COURT OF APPEAL FOR ONTARIO DATE: 20240301 DOCKET: COA-22-CV-0170

Tulloch C.J.O., Lauwers and Paciocco JJ.A.

BETWEEN

Norman Penate, a person under disability by his litigation guardian, Luz Penate, William A. Penate, Jesiel Penate, William S. Penate, and the said Luz Penate, personally Plaintiffs (Appellants)

and

A. Martoglio, G. Liu, M. Danelice, J. Wasserman, J. Chong, S. Shinoff, Mary Beveridge and David Beveridge as Executors of the Estate of Donald Martyn, St. Michael’s Hospital, S. King-Forbes, S. Sloan, R. Stewart, C. Stark, M. Lau, M. George, M. Titchner Defendants (Respondents)

Counsel: Gavin MacKenzie, Brooke MacKenzie, Hilik Y. Elmaleh, and Jeremy Syrtash, for the appellants Cynthia B. Kuehl, Adam Patenaude, and Carly Moore, for the respondents A. Martoglio, G. Liu, and Mary Beveridge and David Beveridge as Executors of the Estate of Donald Martyn Katharine Byrick and Veronica Sjolin, for the respondents St. Michael’s Hospital, S. King-Forbes, and M. George

Heard: September 12, 2023

On appeal from the order of Justice Jane E. Ferguson of the Superior Court of Justice, dated August 29, 2022, with reasons reported at 2022 ONSC 4939.

Tulloch C.J.O.:

A. OVERVIEW

[1] Civil litigants deserve to know why a trial judge rules against them. To respect this basic entitlement, trial judges must issue reasons explaining their decisions that litigants can understand and the appeal court can review. Providing such reasons respects litigants’ dignity, ensures that they can exercise their right to a meaningful appeal, and makes judicial reasoning transparent and accountable to the public.

[2] The appellants, Norman Penate, and his parents and siblings (the “Penates”), sued the respondent hospital, physicians, and nurses for medical malpractice after Norman suffered a severe brain injury around the time of his birth. The Penates chose a jury trial. That is an important right. While trial judges can take away this right in certain circumstances, they must explain their decision to do so.

[3] At the end of the trial, the trial judge decided to take away the Penates’ right to a jury trial and try the case herself. She then ruled against the Penates and determined that they had failed to prove medical malpractice.

[4] The Penates appeal the trial judge’s decision to this Court on the basis that the trial judge did not provide adequate reasons for her decision to take away their right to a jury trial, among other arguments.

[5] I would allow the appeal because the trial judge did not adequately explain her decision to take away the Penates’ right to a jury trial. While the trial judge concluded that the Penates’ counsel made improper comments to the jury that could not be corrected, she neither explained which comments were improper and why, nor why directing the jury to disregard any improper comments would have been insufficient. The trial judge’s inadequate reasons prevent this Court from meaningfully reviewing whether her decision to discharge the jury was proper. Because trial by jury is a fundamental right and I am not convinced that the jury would have inevitably rejected the Penates’ medical malpractice claims as the trial judge did, I would order a new trial.

B. FACTUAL BACKGROUND

[6] Norman was born on July 15, 1996 at St. Michael’s Hospital in Toronto to his parents Luz Penate and William A. Penate.

[7] Norman’s birth was traumatic. After experiencing rapid contractions on the morning of July 15, 1996, Mrs. Penate consulted Dr. Adelmo Martoglio, her prenatal care physician, and he referred her for tests. Nurse Sandra King-Forbes interpreted those tests as showing that fetal breathing was missing and fetal condition was non-reassuring. Dr. Martoglio reviewed these test results and sent Mrs. Penate to St. Michael’s labour and delivery unit so that unit could assess whether to induce labour. Nurse Moly George was assigned to care for Mrs. Penate upon her arrival at that unit and performed further tests.

[8] Dr. Grace Liu, a medical resident, assessed Mrs. Penate. [1] Dr. Liu testified that she spoke with her supervisor Dr. Donald Martyn and they decided to induce labour by rupturing the amniotic sac surrounding the fetus. This procedure releases the amniotic fluid, which causes the fetus’s head to apply pressure to the cervix, thus inducing contractions. To safely rupture the amniotic sac, the fetus’s head must be sitting low in the pelvis. If it is not, there is an increased risk that the umbilical cord may slip through the cervix in front of the fetus, which can prevent the fetus from breathing.

