Cheung v. Samra, 2020 ONSC 4904

CITATION: Cheung v. Samra, 2020 ONSC 4904

DIVISIONAL COURT FILE NO.: 772/18

DATE: 20200827

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Lederer and Boswell JJ.

B E T W E E N:

RHONDA HONG-CHING CHEUNG a minor by her Litigation Guardian, YUEN NI CHEUNG-KWAN, RONALD CHUN-POK CHEUNG, RAYMOND S. H. CHEUNG and the said YUEN NI CHEUNG-KWAN, personally

Appellants/Respondents on Cross-Appeal

• and -

D. SAMRA, J. MA, A. JOGLEKAR, A. MADIKIZA, ROUGE VALLEY HEALTH SYSTEM-CENTENARY HEALTH CENTRE SITE, G. MITCHELL, S. TREUER, P. TAYLOR, J. MOSES, A. BARTLAY, M. JACOBS, A. TRANTER, S. RENO

Respondents/Appellants on Cross-Appeal

Counsel: Gavin MacKenzie, Hilik Y. Elmaleh and Brooke MacKenzie, for the Appellants/Respondents on Cross-Appeal Darryl Cruz, Gillian Kerr and Meghan S. Bridges for the Respondents/ Appellants on Cross-Appeal D. Samra and J. Ma

Heard at Toronto: January 30, 2020

REASONS FOR DECISION

C. BOSWELL J.

I. INTRODUCTION

[1] Yuen Cheung gave birth to a little baby girl on April 22, 2006. She named the baby Rhonda. Rhonda suffered an acute medical emergency at the time of her birth but appeared to recover well. At about two and half months old, however, she suffered a seizure and her condition declined precipitously. She became profoundly disabled.

[2] Rhonda’s parents attribute her condition to negligent medical care provided to Ms. Cheung and to Rhonda prior to and at the time of Rhonda’s birth. They sued a number of parties involved in Rhonda’s care in the perinatal period. Their claims against most of the named defendants resolved, but the claims against Dr. Samra, who was Ms. Cheung’s treating obstetrician, and Dr. Ma, who delivered Rhonda on an emergency basis, proceeded to trial.

[3] The trial was heard by a Toronto jury in the spring of 2018. Damages had been agreed to in advance at roughly $15 million. The jury listened to evidence on the issue of liability, mostly from medical experts, for more than twenty days. Following deliberations, they returned verdicts in favour of the appellants. They found Dr. Samra liable for 78% of the appellants’ damages and Dr. Ma liable for the balance.

[4] It is standard practice in negligence cases tried in Ontario to require juries to provide written answers to specific questions.[^1] In this instance the jury was asked to determine whether Dr. Samra and Dr. Ma had breached the standard of care expected of them in the circumstances and, if so, whether their breaches caused Rhonda’s injuries. They were asked to give bottom line answers and then to provide clear and specific particulars as to how they arrived at those answers.

[5] When the verdicts were returned, the respondents’ counsel asked that the trial judge reject them and instead dismiss the action. Counsel argued that the appellants had failed to adduce any evidence upon which the jury could reasonably have concluded that any acts or omissions of either respondent caused Rhonda’s impairments. As an alternative, counsel asked that the verdicts be rejected and a new trial ordered on the basis that the answers provided by the jury on the issue of causation were not responsive to the questions asked of them and demonstrated that the jury failed to follow the trial judge’s instructions on that issue.

[6] The trial judge rejected the first of the respondents’ submissions but agreed with the second. She refused to enter judgment in accordance with the jury’s verdicts and instead ordered that the action be re-tried. The appellants appeal her decision and ask that judgment be granted in accordance with the verdicts returned by the jury.

II. OVERVIEW

[7] This was a difficult case on many levels. The issue of causation was central to the dispute and it was particularly challenging. The focus of the appeal is on the sufficiency of the jury’s “clear and specific” particulars as to how they arrived at their conclusions about causation.

[8] The appellants listed ten grounds of appeal in their Notice of Appeal. As argued, however, the appeal had a narrowed focus. The disposition of the appeal turns on the analysis of the following issues:

1. What obligation does a jury have to provide reasons for their decisions, or any part of them?
2. Where jurors are asked to provide reasons, how should they be assessed in terms of their sufficiency?
3. Under what circumstances may a trial judge refuse to endorse judgment in accordance with a jury’s verdict due to the insufficiency of their reasons?
4. Was the trial judge justified in rejecting the jury’s verdicts in this instance?

[9] Putting the issues into context is going to require some work. I intend to proceed as follows. I will begin with the history of Ms. Cheung’s pregnancy and Rhonda’s delivery. Next, I will identify the alleged negligence on the part of the two respondent doctors and describe the distinct theories of causation advanced by the parties. Most of the evidence at trial came from experts whose testimony focused on causation, so I will take some time to summarize that evidence, which tends to fall into two camps. I will then describe what happened at the end of the trial, including closing submissions, the charge, the verdicts and the trial judge’s ruling. Once all of that is in place, I will begin my analysis of the live issues.

[10] Before I get into any of that, however, I will introduce Rhonda, the central figure in these proceedings.

Rhonda

[11] Rhonda came into this world essentially without vital signs on April 22, 2006. She was delivered by an emergency caesarean section (“C-section”) performed by Dr. Ma, an on-call obstetrician, at Centenary Health Centre in Scarborough.

[12] Obstetricians use “Apgar scores”[^2] to summarize the health of a baby at birth. Scores range from 0-10. An Apgar score of 10 means the baby is crying, breathing, moving and pink. An Apgar score of 0 means the baby is dead. Rhonda’s Apgar score at birth was 1, which is close to death. It remained so at five minutes and again at ten minutes.

[13] Rhonda was resuscitated after about thirty minutes and transferred to the Hospital for Sick Children where she remained until April 27, 2006 when she was discharged to the Markham Stouffville Hospital. She was discharged home on May 3, 2006. She was small but able to feed by breast and bottle. An EEG conducted on April 25, 2006 was normal, as was an MRI conducted on April 26, 2006. She was responding normally to sensory stimulation. Her prognosis appeared positive.

[14] In July 2006 Rhonda suffered a seizure at home and was re-admitted to the Hospital for Sick Children. She could no longer feed independently or control her head. She became profoundly disabled. She was diagnosed with hypotonic cerebral palsy. She is wheelchair bound, must be fed through a gastrostomy tube and requires assistance with all aspects of daily living.

The Pregnancy

[15] For the most part, Ms. Cheung had an unremarkable pregnancy. At 33 weeks gestation, it was determined that Rhonda would have to be delivered by C-section because she was in a persistent breech position. The delivery was scheduled for April 25, 2006 (week 38). Full-term would have been in the first week of May.

[16] Babies tend to gain weight rapidly in the last several weeks of gestation. In Rhonda’s case, however, Dr. Samra detected, at week 35, that she was falling off her expected growth curve. Her weight, as detected by ultrasound, was calculated to be in the 10th percentile. In other words, 90 out of 100 fetuses at her gestation would weigh more than her. Dr. Samra diagnosed intra-uterine growth restriction (“IUGR”).

[17] IUGR presents when the environment in the placenta becomes hostile for the fetus. For a variety of potential reasons, the fetus ceases to receive sufficient nutrition through the placenta to sustain normal growth. What nutrition it does obtain is directed preferentially to the brain which continues to grow at the expense of other organs and the abdomen. Growth becomes asymmetrical.

[18] IUGR babies are at risk of a range of complications, including abnormal fetal heart rate and asphyxia, which in turn can lead to cerebral palsy, developmental delay and low IQ, amongst other things. Dr. Samra accordingly ordered weekly non-stress tests (“NST”)[^3] and fetal ultrasounds to monitor Rhonda’s condition. He did not want to deliver Rhonda too early because she was tiny and would face a host of challenges if delivered prematurely.

[19] On April 3, 2006, Rhonda’s growth profile was in the 8th percentile. On April 11, she had dropped to the 4th percentile. In other words, her situation appeared to be getting more dire as time went on. Research has shown that both morbidity and mortality rates spike once the fetus falls below the 3rd birthweight percentile. At the 1st percentile, mortality rates are roughly 15%, while morbidity rates soar to as high as 90%.

[20] On April 21, 2006 Ms. Cheung attended at Centenary Health Centre for a pre-scheduled NST. The attending nurse had concerns about the results. A second assessment was done. The results were reviewed by Dr. Ma, who was the attending obstetrician that day. Dr. Ma was satisfied that the results were satisfactory and sent Ms. Cheung home.

The Delivery

[21] The following day Ms. Cheung woke up with vaginal bleeding. She immediately attended Centenary Health Centre, arriving at about 6:25 a.m. Tests were conducted to monitor Rhonda’s heart rate and they were very concerning. Dr. Ma was called in. She ordered an emergency C-section. Ms. Cheung was rushed to the operating room and Rhonda was born at 7:07 a.m. During the delivery her head became entrapped in her mother’s pelvis. It was necessary for Dr. Ma to make a vertical incision to release the head and deliver the baby. The umbilical cord was wrapped around Rhonda’s body a number of times. She was “flat” and extensive resuscitation was required.

The Alleged Breaches

[22] The appellants, as I noted, lay the blame for Rhonda’s current impairments at the feet of Drs. Samra and Ma. They claim that, were it not for the negligent failure to move up the date of Rhonda’s delivery, her brain injury would not have occurred.

[23] To succeed in a negligence claim, a plaintiff must establish the following essential elements on a balance of probabilities:

(i) That the defendant owed him or her a duty of care; (ii) That the defendant's conduct breached the standard of care applicable in the circumstances; (iii) That the plaintiff sustained compensable damage; and (iv) That the damage was caused, in fact and in law, by the defendant's breach”.[^4]

[24] There was never any dispute that Drs. Samra and Ma each owed a duty of care to Ms. Cheung and her unborn baby. Similarly, there was never a dispute about whether the appellants suffered compensable losses. As I noted, damages were agreed to at roughly $15 million.

[25] The trial focused, in the result, on two issues: whether either doctor breached the standard of care applicable to him or her and, if so, whether Rhonda’s impairments were caused by the breach(es). The causation issue is at the heart of this appeal, so I will deal only briefly with the standard of care issue.

[26] The appellants alleged at trial that Dr. Samra breached the standard of care applicable in the circumstances by failing to advance the date of Ms. Cheung’s C-section in light of the information available to him in early to mid-April, 2006. In particular, Dr. Samra knew that Rhonda was IUGR and was at risk. Between April 3 and 11 she fell from the 8th to the 4th percentile on the growth chart. She was not gaining weight at a time when babies tend to gain weight in leaps and bounds. She was getting perilously close to the point where mortality and morbidity rates skyrocket.

[27] Dr. Ma was alleged to have breached the applicable standard of care by failing to deliver Rhonda on April 21, 2006. The appellants’ assertion was that there were reasons to be very concerned about the NST results on that date. Dr. Ma should have realized Rhonda was in distress.

[28] The jury agreed that each of Drs. Samra and Ma had breached the applicable standard of care. With respect to Dr. Samra, they provided the following particulars:

Dr. Samra diagnosed Rhonda with IUGR, who was falling off the growth curve. He should have moved the C-section to April 18, 2006.

[29] With respect to Dr. Ma, they said the following:

Dr. Ma should have delivered Rhonda on April 21, 2006 based on Rhonda being IUGR, her medical history and her NST results.

[30] No one quarrels with the jury’s conclusions about breaches of the standard of care, or with the particulars they provided. The same cannot be said, of course, about causation.

The Competing Theories of Causation

[31] Given the central nature of the causation issue, the bulk of the expert evidence tendered at trial was directed to it. Two competing theories were advanced.

[32] The appellants’ position was that Rhonda suffered a brain injury as a result of a hypoxic ischemic insult experienced in the period immediately before her birth. A brain injury of that nature is known as hypoxic ischemic encephalopathy (“HIE”). It is the result of cell damage caused by oxygen deprivation to the brain.

[33] The appellants asserted that the most likely cause of the insult was that Rhonda’s umbilical cord became occluded in the period immediately before her birth. Given her IUGR condition, the occlusion quickly became more than she could compensate for. The appellants contended that Rhonda probably would not have suffered a brain injury had she been delivered even thirty minutes sooner.

[34] The respondents’ position was that Rhonda did not suffer a brain injury either before or during birth. It was conceded that Rhonda suffered an acute incident at or immediately before her birth but the respondents submitted that she recovered well. They asserted that her brain injury occurred more than two months after birth, possibly the result of a genetic disorder. At any rate, their case was premised on the assertion that Rhonda’s impairments are in no way attributable to the management of her pregnancy or delivery.

[35] The jury was presented with an arresting array of expert opinions about causation. They heard from obstetricians, neonatologists, neuroradiologists, pediatric geneticists and a pediatric neurologist. The credentials of the witnesses were remarkable. All are pre-eminent in their fields. All were well prepared and well-spoken. I do not intend to canvass all of their evidence, but I will discuss it in enough detail to highlight just how difficult the causation issue was in this case.

The Appellants’ Experts

[36] The appellants’ experts included Drs. Oppenheimer, Perlman, Hill, Naidich and Cohn, all of whom were of the opinion that Rhonda suffered a hypoxic ischemic insult in the short period prior to her birth, resulting in HIE.

Dr. Oppenheimer

[37] Dr. Oppenheimer is an obstetrician. He testified that as Rhonda’s growth percentile dropped from the 8th to the 4th, she became increasingly at risk of morbidity. He said the NST conducted on April 21, 2006 was abnormal and displayed some “big flags”. The next morning the tests were very abnormal, leading to the emergency C-section.

[38] In Dr. Oppenheimer’s opinion there was nothing associated with the C-section itself that caused Rhonda to be born in a flat condition. Her condition was, he said, due to an underlying severe intra-uterine growth restriction due to placental insufficiency. He said the defects of the growth restriction worsen as the gestational age advances. In his opinion Rhonda should have been delivered earlier and she suffered brain damage due to lack of oxygen because she was not delivered sooner. He noted that her lactate levels were elevated. He explained that an accumulation of lactic acid is an effect of a lack of oxygen in the body. Excess lactic acid can lead to brain damage.

[39] Dr. Oppenheimer theorized that the umbilical cord became occluded at some point prior to birth, resulting in a cessation of oxygenated blood getting to the baby. In his opinion, had the baby been delivered prior to April 21, it is most likely that brain damage would have been avoided. He stressed, in cross-examination, that it is important to consider that the baby had been experiencing placental insufficiency for some weeks prior to birth and was “on edge”. She had no compensatory mechanisms left to protect against cord occlusion.

