Patterson et al. v. Peladeau

Ontario Reports Court of Appeal for Ontario MacPherson, Sharpe and Jamal JJ.A. February 20, 2020 150 O.R. (3d) 506 | 2020 ONCA 137

Counsel: Joseph Y. Obagi and Thomas P. Connolly, for appellants. Joseph W.L. Griffiths and Matthew G.T. Glass, for respondent.

BY THE COURT: --

Introduction

[1] This appeal arises from the trial judge's dismissal of motions to strike the jury and to declare a mistrial in a motor vehicle personal injury action: Patterson v. Peladeau, 2018 ONSC 2625, 80 C.C.L.I. (5th) 213 (S.C.J.). During the jury's deliberations, the jury asked the court a question that revealed that it may have accessed inappropriate extrinsic information, namely, a statutory provision that was irrelevant and inapplicable to this case, but which, if applied, could impact the apportionment of liability.

[2] The trial judge questioned the jury foreperson, who revealed that he had found the provision on an Ontario government website on the weekend at the beginning of the deliberations, and then shared it with the other jurors. The foreperson also revealed that this was the full extent of the extrinsic information and that no other juror had accessed the Internet in relation to the case.

[3] Based on these answers, the trial judge was satisfied that he did not need to question the other jurors and that this issue, while serious, could be dealt with through a correcting charge. He dismissed the appellants' pre-verdict motion to strike the jury, as well as their post-verdict motion to declare a mistrial.

[4] The appellants now appeal to this court. They contend that the trial judge failed to conduct a proper inquiry as to what extrinsic information the jury had obtained and then failed to analyze its prejudicial effect. The appellants assert that the trial judge should have polled every juror or permitted counsel to question them.

[5] For the reasons that follow, we do not agree with the appellants' submissions and dismiss the appeal.

Background

(i) The accident

[6] On December 15, 2009, at 5:45 a.m., the appellant Ronald Patterson was hit by the respondent's car while he was standing on the road next to his truck. The appellant's truck was parked in complete darkness facing oncoming traffic in the driving lane of a two-lane country road. The appellant was trying to tow his van [page509] from a ditch that he had driven into after skidding on black ice earlier that morning.

[7] Although the appellant's truck was parked with its hazard lights activated and headlights on low beams, the respondent, who was travelling at about the speed limit, thought the lights were from an oncoming vehicle. He did not realize that the truck was parked and fully blocking his lane of travel until it was too late.

[8] The respondent clipped the appellant's truck, struck him, and collided with his van, which was parked in the ditch. While the respondent was not hurt, the appellant incurred a fractured pelvis and other significant injuries.

[9] The appellant, together with his wife and daughter, claimed over $4 million against the respondent in respect of his injuries. In addition, his wife and daughter claimed damages for loss of care, guidance and companionship under the Family Law Act, R.S.O. 1990, c. F.3.

(ii) The jury's question

[10] One of the key issues at trial was the apportionment of liability for the accident. The trial judge instructed the jury that the Highway Traffic Act, R.S.O. 1990, c. H.8 sets out the rules and standards for the operation of motor vehicles and the use of roads, and advised them that s. 170(12) provides in relevant part that "no person shall park or stand a vehicle on a highway in such a manner as to interfere with the movement of traffic". He instructed the jury that because it was "manifestly obvious" that the appellant had contravened this provision, the appellant was at least partially responsible for the accident, but it was for the jury to decide on the parties' relative degree of fault.

[11] After hearing eight weeks of evidence, closing arguments and the trial judge's jury charge, the jury retired to deliberate on a Friday afternoon.

[12] The following Monday morning, the jury returned with several questions for the trial judge. The trial judge and counsel agreed that one question was quite obviously based on (without referring to by name) s. 17(2) of the Fault Determination Rules, R.R.O. 1990, Reg. 668, a regulation under the Insurance Act, R.S.O. 1990, c. I.8, for resolving property damage claims between insurers, but which was irrelevant to the liability issues in the action.

