Court of Appeal for Ontario

Citation: 2010 ONCA 517 Date: 20100720 Docket: C49907 & C49908

Before: Feldman, Gillese and Armstrong JJ.A.

Between:

Bonita Maher and Michael Maher Plaintiffs/Appellants

And

The Great Atlantic & Pacific Company of Canada, Limited and Adis Cleaning Services Ltd. and Central Building Services Group Ltd. Defendants/Respondents

Counsel: Edward S.E. Kim, for the appellants Geoffrey D.E. Adair, for the respondent The Great Atlantic & Pacific Company of Canada, Limited Gregory R. Birston, for the respondent Adis Cleaning Services Ltd. Alan L. Rachlin, for the respondent Central Building Services Group Ltd.

Heard: January 13, 2010 On appeal from the judgment of Justice John dePencier Wright of the Superior Court of Justice, sitting with a jury, dated December 3, 2008, and the order of Justice John dePencier Wright dated December 23, 2008, with reasons reported at (2008), 75 C.P.C. (6th) 378.

Feldman J.A.:

[1] The plaintiff Bonita Maher was with her son Michael when she slipped and fell at an A&P grocery store after the floor cleaning machine had passed by. The plaintiffs’ action against A&P and the cleaning companies was tried by a jury, while the contractual crossclaims were tried later by the judge alone[^1]. The jury found no negligence by any of the defendants and no contributory negligence by the plaintiff.

[2] The morning after the jury had rendered its verdicts and had been discharged by the judge, all six members of the jury returned to the courthouse and lined up at the jury room door. When asked by court staff what they were doing there, one answered that they were there to count or calculate the money. When told that they had returned a no liability verdict and that the plaintiff would receive no money, it was reported that they looked stunned. Some also said they were there for a letter to their employers and one said that they were told to return.

[3] Nothing was done that day, as neither the judge nor the lawyers were in the courthouse. When the plaintiffs’ lawyer later learned of the jury members’ actions, he moved before the trial judge for an inquiry. The trial judge dismissed the motion.

[4] The plaintiffs seek a new trial on the basis that the trial judge erred by not conducting an inquiry and setting aside the jury verdict and on the basis of the appearance of a miscarriage of justice. In my view, there is no basis to order a new trial.

FACTS

[5] The plaintiffs, Bonita Maher and her 15 year old son Michael Maher were shopping at the A&P in Thunder Bay at 11:45 on Friday evening, July 2, 2004. Ms. Maher was very familiar with the store, having shopped there without incident or mishap over many years. While Ms. Maher was looking at the meat in the meat chest, the cleaner passed operating a floor scrubbing machine and Ms. Maher had to move to avoid its path. As they moved away from the meat counter and toward the eggs and dairy, both appellants slipped and lost their balance, but the appellant Bonita Maher fell, suffering injuries. Another shopper was a witness to the event. He testified that the machine left the floor damp behind it and that there was no way to avoid stepping in the path that the machine had followed. Other evidence regarding the incident came from employees of the cleaner and of the store, the latter of whom wrote in his report that he observed no water on the floor. The appellant Bonita Maher also gave evidence that when she was on the floor, it did not feel damp under her.

[6] There were three defendants to the appellants’ action: A&P, Central Building Services Group Ltd. (“CBSG”), the company to which A&P had contracted the responsibility for cleaning the store, and Adis Cleaning Services Ltd., the subcontractor of CBSG, the company that actually performed the cleaning. In the action, A&P cross-claimed against both CBSG and Adis, Adis cross-claimed against A&P, and CBSG cross-claimed against A&P and against Adis, based on their contracts and for contribution and indemnity.

[7] It was the defendant CBSG that served a jury notice in the action. As the trial commenced and progressed, there were a number of motions by other defendants to strike the jury. The plaintiffs were content to retain the jury for their action. The trial judge consistently declined to strike the jury for the main action, but ruled at the beginning of the trial that following the jury verdict, he would determine the contractual crossclaims among the defendants.