Dr. Perlman

[40] Dr. Perlman is a neonatologist, which is a pediatric sub-specialty focused on the medical care of newborns. He expressed the opinion that Rhonda has a severe brain injury caused by a hypoxic ischemic insult which occurred in the 12 to 18 hours before her birth. His opinion was based, he said, on factors which included the following:

(i) Rhonda was growth restricted towards the end of her gestation; (ii) On the day before her birth she displayed prolonged periods of deceleration of her heart rate during an NST, which is a sign of distress; (iii) There were severe changes in her heart rate on the day of her birth; (iv) She had an Apgar score of 1 for an extended period of time following her birth; (v) Blood tests started at 2 ½ hours of age demonstrated a period of severe lack of oxygen, manifested by a high level of lactic acid, which did not abate for almost three days; and, (vi) There were abnormal neurological signs and feeding behaviour for her first ten days.

[41] Dr. Perlman testified that Rhonda’s condition at birth says a great deal about when she suffered the hypoxic insult that caused her brain injury. She was in dire straits at the time of her birth. She could not, in his view, have survived for a long time in that condition. The injury must therefore have occurred, he said, within the last 30 minutes or so before birth. Accordingly, had she been born 30 minutes earlier, she probably would be normal today. He added that had she been born even ten minutes earlier her injury would have been less disabling.

Dr. Hill

[42] Dr. Hill is a pediatric neurologist. He opined that Rhonda was born with IUGR due to inefficiency of the placenta. He said it was very likely that the problems she experienced were due to compression of the umbilical cord in the run-up to delivery. She experienced a hypoxic ischemic insult that caused her present neurological problems, which include cerebral palsy, severe developmental delay and seizures. To support his opinion, he relied on factors similar to those identified by Dr. Perlman.

Dr. Naidich

[43] Dr. Naidich is a neuroradiologist. He testified that imaging studies done during the first three years of Rhonda’s life show severe, permanent injury to both the right and left sides of her brain due to hypoxic ischemic injury.

[44] He agreed that an MRI done on April 26, 2006, when Rhonda was four days old, does not show any abnormalities. This anomaly is explained, he said, by the fact that Rhonda was cooled for the first three days of her life. He said that, in any event, in cases of HIE, roughly 25 to 50% of MRI’s done shortly after birth are normal.

Dr. Cohn

[45] Dr. Cohn is an expert in pediatrics and genetics, with a special expertise in children with neuromuscular and neurogenetic disorders. He testified that, in his opinion, it is unlikely that a primary genetic cause is the reason for Rhonda’s medical problems. A more likely cause, in his opinion, was a lack of oxygen and the accompanying distress before, during and right after delivery.

The Respondents’ Experts

[46] The respondents’ experts on the issue of causation included Drs. Vezina, Tarnopolsky, Saigal and Yager. Each of them opined that Rhonda is not suffering from HIE and that her impairments are not the result of anything that occurred at or immediately preceding her birth.

Dr. Vezina

[47] Dr. Vezina is a neuroradiologist. He testified that his review of Rhonda’s neuroimaging did not show that she suffered a hypoxic ischemic injury. Her MRI of April 26, 2006 was normal. Her MRI of July 18, 2006 was also normal and showed no signs of HIE. A CT scan conducted on February 21, 2007 showed no abnormalities. An MRI done on April 16, 2009 similarly showed no signs of HIE, although there was evidence Rhonda’s brain was not growing as much as it should be.

[48] He saw no evidence of stroke, no swelling and no acute injuries. Moreover, her brain chemistry was normal. In his opinion, the cooling procedure used over the first three days of Rhonda’s life would not have compromised the validity of the MRI results on April 26, 2006 or of the chemical spectroscopy.

[49] In Dr. Vezina’s opinion, Rhonda’s impairments are not due to HIE but are more likely genetic, metabolic or seizure related.

Dr. Tarnopolsky

[50] Dr. Tarnopolsky is an expert in pediatric genetics and children with neuromuscular, neurometabolic and neurogenetic disorders. In his opinion, Rhonda’s impairments are likely genetic in origin.

[51] He noted that Rhonda obviously had medical issues at birth, but that she recovered well. At Sick Kids her hypoxic injury was rated as “sarnat 1”[^5] which is “mild” and portends a good prognosis. Her evoked potential tests[^6] were normal.

[52] After her seizures began in July 2006, Rhonda was diagnosed with hypotonic cerebral palsy, which is a very rare form of that disorder and not typically associated with HIE. He noted that cerebral palsy is a static disorder, which means it does not progress. In Rhonda’s case, it was not static. It did not present until two and half months of age. These features, he said, are entirely consistent with a genetic disorder.

Dr. Saigal

[53] Dr. Saigal is a neonatologist with a specialty in early childhood development. He testified that, in his opinion, Rhonda did not suffer HIE. He formed that opinion based on the following factors:

(i) Rhonda’s cord blood gases were not consistent with HIE; (ii) The MRI done on April 26, 2006 was normal and not consistent with HIE; (iii) At birth she was graded sarnat stage 1, which is just mild encephalopathy; (iv) She had a rapid recovery from the acute incident at the time of her birth; (v) She was feeding fully by discharge from Markham Stouffville Hospital; (vi) She progressed well at home. She was following and tracking with her eyes, smiling, kicking, making cooing sounds, feeding orally and lifting her head; and, (vii) Her hypotonic cerebral palsy is not consistent with HIE.

[54] Dr. Saigal said that he has seen 800 to 1000 HIE patients in his clinic over the years. None presented like Rhonda.

Dr. Yager

[55] Dr. Yager is a pediatric neurologist. He testified that, in his opinion, Rhonda is not suffering from HIE. The likely cause of her impairments is, in his view, genetic.

[56] He testified that HIE always results in cell death. But in Rhonda’s case, there was no evidence of cell death. She had no evidence of severe brain damage when admitted to Sick Kids. She had no seizures, had a normal EEG on April 25, 2006 and a normal MRI on April 26, 2006.

[57] HIE, he said, is persistent. It evolves. But in Rhonda’s case, there was no evidence of it in the first three months of her life.

[58] Like Drs. Tarnopolsky and Saigal, he considers hypotonic cerebral palsy to be inconsistent with HIE. He said, in fact, that he never associates hypotonic cerebral palsy with hypoxic ischemia.

The Jury Questions

[59] There was a consensus among the court and counsel that the jury would be asked to provide answers to a series of questions that have become the standard practice in negligence cases. In this case, as I have alluded to, the questions were as follows:

1(a) Have the appellants satisfied you on a balance of probabilities that there was a breach of the standard of care on the part of Dr. Samra?

1(b) If yes, please state the particulars of the negligence and provide clear and specific answers.

2(a) If your answer to question 1(a) is yes, have the appellants satisfied you on a balance of probabilities that, but for the breach of the standard of care, Rhonda would not have sustained brain damage?

2(b) If your answer to question 2(a) is yes, how did Dr. Samra’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers.

[60] Identical questions were posed in relation to Dr. Ma, numbered 3(a) and (b) and 4(a) and (b).

[61] Counsel could not agree on the specific wording of the causation question, so the trial judge determined it. Counsel for the appellants wanted the causation question to read, “Did the breach of the standard of care cause or contribute to the injuries of Rhonda?” Counsel for the respondents wanted a threshold question asked, regarding whether the jury was satisfied that Rhonda’s problems were “caused by hypoxic ischemic encephalopathy sustained in the perinatal period.”

[62] The trial judge rejected the suggested approaches of counsel and settled on the form of the questions that I have set out above. It is important to note, however, that it was common ground that the jury would be asked to answer questions and that they would be asked to provide clear and specific answers about how any breach caused Rhonda’s injuries.

Closing Submissions

[63] In closing arguments, the appellants’ trial counsel suggested to the jury that if they found that Rhonda’s injuries were caused by a breach of the applicable standard of care, the particulars they should provide on causation should simply mirror the particulars they provided regarding the breach. In other words, he urged them to give identical answers to questions 1(b) and 2(b) and to 3(b) and 4(b).

[64] There is no doubt that the recommendation made by the appellants’ counsel to the jury was wrong. Breach and causation are two very different questions. A conclusion that, in the prevailing circumstances, Rhonda should have been delivered sooner, may be sufficient to make out a breach of the applicable standard of care. But while such a conclusion may set the stage for a subsequent finding on causation, it does not itself connect the breach to the damage.

[65] The trial judge elected to correct the submissions of the appellants’ counsel in her charge to the jury.

The Charge

[66] The trial judge explained to the jury that a finding that a person breached a standard of care does not automatically result in liability. A causal link between the breach and the harm is required. She correctly instructed the jury that the appellants must prove on a balance of probabilities that, but for the breach, the injury would not have occurred. She situated that instruction in the context of this case by telling the jury that if they concluded that Dr. Samra or Dr. Ma should have delivered Rhonda earlier than April 22, 2006, they would still have to be satisfied that the failure to do so was a necessary cause of Rhonda’s brain damage.

[67] The trial judge highlighted the different theories of causation advanced by the appellants and the respondents. In terms of their approach to the causation questions, she instructed the jury that they must first determine what likely happened based on the evidence they accepted. She identified some of the evidence that focused on the causation issue including evidence that Rhonda was diagnosed as IUGR; the analysis of the cord blood gases; opinions about whether Rhonda has HIE; the imaging done in 2006 and 2009; evidence about the effects of cooling on MRIs; and the onset of seizures 2 ½ months after birth.

[68] In relation to questions 2(b) and 4(b) the trial judge gave the following instructions:

If you answer question 2(a) in the affirmative, then you go on to question 2(b). How did Dr. Samra’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers. Please set out how or in what way the doctor’s breach of the standard of care caused Rhonda’s injuries.

Now, in his closing remarks, Mr. Elmelah stated that in answering the questions on causation, that is, questions 2(b) and 4(b), you could perhaps insert the same answers on the particulars as you did for particulars of the negligence, which are at questions 1(b) and 3(b). That is incorrect.

If you find causation, members of the jury, that is, if you are satisfied that a breach of the standard of care by either Dr. Samra or Dr. Ma or both caused Rhonda’s brain damages, then in answering questions 2(b) and 4(b), you must state how the negligence caused her current condition or, to put it another way, how the negligent treatment resulted in Rhonda’s current disabled condition.

(Emphasis mine).

[69] No one takes issue with the charge as delivered.

The Answers on Causation

[70] Earlier I set out the jury’s responses to the questions on standard of care. The jury concluded, in short, that each of Drs. Samra and Ma breached the standard of care applicable to their treatment of Ms. Cheung and Rhonda by failing to deliver Rhonda earlier.

[71] The jury went on to indicate that they were satisfied, on a balance of probabilities, that the breaches caused Rhonda’s injuries. The clear and specific answers they gave as to how the breaches caused Rhonda’s injuries were as follows:

(i) In relation to Dr. Samra:

Dr. Samra’s failure to move the C-Section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.

(ii) In relation to Dr. Ma:

Dr. Ma’s failure to deliver Rhonda on April 24, 2006 due to her being IUGR, her medical history and NST results more than likely caused her brain damage.

[72] The emphasis in the foregoing answers is my own. I have italicized those parts of the jury’s answers which repeat the jury’s findings on the standard of care issue.

[73] It is immediately apparent that the jury’s answers on causation offered nothing more than that the breaches they found more than likely caused Rhonda’s brain damage. They have not, in fact, provided any particulars of how the breaches did so, save to suggest that Dr. Samra’s failure to deliver Rhonda sooner increased her risk of morbidity.

The Trial Judge’s Ruling

[74] The respondents’ counsel asked the court to reject the jury’s verdicts. They offered two grounds. First, they submitted that there was no evidence adduced upon which a properly instructed jury, acting reasonably, could find that the acts or omissions of either doctor caused Rhonda’s impairments. Second, they submitted that the jury answers on causation were not responsive to the questions put to them.

[75] Counsel were invited to file written submissions and the respondents’ motion, brought pursuant to Rule 58.02 of the Rules of Civil Procedure, was heard on May 15, 2018. The trial judge released a written ruling on June 5, 2018. She rejected the “no evidence” argument. While she found the appellants’ evidence on causation to have been modest in nature, it was at least some evidence – enough to support the jury’s verdicts.

[76] The trial judge went on to conclude, however, that the particulars of causation provided by the jury were not responsive to the questions. She concluded that the jury had not followed her instruction to ignore what the appellants’ counsel had urged them to do, which was to replicate their answers to questions 1(b) and 3(b) when answering questions 2(b) and 4(b). She found that their answers did just that and failed to explain how the respondents’ breaches caused Rhonda’s brain damage.

[77] To the extent that the jury’s answer to question 2(b) reflected a concern about an increased risk of morbidity, the trial judge held that the loss of a chance at a better outcome is not compensable in medical malpractice claims. She concluded that the jury’s reasoning was flawed, in that they appeared to equate an increased risk with causation, which is not the case.

[78] In summarising her findings, the trial judge said the jury’s answers were “contrary to law, do not explain the causal link between the negligence and the result, and cannot form the foundation for a judgment.” In the result, she declined to endorse judgment in accordance with them and instead ordered a new trial.

III. THE PARTIES’ POSITIONS

[79] The parties’ positions can be distilled into two relatively simple and distinct arguments. The appellants submit that the trial judge lacked the jurisdiction to order a retrial in the circumstances of this case. In the alternative, even if she had the jurisdiction, she had no basis to make such an order. The respondents, on the other hand, contend that the trial judge had both the jurisdiction and the justification for making the order she did. In their submission, her discretionary order should be accorded a high level of deference.

[80] The arguments advanced by counsel were much more detailed and nuanced of course and I will take a moment to elaborate on them.

The Appellants’ Position

[81] The appellants take the position that the trial judge in effect deprived them of the unanimous verdicts they had rightfully won.

[82] The appellants submit that it was clear from the bottom line answers provided by the jury that they found both defendant doctors to have breached the applicable standard of care and that those breaches likely caused Rhonda’s injuries. It is clear, moreover, that they properly applied the balance of probabilities standard and the “but for” test for causation.

[83] It is necessary, the appellants contend, to consider the particulars provided by the jury to support their bottom line answers in light of the theories put to them and to the evidence adduced. The jury had a binary choice on causation: either Rhonda suffered a hypoxic ischemic brain injury immediately before or at the time of her birth, or she suffered a brain injury some 2½ months later. The jury was comprised of laypeople. Their answers must be considered in that light. Reading their answers fairly and liberally inexorably leads to the inference that they concluded that Rhonda suffered an injury that an earlier delivery would have avoided. In other words that she suffered a HIE in the perinatal period. There was ample evidence to support that conclusion.