[9] When Dr. Liu ruptured the amniotic sac, she immediately realized that the umbilical cord had slipped through the cervix. This was an emergency because it could prevent Norman from breathing. Another physician performed an emergency caesarian section and delivered Norman 18 minutes later. Dr. Liu did not document her rupturing of the amniotic sac or the subsequent emergency, as she acknowledged she should have done.

[10] Norman suffered a severe brain injury around the time of his birth. On the day of his birth, Norman appeared limp and listless, was diagnosed with deprivation of breath, required resuscitation because he struggled to breathe, and experienced seizures. Tests performed within days of his birth showed that his brain was swelling. By the time he was four years old, tests showed near total destruction of his brain.

C. PROCEDURAL HISTORY & Trial Decisions

[11] In 2014, the Penates sued the respondents St. Michael’s Hospital, Dr. Martoglio, Dr. Liu, Dr. Martyn, and Nurses King-Forbes and George for medical malpractice. [2] They alleged that Dr. Liu should not have ruptured the amniotic sac because she either knew or should have known that Norman’s head was not sitting low in the pelvis and that, by doing so, she caused his brain injury.

[12] The Penates chose to have a jury try their claims. During a 25-day trial, the jury heard evidence from eight fact witnesses and nine expert witnesses concerning whether the respondents caused Norman’s brain injury by breaching the standard of care.

[13] At the close of trial, the respondents Dr. Martoglio, Dr. Liu, and the executors of Dr. Martyn’s estate claimed that the Penates’ counsel’s closing address inappropriately appealed to the jury’s sympathies and referred to the opening address of those respondents’ counsel as evidence instead of anticipated evidence. The trial judge stated that she could remedy these comments by telling the jury how to deal with their emotions and that the opening address is only anticipated evidence, but then invited the respondents to submit any additional objections in writing.

[14] The respondents submitted 39 objections to the closing, including numerous allegations that the Penates’ counsel made assertions without evidentiary foundation or misstated the evidence. The trial judge heard oral submissions concerning these objections, and the Penates submitted that the comments were not prejudicial. Neither party asked the trial judge to discharge the jury. Nevertheless, the trial judge discharged the jury at the close of submissions and announced that she would decide the case herself.

[15] The following week, the trial judge released five-paragraph reasons for her decision to discharge the jury, which are reported at 2021 ONSC 7381. Most of the decision comprised a block quote of the legal standard concerning counsel’s addresses to the jury from OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, 35 C.P.C. (8th) 352, another ruling discharging a jury. The reasons attached the respondents’ list of objections but did not explain which challenged comments were prejudicial and why. Despite this, in a paragraph that is an unattributed block quote from OZ Merchandising, the trial judge concluded that the Penates’ counsel made many improper comments that were cumulatively impossible to correct and required discharging the jury because any corrective instruction would have been “unwieldy and ineffective.”

[16] The trial judge later dismissed the Penates’ action. In her reasons for judgment, she found that the respondents neither caused Norman’s brain injury nor, aside from Dr. Liu’s failure to document her actions, breached the standard of care. According to a chart provided by the Penates, whose accuracy the respondents did not seriously contest, more than 90% of her reasons were copied verbatim or substantially verbatim from the respondents’ submissions.

D. Analysis

[17] The Penates’ appeal challenges the sufficiency of the trial judge’s reasons for discharging the jury, as well as her copy-pasting of the respondents’ submissions into the reasons for judgment, and her factual findings that the respondents were not liable. Because I agree with the Penates that the trial judge’s reasons for discharging the jury are not sufficient and require a new trial, it is not necessary to address the other grounds of appeal.

(1) The Law on Discharging the Jury and Providing Adequate Reasons

[18] Subject to certain exceptions that are not at issue here, civil litigants in the Superior Court of Justice have a statutory right to trial by jury: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108. This is a fundamental substantive right, meaning that the justice system protects it because it is inherently important and is not merely a procedural means to a verdict: King v. Colonial Homes Ltd., [1956] S.C.R. 528, at p. 533; Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 64; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 94, per Moldaver and Brown JJ. Because of this right’s substantive nature and importance, trial judges should not lightly interfere with it; discharging the jury is a drastic remedy of last resort: King, at p. 533; Hunt (Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (C.A.), at para. 73; St. Marthe v. O’Connor, 2021 ONCA 790, 159 O.R. (3d) 148, at para. 47, leave to appeal refused, [2022] S.C.C.A. No. 262; Vanderbeke v O'Connor, 2013 ONCA 665, at para. 18.

