuming, without deciding, that the defendants were not entitled to pursue the issue of the possibility of CAS involvement, the mere mention of the CAS could not, in the circumstances of this case, provide a legal basis for discharging the jury. The conclusion that juror number four would improperly seek out information not before the court was entirely speculative. Even if there was some basis in fact for suspecting that the juror would act improperly, the trial judge should have explored ways of removing that risk in a manner that would preserve the defendants' right to a jury trial. If there were grounds to suggest that there was a grave risk that juror number four would ignore her oath and improperly seek out information from CAS records, the trial judge could have continued the case with a jury of five.

APPEAL from the judgment of Macdonald J. of the Superior Court of Justice, dated February 17, 2004, for a plaintiff in a personal injury action.

Cases referred to Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 391 (SCC), [1997] 1 S.C.R. 1092, [1997] S.C.J. No. 43, 34 B.C.L.R. (3d) 10, 145 D.L.R. (4th) 193, 211 N.R. 89, [1997] 7 W.W.R. 92, 35 C.C.L.T. (2d) 1, [1997] I.L.R. para. 1-3439, 9 C.P.C. (4th) 1; Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109, 215 D.L.R. (4th) 193, 2002 C.L.L.C. para. 210-031, 32 M.V.R. (4th) 45 (C.A.) [page681]

Paul Bates, for plaintiff/respondent. Alan L. Rachlin, for defendants/appellants.

[1] BY THE COURT:-- The appellants raise a number of grounds of appeal from a judgment awarding the respondent damages in a personal injury action. As we have concluded that the appeal must be allowed on the ground that the trial judge erred by discharging the jury, refusing to declare a mistrial, and proceeding to try the case without a jury, we need only deal with that ground of appeal.

[2] The respondent claimed damages for soft tissue injuries arising out of a motor vehicle accident that occurred in July 1999. She alleged that her injuries substantially interfered with her ability to perform routine tasks and with her ability to care for her young daughter. The respondent's credibility was very much in issue. The appellants served a jury notice and the case proceeded to trial in February 2004.

[3] The respondent had a pre-accident history of obsessive- compulsive disorder, including uncontrollable hand washing. On the third day of trial, counsel for the appellants cross- examined the respondent on the basis of her family doctor's clinical notes. The respondent agreed that, prior to the accident, she had become more irritable, very possessive of her baby and obsessive about the baby's cleanliness. Counsel asked her whether there had been discussion about calling in the Children's Aid Society ("CAS"). The basis for this question was a note in the family doctor's file. The note indicated that, prior to the accident, the family doctor had discussed calling the CAS with another physician, had then called the CAS herself, and also suggested to the respondent's husband that he call the CAS. Counsel for the appellants conceded before the trial judge and before this court that the manner in which he put his question was inappropriate, but he argued that, as the respondent had put in issue her ability to car e for her child after the accident, he was entitled to explore her pre-accident child care ability and the possible involvement of the CAS.

[4] The trial judge took strong exception to this line of inquiry. He considered any reference to the CAS to be improper and highly prejudicial to the respondent. He raised the question of whether mention of the CAS had prejudiced the fair trial of the action before the jury. A lengthy exchange with counsel ensued. Counsel for the respondent eventually asked for an [page682] order discharging the jury and continuing the trial with the judge alone or, alternatively, an order declaring a mistrial. During argument of that motion, the trial judge indicated his concerns about racial bias (the respondent is black). He also stated that reference to the CAS was not "a neutral subject in a society sensitized to abuse issues".

[5] In ruling that the jury should be struck, the trial judge stated:

The deciding factor, by which I mean the factor which tips the balance in this case, in my view, is that one member of this jury, Juror Number Four, is an Administrative Assistant who is an employee of the York Region Children's Aid Society. The plaintiff has testified that in 1997, at the time of the husband's alleged concerns respecting the Children's Aid Society, she lived in Aurora, which is in York Region. If the Children's Aid Society was contacted, it would be the York Region Children's Aid Society, of which one juror is a member. In my view, there is a substantial risk of inquiries being made improperly to determine what, if anything, the records of the York Region Children's Aid Society might disclose, respecting this plaintiff and her alleged difficulties in caring for her child.