[84] The appellants contend that the trial judge exceeded her limited jurisdiction to interfere. A jury is not obliged, in the appellants’ submission, to give reasons. The trial judge’s ruling essentially required that they do just that; that they provide a detailed rationalization for their conclusions. In doing so, she demanded too much. A finding of causation does not require scientific precision. Nothing in the trial judge’s instructions to the jury, or in the questions as framed, required the jury to describe the mechanism of injury or to provide reasons for rejecting the respondents’ theory of causation.

[85] While the jury could have provided more detail, it was not incumbent upon them to do so. On the other hand, it was incumbent upon the trial judge to render a judgment in accordance with the unanimous and unambiguous verdicts returned.

The Respondents’ Position

[86] The respondents argue that the jury had an obligation to consider what Rhonda’s circumstances would likely have been had Drs. Samra and Ma met the standard of care expected of them. Their very brief particulars make it apparent that they did not do so.

[87] The purpose of requiring particulars was, the respondents say, to provide some assurance that the jury followed the trial judge’s instructions and that they made the factual findings necessary to legally ground their verdicts. The purpose was not satisfied by the answers provided in this instance. The jury’s answers were non-responsive to the questions put to them.

[88] The jury failed to describe how they arrived at their decisions. They failed to identify any mechanism of causation. The only detail they provided was their view that Dr. Samra’s breach increased the risk to Rhonda, which is of great concern because an increase in risk is not equivalent to causation.

[89] The answers on causation, in fact, tend to suggest that the jury followed the errant advice of the appellants’ trial counsel when they were specifically instructed not to do so. The gist of the answers is a repetition of the particulars of the breaches of the standard of care. There is no linkage between the breaches and the injuries.

[90] The trial judge had a difficult decision to make. It was a discretionary decision and she exercised her discretion according to correct legal principles. In the respondents’ submission, that exercise of discretion should be respected by this court.

Grounds Not Argued

[91] Ordinarily I would not reference arguments not raised by the parties. I do so here because my colleague has, in his dissent, relied on two arguments that in my view were not advanced or argued before us.

[92] My colleague would dismiss the appeal on the basis that defence counsel did not raise a concern about the sufficiency of the jury’s answers to the causation questions in a timely way, thereby foreclosing the ability of the trial judge to re-charge the jury.

[93] My colleague would also dismiss the appeal on the basis that the jury ought not to have been asked to provide any reasons for their conclusory answers on causation.

[94] My colleague sets out a detailed chronology of events occurring post-verdict and I will not repeat that here. In my view, the chronology demonstrates that defence counsel did raise with the trial judge concerns about the sufficiency of the jury’s answers prior to the discharge of the jury. The trial judge elected to discharge the jury and to adjourn the matter for several weeks to enable counsel to prepare their submissions. The trial judge’s ruling makes this evident:

Following the delivery of the jury verdict, counsel for the Defendants advised the court that he wished to make submissions on two issues: whether there was evidence on the causation issue upon which the court could enter judgment in accordance with the jury verdict (the Salter v. Hirst issue that he had raised previously as a concern); and, alternatively, whether the jury's answers were responsive to the questions on causation and could found a basis for judgment. As a result, I invited counsel to provide me with written argument and briefs of authorities. I heard the motion brought by the Defendants pursuant to Rule 52.08 on May 15, 2018.

I will address at this point the submissions of Mr. Elmaleh, the solicitor for the Plaintiffs, in his written materials that the procedure undertaken following the delivery of the verdict was inappropriate. I disagree. Mr. Cruz raised the issue of whether there was any evidence on which the jury could make a finding of causation prior to the end of the evidence. He was not obligated to bring a motion for a non-suit. This issue was canvassed in Salter v. Hirst and Eberhard J. dealt with the motion for lack of evidence following the jury verdict. I agree with this approach because the problem only arises in the instant case if the jury found a breach of the standard of care and causation. I indicated to counsel based on Mr. Cruz's submissions that it was preferable to deal with the issue after the jury rendered its verdict, should it be necessary. Mr. Elmaleh did not advise that he disagreed with this approach.

On another procedural point, Mr. Elmaleh submits that it was incumbent on the defence to raise the issue of the adequacy of the jury's responses to questions 2B and 4B prior to the jury being discharged. He seems to suggest, although it is not articulated, that the jury ought to have been asked for clarification. This was not submitted at the time the jury's verdict was received, but again, I disagree with this approach.

Rather, I agree with the comments of Eberhard J. in Salter v. Hirst where she noted, at para. 7:

I further ruled that sending the issue back to the jury for further detail may be perceived by them as a direction to decide the matter differently. If instruction were given repeating my charge on causation, or emphasizing particular clauses, it would likely taint their discussion such that their further answer would be of little practical assistance in the question now before me and before any reviewing reader.

While Eberhard J. elected to discharge the jury after she made her ruling on the defence motion, given the fact that the defence had submissions both on the lack of evidence issue as well as on the adequacy of the jury responses, I elected to discharge the jury and give counsel an opportunity to submit written argument on the issues.

In my opinion, given that I had already provided a correcting instruction to the jury on causation, the dangers identified by Eberhard J. in Salter v. Hirst were increased in this case. In my view, recalling the jury to provide yet another instruction on answering the causation questions properly would have served no useful purpose. (Paras. 24-29).

[95] As I noted, the Notice of Appeal sets out ten grounds of appeal. One ground states as follows:

The learned trial judge erred in discharging the jury before considering the Defendants’ motion for an order that judgment not be entered in accordance with the jury’s verdict, which was based on the alleged inadequacy of the jury’s answers to the questions it was asked.

[96] The appellants did not press the premature discharge argument in their factum or in oral argument.

[97] Nowhere is it alleged in the Notice of Appeal that the defendants failed to raise a concern about the sufficiency of the jury’s causation answers in a timely way. This issue was also not raised in the appellants’ factum or pressed in oral argument.

[98] In my view, it would not be proper to dispose of the appeal on a basis not raised in argument.

[99] My colleague recognizes that the correctness of asking a jury to provide an explanation for their bottom line verdict on causation was not expressly raised on this appeal. He finds, however, that it was implicitly raised. I disagree. Indeed, in my view it was expressly excluded from argument.

[100] At paragraph 91 of the appellants’ factum, counsel submits as follows:

To be clear, on this appeal the question is not whether the jury ought to have been asked to provide particulars of their causation findings; the parties agreed that such a question could be asked in this case. Rather, the question is: having asked the jury to explain their causation findings, what, if anything, was the Trial Judge permitted to do with their answers? Was it open to the Trial Judge to reject the jury’s verdict because she was unsatisfied with their answers?

[101] The appellants then walk a fine line by submitting that although it was agreed that the jury would be asked to provide specifics explaining their bottom line answers, the trial judge had no jurisdiction to reject their verdicts based on any insufficiency in their answers. The reason: jurors have no obligation to give reasons.

[102] In other words, the appellants’ argument isn’t that the court lacks the discretion to ask for explanations of bottom line answers. Their argument is about the scope of the trial judge’s discretion to reject a verdict based on the sufficiency of the answers provided.

[103] My colleague would curtail the practice of asking jurors to provide explanations for their verdicts. His reasons for doing so are valid in my view. But there has been a long-standing practice in this province of putting such questions to juries in negligence cases. That practice has been recognized by the Court of Appeal. If that practice is going to be reigned in, it should only be after a thorough and direct argument on appeal. There are no doubt a number of constituents who would be anxious to have their views on the matter before the court.

The Cross-Appeal

[104] I note that the respondents advanced a cross-appeal, in which they argued that the trial judge erred by not dismissing the claim on the basis that there was no evidence upon which a jury, acting reasonably, could make a positive finding of causation.

[105] The cross-appeal, in my view, has no merit. There was more than sufficient evidence, as I detailed above, to support a finding that Rhonda suffered a brain injury due to a hypoxic ischemic event in the perinatal period that would likely have been avoided had she been delivered earlier. In other words, there was more than sufficient evidence upon which a jury, acting reasonably, could conclude that, absent the respondents’ breaches, Rhonda would not have suffered brain damage. I would dismiss the cross-appeal.

IV. DISCUSSION

Introduction

[106] Jury trials are a fundamental feature of the administration of justice in Ontario. They are an integral part of how we, as Canadians, govern ourselves in a free and democratic society. In criminal and civil cases alike, we rely on juries to deliver justice in our communities.

[107] Juries are perhaps more commonly associated with criminal trials. But civil juries have a long history in Ontario. They were introduced in what was then Upper Canada in 1792[^7] and they continue to be available in a significant range of cases today. Whether they should continue to be available is a matter of significant contention. Cases like this one tend to fuel the ongoing debate about whether the civil jury model remains a workable one.

[108] One of the arguments made by those in favour of abolishing civil juries is that modern trials are substantially more complex than they were in 1792. Contemporary jurors, they suggest, are ill-equipped to deal with the complex factual and legal issues they are faced with.[^8]

[109] Modern trials are undoubtedly often complex, both factually and legally. But for the time being at least, trial by jury remains a substantive right for a wide range of civil actions. And while it does, it will continue to fall to trial judges to explain the law to the jury and to demonstrate to them how the evidence they have heard relates to the legal issues they must decide. It will fall to juries to apply those instructions to the facts as they find them, in order to arrive at just and proper verdicts.

[110] The integrity of the jury system rests on the jury’s ability to understand and properly apply the instructions given to them by the trial judge. A jury that does not understand the evidence or how it relates to the issues to be decided or that fails to follow the trial judge’s express instructions is unlikely to render a just and proper verdict.

[111] This case is about whether the specifics provided by the jury on the issue of causation were sufficient to support the integrity of their verdicts.

Issue One: The Requirement to Give Reasons

[112] Jurists are not uniform in their views about the extent to which juries should be asked to provide details of their general verdicts.

[113] Section 108(5) of the Courts of Justice Act, R.S.O. 1990, c. 43, provides trial judges with a broad discretion to require jurors to answer questions, both general and specific. Specific questions may require jurors to provide particulars as to how they arrived at their general verdicts.

[114] Notwithstanding the permissiveness of s. 108(5), as a matter of law, it is not, for the most part, necessary to ask juries to give anything more than bottom line answers. Canadian juries are deemed to understand and follow the legal instructions provided to them.[^9] Accordingly, there is a general presumption that their bottom line answers are the result of a proper consideration of the evidence and the issues and an adherence to the legal instructions provided in the trial judge’s charge. In other words, there is a presumption of integrity.

[115] There exists one notable exception to the general presumption. In ter Neuzen v. Korn[^10], the Supreme Court directed that in professional negligence cases, juries should be asked to specify in what respects the defendant was negligent. Sopinka J. explained that the requirement for particulars of negligence in a professional negligence action is meant to test the jury’s understanding of the instruction that they must accept the standard practice in the profession at the date of loss as the legal standard against which the defendant’s conduct must be measured.

[116] The ter Neuzen exclusion relates only to professional negligence claims and only to questions relating to the standard of care. Nevertheless, it has become a common, though not universal[^11], practice in all manner of negligence claims to require juries to provide not only bottom line answers, but also particulars as to how they arrived at those bottom line answers in relation to both standard of care and causation. Whether that common practice is good practice in every case is perhaps debatable. But, as I noted, that debate is not squarely before the court on this appeal and is best left to another occasion.

[117] The law in Ontario, as it presently stands, supports a trial judge’s discretion to ask a civil jury to provide explanations for their bottom line answers on questions of standard of care and causation.

[118] Neither side takes issue with the utilization of questions in this case requiring specifics with respect to both negligence and causation. My colleague refers to the questions as “impugned”. But no one has impugned the questions. Everyone agreed to them. The existence of that agreement forecloses the assertion, at least for this case, that jurors are not required to provide reasons. In this case, they were.

[119] Given that the parties agreed on a process where the jury would be required to provide at least some limited reasons for their verdicts on causation, if they failed to provide specifics that were coherent and responsive to the questions asked, it is no answer to say that the law does not require them to provide reasons. The law is permissive. If the court, with the agreement of counsel, required reasons, then reasons must be provided.

[120] Questions 2(b) and 4(b) make it clear that the parties were not content to rely on the presumption that the jury understood and properly applied the instructions given to them. The parties obviously thought that causation was a sufficiently complex issue that it merited a “second check” as the respondents’ counsel described it.

[121] I appreciate that my use of the term “reasons” may be controversial. It has been repeated time and again in the jurisprudence that jurors are not required to give reasons for their decisions. That principle is strictly adhered to in criminal cases. The adherence to the principle in civil cases is more uneven.

[122] For instance, as I noted, jurors in professional negligence cases are required to give limited reasons explaining in what respects the defendant was negligent. They must explain how the defendant was negligent, in order that the court may test their understanding and correct application of the trial judge’s instructions.

[123] Similarly, when asked to provide clear and specific answers about how a defendant’s negligence caused injury the jury is, in truth, being asked to provide limited reasons.

[124] Sometimes apologists of the “jurors never give reasons” school argue that “specifics” and “particulars” are qualitatively different than “reasons”. In my view, one cannot rationally distinguish between them. A “reason” is an explanation or a justification. So are specifics and particulars.

[125] Other times it is argued that there is something qualitatively different about asking “how” a verdict was arrived at as opposed to asking “why” that verdict was reached. Again, I do not accept that there is a meaningful distinction between the two. Hows and whys are both integral parts of the reasoning process.

[126] In my view, it is time to accept that there are instances, in civil cases at least, where juries are asked to provide reasons for their decisions. Admitting that fact will enable courts and parties to make determinations about (1) when it is appropriate that a jury be asked to provide reasons; and (2) how the sufficiency of any reasons provided should be measured.

[127] I think it axiomatic that if a jury is asked to provide reasons (or “explanations” or “specifics”), there must be some threshold requirement of sufficiency. Moreover, if there is a threshold requirement of sufficiency, there must be a consequence when that threshold is not met. To my knowledge there are no authorities that directly address these points.

Issue Two: Gauging the Sufficiency of Juror Reasons

[128] Jurors are laypeople. They lack legal training. When they are asked to explain their decisions – through particulars or specifics – the explanations they provide must be considered in this context. The Court of Appeal instructed, in Stilwell v. World Kitchen Inc.[^12], that a jury’s answers should be given the fullest possible effect and supported, if possible, by any reasonable construction.

[129] Jurors cannot be expected to provide reasons that are anywhere near as comprehensive as one would expect from a judge.

[130] The sufficiency of judicial reasons has been the subject of significant appellate comment. Sufficiency is intimately related to purpose. Judicial reasons are sufficient if they satisfy their identified purposes, which are:

(i) To justify and explain the result and satisfy the public that justice has been done; (ii) To explain to the losing party why he or she lost; (iii) To provide for an informed consideration of any grounds of appeal; and, (iv) To permit effective appellate review.[^13]

[131] In my view, the sufficiency of jurors’ reasons must also be assessed against their purpose. Jurors need not justify their results nor explain to the losing party why he or she lost. But certainly their reasons must support the integrity of their verdicts.