[13] The jury's question on this point was as follows:

In the highway traffic act there is a part which states "It is illegal to park on a roadway outside a city town or village" it also says if a vehicle is struck while illegally parked, then the parked vehicle is 100 per cent at fault. [page510]

[14] Section 17(2) of the Fault Determination Rules provides as follows:

17(2) If automobile "A" is illegally parked, stopped or standing when it is struck by automobile "B" and if the incident occurs outside a city, town or village, the driver of automobile "A" is 100 per cent at fault and the driver of automobile "B" is not at fault for the incident.

(iii) The trial judge's inquiry into the extrinsic information

[15] The trial judge conferred with counsel and it was agreed that he would question the jurors individually in open court to determine how they had obtained the Fault Determination Rules.

[16] The first juror questioned, the foreperson, revealed that he was the source of the information and that he had found it on an Ontario provincial government website. He confirmed that he had not accessed or shared any other extrinsic information with the other jurors and that he was the only juror who had accessed the Internet.

[17] Having obtained this information, the trial judge concluded that it was unnecessary to question the other jurors. As he later noted in his reasons dismissing the mistrial motion, the Fault Determination Rules had been in the jury room for perhaps two hours as the jury discussed liability and formulated its questions for the court. He instructed the jury to cease discussion of the liability issues until he could further review their questions with counsel and provide a response.

[18] The trial judge then canvassed counsel for their positions. Appellants' counsel submitted that every juror should be polled and that "counsel should have the right to ask these jurors questions to flush out perhaps in some more detail what the facts are". Respondent's counsel objected to this. In his view, the court had already identified the one juror who was the source of the extrinsic information and had determined that it had been accessed through an Ontario government website. He submitted that counsel asking the jurors questions "might invite further disclosure of their deliberations", which would itself risk a mistrial.

[19] The trial judge expressed his strong inclination to issue a correcting charge. He provided counsel with a draft charge and asked them to reflect on their positions overnight.

(iv) The motion to strike the jury

[20] The next day, the appellants brought a motion to strike the jury and to proceed with the remainder of the trial by judge alone on the basis that extraneous material had been introduced into the jury room. The motion also sought an order that the trial judge conduct an inquiry and question each juror about whether they [page511] had obtained extrinsic information during deliberations and ask the foreperson to produce the results of his Internet searches.

[21] The trial judge dismissed the motion. He was satisfied that the court had isolated the source and extent of the issue and that the question made clear that the jury was seeking further direction from the court with respect to the information it had found. He concluded that the issue could be addressed through responses to the jury's questions and an appropriate correcting charge, accompanied by a strong warning to the jurors not to conduct any further extrinsic research.

[22] The trial judge's correcting charge, which he read to the jury and provided to them in writing, made clear that the only part of the Highway Traffic Act relevant to this case was s. 170(12), on which the trial judge had already instructed the jury. The trial judge asked the jury to re-read the relevant part of the charge. He also emphasized that the Fault Determination Rules had "no relevance" (underlining in original) to the liability issues in this lawsuit and that the jurors were to disabuse their minds of any consideration of this regulation. He stated that the jury's question reflected that a member of the jury had accessed the Internet. He reiterated [at para. 17] the instruction he gave at the beginning of the trial that "it is completely improper to research or Google law and there must be no reoccurrence of this" (bold in original). Finally, the trial judge stressed that the jury's verdict "must be based exclusively on the evidence entered into the record in this trial and on the legal directions which I have given to you . . . There is to be no independent research conducted by any juror. I will answer any questions you have on the law or on any other matter" (bold in original).

(v) The jury's verdict

[23] Three days later, the jury returned its verdict. The jury found the appellant 73 per cent contributorily negligent in the collision and the respondent 27 per cent at fault. As a result of the jury's verdict and assessment of damages, the trial judge awarded judgment to the appellants in the amount of $309,032.34.

(vi) The motion for a mistrial

[24] After the verdict, the appellants moved for a mistrial, again relying principally on the jury foreperson's inappropriate Internet research.

[25] The trial judge dismissed the motion. He rejected the appellants' claim that it could be inferred from the verdict that the jury ignored the court's correcting charge and relied on the Fault [page512] Determination Rules. He concluded [at para. 33] that the jury's fault apportionment was "amply justified by the evidence presented in this case".

[26] Further, the trial judge stated that while he shared the appellants' concern that a juror had engaged in Internet research concerning the law, he was satisfied that the jury respected the correcting charge and disabused themselves of any further consideration of the Fault Determination Rules.