[8] To that end, the jury was excused for part of the evidence that was relevant only to the cross-claims, although they also heard some evidence that related both to the cross-claims as well as to the issue of the degrees of the respective defendants’ liability to the appellants. The trial judge also explained to the jury on a number of occasions during the trial, the limit on their role in finding liability. The trial judge made the following statements to the jury on this issue at different points during the trial:

I will also point out at this stage that Mrs. Maher is claiming against the three defendants. The three defendants are arguing between themselves on various points. Their argument between themselves has nothing to do with you. I will decide that after you decide the issue between them and the plaintiff, but you will hear some evidence just by the way as to the relationship between them, which may or may not affect the plaintiff, but as far as you are concerned you are trying the case with respect to the plaintiff.

Now, I must also tell you that while the plaintiff has sued these three defendants, these three defendants have each pointed a finger at each other, what we call cross-claims. In other words, the defendants are saying to the plaintiff, look, we’re not liable for your slip and even if we are liable for your slip you didn’t suffer the damages that you claim you suffered, but they also say, oh but, if I happened to be liable it’s not my fault it’s his fault. Mr. Simmons acts for A&P, he says we’re not liable, but if the jury has a different view, hey, we hired Mr. Birnie’s clients to take care of all this and Mr. Birnie’s client says, hey, I’m just a management company. I hired Mr. Birston’s client and he’s the one that hired the fellow that ran the machine. Now, you don’t have to worry about all that because I’m going to decide that after you decide the issue between the plaintiff and all of the defendants, but some of these questions and answers perhaps the bulk of them relate not to the plaintiff’s claim, but relate to cross-claims between the defendants an issue that I will get into after you’ve done your job determining the major issue between the plaintiff and the defendants.

So if you’re scratching your head and wondering what’s that got to do with this woman’s claim against anybody, it may not have anything to do at all quite frankly because there’s in effect three or four trials going on in this room right now. You’re only hearing one. I’ll be dealing with the other three or two of the cross claims. [Emphasis added.]

Gentlemen, I’ve been corrected by counsel. Mr. Birston points out that his client does not have any cross-claim against Mr. Birnie’s client. When I was pointing fingers I think I may have given you the impression that he did. Those claims are nothing to you. You hear Mr. Kim’s claim against them all and you decide that. I’ll take it from there. Yes?

Gentleman, as I mentioned to you earlier there are claims between various parties following the claim that you’re dealing with, and since this man is here I’d like to hear his evidence on that aspect of the case at the same time. I am going to ask you to retire for now while I hear his evidence on the other parts so you don’t get confused as to what relevance this material has. It will have no relevance to your action and we will call you back when we are finished with that.

All right, Gentleman, the evidence from this point on doesn’t concern you so we won’t clutter up your minds with it. You’re free to go out to the-your jury room while I hear this evidence that’ll be relative to cross claims or to other matters that you don’t have to deal with.

[9] The trial judge revisited the issue in his charge to the jury:

You are concerned only with the claims submitted to you by the plaintiffs against the defendants. While you have heard that some of the defendants have cross-claims between themselves, I will deal with them. You need not concern yourself with them.

Let me talk about damages in general. Damages simply means the monetary or financial compensation for loss caused by the wrongful conduct of another. You are required to assess these damages on the basis that you find a defendant fully responsible. That is, even if you absolve the defendant completely or find a defendant only partially responsible, it is nevertheless your duty to assess the damages as though the defendant had been found fully at fault. In the event you should find the defendant partially at fault only, do not proportionately reduce the quantum of the plaintiff’s damages. I repeat, assess the damages as if the defendant was 100 percent responsible. If you have apportioned liability between the parties, then counsel and I will work out the appropriate disposition of damages after we receive your verdict. [Emphasis added.]