[132] According to the authors of Ontario Courtroom Procedure, 3rd ed.[^14], the purpose of jury questions that require specifics is to enable the court to “examine the particulars of the jury’s findings and ensure that the jury did not ignore an essential issue.”

[133] In ter Neuzen, Justice Sopinka said the purpose of requiring particulars, at least on the issue of standard of care, is to test the jury’s understanding of the instructions given to them and to ensure that the jury has correctly applied those instructions.

[134] In my view, as a matter of common sense, the purpose of asking a jury to provide limited reasons – in the form of particulars or specifics – must be to ensure that they have understood the instructions given to them, that they have correctly applied those instructions, and that they have not missed an essential issue. Again, to ensure the integrity of their verdicts.

[135] It must be recalled, of course, that there is a presumption in Canadian law that juries understand and properly apply the instructions provided by trial judges. The consideration of jurors’ answers starts with that presumption. Given that presumption and the requirement that jurors’ answers be interpreted liberally and given the fullest possible effect, it follows that the threshold of sufficiency will be a low one.

[136] I would suggest that jurors’ reasons will only be insufficient, or not fit for purpose, if they:

(a) Are not responsive to the question(s) asked; (b) Manifest confusion, disagreement or ambiguity or demonstrate that the jury did not understand and properly apply the instructions given to them; or, (c) Indicate that the jury missed an essential issue.

[137] Where a determination is made that the jury’s reasons are insufficient, a trial judge is faced with limited options. He or she can either (1) provide additional instructions and ask the jury to resume their deliberations; or (2) order that the action be retried. The second option is obviously an extinction level event and one would expect it would be resorted to only in rare circumstances. I turn now to a consideration of when those circumstances might arise.

Issue Three: The Jurisdiction to Reject a Jury’s Verdict

[138] In trials conducted before a judge and jury, each has a different and distinct role.

[139] The task of fact-finding is the exclusive domain of the jury. The jurors are the only ones who determine what happened in the case. The trial judge, on the other hand, is the judge of the law. His or her role is a limited one. He or she decides what procedures will be followed and what evidence the jury is permitted to hear and, at the end of the case, instructs the jury on the law that they must apply to the facts as they find them. When parties elect to have their disputes resolved by a jury, they expect and are entitled to a verdict delivered by the jury and not the judge.

[140] It is not surprising then that a trial judge’s jurisdiction to reject a jury’s verdict reflects his or her limited and distinct role in the trial process. In particular, a judge may refuse to enter judgment on the basis of a jury verdict only where the verdict manifests legal error.

[141] The common law has, in fact, recognized just two circumstances in which a trial judge is justified in rejecting a jury’s verdict. First, where there is no evidence to support a finding of fact made by the jury (the “no evidence” standard). Second, where the jury gives an answer to a question which cannot provide a legal foundation for the judgment (the “insufficient answer” standard).[^15]

[142] The Court of Appeal fleshed out these two circumstances in Stilwell[^16] where Hourigan J.A. described the “no evidence” standard as limited to cases where “it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict”.[^17]

[143] In terms of the “insufficient answer” standard, Hourigan J.A. provided the following instruction:

…[A] jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances…Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction. A new trial should be ordered only where the jury seems to have confused the issues at trial, it is doubtful whether the jury paid attention to the real point in issue, and the questions answered or unanswered leave the real issue in doubt and ambiguity… (Internal Citations Omitted).[^18]

[144] As I have alluded to, in my view the “no evidence” and “insufficient answer” grounds to order a new trial focus on the integrity – or lack of integrity – of the jury’s verdict. Reasons that fail to answer a question asked, or which manifest confusion, disagreement or ambiguity and which leave the real issue in doubt cannot be trusted as the foundation for a just and proper verdict.

[145] The common law standards have been, by and large, codified at rule 52.08 of the Rules of Civil Procedure which provides as follows:

52.08 (1) Where the jury,

(a) disagrees; (b) makes no finding on which judgment can be granted; or (c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.

[146] Rule 52.08 does not replace the common law standards, but is to be read in conjunction with them.[^19] Having said that, in my view they speak to the same standards. Subparagraph (a) reflects the basic legal requirement for a verdict. Subparagraphs (b) and (c) are issues of integrity. The residual paragraph addresses the “no evidence” problem.

[147] Whether a jury is asked to provide reasons, an absence of evidence to support a verdict will always provide justification to reject it.

[148] When a jury is asked to provide reasons to support its verdict(s), and those reasons prove to be insufficient, the trial judge will only be justified in rejecting the verdicts and ordering a new trial where the reasons provided undermine the integrity of the verdict. That is, in accordance with the principles of Stilwell, where the answers manifest confusion about the issues and the instructions and leave the real issue in doubt. In all other cases of insufficiency, jurors should receive supplemental instructions and be invited to continue their deliberations.

Issue Four: Was the Result in this Case Justified?

[149] For ease of reference I repeat the questions and answers in issue here:

2/4(a) …Have the plaintiffs satisfied you on a balance of probabilities that, but for the breach of the standard of care, Rhonda would not have suffered any damages?

Answer: þ Yes No

2/4(b) If your answer to question 2/4(a) is yes, how did Dr. Samra’s/Dr. Ma’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers.

Dr. Samra’s failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.

Dr. Ma’s failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more than likely caused her brain damage.

[150] Applying the standards I have referred to above, I conclude that the jury’s answers to the questions seeking specifics on causation were insufficient. I reach this conclusion for a number of reasons.

[151] First, the answers provided were, in effect, non-answers. They said nothing more than that the breaches of the standards of care more than likely caused Rhonda’s brain damage. The answers to questions 2(b) and 4(b) merely echoed the general answers of questions 2(a) and 4(a) They added no clarity or specificity to the general answers.

[152] Second, the trial judge instructed the jury, in respect of questions 2(b) and 4(b), that they must provide clear and specific answers. They must set out how or in what way the doctor’s breach of the standard of care caused Rhonda’s injuries. She said, “in answering questions 2(b) and 4(b) you must state how the negligence caused her current condition.” The answers provided did not do so, even on the most liberal reading. The answers were, in short, non-responsive.

[153] Third, the one bit of added information, found in answer 2(b), is that Dr. Samra’s breach increased the risk (presumably of morbidity) to Rhonda. To the extent that this information is a specific, it is a problematic one. Increasing risk is not equivalent to causation. The trial judge specifically instructed the jury on this point, saying:

It is not enough, members of the jury, for the plaintiffs to prove that adherence to the standard of care would have given Rhonda a chance of avoiding the brain damage.

[154] When the only specific provided is at odds with the trial judge’s clear instructions, concerns naturally arise about the extent to which the jury understood and followed those instructions.

[155] Fourth, the jury, by and large, repeated the answers they had given in relation to the questions about standard of care. This feature tends to suggest that they bought into the closing submissions of the appellants’ counsel, even though the trial judge expressly cautioned them not to do so. Again, the jury appears to have either misunderstood the trial judge’s instructions or failed to apply them.

[156] Not only do I find the jury’s answers to be insufficient, I also conclude that they justified a rejection of the jury’s verdicts.

[157] I find that the jury’s answers leave the crucial issue of causation in doubt.

[158] The trial judge told the jury that the first question they had to determine was what likely happened. In particular, they had to determine, on a balance of probabilities, whether Rhonda’s current condition was caused by brain damage that she sustained in or around the time of her birth. The jury’s answers make no reference to such a finding.

[159] The appellants submit that the jury was not required to make a specific finding of that nature. They say the jury was faced with a binary choice: either brain damage was caused in the perinatal period or it was caused at 2 ½ months of age. They contend that the inescapable inference from the jury’s general verdicts, at answers 2(a) and 2(b), is that they found brain damage was caused in the perinatal period. My colleague would accept this submission. I would not.

[160] The problem with the appellants’ submission is that it effectively reverses the functions of the general and specific questions. The raison d’etre of the specific answers was to support and explain the general verdicts; to provide an assurance that the general verdicts were based on solid footing. Here, the appellants are advocating the use of the general verdicts to support and explain the otherwise vague specifics. In other words, they are presupposing the integrity of the general verdicts and using that presumption to interpret the otherwise vague answers to the specific questions. But the point of the specific questions was that the parties were not prepared to presume the integrity of the general verdicts.

[161] In my view, the answers to questions 2(b) and 4(b) do not provide any reassurance that the jury understood the instructions on causation or that they made the key factual findings necessary to link the breaches of the standard of care to Rhonda’s brain damage. They clearly understood that they were to determine causation on a balance of probabilities standard, but they seem to have misunderstood the need to explain, specifically, how they came to be so satisfied. It is not clear that at least 5 of the 6 jurors concluded that Rhonda suffered a hypoxic ischemic event in the perinatal period that caused her brain damage at the time of her birth.

[162] In the result, I would conclude that the jury seems to have confused the issues of standard of care and causation, that they appear not to have understood or otherwise followed the trial judge’s instructions, and that they have left the central issue in the case in doubt. There is good reason to doubt the integrity of their verdicts.

V. CONCLUSION

[163] This was a very difficult case with an undeniably terrible outcome.

[164] A young girl is profoundly disabled due to brain damage suffered either during the period surrounding her birth or in the first few months after her birth. The stakes are high. The damages are substantial and the reputations of two experienced physicians are on the line.

[165] The jury found that the respondents were negligent and that their negligence caused Rhonda’s injuries. But based on the model agreed to in this case, the jury’s general verdicts were not enough. It was agreed that the jury should provide specifics as to how the respondents’ negligence actually caused Rhonda’s injuries. The requirement for reasons, or specifics, was to ensure the integrity of the general verdicts. The answers provided do not, regrettably, do so.

[166] It would not be safe, nor fair to the parties, to rest a judgment on the verdicts returned in this instance. The trial judge was correct, in my view, not to do so. In reaching her decision, the trial judge, in my view, carefully considered the correct legal principles, recognized the limited circumstances in which she could reject the jury’s verdicts and reasonably exercised her discretion to do so. I would not interfere with her decision and would accordingly dismiss the appeal.

COSTS

[167] The parties agreed that costs of the appeal and cross-appeal would be fixed at $20,000 each. As both the appeal and cross-appeal are dismissed, the costs cancel each other out. In the result, no costs are awarded.

Boswell J.

Lederer J.

D.L. Corbett J. (Dissenting)

[168] I agree with my colleagues that the cross-appeal should be dismissed for the reasons given by the trial judge[^20] and for those stated by Boswell J. However, I respectfully disagree with my colleagues’ disposition of the main appeal.

[169] I agree with Boswell J. that the trial judge directed the jury to provide “reasons” for their causation findings. In this dissent, I refer to the questions directing the jury to give these reasons as the “impugned questions” and the jury’s answers as the “impugned reasons”.

[170] In my view, the problems with the impugned reasons do not justify refusing to enter the verdict. The impugned reasons are conclusory. They are not inconsistent with the verdict. They show that the jury accepted the plaintiff’s theory of causation and rejected the defence theory of causation. The parties’ causation theories were binary choices. Therefore, even though the jury’s impugned reasons are conclusory, the path to their conclusion is evident. That path is not based on impermissible reasoning nor is it contrary to any principle of justice.

[171] Second, the defence initially objected to the verdict on the basis that there was insufficient evidence to justify the jury’s causation findings. When this objection was argued on the merits, nearly three weeks after the jury had been dismissed, the defence also argued, in the alternative, that the impugned reasons were, themselves, a basis for the trial judge to refuse to enter judgment in accordance with the jury’s verdict. Because this alternative argument was not raised clearly before the jury was dismissed, the trial judge was precluded from re-charging the jury and sending it back out to deliberate further to provide sufficient reasons. The failure to raise this objection clearly and request that the jury be sent back out to deliberate further should not inure to the benefit of the defence. Rather, it should have led the trial judge to reject the alternative objection as untimely rather than to refuse to enter the jury’s verdict.

[172] Finally, the jury should not have been asked the impugned questions. The practice of asking such questions is inconsistent with the statutory framework governing jury questions in civil trials, it skews the deliberation process in favour of the defence, and it is not required by appellate jurisprudence respecting proper jury questions.

[173] As noted by Boswell J., whatever one might think of whether the impugned questions should have been asked at all, this jury was asked the impugned questions and it provided the impugned reasons. We cannot ignore the questions and reasons: they exist. In a case where the reasons given were inconsistent with the rest of the verdict or showed that the jury proceeded on an impermissible basis, the trial judge, and this court on appeal, could not ignore the reasons given without possibly ignoring injustice. Where, as here, the reasons are consistent with the verdict and are not premised on impermissible reasoning or a principle inconsistent with justice, the court should enter judgment in accordance with the jury’s verdict.

[174] Also as noted by Boswell J., the parties agreed that such questions be put to the jury and the correctness of asking these questions was not raised expressly on appeal before us. In my view, however, the issue is raised implicitly: the appellants argue, in effect, that the defence is not entitled to non-conclusory reasons to the impugned questions – a position that plaintiff’s counsel took when he closed to the jury. I agree with the implicit argument that the defence is not entitled to reasons for the jury’s causation finding, and therefore I see no injustice in entering the jury’s verdict, notwithstanding the conclusory nature of the impugned reasons. In simple terms, the defence was not entitled to reasons from the jury for its verdict and so the defence suffers no injustice in not receiving them.

[175] Therefore, for the reasons that follow, I would allow the appeal and set aside the trial judge’s order refusing to enter the jury’s verdict and directing a new trial. I would direct that judgment be entered in accordance with the jury’s verdict and the parties’ agreement on damages. I would direct the parties to agree upon trial and appeal costs or to provide this court with costs submissions within thirty days.

1. The Impugned Reasons Were Conclusory

[176] The jury’s impugned reasons are set out in Boswell J.’s reasons, but I repeat them here to analyse them:

(i) In relation to Dr. Samra:

Dr. Samra’s failure to move the C-Section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.

(iii) In relation to Dr. Ma:

Dr. Ma’s failure to deliver Rhonda on April 24, 2006 due to her being IUGR, her medical history and NST results more than likely caused her brain damage.

As noted by Boswell J., the italicized words repeat the jury’s earlier reasons for finding breaches of the duties of care. I summarize the italicized words to re-state the jury’s impugned reasons as follows:

(a) In relation to Dr. Samra:

Dr. Samra’s breach of the duty of care put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.

(b) In relation to Dr. Ma:

Dr. Ma’s breach of the duty of care more than likely caused her brain damage.

