ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 39608
DATE: 2013/02/14
B E T W E E N:
MELODY LYN ORMEROD and JOHNATHAN ORMEROD
Barbara Legate and Jodi Dobson, for the Plaintiffs
Plaintiffs
- and -
STRATHROY MIDDLESEX GENERAL HOSPITAL, T. TIGCHELAAR, IAN K. FERGUSON and JOHN BENNETT
Deborah Berlach and Gaetana Campisi for Strathroy Middlesex General Hospital
Kevin Ross and John Nicholson for Drs. Tigchelaar and Ferguson
David Hamer and Keegan Boyd, for the Defendant John Bennett
Defendants
HEARD: February 13, 2013
GRACE J. – (Orally)
[1] Another issue has arisen prior to counsel opening to the jury.
[2] It is contemplated that questions relating to liability will go to the jury while Dr. Bennett’s limitation defence and the doctrine of special circumstances will remain with me.
[3] The parties take a different view of how the evidence will unfold.
[4] The plaintiffs argue that it can be compartmentalized. Events occurring on or before July 9, 2001 when John Ormerod passed away relate to liability and those occurring thereafter relate to the limitation/special circumstances issue.
[5] They ask that the jury be present only when evidence is being led on the liability issue. Melody Ormerod has been identified as a witness who will testify with respect to both issues. Implementation of the plaintiffs’ proposal would mean that any examination of Ms. Ormerod – whether in chief or during cross-examination – would pause at the point questions relating to liability ended and questions with respect to the limitations/special circumstances issue began.
[6] The jury would be excused until that portion of the examination – or cross-examination – ended. The plaintiffs advocate an identical approach with respect to other witnesses in a similar situation.
[7] Ms. Legate argued forcefully that the proposed methodology was necessary and workable. It would recognize the allocation of decision making responsibility the parties agree is appropriate. It would eliminate the risk that the jurors would be influenced, confused or otherwise affected positively or negatively in any direction by evidence that is irrelevant to the issue of liability.
[8] She maintained that proceeding in any other fashion would create an immediate risk of a mistrial being requested and granted later in the proceeding to the detriment of the parties and the administration of justice.[^1]
[9] The defendants unite in their opposition to the proposal advanced on behalf of the plaintiffs.
[10] They observed that the method of proceeding advocated by the plaintiffs was first mentioned by Mr. Williams as part of an alternative argument to be considered if the court concluded there was any merit to Dr. Bennett’s motion to disqualify Legate & Associates LLP as the plaintiffs’ counsel of record.
[11] I agree that the argument occupied a secondary, fallback position on Monday but achieved much greater importance yesterday.
[12] Other concerns were expressed by one, some or all of the defendants. I will mention a few.
[13] It was submitted that July 9, 2001 does not represent a point of demarcation between liability and limitations/special circumstances evidence. Paragraph 20 of the Fresh as Amended Statement of Claim that was the subject of my February 13, 2013 endorsement provides an example. That paragraph appears under the heading “Limitation Period”. Subparagraph 20 a. refers to “a conversation on June 29, 2001…between Dr. Gray and the defendant, Ian K. Ferguson”.
[14] That event pre-dates July 9, 2001 but the plaintiffs’ argument on special circumstances relies upon it.
[15] This, they maintain, foretells the problems that will follow. With no definition of “special circumstances” to look to and with no bright line to guide us, uncertainty or worse will reign. The door between the courtroom and hallway will spin as the jurors come in and out. There will be constant debates about the evidence they are or are not to hear and there is a real risk the trial will become fragmented and unworkable.
[16] Counsel for Dr. Bennett maintains an issue of trial fairness is at stake. I will start with the quote on which he relies and work backward.
[17] Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.), addressed a proposal that evidence on one issue be presented at a different time than evidence on another. In rejecting that suggestion Gillese J. (as she then was) wrote:
- The testimony of the plaintiff is a whole. Her evidence cannot be severed with some portions of it going in on the main trial and some segments of it being entered later after the evidence of her other witnesses. Her credibility is a function of her whole testimony.
[18] Mr. Hamer maintains that the jury is entitled to hear all of the testimony of, for example, Melody Ormerod and Dr. Bennett, on any relevant issue so that the jurors can assess their credibility and reliability based on all of the answers they give, rather than edited portions.
[19] Given the approach to the trial the plaintiffs advocate and the manner in which the issue unfolded, the defendants unite in moving for an order striking the jury notice and discharging the jury.
[20] For posterity, I reiterate that this trial is at its earliest stage. While the jury was chosen late in the day on February 11, counsel have not yet opened given the range of issues raised already. I know precious little about what is to come.
[21] However, it seems fair to say that the persons identified as possible witnesses fit into one of three categories: witnesses whose evidence will only be relevant to liability (Category one), a much shorter list it seems of witnesses whose evidence will only be relevant to the limitations/special circumstances issue (Category two) and a small list of witnesses whose evidence will or may be relevant to both issues (Category three).
[22] Subject to the usual considerations, Category one witnesses may, of course, testify in the presence of the jury without interruption.
[23] To varying degrees, all counsel have expressed concern that jurors may be distracted or otherwise affected by evidence relating to an issue they will not decide. We have already had preliminary discussions about instructions to the jury initially, mid-trial and in the final charge. In my view, it is clear the jury need not and should not hear evidence from a witness in Category two. I have no doubt counsel can agree on the identity of those witnesses. If humanly possible I suggest that they be grouped and scheduled on a day or days that the jury may be excused.