[10] As part of his charge to the jury, the trial judge included some instruction on the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. The applicable sections are ss. 3 and 6. Section 3 deals with the duty of care that an occupier owes to an invitee, while s. 6 allows an occupier to retain an independent contractor to carry out the occupier’s responsibility to invitees.

[11] As counsel and the trial judge were unable to conclude the wording of the verdict sheet questions for the jury before the final addresses and the charge, the jury was not instructed about the wording of the questions or how they fit together on the issue of liability and the operation of the Occupiers’ Liability Act. The only instruction they were given directly on the questions was to answer each question except for certain alternative questions with respect to damages.

[12] The jury did not ask any questions following the charge. The written questions that they were required to answer together with a written copy of the charge were delivered to them in the jury room. After deliberating for seven hours, the jury returned with the verdict sheet fully filled in. The questions and answers were read into the record and all agreed. The following is the verdict that was delivered by the jury:

1. Did the Defendant, The Great Atlantic & Pacific Company of Canada, fail to take such care in all the circumstances of the case as was reasonable to see that the Plaintiff, Bonita Maher, was reasonably safe while on the property?

Answer: “Yes” or “No”

Answer: NO

2. If “Yes” what did the failure consist of? Give particulars.

[Diagonal line drawn through the question and answer space]

3. Did the Defendant, Central Building Services Group Ltd., fail to take such care in all the circumstances of the case as was reasonable to see that the Plaintiff, Bonita Maher, was reasonably safe while on the property?

Answer: “Yes” or “No”

Answer: NO

4. If “Yes” what did the failure consist of? Give particulars.

[Diagonal line drawn through the question and answer space]

5. Did the Defendant, Adis Cleaning Services Ltd., fail to take such care in all the circumstances of the case as was reasonable to see that the plaintiff, Bonita Maher, was reasonably safe while on the property?

Answer: “Yes” or “No”

Answer: NO

6. If “Yes” what did the failure consist of? Give particulars.

[Diagonal line drawn through the question and answer space]

7. Did the Defendant, The Great Atlantic & Pacific Company of Canada, in all the circumstances of the case, act reasonably in entrusting the cleaning and maintenance of the property to the Defendants, Central Building Services Group Ltd., and did it take sufficient steps to be satisfied that Central Building Services Group Ltd., were competent, that the work had been properly done and if it was reasonable that the work performed should have been undertaken?

Answer: “Yes” or “No”

Answer: YES

8. Did the Defendant, Central Building Services Group Ltd., in all the circumstances of the case, act reasonably in entrusting the cleaning and maintenance of the property to the Defendants, Adis Cleaning Services Ltd., and did it take sufficient steps to be satisfied that Adis Cleaning Services Ltd., were competent, that the work had been properly done and if it was reasonable that the work performed should have been undertaken?

Answer: “Yes” or “No”

Answer: YES

9. Irrespective of your answers to foregoing questions, was there any negligence on the part of the Plaintiff which caused the injuries or damages sustained by the Plaintiff?

Answer: “Yes” or “No”

Answer: NO

10. If your answer to question # 9 is “Yes”, provide particulars of such negligence.

[Nothing written]

11. Only if you find that more than one party to this action (including both the Plaintiff and Defendants) are negligent, how do you apportion the respective degrees of liability among the parties?

The Defendant, A & P N/A %

The Defendant, CBSG N/A %

The Defendant, Adis N/A %

The Plaintiff, Maher N/A %

Total 100 %

12. Irrespective of your answers to the previous questions, at what amount, if any, do you assess the damages of the Plaintiff, Bonita Maher, caused or contributed by the incident of July 2, 2004?

a. Non-pecuniary general damages

(Pain and Suffering) $ 25,000

b. Past income loss

(July 2, 2004 to December 2, 2008-trial date)

$______

c. Future income loss

(December 2, 2008 to August 20, 2025-Age 65)