Put differently, the impugned reasons can be understood as follows:

1. Dr. Samra: the jury found: the breach of the duty of care “put Rhonda at higher risk” and that this likely caused Rhonda’s brain damage. Implicit in these findings is a finding that the risk came to pass” “put[ting] Rhonda at higher risk… caused” the damage. This is not just a finding that the breach “caused higher risk”, but also that the higher risk came to pass, “causing” the damage. On the words used by the jury, I see no basis to conclude that the jury confused exposing Rhonda to risk with causation.

The word “caused” is explained by the reference to the “higher risk”. The jury did not specify what the “higher risk” was, but it is evident from the competing theories of causation that the jury meant risk of the injuries Rhonda suffered.

I read the jury’s response to mean “the breach of the duty of care caused Rhonda to be at greater risk, the higher risk at which Rhonda was placed came to pass, and but for the breach of the duty of care by Dr. Samra, that risk would not have come to pass.”

2. Dr. Ma: the jury found that the breach of the duty of care owed to the plaintiff “caused her brain damage”. This language does not, on its face, raise a concern that the jury confused heightened risk with causation. On the other hand, this language does not provide any information about how the injury was caused because Dr. Ma breached the duty of care.

I read the jury’s response to mean “but for the breach of the duty of care by Dr. Ma, Rhonda would not have suffered brain damage.”

By replacing my reading of the jury’s responses for the words used by the jury, the problem with the jury’s responses is clear: the responses are conclusory. They fail to explain how the breaches of duty caused the brain damage.

Dr. Samra:

2(a) If your answer to question 1(a) is yes, have the appellants satisfied you on a balance of probabilities that, but for the breach of the standard of care, Rhonda would not have sustained brain damage?

Answer: Yes.

2(b): If your answer to question 2(a) is yes, how did Dr. Samra’s breach of the standard of care case Rhonda’s brain damage? Please provide clear and specific answers.

Answer: The breach of the duty of care caused Rhonda to be at greater risk. The higher risks at which Rhonda was placed came to pass. But for the breach of the duty of care by Dr. Samra, those risks would not have come to pass.

Dr. Ma:

4(a) If your answer to question 3(a) is yes, have the appellants satisfied you on a balance of probabilities that, but for the breach of the standard of care, Rhonda would not have sustained brain damage?

Answer: Yes.

4(b): If your answer to question 4(a) is yes, how did Dr. Ma’s breach of the standard of care case Rhonda’s brain damage? Please provide clear and specific answers.

Answer: But for the breach of the duty of care by Dr. Ma, Rhonda would not have suffered brain damage.

[177] The jury’s reasons in respect to Dr. Samra add little to its answer to question 2(a). The jury’s reasons in respect to Dr. Ma added nothing to its answer to question 4(a). Thus, I agree with Boswell J. when he concludes:

It is immediately apparent that the jury’s answers on causation offered nothing more than that the breaches they found more than likely caused Rhonda’s brain damage. They have not, in fact, provided any particulars of how the breaches did so, save to suggest that Dr. Samra’s failure to deliver Rhonda sooner increased her risk of morbidity. (Para. 73, above).

[178] I also agree that the jury’s impugned reasons did not follow the trial judge’s instructions in that they failed to explain and provide particulars as to how the damage was caused by the conduct of the respondents. However, the inadequacy of the responses – their conclusory nature – does not mean that they were “non-responsive” or that they were “wrong” or that they proceeded on an incorrect principle. As the trial judge noted in her reasons, the legal test for refusing to enter a jury verdict is stringent. As she quoted from Hill v. Church of Scientology:

a trial judge may refuse to accept the verdict of a jury only when she or he considers that there is no evidence to support the findings of the jury, or where the jury gives an answer to a question which cannot in law provide a foundation for a judgment (emphasis added by the trial judge).[^21]

[179] With respect, the trial judge’s findings that the jury’s reasons are “contrary to law”[^22] are in error. The jury’s impugned reasons were “conclusory” and for that reason “insufficient” when measured against the trial judge’s jury instructions, but they were not “non-responsive”, they were not “wrong”, and they were not demonstrably based upon impermissible reasoning. Following the reasoning of Hourigan J.A. in Stilwell, discussed above by Boswell J., there is no basis to conclude that the jury confused the issues at trial, failed to pay attention to the real points in issue, or that there is any real ‘bottom line’ issue left in doubt and ambiguity.[^23]

2. Proper Response to Conclusory Jury Reasons

[180] As I explain in more detail below, the impugned questions should not have been asked. Since the reasons provided are not inconsistent with the jury’s verdict, are not wrong, and do not reflect a reasoning process repugnant to justice, I would disregard them and enter judgment in accordance with the rest of the jury’s answers. However, I proceed now on a different premise, the one upon which Boswell J.’s reasons are based. Accepting that the impugned questions were asked and the impugned reasons were provided, and finding that the impugned reasons are insufficient because they are conclusory, what was the proper course?

[181] In my view the jury should have been re-charged on the impugned questions and sent back for further deliberations to provide sufficient reasons. This approach was not considered by the trial judge because she was not asked to re-charge the jury by the respondents. Instead, the jury was dismissed before this issue was argued before the trial judge. How did this unfold in this way?

[182] The jury deliberated for about one day and returned with a verdict on April 27, 2018, at 2:14 p.m. The transcript discloses that the jury’s verdict was provided to the trial judge in writing and then was read out – the questions were apparently read by the Registrar and the answers were stated by the jury foreperson (Transcript, Vol. 23, pp. 1-7). The verdict sheet was marked as an exhibit. Then counsel for the defendants asked that the jury be polled. The plaintiffs did not consent and so the jury was excused while the trial judge consulted with counsel over this request (Transcript, Vol. 23, pp. 7-18). The jury was then recalled and polled on the impugned questions (Transcript, Vol. 23, pp. 18-22). After the jury was polled, the following exchange took place:

THE COURT (to the jury): Thank you. Thank you very much. I think, counsel, that we can release the jury now. Thank you, members of the jury, for your commitment as I indicated in my charge to you, and thank you for participating in this process. I know that the parties appreciate your work and the Court appreciates your work. Without juries, our system would not be able to function. So thank you, and you are now dismissed. (Transcript, Vol. 23, p. 22)

Although the Transcript does not state this, the jury surely left the courtroom immediately after these remarks from the trial judge and before defendants’ counsel began his submissions in which he argued that the jury’s answers on the causation issue “are insufficient” (Transcript, Vol. 23, p. 22).

[183] Counsel did not ask the trial judge to retain the jury and to consider re-charging them in respect to the impugned reasons. Discussion about the defence’s objection to the verdict began with the defence request to poll the jury and the following exchange:

THE COURT:· Mr. Cruz, you want the jurors asked whether they all agree with the answers?

MR. CRUZ:· Yes, I do.· I think it's necessary to help understand the reasons they've given. (Transcript, pp. 7-8)

Polling a jury is not usually done in civil cases, and there were submissions on why the court should poll the jury in this case. During those submissions, defence counsel stated:

… so I'm going to come to my next submission which will be that you should not accept this verdict pursuant to the Salter v. Hirst line of reasoning.[^24]· And I think that kind of ties into the last sentence of paragraph 137:

"Where the answers on their face give rise to questions about sufficiency or reasonableness, other procedural devices are available." (emphasis added)

And so fair enough.· That said, the answers to the two causation questions give rise to serious issues, Your Honour. In my submission, understanding how the jury decided those questions is helpful information for the Court in determining that issue. So when I make submissions about Salter v. Hirst, knowing how the jury went on the two causation questions I think is of significance, and it would be of assistance to Your Honour to know that.· You know, that's why I say it should be done here. (Transcript, pp. 11-12)

[184] Discussion ensued about the utility of polling the jury and precisely what the jury would be asked during polling, following which the trial judge stated:

Mr. Cruz has indicated he has some submissions to make, and so it seems to me that in terms of being practical, that we ought to poll the·jurors on the causation questions to ensure that·the proper procedures have been followed with·respect to the answers. ·And if the answers are "yes, we all·agree" then that's the end of it from the jury's·point of view, it seems to me, and they can then be·released. And so we will poll the jurors with·respect to question 2B and 4B and simply ask them·whether they agree with the answer that's been·inserted in the jury verdict sheet. (Transcript, p. 18)

[185] The jury was then polled and released as described above. There was no request that the jury be re-charged respecting the impugned reasons.

[186] Defence counsel then moved as follows:

MR. CRUZ:· Your Honour, I would move that the answers of the jury are insufficient to found a judgment on the causation issue.· And I rely on Rule 52.08, and these are findings on which judgment cannot be granted.

THE COURT:· I'm sorry.· What was the Rule?

MR. CRUZ:· 52.08.· And I only happen to have one copy of Salter v. Hirst with me, I'm afraid.· It's the main authority on it.· But if you look at the rules, there are a couple of cases cited there, Teskey v. TTC.[^25]

"A trial judge may refuse to accept the verdict of a jury if he or she concludes there is no evidence to support the finding of the jury, or where the jury gives an answer to a question that cannot in law provide a foundation for judgment. Intervention is limited to verdicts bad in law or devoid of evidentiary support."

The Salter v. Hirst annotation is:

"Jury verdict overturned by trial judge except where expert reports afforded no evidence that the defendant's negligence caused or contributed to the plaintiff's damages." (sic)

I do have a copy of Salter v. Hirst here.· I'll hand it up.

THE COURT:· I'm familiar with it.

MR. CRUZ:· I know you're familiar with it.· But the issue is and as I wrote down the – I don't have a copy of the answers myself obviously.

THE COURT:· Can I get three copies, please.

MR. CRUZ:· As I wrote down what the jury said, so vis-à-vis question 2B, they wrote Dr. Samra's failure to move the C-section to April 18th put Rhonda at a higher risk that more likely than not caused her brain damage. Then for 4B, Dr. Ma's failure to deliver on April 21 due to being IUGR, her medical history, and NST caused brain damage. And so what the jury has done, Your Honour, is what Mr. Elmaleh invited them to do in his closing, which is they repeated the breaches. That's what they've done.· They've not explained a causal connection between the breaches and brain damage, which is what they need to do. So the first point is that they've done the very thing, the danger that I was concerned about vis-à-vis Mr. Elmaleh's closing. So when you think about -- take the one I just read about Dr. Ma.· The things that they've cited are failure to deliver on April 21 because she was IUGR, her medical history, and the NSTs. Those are all issues of breach.· And then they say it caused brain damage.· That's it. So there is no explanation as to a causal link in that answer.· The same is true in 2B with respect to Dr. Samra.· They've added one concept in Dr. Samra's answer, which is that she was at higher risk, but higher risk in law doesn't lead to a causation finding. And so the answers are effectively repeating the breaches just as Mr. Elmaleh asked them to do in his closing, and they reach a simple, conclusory statement that there was brain damage. So we obviously had lots of evidence in the case that -- and the defence position was that there was no brain damage to this effect. But leaving that aside, the more important question here on the Salter v. Hirst line of reasoning is did the plaintiffs prove that delivery earlier, whether on the 21st or the 18th, would have made a difference?· And there is no evidence to support that on Salter v. Hirst. And so the notion being that -- and the jury has expressly made reference to IUGR here. And so really there were two theories before the Court on this trial.· There's the theory of the defence which is that the cause of Rhonda's condition at birth was due to an entrapped head and the general anesthetic and so on.· That was the defence theory. The plaintiffs' theory was IUGR related, and there was never an explanation given to the Court by any witness as to how IUGR caused Rhonda's condition at birth.· And the evidence, actually, is to the opposite effect. So, you know, I cited this in my closing.· So when we talked about the placental pathology and the dream gas that Dr. Perlman talked about, et cetera, there is no basis to say that IUGR caused Rhonda's condition at birth.· The strip up to 06:51 is inconsistent with IUGR causing that condition. And so my friends did not lead evidence on what would have been different on April 21st if a delivery had occurred that day.· So no person came to this court and testified about that. So they say the outcome would have been different.· There are conclusory statements of that kind.· That's true.· So Dr. Oppenheimer, Dr. Perlman, they made conclusory statements that are just that.· If the baby had been delivered a week earlier or a day earlier, the outcome would have been different.· They do say things like that, but those are, as in Salter v. Hirst, insufficient. And so the evidence needs to be from the plaintiffs if delivery had happened 24 hours earlier, what would have been different at that delivery?· Would the head have been entrapped? Would it not have been?· What was the condition of the baby at that time? And, you know, I'm not talking about her oxygenation because we do have evidence of that.· She was well oxygenated previously. But the issue is Dr. Perlman has testified, and they all seem to agree actually on the plaintiffs' side, that the injury occurred after 06:51. So what would have been different the day before or the week before?· And there's no evidence on that, so that's the nature of the objection. I don't know whether you want to argue this now on the spur of the moment or whether we should come back and do this in a more proper way. It's a very significant issue. (Transcript, pp. 22-27, emphasis and double-emphasis added)

[187] There was but one objection: that there was no evidence upon which the jury could find causation: “there’s no evidence on that [causation], so that’s the nature of the objection.” Counsel stated (correctly, in my view), that the impugned answers are conclusory: “they [the jury] reach a simple, conclusory statement”. But this is not the point of the objection: “the more important question here… is did the plaintiffs prove that delivery earlier… would have made a difference?” Defence counsel acknowledged that the plaintiff’s experts opined on the issue of causation, but these opinions were, themselves, conclusory and (on the defence logic), not evidence sufficient to ground liability: “There are conclusory statements of that kind. That’s true…. They do say things like that, but those are… insufficient.”

[188] This statement of the defence objection ties back to the legal principle upon which the objection is grounded: “A trial judge may refuse to accept the verdict of a jury if he or she concludes there is no evidence to support the finding of the jury, or where the jury gives an answer to a question that cannot in law provide a foundation for judgment. Intervention is limited to verdicts bad in law or devoid of evidentiary support.” The defence was focused on the second branch of this statement: it argued that the verdict was “devoid of evidentiary support”. The defence did not, at this stage, argue that the jury’s reasons were insufficient such that they ought to be sent back out to provide non-conclusory reasons to the impugned questions.

[189] The trial judge’s comments after defence counsel’s submissions make it clear that she understood that she was being asked not to enter judgment in accordance with the jury’s verdict. Plaintiff’s counsel also understood the objection in this way. He responded:

I don't know, hearing my friend, Your Honour, with respect, it sounds like he was in a different courtroom than we were because there's not only evidence, there's ample evidence to support a jury's finding, and this is really the test, whether there's any evidence, and I say there's ample evidence to support the jury's verdict. (Transcript, pp. 28-29)

It is clear that counsel and the court considered that there was one objection: that the verdict should not be entered because there was insufficient evidence to ground a finding of causation.[^26] The case was adjourned to May 15th for argument on the defence objection. When the point was argued on May 15th, the defence argued two alternative objections, as described in the trial judge’s reasons (at paras. 30-31):

Mr. Cruz on behalf of the Defendants submits that the case must be dismissed pursuant to Rule 52.08(1) because the Plaintiffs failed to lead evidence that an earlier delivery would have led to a different outcome….