[19] A trial judge’s decision to discharge a civil jury to remedy prejudicial conduct on the part of counsel during a trial is discretionary. This Court has adopted a two-step test to guide trial judges’ exercise of discretion. The trial judge must determine that: (1) counsel’s comments prejudiced the opposing party, and (2) the prejudice was so severe that issuing a corrective instruction to the jury would not cure it: St. Marthe, at para. 46, citing Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, at paras. 17 & 23. A party seeking to discharge the jury has a heavy burden and the trial judge must find that there are substantial reasons for discharging the jury: Hunt, at para. 73. In most cases, discharging the jury is not appropriate because the trial judge can instead issue an instruction correcting the prejudicial statements: St. Marthe, at para. 46; Hamstra, at paras. 23-25. Juries are generally capable of following such instructions, which can often remedy inflammatory statements and misstatements of the evidence: Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (C.A.), at paras. 105-107; Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), at paras. 24-27; Hamstra, at paras. 23 & 25; Groen v. Harris, 2010 ONCA 621, at para. 5.

[20] Appellate deference to the trial judge’s decision to discharge the jury requires adequate reasons. If the reasons are adequate, this Court will not interfere unless the appellant shows that the trial judge acted on a wrong principle, arbitrarily, capriciously, or unreasonably: Placzek v. Green, 2012 ONCA 45, 287 O.A.C. 38, at para. 6, leave to appeal refused, [2012] S.C.C.A. No. 100. However, no appellate deference is owed if the reasons are inadequate or do not exist: Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.), at paras. 13 & 44.

[21] Adequate reasons are not merely a precondition for deference but are also a basic entitlement of every litigant. As in criminal cases, civil litigants deserve reasons that explain what the trial judge has decided, that can be reasonably understood, and that an appellate court can meaningfully review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55 (8); R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69; Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at paras. 15 & 22 n.1, citing Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings (2002), 214 D.L.R. (4th) 121 (Ont. C.A.), at para. 64. Providing adequate reasons also respects the dignity of losing litigants by demonstrating that the trial judge has considered their arguments and taken the time to explain why they lost, thereby increasing the likelihood that losing litigants will feel that they were treated fairly and appropriately: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11 (1); Lawson, at paras. 9 & 47; Bruno, at para. 13. Adequate reasons further make judicial reasoning transparent and accountable to the public and allow appellate courts to effectively review decisions: Sheppard, at para. 15; R.E.M., at paras. 11 (2) & (3). Adequate reasons are especially necessary to justify discretionary decisions that severely impact litigants’ important rights: R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, at paras. 43-44; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 133.

[22] Conclusory reasons are not adequate. Reasons cannot merely repeat “stock phrases of what a trial judge is expected to do”: R.E.M., at para. 23; see also Lawson, at para. 49. Rather, reasons must explain why trial judges reached the decisions they did by addressing the parties’ key arguments and the key, live issues in the case and making any necessary findings concerning those issues: R.E.M., at paras. 17, 34; Lawson, at paras. 47-48. The Supreme Court of Canada has held that such “responsive reasons” are the “primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Vavilov, at para. 127 (emphasis in original). Reasons that merely repeat the legal standard and state a bottom-line conclusion are inconsistent with the need for judicial decision-makers to justify their decisions to the parties and the public: Vavilov, at para. 79; Bruno, at para. 14.

[23] This Court’s ability to supplement the trial judge’s reasons by reviewing the record has limits. Sometimes, reviewing the record will clarify the trial judge’s reasons so that an appellate court can determine that they are sufficient and then explain them to the losing party: G.F., at para. 71; Bruno, at para. 23. But if the record does not make the trial judge’s reasoning apparent, it is not the appellate court’s role to perform its own analysis to resolve issues that the trial judge did not adequately address, especially if the resolution of those issues requires making findings or discretionary decisions: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32; Bruno, at paras. 24-27, 30; Sahdev, at paras. 44 & 46.