$______

d. Loss of Competitive Advantage $ 90,000

e. Past/Future housekeeping loss $ 0___

f. Michael Maher-loss of care, guidance and companionship $ 15,000

[13] In his charge, when the trial judge was reviewing the possible liability of Adis to Ms. Maher, he referred to the alleged failure to have a mop man following the cleaning machine and suggested to the jury that they consider the point “very seriously”. He stated: “Something caused the plaintiff to slip. As counsel for A&P suggested, the most probable cause was fluid on the floor. Michael Maher couldn’t say the floor was wet but it was definitely slippery. Mr. Birston [lawyer for Adis] read you a portion of the evidence of Mr. Gilles LeCompte. Let me give you all of the evidence that he gave on this point.” The trial judge then read out to the jury all of Mr. LeCompte’s evidence on dampness on the floor and that he had to walk through it. The trial judge concluded on this issue as follows:

Adis Cleaning says that the presence of dampness is not the important issue. The issue is whether there was dampness at the location where the plaintiff fell when she fell. It says there is no evidence of that.

Now, the evidence was that a mop and pail man was to follow the machine. One of his jobs was to follow the scrubbing machine mopping up any cleaner that might not be vacuumed up from the floor. Mr. Dolph testified that on this occasion he did not see anyone following the scrubbing machine. On the other hand, Mr. Costa, the machine operator, said that the mop man was behind him, perhaps 5 to 20 feet. Adrian testified that if there is a film left behind, it evaporates quickly. You might consider whether the failure to have the man behind the machine doing his job was a failure to take the proper care.

[14] In spite of the trial judge’s suggestion to the jury in his charge that they should give serious consideration to finding Adis liable to the plaintiffs because its cleaner left the floor damp and potentially dangerous, in the course of thanking the jury for their service after they found all defendants not liable, the trial judge told them: “I thought your decision was quite reasonable, given the evidence that was presented to you.” He then discharged the jury.

[15] The next morning, two jurors returned to the court house and one of the court officers asked what they were doing back, to which one juror replied, according to the court officer: “he was either asked or told to return”. This court officer left to find a superior and by the time this second court officer arrived to address the situation, all six jurors had lined up at the door of their jury room. When a court officer asked why they were there, one juror responded: to count (or calculate) the money. When the court officer told them that because of their verdict, the plaintiff would not be getting any money, she believed the jurors looked surprised or stunned, although at least one, and perhaps as many as three, said they were there for letters for their employers.

[16] Nothing further was done at that time, as neither the trial judge nor the lawyers were in the courthouse that morning. When the plaintiffs’ counsel learned what had occurred, he brought a motion before the trial judge for an inquiry of the jurors as to why they had returned and whether it was in respect of their verdict. In his reasons for dismissing the motion, the trial judge reviewed the case law on jury inquiry following discharge and concluded that the motion must be dismissed.

ISSUES

[17] The appellants raise two issues with respect to what they say should have happened when the jury returned to the courthouse following their discharge. The first is that the trial judge erred by failing to make inquiries of the jury and dismissing the motion. The second is that there was an error by court administration in failing to take steps to assemble and question the jurors that morning in order to eliminate the potential for reasonable apprehension of bias by the passage of time.

ANALYSIS

Issue 1: Did the trial judge err by failing to recall the jurors in order to make inquiries?

[18] The appellants’ theory is that the jury was misled by the trial judge into believing that their role was only to quantify the damages and the trial judge would determine as well as allocate liability among the defendants. They submit that the answers to the questions where the jury found no liability on anyone for the slip and fall together with their return following discharge to count or calculate the money, showed that they misunderstood their role. In that context, inquiries should have been made to determine whether this was the case and if so, a mistrial should have been ordered. In the alternative, this court should set aside the jury verdict and order a mistrial.

[19] The Supreme Court of Canada has addressed the issue of what a court should do where there is the possibility of an incorrectly recorded or unintended verdict twice in the last 25 years: R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, and R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857.