In the alternative, Mr. Cruz argues that the answers of the jury on the causation questions are not responsive to the issues they were tasked to determine. Their answers do not provide the necessary answers to how the negligence led to the injuries, which is essential to the causation analysis. As such, the Defendants submit that the court must exercise its discretion pursuant to Rule 53.08(1)(c) and order a new trial.

[190] It is clear that a trial judge may require a jury to resume deliberations provided that this is done before the jury is discharged.[^27] Indeed, this may be done where a jury’s verdict appears to be internally inconsistent.[^28] Where the verdict is not inconsistent, but is thought to be insufficient, the proper course is to instruct the jury in respect to the deficiency and to send it back for further deliberations. The case at bar illustrates why this is so. The jury was polled and all six jurors agreed with the impugned reasons. They were unanimous. There was evidence upon which the jury could have so concluded: the trial judge’s reasons and Boswell J.’s reasons below explain the evidence available to the jury. And in this case the theories of causation were a binary choice: the jury must have accepted the evidence on causation from experts for the plaintiff to have reached the verdict that it did, and there is no reason to believe that jurors would not have said so if asked again to explain their finding of causation.[^29]

[191] I would liken this situation to the failure to raise a timely objection to a trial judge’s directions to a jury. The lens through which the issue is seen is whether it appears there has been a substantial wrong or miscarriage of justice.[^30] Failure to raise a timely objection to final instructions does not determine the issue on appeal but it is an important consideration. Why? Among other things, failure to make timely objection prevents the court from addressing an error in a timely way so that the jury trial may be concluded.[^31]

[192] By the time these issues were argued before the trial judge on May 15th, the insufficiency of the jury’s impugned reasons had morphed into a separate, alternative argument. In my view it was too late to raise that argument as a separate ground to refuse to enter the verdict. The court could not recall the jury and put the case back in its hands to provide better reasons. The reason the court could not do that was that (a) the defence had not asked the court to do this while the case was still in the jury’s charge; and (b) the way the defence framed its original objection did not make it clear to the trial judge or to plaintiffs’ counsel that the defence was raising a challenge to the jury’s verdict that could have been addressed by further instructions and deliberations.

[193] The proper remedy, in this situation, was to re-instruct the jury and send it out for further deliberations. That was not done because of the way the defence approached the issue. While the impugned reasons do not explain the jury’s verdict, neither do they undermine it. In my respectful view the trial judge erred in finding that this objection was a proper basis to decline to enter the jury’s verdict. It was untimely when it was argued and should have been refused for that reason.

3. The Questions Should Not Have Been Asked

[194] Boswell J. concludes that it is not necessary to address this issue. The jury was asked the impugned questions and gave the impugned reasons. The task for the trial judge, and for this court, is to decide what should be done in light of what happened.

[195] In my view, the analysis could stop after my first two points. The answers are conclusory. Objection had to be made to the answers before the jury was discharged, and the trial judge could have reinstructed the jury and sent it back out to provide a better response to the impugned questions. Failing to raise that objection clearly before the jury was dismissed deprived the court of the ability to re-charge the jury. There was evidence for the jury to reach the conclusions it did, the theories of the case on causation were binary, and so there is no doubt that there was a proper basis for the jury’s findings on causation.

[196] However, one part of the test for whether a jury verdict ought to be set aside is whether there has been a miscarriage of justice. It could be argued that, if the defence was entitled to sufficient reasons from the jury, then it has been denied the justice to which it is entitled. I do not accept this argument because, in my view, the questions should not have been asked in the first place. Since they should not have been asked, there is no miscarriage of justice if the defence does not receive sufficient answers to the impugned questions.

Proper Jury Questions in Civil Cases

[197] Subsections 108(4), (5) and (6) of the Courts of Justice Act provide as follows:

(4) Where a proceeding is tried with a jury, the jury shall be composed of six persons….

(5) Where a proceeding is tried with a jury

(a) the judge may require the jury to give a general verdict or to answer specific questions…; and

(b) judgment may be entered in accordance with the verdict or the answers to the questions.

(6) It is sufficient if five of the jurors agree on the verdict or the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer.[^32]

[198] Section 108 does not authorize the court to require the jury to give reasons for its decision or for any part of its decision. While there is no doubt that the trial judge has broad discretion to determine the questions to be put to the jury, that discretion is bounded by the role of the jury, which is to decide, but not to explain, and it is bounded by the text of s.108.

[199] This boundary is expressed in the terms of s.108(6). It is “sufficient” if five jurors agree on the answer to a question. By necessary implication, it is “not sufficient” if there are not at least five jurors who agree on the answer to a question. This makes it clear that the jury may not be asked questions for which members of the jury may have different answers supporting the verdict they have reached. And this is another way of saying that juries may not be asked to provide reasons for their decisions.

[200] This case illustrates this point. I have characterized the causation issue as a binary choice: whether Rhonda was injured shortly before or during birth, or whether she was injured later as a result of seizures unrelated to her birth, perhaps with genetic etiology. However, as explained in Boswell J.’s reasons, the evidence respecting these binary choices was extensive and complex. All six jurors found that the plaintiffs had established causation on a balance of probabilities. But each could have arrived at that conclusion by different paths of reasoning. For example, hypothetically:

a. Juror 1: accepts the opinion of Dr. Oppenheimer. b. Juror 2: accepts the opinion of Drs. Perlman and Hill. c. Juror 3: accepts the opinions of Drs. Oppenheimer, Perlman and Hill, and finds that they lead to the same conclusion on liability. d. Juror 4: prefers the evidence of Dr. Naidich to the evidence of Dr. Vezina, and the evidence of Dr. Cohn to the evidence of Dr. Tarno, and concludes that, between the two theories of causation from the experts, the plaintiffs’ expert opinions are more probably correct. e. Juror 5: finds the defence radiological evidence to be compelling and troubling, but is persuaded by the absence of any documented genetic cause and Rhonda’s well-documented perinatal condition that it is more likely than not that the plaintiff’s theory of causation is correct. f. Juror 6: did not believe the defence experts and thought that they were being less than candid in their opinions in order to help out other doctors. The injury had to be caused by something, and there is strong documentation for Rhonda’s acute perinatal condition and it is only logical that this must have caused the injury.

Assume the jury listed all six of these “reasons” on the verdict sheet. Assume that the jury was polled about these answers. Six reasons would be given, but not one of them would be “sufficient” within s.108(6) of the Courts of Justice Act because not one of the answers was agreed upon by five jurors. And yet, so long as five of these responses were found to be substantively sufficient, five of the jurors – following different paths of reasoning – would have arrived at a conclusion sufficient for a verdict.

[201] This is a sufficient basis to find that the impugned questions should not have been asked: they are inconsistent with the limitations on such questions, derived from the text of s.108(6) authorizing jury questions. However, there are many other reasons why questions like the impugned questions should not be put to juries. For the sake of brevity, I deal with each in summary form. Each could be developed at greater length.

a. The Jury Was Instructed That It Had To Agree On All Its Answers

[202] During her charge to the jury, the trial judge instructed the jury that five of six of them had to agree on each of the answers they provided on the verdict sheet. The trial judge said:

When you answer the questions, members of the jury, you need not be unanimous.· If you can arrive at an answer to a question in which five of you agree, then that is sufficient to enable the foreperson to put the answer in on the jury sheet. It's not necessary that the same five people agree on each question.· A different five can find agreement on a different question. (Transcript, pp. 7-8)

This instruction is correct and expressed in model language. It told the jury that five of them had to agree on the answers to each of the questions posed of them. The jury would reasonably have understood that this included their answers to the impugned questions.

[203] This was not corrected or explained further by subsequent instructions. After her thorough review of the expert evidence, the trial judge reviewed the verdict questions with the jury. In respect to questions 2(b) and 4(b), these were her instructions:

As I've told you already, causation is established if the evidence satisfies you that it is more likely than not that Rhonda would not be in her current condition but for the negligent conduct of or breach of the standard of care by Dr. Samra. In other words, does the evidence prove that the negligent conduct that you have identified and summarized in your answer to question 1 was necessary to bring about Rhonda's injuries? If you answer question 2A in the affirmative, then you go on to question 2B.· How did Dr. Samra's breach of the standard of care cause Rhonda's brain damage?· Please provide clear and specific answers.· Please set out how or in what way the doctor's breach of the standard of care caused Rhonda's injuries. Now, in his closing remarks, Mr. Elmaleh stated that in answering the questions on causation, that is, question 2B and 4B, you could perhaps insert the same answers on the particulars as you did for particulars of negligence, which are at question 1B and 3B.· That is incorrect. If you find causation, members of the jury, that is, if you are satisfied that a breach of the standard of care by either Dr. Samra or Dr. Ma or both caused Rhonda's brain damage, then in answering questions 2B and 4B, you must state how the negligence caused her current condition or, to put it another way, how the negligent treatment resulted in Rhonda's current disabled condition. (Transcript, pp. 130-131)

[204] Shortly thereafter, the trial judge repeated her instruction about the need for five jurors to agree to decide any question:

Each question should be taken, reviewed, and decided individually.· If five of you agree on the appropriate response to a question, that is sufficient for the answer to be given.· You may -- the same five people do not have to agree on the answer to every question. (Transcript, p.134)

Again, this instruction is correct and is expressed in model language. Having been repeated immediately after the trial judge’s instructions respecting the impugned questions, the jury would have understood that five of six of them had to agree on the answers to the impugned questions.

[205] The jury’s reasons must be read in this light. If members of the jury reached findings of causation by different paths of reasoning, they would have had to find the common basis for the decision upon which they agreed. Their conclusory reasons could well be the result of this misdirection: the conclusion may have been the only part of the causation analysis upon which they all agreed. So, from the jury’s perspective, they may have given the very best answer that was available to them in light of the instruction that they had been given to agree on their reasons. This, of course, does not make the impugned reasons sufficient. But it does tend to place the criticism of the jury’s reasons in a different light. Rather than finding that the jury disobeyed the trial judge’s clear instructions to be specific in their answers, it would be just as reasonable to infer that the jury did exactly what it was asked to do and the impugned answers are the common account of causation on which they could all agree: the conclusion.

b. Jury Deliberations Are Secret

[206] In her opening instructions to the jury, the trial judge gave a standard instruction about the secrecy of jury deliberations. In her final instructions she reminded the jury about this rule:

I remind you your deliberations are secret.· Secrecy will ensure you're able to have full and frank discussions with each other in complete privacy.· That doesn't mean you can't discuss the case after it's over, but you can only tell others what happened in the courtroom, not about your deliberations in the jury room. (Transcript, p. 135)

[207] Asking the jury to explain its reasons for a finding of causation impinges upon the secrecy of jury deliberations. As illustrated by my hypothetical jury answers, where six jurors have six different paths of reasoning to arrive at the same result, how is the court to poll the jury to ensure that at least five of the jurors agreed with at least one valid reason? How is the court to sort out whether the verdict is sound if one of the reasons given is legally impermissible? Only by a detailed examination of which juror accepted which explanation(s) for causation would the court be able to get to the bottom of the matter.

[208] Polling the jury to ensure that at least five jurors agree with a verdict is acceptable – one of the jurors expressed a concern that even asking this question was inconsistent with the principle of secrecy of juror deliberations. Asking each juror which reason(s) they adopt for a finding of causation crosses the line and breaches the secrecy that attaches to jury deliberations.

c. The Impugned Questions Are Unfairly Asymmetrical

[209] If this trial had been run by judge alone, the trial judge would have been required to give reasons for her decision, whether she found for the plaintiffs or for the defendants. If she had found, as this jury did, that the doctors breached the applicable standards of care in their treatment of Rhonda, she would have had to give reasons explaining why she so concluded. She then would have turned to the issue of causation. Whichever way she decided this issue, she would have had to give reasons. If she had found for the plaintiffs, she would have had to explain how the doctors’ negligence caused the injury. Likewise, if she had found for the defendants, she would have had to give reasons explaining why she was not satisfied that the doctors’ negligence caused the injuries.

[210] The impugned questions are one-sided. They only ask the jury to explain if they accept the plaintiffs’ position on causation. They do not require the jury to explain if they are not satisfied that the doctors’ negligence caused the injury. In my view this is not fair. By framing the questions in this way, the jury could find some tacit presumption that finding for the plaintiff requires an explanation while finding for the defendants does not. It also presumes that the defence is entitled to a reasoned explanation why it did not prevail, but that the plaintiff is not. I see no way in which the cause of justice is served by asking such one-sided questions of the jury.

d. The Core Components of Proper Jury Questions Should Not Be Discretionary

[211] As I note in my discussion of ter Neuzen, below, the Supreme Court of Canada remarked that the trial judge in that case declined counsel’s request to ask the jury to specify the negligent acts of the defendant doctor. Implicit in the Supreme Court’s treatment of this point is that it might have been helpful in that case to have answers to those questions, but it was not an error by the trial judge to fail to put those questions to the jury.

[212] The form and structure of jury questions is in the discretion of the trial judge. But that does not mean that of the personal views of the trial judge of the nature of proper jury questions ought to determine whether a jury is asked to give reasons for its findings. Questions should be put to the jury to obtain a robust verdict that is amenable to review by the trial judge and on appeal. For example, if there are four separate theories of liability, it would seem proper to put four questions or series of questions to the jury to get a verdict from the jury on each theory of liability. If there are six separate heads of damages, it would seem reasonable to ask the jury for its answers to each head of damages. The proper breakdown and structure of questions is a matter for the trial judge to decide and of course the trial judge must have reasonable latitude to frame the questions appropriately. That is very different, however, from leaving it as a matter of discretion to ask the jury to explain and justify its decision. If the parties are entitled to this sort of explanation from the jury, then I see no reason in principle why it should not be required as a matter of course: if these defendants are entitled to know the jury’s reasons on causation, why should every defendant not be entitled to know?

e. Criminal Juries Are Not Asked to Give Reasons

[213] Having presided in complex criminal and civil jury trials, I fully appreciate that they are different. But the role of the jury is the same in both. A comparison of standard instructions in the two types of proceedings shows close similarities and virtually identical instructions on the role of the jury. In both types of proceedings the jury is the judge of the facts. The judge is the judge of the law and procedure. It is the jury’s task to apply the law stated by the judge to the facts found by the jury in order to reach its verdict.