[24] Further, reviewing the record is not a licence to read in reasons that could have been given but were not: Vavilov, at paras. 97-98. Reviewing courts are not permitted to import different reasons that contradict the reasons that the trial judge actually gave. Rather, reviewing the record is limited in scope by its purpose: to clarify the trial judge’s reasons and make them more comprehensible: Bruno, at para. 23.

(2) The Reasons for Discharging the Jury were Inadequate

[25] The Penates chose to exercise their right to trial by jury and deserved reasons explaining the trial judge’s decision to take away this right that they could reasonably understand and which this Court could meaningfully review. Consistent with the governing two-step test outlined above, those reasons should have explained which comments were prejudicial and why, as well as why a corrective instruction could not remedy any prejudice: St. Marthe, at para. 46. The tragic nature of the brain injury that Norman suffered, the fundamental importance of the Penates’ right to a jury trial, and the discretionary nature of the trial judge’s decision to take away that right, all underscore the importance of providing reasons that explained her decision to the Penates: Sahdev, at paras. 43-44; Vavilov, at para. 133. This is especially so because the trial judge reversed course from her initial statement that a corrective instruction would be adequate and decided to discharge the jury without a request to do so from any party. She was obliged to provide substantial reasons that explained this unilateral reversal of course and why the heavy burden needed to discharge the jury was met: Hunt, at para. 73.

[26] The trial judge did not provide the Penates with the reasons they deserved. Her reasons for discharging the jury neither explained which comments were prejudicial and why, nor why a corrective instruction was an inadequate remedy. These inadequate reasons prevent the Penates from understanding her decision to take away their right to a jury trial and prevent this Court from meaningfully reviewing it. While the respondents argue that this Court should defer to the trial judge’s decision because it is discretionary and subject to a deferential standard of review, those factors do not lower the bar but instead reinforce the need for adequate reasons that the parties can understand and this Court can meaningfully review: Bruno, at para. 30; Sahdev, at paras. 43-44. I would therefore decline to defer to the decision because it is not justified by adequate reasons: Lawson, at paras. 13 & 44.

[27] First, the trial judge’s statement that the Penates’ closing contained many prejudicial comments is conclusory and merely restates the legal standard for the first step of the two-part test: R.E.M., at para. 23; Lawson, at para. 49. The trial judge was obliged to explain which comments were prejudicial and why she reached that conclusion. She did neither. Her reasons leave this Court to guess at which of the respondents’ 39 objections she believed were prejudicial and why. While she may not have been required to address each of the 39 objections, she should have at a minimum addressed the key objections and made findings concerning them: R.E.M., at paras. 32-34; Lawson, at paras. 47-48.

[28] The trial judge also did not address the Penates’ key arguments concerning prejudice: R.E.M., at para. 34; Lawson, at paras. 47-48. Their counsel argued that his comments in the closing were not inflammatory, had an evidentiary foundation, and did not misstate or mischaracterize the evidence. The trial judge’s bare conclusion that the closing contained many prejudicial comments does not provide responsive reasons demonstrating that she listened to the Penates’ arguments: Vavilov, at para. 127.

[29] Second, the trial judge’s statement that a corrective instruction would be inadequate is also conclusory and fails to explain her decision on the second step of the two-part test. Because discharging the jury is a remedy of last resort and corrective instructions are generally effective at remedying prejudice, trial judges who decide to discharge a jury must adequately explain why corrective instructions would be insufficient. Instead of doing so, the trial judge’s reasons merely copy-pasted the conclusion from OZ Merchandising that the cumulative effect of the misstatements made a corrective instruction unwieldy and ineffective. In OZ Merchandising and the respondents’ other cited authorities, the trial judge in each case cogently explained the conclusion that a corrective instruction would be inadequate: see OZ Merchandising, at para. 56-57; St. Marthe, at para. 49; Groen, at paras. 4-6. The absence of such an explanation in the trial judge’s reasons leaves this Court to guess at why, despite caselaw establishing that corrective instructions can often remedy inflammatory comments and misstatements of the evidence (see, e.g., Landolfi, at paras. 105-107; Brochu, at paras. 23 & 25; Groen, at para. 5), a corrective instruction would have been inadequate.