[20] In Head, the appellant had been charged with attempted murder. In his charge to the jury, the trial judge provided instructions on lesser, included offences. The jury and the accused were both discharged after the jury returned with a verdict of not guilty. However, after the judge said that court was adjourned, the jury foreman asked to speak and stated: “Well, when we discussed this we thought we could find the defendant not guilty of the charge as laid but guilty of a lesser charge, is that right?” After hearing submissions from counsel, the trial judge determined that he was functus and allowed the not guilty verdict to stand: Head at pp. 694-96 (paras. 16-20).

[21] In his majority judgment, McIntyre J. held that in a criminal case, while the trial judge retains the authority to clarify any errors or ambiguity in a jury verdict before they have been discharged, the judge has no authority to make any change to a jury verdict once it has been recorded and the jury discharged: Head at pp. 689-91, 694 (paras. 5-8). McIntyre J. agreed with the observation in Lamer J.’s concurring reasons that judges have a wider discretion in civil cases to recall jurors following the discharge of the jury to correct errors or to clarify recorded verdicts: Head at p. 691 (para. 9).

[22] Lamer J. conducted a very extensive review of the law including in civil cases in his concurring reasons. He agreed that following discharge of the jury, they cannot be allowed to reconsider their verdict for any reason. However, in some circumstances they may be allowed to rectify errors made in the recording or transmission of their verdict: Head at pp. 698-700 (paras. 27-30). He quoted from Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at para. 2355, where the learned author points out that it is normally only after the jury has been discharged that such errors are ascertained. At pp. 700-01 (para. 31), Lamer J. referred to the negligence action in McCulloch v. Ottawa Transportation Commission, 1954 CanLII 309 (ON CA), [1954] 2 D.L.R. 443 (Ont. C.A.), as an example.

[23] In that case, the jury had apportioned liability between the plaintiff and the defendant in the proportion of 80%/20%. Following the discharge of the jury, before the jury had left the courtroom, a member of the jury communicated with counsel for the plaintiff that he had recorded the proportions in error, and that in fact the jury had awarded them the other way around, i.e., 20%/80%: McCulloch at p. 444 (paras. 1-2). The Court of Appeal corrected the error. In his reasons, Hope J.A. stated, at p. 445 (para. 3):

I agree thoroughly ... that no evidence can be received by way of affidavit or otherwise after the delivery of the verdict to explain some error or mistake which occurred during the deliberation of the members of the jury in the jury-room before arriving at a verdict. However, I think the cases are quite clear that where a verdict has been reached by a jury, a unanimous verdict, as in this case, and some clerical error has occurred either in recording that verdict in the jury room or by the jury in reporting it to Court, then affidavits may be received, in the interest of justice, to disclose what the true verdict of the jury was.

[24] In contrast, in Danis v. Saumure, 1956 CanLII 9 (SCC), [1956] S.C.R. 403, in support of his appeal on the basis that the verdict was perverse, the appellant sought to file the affidavits of a number of the jurors, attesting that the findings were not the ones they had intended: Danis at p. 405. The court would not give effect to this evidence. This evidence went beyond errors in transmission of the verdict to errors in the deliberations of the jury, and was, on that basis, inadmissible: Danis at pp. 405-07.

[25] Lamer J. concluded in Head, that once the foreman indicated a possible error, the trial judge should have reconvened the jury in the jury box and made inquiries regarding the nature of the error. If the error was that the jury had reached further verdicts on the included offences but had just not transmitted them to the court, then the judge had the authority to receive the verdicts at that time. However, if the jury had intended to deliberate further on those verdicts, then that could not be done once they had delivered their verdict and been discharged. The problem could then only be dealt with by the Court of Appeal: Head at p. 704 (para. 38).