[214] Civil trials are not more complicated than criminal cases, either factually or legally. Any trial judge who has presided in a murder trial where causation is in issue would be comfortable with the range of expert opinions put before the jury in this case. Any trial judge called upon to instruct a criminal jury in the law of self-defense, party liability, and the co-conspirator’s exception to the hearsay rule, can attest that criminal juries are routinely required to absorb and apply highly technical and sophisticated legal instructions.

[215] Justice Watt in his model instructions for criminal juries includes the following standard instruction:

If I make a mistake about the law, justice can still be done in this case. The court reporter records everything I say. The court of appeal can correct my mistakes. But justice will not be done if you wrongly apply the law. Your decisions are secret. You do not give reasons. No one keeps a record of your discussions for the court of appeal to review. As a result, it is very important that you accept the law from me and follow it without question. (Final Instruction 2A, emphasis in original)

In my view this instruction is equally applicable to civil jury trials. Juries “do not give reasons.”

f. The Jurisprudence and Civil Jury Practice

[216] I recognize that there is appellate authority that could be seen as running counter to my conclusion in Section C of these reasons. I reconcile this authority as follows:

a. On the issue of proper jury questions, ter Neuzen should be limited to its facts and circumstances, and should be read in Ontario as circumscribed by s.108(6) of the Courts of Justice Act. In other words, ter Neuzen is distinguishable.

b. Trial judges differ in their views about asking juries to give reasons. There seems to be no clear authority describing the bounds of proper jury questions, and as a result the exercise of discretion by trial judges can result in juries being given very different kinds of questions, depending on the personal views of the trial judge. In my view it is appropriate to try to settle, in broad terms, appropriate limits on this discretion.

c. The conduct of jury trials, and the ways in which juries can be instructed have changed substantially in the past twenty-five years and the structure of verdict questions in civil jury trials should be approached in light of these changes. There are better ways of assisting juries to reason correctly than to require them to give reasons.

ter Neuzen v. Korn[^33]

[217] In ter Neuzen, the plaintiff underwent artificial insemination treatment (“AI”) with the defendant obstetrician. She was infected with HIV on January 21, 1985 during an AI procedure.

[218] HIV was unknown when the plaintiff began her AI treatments in 1981. The earliest warning of AI infection risks in a peer-reviewed publication was in late 1983, but that early warning did not come to the defendant’s attention. Knowledge and understanding of HIV, and testing methods for blood, tissue and semen, developed rapidly between 1983 and 1987. The defendant doctor learned of the risk of HIV transmission in July 1985. He then stopped his AI treatments and recommended to his patients that they be tested for HIV. The plaintiff tested positive.

[219] There were four theories of liability in negligence presented to the jury:

a. The doctor failed to warn the plaintiff of the risks of HIV transmission during AI, contrary to the standard of care in January 1985; b. The doctor followed the standard of care regarding warning of risks of HIV transmission in January 1985, but the standard of care was itself negligent; c. The doctor failed to follow the applicable standard of care in January 1985 in screening his semen donors for sexually transmitted diseases; and d. There was no standard of care for screening semen donors for sexually transmitted diseases in January 1985 and the screening done by the doctor was negligent.[^34]

[220] Any one of these theories could establish liability. The first two theories are different (and mutually exclusive) paths to liability for failing to warn of the risks of HIV transmission. The second two theories are different (and mutually exclusive) paths to liability for failing to screen semen donors with due care. In respect to all four theories of liability, the underlying facts were not in dispute. The doctor did not warn the plaintiff of the risk of HIV transmission, and the doctor took the steps he described in his evidence to screen semen donors for sexually transmitted diseases. Thus, liability in negligence turned on the applicable standards of care in January 1985.

[221] The jury question and verdict on all of these issues was as follows:

Q: Was there negligence on the part of the Defendant which led to the infection suffered by the Plaintiff?

A: Yes.

[222] Justice Sopinka described the jury’s answer as “inscrutable” for purposes of appellate review, and so it is. Analysed from the perspective of s.108(6) of the Courts of Justice Act, the jury question could have been broken down into four questions, one for each of the theories of liability in negligence. For the jury to answer “yes” to any of the four theories, five of six jurors would have had to agree on the answer. The jury could have answered “yes” to either (a) or (b) and, as well, could have answered “yes” to either (c) or (d). If the questions had been put in this way, then the task on appeal would have been simplified greatly – the jury’s verdict would not have been “inscrutable”.

[223] The British Columbia Court of Appeal concluded that the trial judge erred in leaving theory (a) with the jury. Since there was no way to know which theory of liability the jury accepted, the only recourse was a new trial.[^35]

[224] The Supreme Court of Canada agreed with the British Columbia Court of Appeal that the first theory of liability was not available on the evidence and ought not to have been left with the jury. However, the Supreme Court also concluded that the second theory of liability should not have been left with the jury, and thus that no new trial should be directed on the issue of the doctor’s duty to warn of the risks of HIV transmission. The Supreme Court agreed that there had to be a new trial on the issue of donor screening.

[225] It was in this context of the problems caused by the “inscrutability” of the jury verdict that Sopinka J. stated as follows:

To avoid the problem encountered in this case due to the inscrutability of the jury’s response to the question relating to negligence, and as a precaution to test the jury’s understanding of the instruction, the question to the jury with respect to negligence should require that the jury specify in what respects the defendant was negligent. In a case in which the general rule applies, the answer will reveal whether the jury has understood and applied the judge’s instruction that it must accept the standard practice as the legal standard against which the defendant’s conduct must be measured. Additionally, in a case which falls within the exception to the general rule and where the jury can fix the standard irrespective of the expert evidence, the answer to the question will ensure that the standard which the jury has adopted is not unreasonable or unknown in law.

I have several observations about this quotation. First, Sopinka J. does not lay down the limits and structure of proper jury questions. This is understandable given the context of the quoted paragraphs: the court is addressing how lower courts should avoid the problems that arose in ter Neuzen. Rather, Sopinka J. is making the point that the questions on liability ought to have been broken down so that the parties and the court would understand which theory or theories of liability were accepted by the jury and which were rejected. There is nothing in the passage that suggests that juries should be required to “explain” or “give reasons” for their verdicts, subject to one qualification. The central issue before the court respecting liability for negligence concerned the standard of care in professional negligence cases. Sopinka J. stated the issue as follows in the first two sentences of the judgment:

This appeal raises issues concerning the liability of the respondent physician for conducting an artificial insemination (“AI”) procedure which resulted in his patient, the appellant, contracting the Human Immunodeficiency Virus (“HIV”) through the infected semen of the donor. Specifically, this Court must address whether the respondent physician could be found negligent, notwithstanding conformity with standard medical practice, and whether the trial judge erred in instructing the jury that the prevailing standard of practice could itself be found to be negligent.

The court found that the jury could not find a physician negligent for following standard medical practice “except where the standard practice is fraught with obvious risks such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise.” This was the key holding in the case on the issue of professional negligence. It is in respect to this narrow range where the jury may find that standard medical practice is, itself, negligent, that Sopinka J.’s remarked about practice as an “exception to the general rule”:

Additionally, in a case which falls within the exception to the general rule and where the jury can fix the standard irrespective of the expert evidence, the answer to the question will ensure that the standard which the jury has adopted is not unreasonable or unknown in law.

In addition to confirming that the jury has not adopted a standard that is unreasonable or unknown to law, this “exception to the general rule” also has the benefit of making the standard found by the jury manifest so that it may be followed by professionals in future. It is an exceptional case in which the jury finds that standard professional practice is negligent. But it does happen.[^36]

[226] Second ter Neuzen does not consider s.108(6) of the Ontario Courts of Justice Act, or the applicable British Columbia legislation that prescribes the nature of proper questions for the jury. As I conclude above, s.108(6) provides that only questions that must be agreed by the jury can be asked of it. I read nothing in ter Neuzen that is inconsistent with this principle, except, perhaps, at para. 54 of the decision, which states:

In this regard, it is noteworthy that the respondent’s counsel suggested that the jury be asked to particularize the acts of negligence. This was not done, with the result that the Court of Appeal observed that it is not possible to decide whether the jury did decide the issue of negligence on the ground that the standard practice was itself deficient.

This idea is not developed in ter Neuzen. I read it as an acknowledgment that juries can be asked to particularize the acts they have found to be negligent. There is no doubt that trial judges have had the discretion to ask such questions for a long time. If such questions had been asked in ter Neuzen, the answers might have helped the appellate courts to understand the bases for the jury’s verdict, and thus could have been another way “to avoid the problem encountered in” the case.

[227] This is a very narrow basis on which to find that there is now a practice that juries may be asked to give reasons for their verdicts whenever they are asked complicated questions and a party wants the court to assess the quality of the jury’s reasoning. I would confine ter Neuzen to the principles essential to that case. Juries may be asked, and in some cases should be asked, to give particularized verdicts for several theories of liability, so that the court and the parties know the bases on which liability has been found. Where the jury finds that an accepted professional standard of care is, itself, negligent, the jury may be asked to explain its finding. Such a verdict is remedial in that it changes the governing standard of care and understanding the jury’s finding is necessary for it to have proper remedial effect.

[228] Third, the quoted passage is obiter dicta. The ratio of this aspect of the Supreme Court’s decision is that two theories of liability put to the jury were not available on the evidence, and it is not possible to understand the jury’s answer to the other two theories of liability from the verdict given. Therefore there must be a new trial. Although the quoted paragraphs are obiter dicta, they are considered dicta by Canada’s highest court aimed at correcting a problem that led to a second trial in a civil jury case. Obviously lower courts should follow this dicta even though it may not be technically “binding”.[^37]

[229] Read this way, ter Neuzen does not apply to the case before this court. The theories of liability to which the plaintiffs’ experts testified were not mutually exclusive. There was no need to know precisely which path of reasoning each juror followed to reach her conclusion. The case does not turn on rejection of an applicable professional standard of care. There is no need in this case for juror reasons.

Other Jurisprudence

[230] I start this section with two recent trial decisions from the Ontario Superior Court and then turn to a brief consideration of the Ontario Court of Appeal’s decision in Surujdeo v. Melady.[^38] Some recent trial decisions express reservations about asking juries for reasons. In Surujdeo, the Court of Appeal addressed the way in which juries should be instructed to answer questions asking them for reasons, but not whether there are limits to be placed on when such questions are asked, or the test to apply in deciding whether to ask such questions.

[231] In sum, there are open questions on these issues, and in my view it is appropriate and necessary to venture answers on this appeal.

Recent Trial Decisions

[232] In Poonwasee v. Plaza,[^39] Schreck J. reviewed appellate jurisprudence in coming to the following conclusions:

The foregoing review reveals that there are both advantages and disadvantages to requesting the jury to provide particulars. The advantages are the ability to “test” the jury’s understanding of judicial instructions…,[^40] to ensure that the jury did not disregard the law in favour of an emotional verdict[^41] … or to concentrate the jurors’ minds….[^42] I have some doubt as to the advantage expressed in the dissent in Dhaliwal, which seems to suggest that juries should provide particulars for the same reason that trial judges are obliged to provide reasons.[^43] It is well established that a judge’s reasons are subject to expectations of transparency….[^44] No such transparency is expected of a jury’s decision….[^45] This is so even though the absence of reasons from juries makes appellate review more difficult….[^46]

The disadvantages of requesting particulars are that doing so fails to account for the possibility that the jurors may not agree on the reasons for their unanimous decision[^47] … and that it risks revealing the substance of the jury’s deliberations….[^48] To this, I would add the danger in attempting to precisely articulate the particulars of their findings, the jurors may become distracted from their main task of determining liability and damages.

The questions that are to be put to the jury are within the discretion of the trial judge. As there are both advantages and disadvantages to asking the jury to provide particulars, it seems to me that in exercising his or her discretion in any given case, the trial judge should consider whether the advantages of asking the jury to provide particulars outweighs the disadvantages. This will depend on the circumstances of the case.[^49]

[233] In Doobay v. Fu,[^50] S.T. Bale J. reviewed the law in this area, including Schreck J.’s reasoning in Poonwasee, and held as follows:

In order to return a verdict, it is only necessary that five members of the jury agree on the answer to each question, and the same five jurors do not have to agree to the answers to all the questions. In addition, the required five jurors on each question may each take a separate path to their answers. Each may take a different view of the evidence and make different findings of fact. To ask the jury to give reasons for finding that a particular defendant’s breach caused a plaintiff’s injuries may suggest that they must agree on those reasons. To ask each member of the jury to give their own reasons, in the event that they find a particular defendant to have caused the plaintiff’s injuries, would be unworkable and risk a violation of the jury’s duty of secrecy.

Jurors have no legal training. They bring a different set of skills to the job. In making their decisions, they rely upon their life experience and common sense. If required to give reasons, they may find it difficult to express themselves fluently and coherently. Such difficulty would be compounded in cases where individual jurors reached the same verdicts, but for different reasons. Requiring jurors to give reasons and then parsing those reasons may lead to unnecessary challenges to jury verdicts where the real problem lies in an inability to properly articulate those reasons.[^51]

There are many ways in which trial judges can help ensure a just verdict by helping jurors to better understand what is required of them.[^52] In my view, asking them to provide reasons for their verdicts is not one of them.

[234] I agree with Schreck J. that, on the basis of current appellate authority, it is within the discretion of the trial judge whether to ask questions that require the jury to give reasons. I also agree with him that one possible test for the exercise of discretion is whether the advantages of asking for reasons outweighs the disadvantages. I also agree with Schreck and S.T. Bale JJ. that, generally, the disadvantages of asking juries for reasons outweigh the advantages.

Surujdeo v. Melady

[235] The issue requiring juries to give reasons was considered at paras. 101-123 of D.M. Brown J.A.’s reasons in Surujdeo v. Melady. Justice Brown began his analysis with a consideration of s.108(6) of the Courts of Justice Act:

In Ontario, the standard practice in negligence cases is to require the jury to answer specific questions, not deliver a general verdict: Courts of Justice Act, s.108(5). As in this case, each question on the breach of the standard of care and causation typically is broken down into two parts. Part (a) asks the jury to state their conclusion, or “bottom line”, on an issue. Part (b) – the “particulars” – asks them to explain how they reached their “bottom line” by identifying the defendant’s conduct that led them to their conclusion of liability or causation.

Section 108(6) of the Courts of Justice Act does not speak in terms of a first or second part of a jury question. It simply states: “It is sufficient if five of the jurors agree on … the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer.”

The trial judge interpreted s.108(6) as requiring the five jurors who agreed on an answer to the “bottom line” – Part (a) of a question – to list in the “particulars” – Part (b) of the question – all of the reasons that led those five to reach that conclusion. He instructed the jury accordingly.