Analysis

[27] The appellants make two arguments on appeal. They submit: (1) the trial judge failed to conduct a proper inquiry to determine the nature and scope of the extrinsic information that the jury obtained; and (2) the trial judge failed to appropriately analyze the prejudicial effect of this information. If either argument is accepted, the appellants submit that the appropriate remedy is a new trial.

(1) Did the trial judge fail to conduct a proper inquiry to determine the nature and scope of the extrinsic information that the jury obtained?

[28] The appellant's first ground of appeal asserts that the trial judge misapprehended the evidence by failing to assess the nature and extent of the extrinsic information, thereby denying the appellants the right to know exactly what the jury considered. They contend that the trial judge should have questioned or polled each juror to determine what extrinsic information the jury received, and that failing to do so resulted in a miscarriage of justice.

[29] We do not accept this submission.

[30] A jury verdict may be impeached where the jury acquires extrinsic information if, based on an examination of the record, there is a "reasonable possibility" that the information had an effect on the jury's verdict. This test involves a contextual, case-by-case analysis that requires a link between the extrinsic information and the jury's verdict: see R. v. Pannu, 2015 ONCA 677 (C.A.), at paras. 71-74, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 498; R. v. Farinacci, 2015 ONCA 392, 335 O.A.C. 316 (C.A.), at para. 26; and R. v. Pan; R. v. Sawyer, 2001 SCC 42, at para. 59.

[31] Where the trial judge learns that the jury acquired extrinsic information before the jury's verdict, and then conducts an inquiry and decides as to the suitability of individual jurors or the jury as a whole continuing with the trial, this court will defer to the trial judge's decision, absent "legal error, [page513] misapprehension of the evidence, or patent unreasonableness": Pannu, at para. 72.

[32] Here, in our view, the trial judge did conduct a proper inquiry and made findings as to the nature and extent of the extrinsic information the jury received. He found on the evidence before him that only one juror had accessed extrinsic information, limited to the Fault Determination Rules obtained from an Ontario provincial government website. These findings were supported by the evidence.

[33] The finding that the only extrinsic information accessed was the Fault Determination Rules from an Ontario government website was based on the following exchanges:

THE COURT: Can you help us, [Juror #1]. What, like, where, has somebody Googled that information? I guess so. It's an obvious.

JUROR #1: Provinc-, Provincial, Ontario Provincial, there's the Traffic Act.

THE COURT: Right?

JUROR #1: And so somebody has found it on the internet, yes, through the Ontario Provincial site.

THE COURT: . . . Now, has the Googling information gone beyond this particular statutory reference?

JUROR #1: I don't believe so. In terms of -- I, I'm not sure of the question.

THE COURT: Oh, yes, well, has, doctors been Googled or --

JUROR #1: No.

THE COURT: Right, so, it's restricted to, if you like, law issues; is it?

JUROR #1: Correct.

THE COURT: . . . So, in any event, as, as far as you know the only inter-, internet sort of input into your discussions has been with respect to what we're talking about here; that, that's right?

JUROR #1: Yes.

THE COURT: . . . Is, is just, is only one of the jurors Googling stuff or has there been more, do you know?

JUROR #1: On this particular issue, only one.

[34] The finding that only one juror -- juror #1, the foreperson -- had accessed the Internet and shared information obtained from the Internet with the other jurors was based on the following exchange: [page514]

THE COURT: All right; and there, and you're telling me, sir, that there is only one of the six jurors who has actually accessed the internet or shared that with people?

JUROR #1: Yes.

THE COURT: Okay; and I, I think we might just want to chat with that one person just to see how the scope of, of his investigations, if I can put it that way and, and who would that be if you don't mind?

JUROR #1: Me.