[26] The issue of a miscommunication of a jury verdict arose again in 2002 in R. v. Burke, another attempt murder case. There, when the foreman of the jury announced the verdict as “guilty as charged”, the judge, the registrar and others heard “not guilty”. That verdict was recorded and the accused and the jury were discharged. A court officer who was escorting the jurors out asked the foreman what the verdict had been and he told her “guilty”. When she returned and learned that the verdict had been recorded as “not guilty”, she reported this error to the trial judge within seven to nine minutes after the verdict had been announced in court: Burke at paras. 26-27.

[27] The court conducted three inquires, one later that day, one the next day and a third four days later. The second two were with the full jury reassembled, but without the accused who had not been relocated. It became clear that the foreman had spoken softly but had said “guilty as charged”, and that that was what the other jurors had heard and agreed to: Burke at paras. 29-33. The trial judge held that he had the jurisdiction to change the recorded verdict where there was a transmission error. He also found that there was no basis to say that the jurors had been tainted between the time they rendered the verdict and the inquiries. He therefore vacated the inaccurately recorded verdict, recorded the verdict as guilty, and sentenced the accused: Burke at paras. 36-37.

[28] In Burke, the Supreme Court decided that the rule enunciated by the majority in Head, that a court has no jurisdiction to correct a verdict after the jury has been discharged, should be revisited and the more flexible approach that was taken by Lamer J. should be adopted: Burke at paras. 50-52. Under the new rule, a court has a limited jurisdiction to inquire into an alleged jury error where correction of the error does not involve any further deliberations by the jury. In other words, the error cannot be one that challenges the validity of the verdict actually reached by the jury or involves the jury changing its mind for any reason: Burke at paras. 53-55. Then only where the nature of the error is one that can be corrected, can the court conduct an inquiry to determine whether there is a reasonable apprehension that the jury was biased or tainted during its dispersal. If not, then the court may enter the proper verdict. If there is an apprehension of bias, the court may either confirm the verdict or declare a mistrial: Burke at paras. 56, 70, 74. At para. 70, Major J. summarized the law regarding post-discharge jury inquiries:

The first question that a trial judge must ask post-discharge is whether the error is one that requires reconsideration of the verdict. If it requires redeliberation of the verdict, there are no circumstances under which the judge will retain or otherwise possess jurisdiction to reconvene the jury and conduct an inquiry into the alleged error. The trial has concluded and the jury’s function is finished. The jury is not then permitted to change its mind. If the error does not require the jury to reconsider its verdict, then the trial judge possesses jurisdiction to conduct an inquiry, the nature of the inquiry being whether the facts of the case disclose a reasonable apprehension of bias.

[29] Lamer J.’s articulation is also instructive. At pp. 703-04 (paras. 37-38) of Head, Lamer J. discussed what the trial judge should have done in that case:

Given the very clear instructions by the judge regarding the possible subsidiary verdicts, the blanket statement of “not guilty” by the foreman would normally have ended the matter had it not been for the doubt cast on its accuracy by the foreman’s remarks, where he said: “when we discussed this we thought we could find the Defendant not guilty of the charge as laid, but guilty of a lesser offence, is that right?” What had until then been rightly considered as a complete and clear verdict became uncertain. As of the moment of that statement the trial judge should have inquired further into this comment by the foreman. He should have had all the jury members recalled to the jury box and, with all of them present, he should have addressed the jury with a view to ascertaining the precise nature of the problem.

There are various ways of doing this. As an example, he could have first ascertained whether they had, prior to their being discharged, arrived at a verdict and wanted to correct or complete the transmission of the verdict at which they had arrived. If such was the case he could then have instructed the clerk of the court to register that verdict. If, through questioning, he had found out that they had not come to a final verdict prior to their discharge, then the trial judge could not permit them to reopen their deliberations; for once they had recorded a verdict and had been discharged, their jurisdiction to make findings was spent. The problem could then only be dealt with in the Court of Appeal.