[6] The trial judge considered and rejected the submission that the risk could be cured by an appropriately worded instruction to juror number four or to the entire panel:

Given that risk of extraneous and improper inquiry because one member of the jury has means available to her of determining the truth or lack of truth of this allegation, which ought not to have been put, I am satisfied that there is such a substantial risk of extraneous matters leading to extraneous and collateral judgments in respect of this plaintiff, her credibility, her reliability, or the weight of her evidence that there is a substantial risk that the jury deliberations are irretrievably tainted, and that a fair jury trial probably cannot be had. I, therefore, grant the motion to discharge the jury.

[7] The trial judge discharged the jury and asked the parties whether they insisted upon a jury trial or whether they wished to continue before him without a jury. He indicated that, given the state of the trial list, a new trial would not commence before early 2006. The appellants asked for a mistrial and a new trial with a jury. The respondent preferred to continue with the judge alone, but did not strenuously resist a jury trial commencing in early 2006. The trial judge decided to continue the case without a jury.

[8] The trial judge's decision to discharge the jury was undoubtedly a well-intended attempt to ensure that the respondent received a fair trial. We recognize that this was a discretionary order entitled to substantial deference in this court. However, an appellate court may intervene in certain cases. Austin J.A. summarized the applicable law in Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109 (C.A.), at para. 52: [page683]

The right to trial by jury is a statutory right and a substantial one. A judge, on the motion of a party, may strike out a jury notice or discharge a jury. The trial judge is in the best position to determine how to exercise that power. The decision of the trial judge to keep or to discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles: ...

[9] We are satisfied that the ruling in the case at bar reveals errors in principle sufficient to require the intervention of this court.

[10] Assuming, without deciding, that in the circumstance of this case the appellants were not entitled to pursue the issue of the possibility of CAS involvement, we are satisfied that the mere mention of the CAS could not, in the circumstances of this case, provide a legal basis for discharging the jury.

[11] The trial judge did not interview juror number four and his conclusion that she would improperly seek out information not before the court was entirely speculative in nature. There is a presumption that jurors will adhere to their oaths and that allegations of bias or improper conduct must be based upon fact, not speculation.

[12] Even if there were some basis in fact for suspecting that the juror would act improperly, the trial judge should have explored ways of removing that risk in a manner that would preserve the appellants' right to a jury trial. The trial judge could have provided juror number four, or the panel as a whole, with a clear instruction that they were to base their decision on the evidence led in court and that they were not entitled to make their own inquiries. Moreover, even if, contrary to our conclusion, there were grounds to suggest that there was a grave risk that juror number four would ignore her oath and improperly seek out information from CAS records, the trial judge could have continued the case with a jury of five.

[13] Where the jury is exposed to something prejudicial, in most cases, the trial judge will be able to fashion a remedy to remove the prejudice rather than discharge the jury: see Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 391 (SCC), [1997] 1 S.C.R. 1092, [1997] S.C.J. No. 43, at pp. 1105 and 1106 S.C.R. Any prejudice emanating from the brief mention of possible CAS involvement in the present case should have been answered with a less drastic remedy than discharging the jury. An instruction to the jury that counsel's question did not amount to evidence of CAS involvement and that they were to ignore the suggestion was all that was required. Resort to the drastic remedy of discharging the jury amounted to an error in principle justifying appellate intervention. [page684]

[14] Accordingly, we allow the appeal, set aside the judgment at trial, and order a new trial. The appellants do not seek costs of the appeal. In the circumstances, the appropriate order is that the costs of the first trial be left to the discretion of the trial judge at the new trial.

Appeal allowed.