[35] The appellants' challenge to the trial judge's inquiry involved a parsing of the transcript of these exchanges in particular. The appellants claimed that the exchanges were somewhat equivocal as to whether other laws might also have been researched. However, the trial judge saw and heard the juror and drew a contrary conclusion, in circumstances where the jury had forthrightly raised the issue with the court and had sought clarification. The trial judge was entitled to believe the juror's answers and to reach the conclusions he did. The mere possibility that these exchanges may be susceptible to the different inference posited by appellants' counsel does not rise to the high threshold required for appellate intervention based on a misapprehension of the evidence. As the Supreme Court cautioned in Housen v. Nikolaisen, 2002 SCC 33, at para. 56:

[T]he narrowly defined scope of appellate review dictates that a trial judge should not be found to have misapprehended or ignored evidence, or come to the wrong conclusions merely because the appellate court diverges in the inferences it draws from the evidence and chooses to emphasize some portions of the evidence over others.

[36] To conclude, the trial judge did not misapprehend the evidence as to the nature and scope of the extrinsic information reviewed by the jury. He identified the particular individual who obtained the specific extrinsic information at issue, isolated how he had obtained it, and confirmed that no other information had been obtained. Having done all that, the trial judge was entitled to conclude that he did not need to question or poll every juror or to permit counsel to do so.

(2) Did the trial judge fail to analyze the prejudicial effect of the extrinsic information obtained by the jury?

[37] The appellants' second ground of appeal asserts, in the alternative, that even assuming the extrinsic information obtained by the jury was limited to the Fault Determination Rules, that information alone was extremely prejudicial to the appellants. The appellants contend that there is a "reasonable possibility" that this [page515] extrinsic information had an effect on the jury's verdict, which should therefore have resulted in a mistrial.

[38] The appellants make three points in this regard.

[39] First, the appellants assert that the trial judge failed to consider the prejudicial nature of the extrinsic information and its ability to affect the jury's verdict.

[40] We do not agree with this submission. The trial judge undoubtedly did consider the prejudicial nature of the extrinsic information -- that is why he gave the jury a correcting charge. As he explained [at para. 28] in refusing to declare a mistrial, the real issue was "whether the correcting charge is sufficient in the circumstances and whether there is any cogent reason to believe that the jury declined to follow it". The sufficiency of the correcting charge is addressed below.

[41] Second, the appellants assert that the jury verdict used the terminology "illegally parked" in the verdict sheet, a phrase included in the Fault Determination Rules but not in the Highway Traffic Act. The appellants suggest that this raises a reasonable possibility that the jury applied the Fault Determination Rules, despite the correcting charge.

[42] We do not accept this submission. The trial judge noted that the jury specified, as one of the particulars of the appellant's negligence, the violation of s. 170(12) of the Highway Traffic Act, which [at para. 32] "was drawn to the jury's attention in the jury charge and deals with parking a vehicle on a roadway and impeding traffic". He added that while s. 170(12) [at para. 32] "does not contain the word 'illegal', illegal is a term of general usage connoting a contravention or violation of the law and is not a concept specific to the Fault Determination Rules". Moreover, the trial judge noted that had the jury applied the Fault Determination Rules, it would have found the appellant 100 per cent at fault, rather than only 73 per cent at fault. He concluded [at para. 33] that "[t]his is a fault apportionment amply justified by the evidence presented in this case". We see no basis to disturb any of these conclusions.

[43] Finally, the appellants assert that the correcting charge was inadequate to dispel the prejudice arising from the jury being provided with the Fault Determination Rules. The appellants contend that "[t]he correcting charge was provided in a vacuum as if the extrinsic information was neutral or benign".

[44] We would not give effect to this argument. As this court noted in Pannu, at paras. 71-72, absent legal error, misapprehension of the evidence, or patent unreasonableness, an appeal court should accord deference to a trial judge's decision to provide a correcting charge rather than declare a mistrial. [page516]

[45] Here, the trial judge concluded [at para. 37] that the jury "respected" the correcting charge and "disabused themselves of any further consideration of the Fault Determination Rules obtained from the internet". He observed that "this was a very engaged and diligent jury on the whole and the verdict rendered at the conclusion of this lengthy trial is well supported by the evidence". The trial judge was very well positioned to make this finding as to the efficacy of the correcting charge, having presided over this trial that included eight weeks of evidence and having seen the jury's engagement and diligence first hand. We see no basis for this court to intervene.

Conclusion

[46] Accordingly, despite Mr. Obagi's forceful submissions, the appeal is dismissed. Costs are payable to the respondent in the amount of $12,000, inclusive of disbursements and taxes.

Appeal dismissed.