[30] What is clear from the extensive discussions and analyses together with the results in Head and Burke, is that there is no jurisdiction either in criminal or civil cases for the court to make inquiries of a jury post-discharge where the nature of the possible jury error requires further deliberations by a jury to clarify or modify the verdict as it was decided and recorded. The examples in civil cases where a jury verdict was amended after the jury was discharged involve correcting an error in the recording or transmission of the verdict already rendered by the jury such as the 80/20 liability split reversal in McCulloch. Where the jury may have misunderstood the effect of its verdict or the instructions of the trial judge, and would need to have further deliberations to reconsider the verdict, the law is clear that in that case, there is no jurisdiction in the court to make inquiries or to allow the jury to reconsider the verdict if this occurs after it has been discharged. Of course, if such an error is discovered before the jury is discharged, then the court is not functus and it may send the jury back for further deliberations.

Application to this Case

[31] In this case, we have very little information as to why all six members of the jury returned to their jury room the day after they had rendered their verdict and been discharged by the trial judge. What we have is the evidence of the court staff that this was virtually unprecedented; that one said they came to count or calculate the money; that they looked stunned or surprised when they were told that they had awarded nothing to the plaintiff; that one said he was asked or told to return; and that some said they were there for letters to their employers.

[32] Applying the question articulated by Lamer J. in Head, did this information about the conduct of the jury make the verdict uncertain, requiring the trial judge to call the jury together in order make inquiries? In my view, although it was odd for all members of the jury to return the next morning, there were plausible reasons for their conduct. They knew that the trial judge intended to deal with the crossclaims, which he in fact did although not until a few weeks later. And some said they had come for letters for their employers or were told or asked to return.

[33] Arguably, there was some basis at least to try to find out if there was any error in the minds of the jury. However, to the extent that the jury’s return might indicate that they made an error, since the verdict sheet was in writing and consisted of “no” answers to the questions regarding a failure by the defendants, followed by a line through the area where details of a “yes” answer would have been given, and “yes” answers to the questions regarding taking proper care, there is no basis to consider a miscommunication of the verdict. Furthermore, the verdict was read out in court and all jurors agreed with it. Therefore, any possible error would have had to involve a misunderstanding by the jury of the effect of its verdict.

[34] What occurred in this case is very reminiscent of what occurred in Rose v. Sabourin (1994), 31 C.P.C (3d) 309 (Ont. Ct. J. (Gen. Div.)), aff’d (1997), 14 C.P.C. (4th) 193 (C.A.). That was also an occupier’s liability action, although in a personal as opposed to a commercial context. The action was based on the plaintiff’s fall down the basement stairs in the defendant’s house. The jury also answered questions on a verdict sheet on liability and damages. The jury answered “yes” to the first question on liability: “Did the defendant … take reasonable care in all the circumstances of the case to see that the plaintiff … was reasonably safe while in the defendant’s home?” The sheet instructed the jury to go to question # 6, the first damages question, if the answer to question # 1 was “yes”, and the jury did that.

[35] When the jury came back with its verdict, the trial judge read out the answers from the verdict sheet and verified with the foreman that those were the answers of the jury. The trial judge then thanked the jury, discharged them, endorsed the record dismissing the action and dealt with costs. After leaving the court room, the deputy reported to the trial judge that one or more of the jurors had asked him: (1) how would the plaintiffs get their money?; (2) when would they receive the money?; and (3) who would pay them the money?

[36] The trial judge asked the deputy and another court officer to set out in writing their recollections of what was said to them by jury members and these statements were forwarded to counsel by the trial judge. Counsel made a motion about a month later for an order setting aside the verdict as perverse and directing a new trial.

[37] The trial judge held that she had no jurisdiction to consider the motion and that the jury was functus after the verdict was endorsed on the record: Rose (1994) at p. 312 (para. 14). She referred, at pp. 313-14 (paras. 18-20), to Lamer J.’s reasons in Head and to the narrow exception to rectify an error in the transmission or recording of a verdict to the general rule that following its discharge, the jury is functus. She noted that the answers on the verdict sheet were unambiguous and that she was obliged to record the jury’s verdict. The issue of a new trial was for the Court of Appeal.