That is a correct interpretation of s.108(6). A jury is entitled to arrive at a verdict by different evidentiary routes and need not rely on the same facts…. The trial judge’s direction was consistent with that principle.[^53]

[236] The trial judge, Gans J., instructed the jury that five of six jurors had to agree on an answer to reach a verdict. He did not instruct them initially that this instruction does not apply to jury questions asking the jury to give reasons for its findings. The jury in Surujdeo v. Melady struggled with these instructions and posed a question to the trial judge:

In Justice Gans’s presentation, he indicated that 5/6 of the jurors need to agree on each question; but each may have come to that conclusion for different reasons.

We need clarification on what is required for the reasons needed in questions 1b), 2b), 3b), 4b).

• Do 5/6 need to agree on each reason, or
• Do 5/6 need to agree on all reasons as a whole, or
• Do we simply list out all reasons provided by all jurors?[^54]

The trial judge held that the jury should follow option “C” – they should list all of the reasons any of the jurors, and not just reasons with which at least five jurors agreed.[^55]

[237] The Court of Appeal upheld Gans J. on this point:

The trial judge’s approach was correct. It recognized the difference between crafting jury questions in order to focus the jury on the issues they must decide and assessing the sufficiency or reasonableness of the jury’s resulting answers. As put by Michelle Fuerst and Mary Anne Sanderson, “[t]he purpose of submitting questions to the jury is so that the court can examine the particulars of the jury’s findings and ensure that the jury did not ignore an essential issue”….[^56] As well, a jury’s answers may disclose on their face that an insufficient number of jurors agreed upon the answer to a question, as was the case in Peake’s Limited v. Higgins….[^57] However, there was nothing on the face of the jury’s answers in the present case to suggest that less than five jurors had agreed on the answer to each “bottom line” question.[^58]

This reasoning reflects s.108 of the Courts of Justice Act: specific questions may be asked of the jury, and one reason to do this is to ensure that the jury provides an answer to each “essential issue” or “bottom line” question to which at least five jurors have agreed.

[238] The issue of whether the jury questions requiring reasons ought to have been asked at all was not before the Court of Appeal. Nor does it appear that this issue was contested before Gans J. Certainly Surujdeo v. Melady must be read as authority for the proposition that questions requiring reasons from a jury may be asked in a proper case, but I do not read the case as saying that the discretion to ask such questions is unbounded.

Alternative Analysis

[239] There is another way to read ter Neuzen and Surujdeo: trial judges may ask juries to give reasons for their findings and this discretion is not bounded by the language of s.108 of the Courts of Justice Act. If that is the law, then it was within the discretion of the trial judge to ask the impugned questions and the respondents would be deprived of something if the impugned reasons are disregarded and judgment is entered for the plaintiff.

[240] Under this analysis, however, I would still find for the plaintiffs on this appeal, but I would do so solely on the failure of the defence to ask the trial judge to re-charge the jury, as discussed above. In the result, the defendants will be deprived of a meaningful answer to the impugned questions, but this will be a consequence of the defence’s failure to make a timely request that the jury be re-charged. In all the circumstances, when weighing the loss of reasons to which the defendants are entitled against the loss of a verdict to which the plaintiffs are entitled, the balance lies in favour of the plaintiffs.

Conclusion Respecting the Jurisprudence

[241] In light of this jurisprudence, it is not open to this court to conclude that questions requiring a jury to give reasons are impermissible. There is binding authority to the contrary (ter Neuzen) and the Court of Appeal has necessarily concluded that there is a discretion in the trial judge to ask such questions.

[242] However I have not located authority that considers the limits that s.108(6) of the Courts of Justice Act imposes on the exercise of the trial judge’s discretion in framing questions. In my view, s.108(6) requires that questions put to juries be limited to those questions upon which the jury must agree to render a verdict. That limitation fits with the standard instructions given in all jury trials about the secrecy of jury deliberations, the need for juror agreement on a verdict, and the fundamental principle that jurors do not give reasons. I agree that this general principle has exceptions, when the advantages of asking further questions of a jury outweigh the disadvantages, such as in ter Neuzen, but I also conclude that such circumstances are exceptional. When these exceptional circumstances arise, trial judges need to give thorough instructions to help the jury, including: (a) the jury does not need to agree on their reasons; (b) the jury should list all reasons any of them have for their conclusion; (c) options or examples of the kinds of answers that would satisfy the question – which should state clearly what answers are permissible and what answers are not.

[243] In the case at bar there was no need to ask for reasons from the jury. The theories of causation were binary. Expressing reasons for a finding of causation required a sophisticated grasp of language and writing skill, as reflected in the trial judge’s thorough reasons finding that there was evidence upon which a finding of causation could rest. The disadvantages of requiring reasons in these circumstances far outweighed any advantages – and in saying this I note that obtaining a reasoned decision is not a usual feature of a jury trial, an “advantage” that may be invoked for requiring reasons. If the parties want a reasoned decision, they can obtain that by a trial by judge alone.

Standard Practice Instructing Juries in Civil Trials

[244] In 1995, it was commonplace for jury instructions to be given orally and for juries not to receive copies of the judge’s instructions to review in the jury room. This practice has changed dramatically in criminal cases, and it is now commonplace for the judge’s final instructions to be given to juries in writing as well as orally.

[245] Criminal jury instructions have been influenced profoundly by Justice Watt’s standard criminal jury charges, which are used virtually universally in criminal jury trials in Ontario. These instructions prescribe a logical, systematic approach to each of the questions the jury is required to answer, including a “decision tree”. Trial judges are expected to organize jury instructions respecting the evidence around the steps of the decision tree that the jury is to follow in reaching its decision. The result is to make manifest for the jury the intellectual process to be followed in making their decision. The trial judge’s final instructions make it clear to the jury the issues that have to be agreed by the jury and the different paths of reasoning that may be available to each juror to reach these decisions.

[246] If this practice was adopted with civil juries, the concerns about unexplained jury verdicts would be attenuated considerably. If this practice was combined with the effective use of specific questions for each issue on which the jury is required to agree, there would be increased confidence that the verdict delivered properly reflected the law and the evidence at trial. I agree with S.T. Bale J. in his reasons in Doobay v. Fu that this is a far better way to enhance confidence in jury verdicts than asking juries to give reasons for their decisions.

[247] I hasten to add that these remarks should not be understood as a criticism of the trial judge, who is a leading expert in cases such as this one. To borrow from the analysis in ter Neuzen, I am not critical of the trial judge for following standard practice, but rather I am critical of the standard practice itself. In my view, practice instructing juries has diverged too much between criminal and civil jury cases, and the general practice in criminal cases is the far superior model. Civil juries may be asked specific questions: this is authorized by s.108(6) of the Courts of Justice Act, and ter Neuzen provides a clear example of the benefits of clear and particularized questions for each theory of liability. But the practice of asking juries for reasons, or to explain themselves should end in all but exceptional circumstances.

Conclusion

[248] For these reasons I would allow the appeal and dismiss the cross-appeal with agreed costs of $40,000 payable to the plaintiffs by the defendants, set aside the trial judge’s decision, and I would direct that judgment be entered in accordance with the jury’s verdict and the parties’ agreement on damages. I would direct the parties to agree on the appropriate disposition of trial costs failing which I would direct the parties to provide this court with written trial costs submissions.

D.L. Corbett J.

Released: August 27, 2020

[^1]: Surujdeo v. Melady, 2017 ONCA 41, at para. 114. [^2]: “Apgar” stands for appearance, pulse, grimace, activity and respiration. Each metric is scored on a scale of 0-2 and the scores are aggregated. [^3]: A non-stress test involves the monitoring of the fetal heart rate as the baby moves. [^4]: Turcotte v. Lewis, 2018 ONCA 359 at para. 43. [^5]: Sarnat staging is a grading classification for HIE. There are three stages: 1, 2 and 3, which refer to mild, moderate and severe HIE. [^6]: Evoked potential tests measure how long it takes the brain to respond to various stimuli such as light, sound and touch. [^7]: An Act to Establish Trials by Jury, 1792, 32 Geo. 3, c. 2 (Upper Can.). [^8]: Justice T.L. Archibald and R.L. Gain, “The Breadth of Civil Jury Trials in Canada: Their History and Availability” in Archibald and Echlin, eds., Annual Review of Civil Litigation, 2007 (Toronto: Thomson Canada Ltd., 2007), 139. [^9]: See R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670 and R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100 (C.A.); [^10]: 1995 72 (SCC), [1995] 3 S.C.R. 674, at para. 53. [^11]: See for instance, Samms v. Moolla, (June 5, 2007), Barrie, CV-12-109079, (S.C.J.) and Doobay (Litigation Guardian of) v. Fu, 2020 ONSC 1774 [^12]: 2014 ONCA 770 at paras. 33-34. [^13]: See R. v. Sheppard, 2002 SCC 26 and R. v. Walker, 2008 SCC 34 and in the civil context, see Dovbush v. Mouzitchka, 2016 ONCA 381; Longo v. McLaren Art Centre, 2014 ONCA 526; and Barbieri v. Mastronardi, 2014 ONCA 416. [^14]: Fuerst and Sanderson eds., (Markham, Ont: Lexis Nexis, 2012) at p. 1152. [^15]: Hill v. Church of Scientology, 1992 7516 (ON SC), [1992] O.J. No. 451 at para. 26, rev’d in part on other grounds (1994), 1994 10572 (ON CA), 18 O.R. (3d) 385 (Ont. C.A.), aff’d 1995 59 (SCC), [1995] 2 S.C.R. 1130 (S.C.C.); see also McLean v. Knox, 2013 ONCA 357, at para. 20. [^16]: As above, note 12, at paras. 33-34. [^17]: Ibid., para. 33. [^18]: Ibid., para. 34. [^19]: McLean v. Knox, as above, note 15, at paras. 20-21. [^20]: Cheung v. Samra, 2018 ONSC 3480, paras. 49-63. [^21]: Hill v. Church of Scientology (1992), 1992 7516 (ON SC), 7 OR (3d) 489 at 498, per Carruthers J. (Gen. Div.); aff’d (1994), 1994 10572 (ON CA), 18 OR (3d) 385, 114 DLR (4th) 1 (CA); aff’d 1995 59 (SCC), [1995] 2 SCR 1130, quoted in Cheung v. Samra, 2018 ONSC 3480, para. 36. [^22]: Cheung v. Samra, 2018 ONSC 3480, para. 93. [^23]: Stilwell v. World Kitchen Inc., 2014 ONCA 770 at paras. 33-34. [^24]: Salter v. Hirst, 2011 ONCA 609. [^25]: Teskey v. Toronto Transit Commission, 2003 12871, per J. Wilson J. [^26]: I appreciate that the trial judge characterised these events differently in her reasons, quoted by Boswell J., above. As my transcript review shows, she mis-recalled events on this point. [^27]: Maher v. Great Atlantic & Pacific Co. of Canada Ltd., 2010 ONCA 517, leave to appeal to SCC refused 2010 ONCA 493, 418 NR 396 (note), 284 OAC 399 (note) (SCC). [^28]: Judd v. Frost, [1957] OWN 539 (CA). [^29]: I do not see Salter v. Hirst applying to the case at bar on this point, because in the current case the jury’s answers were “insufficient” and not “wrong”. Thus I disagree with the trial judge’s analysis at paras. 24-29 of her reasons. [^30]: McNammee v. McNammee, 2011 ONCA 533. [^31]: Arland v. Taylor, 1955 145 (ON CA), [1955] OR 131 (CA). [^32]: Courts of Justice Act, RSO 1990, c. C.43, s.108. [^33]: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 SCR 674. [^34]: There were other theories of liability in the case that are not germane to the issues in the appeal at bar. [^35]: ter Neuzen v. Korn (1993), 1993 2881 (BC CA), 103 DLR (4th) 473, 81 BCLR (2d) 39, paras. 156-157 (BCCA). [^36]: See, for example, Anderson v. Chasney (1949), 1949 236 (MB CA), 4 DLR 71; aff’d. (1950), 1950 336 (SCC), 4 DLR 223 (SCC); Pittman Estate v. Bain (1994), 1994 7489 (ON SC), 112 DLR 257 at 314 (Ont. Gen. Div.). [^37]: See R. v. Henry, 2005 SCC 76, [2005] 3 SCR 609, para. 57. [^38]: Surujdeo v. Melady, 2017 ONCA 41. [^39]: Poonwasee v. Plaza, 2018 ONSC 3797. [^40]: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 SCR 674; Sacks v. Ross, 2015 ONSC 7238, per D. Wilson J., aff’d 2017 ONCA 773; Lush v. Connell, 2012 BCCA 203. [^41]: Ontario Courtroom Procedure, 4th ed. (Toronto: LexisNexis Canada, 2016). [^42]: Melgarejo-Gomez v. Sidhu, 2002 BCCA 19, per Southin J.A. [^43]: Dhaliwal v. Robertson, 1999 BCCA 309, per Southin J.A. (dissenting). [^44]: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. [^45]: R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, para. 44. [^46]: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, paras. 37-38. [^47]: Newell v. Acme Farmers Dairy, Ltd., 1938 75 (ON CA), [1939] OR 36 (CA), Huang v. Stogryn, 2007 BCSC 1986. [^48]: Huang v. Stogryn, 2007 BCSC 1986. [^49]: Poonwasee v. Plaza, 2018 ONSC 3797, per Schreck J., paras. 25-27 (citations deleted and set out in footnotes above). [^50]: Doobay v. Fu, 2020 ONSC 1774. [^51]: S.T. Bale included a note here which stated: In Cheung v. Samra, 2018 ONSC 3480, the trial judge, in ordering a new trial, found that “the answers of the jury on causation do not explain the causal link between the negligence and the brain damage; they make no reference to the vast amount of expert evidence on such matters as the normal imaging following Rhonda’s birth, the normal cord gases at birth, the state of the placenta, or the onset and effect of the seizures that commenced in July 2006.” It being difficult enough for a trial judge to articulate such reasons, is this asking too much of a jury? [^52]: See, for example: David Watt, Helping Jurors Understand, (Toronto: Carswell, 2007). [^53]: Surujdeo v. Melady, 2017 ONCA 41, paras. 114-117. [^54]: Surujdeo v. Melady, 2017 ONCA 41, para. 106. [^55]: Surujdeo v. Melady, 2017 ONCA 41, para. 110. [^56]: Ontario Courtroom Procedure, 3rd ed. (Markham, ON: Lexis Nexis, 2012), at p. 1152. [^57]: 1930 472 (NSCA), [1931] 1 D.L.R. 993, 1930 CarswellNB 17 (N.B.S.C. App. Div.), at para. [^58]: Surujdeo v. Melady, 2017 ONCA 41, para. 120 (citations deleted and set out in footnotes above).