[30] The trial judge’s reference to the cumulative effect of the misstatements is also inadequate because she did not identify which statements were prejudicial. Without knowing which and how many statements the trial judge found to be prejudicial, this Court cannot meaningfully review her conclusion that their cumulative effect made remedying them by corrective instruction impossible.

[31] I do not agree with the respondents that this Court can salvage the trial judge’s decision by reviewing the record because the record does not sufficiently clarify or make comprehensible the decision: Bruno, at para. 23.

[32] Specifically, I disagree with the respondents’ claim that the trial judge explained her decision by remarking during oral argument that most of the challenged comments in the closing statement were improper and that a single comment was inflammatory because it invoked the jury’s sympathy. As with the trial judge’s reasons for discharging the jury, her statement that most of the challenged comments were improper was a bare and unexplained conclusion: Lawson, at para. 49; R.E.M., at para. 23. And even if the remark that a single challenged comment was inflammatory could be construed as a finding, it still leaves this Court guessing as to why the remaining 38 challenged comments were prejudicial. It also leaves this Court guessing why, notwithstanding the trial judge’s prior statement that a corrective instruction would remedy any appeal to the jury’s emotions and despite caselaw endorsing the effectiveness of jury instructions in remedying the prejudicial effect of inflammatory comments, a corrective instruction would not have been adequate: Landolfi, at paras. 105-107; Brochu, at paras. 23 & 25.

[33] I also reject the respondents’ reliance on the trial judge’s suggestion that correcting most of the challenged statements would have inappropriately caused the jury to issue a verdict against the Penates. This suggestion did not clarify the trial judge’s reasons because it assumed the unexplained conclusion that most comments required correction. Further, the trial judge’s suggestion that a corrective instruction would prejudice the Penates is inconsistent with her conclusion that a corrective instruction would be ineffective at preventing prejudice to the respondents. I would decline to read-in different reasons that contradict the reasons the trial judge actually gave.

[34] Because they do not explain her decision and cannot be salvaged by reviewing the record, the trial judge’s reasons are insufficient. While the respondents submit that the challenged comments in the closing statement were prejudicial and could not be adequately remedied by a corrective instruction, accepting this argument would require us to make findings and discretionary decisions concerning those comments that the trial judge should have, but did not make or adequately explain. That is not our role: Dinardo, at para. 32; Bruno, at paras. 25-27, 30.

(3) A New Trial is Necessary

[35] I would order a new trial because I am not convinced that the Penates would have inevitably lost if the jury tried the case.

[36] Because the right to a jury trial is fundamental, there generally must be a new trial when a party is improperly deprived of that right. This rule has a narrow exception: an appellate court can decline to order a new trial if any reasonable jury would have inevitably reached the same result the trial judge did: Kempf, at para. 67.

[37] I would reject the respondents’ argument that this narrow exception applies. This was a complex case with competing expert testimony and key fact witnesses whose credibility and reliability were at issue. Nothing about its outcome was inevitable. In particular, Dr. Liu’s credibility and reliability was at issue because she never documented the rupturing of the amniotic sac and the subsequent emergency, as she acknowledged she should have done. While the trial judge accepted her evidence that she followed the correct steps and neither knew nor should have known that Norman’s head was not sitting low in the pelvis, a jury could have disbelieved her and relied on the lack of documentation to find that the correct steps were not followed: see, e.g., Ghiassi v. Singh, 2017 ONSC 6541, at para. 25, aff’d 2018 ONCA 764. The jury could have also relied on the Penates’ expert evidence to infer that a failure by Dr. Liu to take correct steps caused Norman’s brain injury even though the trial judge did not draw that inference. Because Dr. Liu’s actions were intertwined with those of the other respondents, there must be a new trial as to all respondents.

E. Conclusion

[38] For these reasons, I would allow the appeal and order a new trial.

[39] Consistent with the parties’ agreement, I would award costs of this appeal to the Penates fixed in the amount of $35,000, inclusive of disbursements and taxes.

Released: March 1, 2024 “M.T.” “M. Tulloch C.J.O.” “I agree. P. Lauwers J.A.” “I agree. David M. Paciocco J.A.”

[1] I note that Dr. Liu was misidentified in the title of proceedings of the trial court decisions as Dr. Lui but the trial judge’s reasons for judgment correctly identify her.

[2] Because Dr. Martyn is deceased, the executors of his estate were later substituted for him as defendants.