[38] In a short endorsement, the Court of Appeal endorsed the reasoning of the trial judge and concluded, at p. 193 (para. 2): “Assuming the judge had the jurisdiction [to] question the jury, nothing happened in this case that would justify it.” The appeal was dismissed.

[39] Although Rose was decided before Burke, Burke did not extend the ambit of an inquiry post-discharge beyond the narrow exception for transmission and recording errors, and clarified that the nature of an inquiry of the jury in that narrow circumstance was to determine reasonable apprehension of bias. The only distinction I can see between the Rose case and this appeal is the possible confusion in this case caused by the splitting of functions between the judge and jury respecting the liability for the crossclaims. However, if there was any such confusion, it was not noted by trial counsel who made no objection to any of the judge’s remarks. Nor was there objection to the charge on this issue. Although it would have been much more helpful had the trial judge reviewed the questions to be answered with the jury, the fact that the questions were only finalized after the charge was complete is not a ground of appeal, nor can one say whether it caused actual confusion to the jury. Again, there was no perception of jury confusion by counsel or the trial judge.

[40] In Rose, the Court of Appeal did not discuss in its brief reasons the issue of the role of that court in ordering a new trial for a perceived jury error where the trial judge was functus. The Court of Appeal did not so order in that case. Nor would I in this case.

[41] Although there was a clear basis on the record for a verdict in favour of the plaintiffs, one cannot say that the jury’s verdict was perverse. It was open to the jury to find that all reasonable care had been taken and that was certainly argued to them. In his charge, the trial judge signalled to the jury that there was a basis in the evidence for imposing liability on Adis for not having a mop man following the floor cleaning machine, by telling them that they should pay particular attention to the evidence of the independent witness who observed the cleaning machine leave a damp trail that he had to walk through. However, when the jury returned their no liability verdict, the trial judge told them it was a reasonable one on the record.

[42] As in Rose, in this case the answers on the verdict sheet were clear and confirmed by the jury foreman before discharge. There could be no issue of miscommunication of the verdict. As in Rose, one could speculate, based on the jury’s comment about why they returned, that some or all may not have understood that by finding that the defendants had not failed in their duty under the Occupiers’ Liability Act, there was no one else to pay the plaintiffs the damages they had suffered. If this misunderstanding did occur, that is unfortunate, but would not have changed the outcome. Nor does it provide any basis for interfering with the jury’s verdict in fact or in law.

Issue 2: Should court staff have taken steps to ensure that the trial judge and the parties were advised of the jury’s return following their discharge?

[43] Although I would dismiss the appeal for the reasons given above on Issue 1, as this matter has been squarely raised, I agree that it warrants some comment.

[44] In these cases, where there may be a jury error that is correctable by the trial judge after the jury has been discharged, it is critical that the jury be reassembled as quickly as possible to try to avoid the problem of reasonable apprehension of bias because of the potential for exposure to outside influences in the community during dispersal. For that reason, where court staff learn of a potential issue, it is imperative that it be brought to the attention of the trial judge immediately and that the trial judge inform counsel immediately, as was done in the Rose case. Even where the error is not one that is potentially correctable, as in this case, it is still essential that the trial judge and counsel be informed immediately so that counsel can take whatever steps they believe appropriate to bring the matter forward for adjudication.

[45] To that end, it may be appropriate to devise and implement a protocol for court staff in such cases, to ensure that the trial judge and counsel are immediately notified if any issue arises with the jury post-discharge.

CONCLUSION

[46] In the result, I would dismiss the appeal, in the circumstances, without costs.

RELEASED:

“JUL 20 2010” “K. Feldman J.A.”

“EEG” “I agree E.E. Gillese J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: The crossclaim issues were the subject of a separate appeal heard together with this appeal. That appeal has been decided: Maher v. Central Building Services Group Ltd., 2010 ONCA 415.