[24] That leaves us with Category three witnesses. By way of example only, they appear to include Melody Ormerod and Drs. Bennett, Ferguson and Gray.
[25] Does the admittedly problematic situation facing me warrant the striking of the jury notice and the discharge of the jury now?
[26] My answer today is not yet. Let me try to explain.
[27] I do not think it necessary to spend much time on first principles. To state the obvious, the right to a jury trial is an important substantive right that is not to be taken away lightly: Hunt v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665 (C.A.); Sloane v. Toronto Stock Exchange (1991) 1991 7315 (ON CA), 5 O.R. (3d) 412 (C.A.).
[28] The moving parties bear an onus which has been described as “substantial”.
[29] Section 108 (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, lists claims that are to be tried without a jury including “declaratory relief”. The Fresh as Amended Statement of Claim seeks, among other things, a “declaration” that the plaintiffs are entitled to pursue their claim against Dr. Bennett. However, the parties have already addressed this aspect of the matter by agreeing that the issues of fact pertaining to that issue are not to be determined by the jury.
[30] The court has a residual discretion to strike a jury. The exercise of the jurisdiction to strike a jury notice even before the calling of any evidence has been upheld but such circumstances are – and should be – rare: Migos v. Zurich Indemnity Co. of Canada, [2000] O.J. No. 3640 (C.A.).
[31] Calvin Forest Products Ltd. v. Tembec Ltd. (2004), 2004 50063 (ON SC), 73 O.R. (3d) 114 (S.C.J.) (“Calvin Forest”) provides an example. Allegations of negligence, breach of contract and breach of fiduciary duty were made. The jury was statutorily prohibited from determining the breach of fiduciary duty claim. In striking the jury notice, Panet J. wrote at para. 22:
I agree…that the factual basis for the claim for breach of fiduciary duty would be interwoven with the factual basis for the claims by the Plaintiff with respect to negligent misrepresentation and breach of contract. It is to be expected that certain facts with respect to establishing a claim for breach of fiduciary duty may not be relevant to the other claims and thus should not be heard by the jury…
[32] The machinations that the trial judge foresaw led the trial judge to conclude that justice to the litigants would be better served by discharging the jury. A similar conclusion was recently reached by D. Wilson J. in Kempf v. Nguyen, unreported, released February, 2013, court file CV-09-375701.
[33] While some of the same concerns exist here, I have not reached the stage of concluding that the problem is insoluble.
[34] I say that for this reason. A reading of para. 22 of Panet J.’s decision in Calvin Products in its entirety may actually support the plaintiffs’ argument that relevance in a trial such as this one (where both the judge and jury are to make fact findings) is to be determined by reference to the words “to whom”. Evidence being heard in the very fashion the plaintiffs’ advocate was a possibility the trial judge acknowledged warranted serious consideration.
[35] However, the earlier quotation from Urquhart, supra, seems to support Mr. Hamer’s submission that relevance is determined by the pleadings irrespective of the identity of the person who is to decide the issue.
[36] I have not yet reached a conclusion as to which submission will carry the day. That is not intended as a criticism of the parties. This issue has unfolded recently, quickly and unexpectedly for some. However, I am hopeful we can do better in obtaining selected authority to assist with the issue. Urquhart, for example, is not ideal. No jury was involved. The quoted paragraph refers to case splitting in the true sense – it was proposed that the plaintiff’s evidence be given at different times, with other witnesses intervening.
[37] During submissions different situations were suggested as possible analogies including rather nebulous references to the criminal law experience, personal injury actions involving a threshold issue and the collateral fact rule.
[38] The reasons of Lax J. in McDonald-Wright (Litigation Guardian of) v. O’Herlihy (2005), 2005 13806 (ON SC), 75 O.R. (3d) 261 (S.C.J.) provides a helpful illustration of a situation where a trial judge held the jury notice in one hand and a motion to strike in the other and, periodically as circumstances, evidence and argument unfolded, considered whether the jury notice must yield.
[39] The learned trial judge did not succumb to the temptation to strike the jury notice despite the fact that there were reasons far beyond expediency, for doing so. The wait and see approach is the one I prefer: see, too, Montpellier v. Montpellier, 2003 38289 (Ont. S.C.J.) at paras. 24 and 33.
[40] In an attempt at clarity, at this stage I only favour the approach advocated by the plaintiffs in respect of witnesses in Category two.
[41] I defer my decision with respect to witnesses in Category three – and hence the defendants’ oral motions to strike the jury notice and to discharge the jury, pending further argument to be made at a logical point in Ms. Ormerod’s examination in chief.
Justice A.D. Grace
Justice A.D. Grace
Released: February 14, 2013
COURT FILE NO.: 39608
DATE: 2013/02/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MELODY LYN ORMEROD and JOHNATHAN ORMEROD
Plaintiffs
- and –
STRATHROY MIDDLESEX GENERAL HOSPITAL, T. TIGCHELAAR, IAN K. FERGUSON and JOHN BENNETT
Defendants
REASONS FOR JUDGMENT
GRACE J.
Released: (Orally) February 14, 2013
[^1]: Ms. Legate cited R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857.