ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 39608
DATE: 20130311
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
Barbara Legate and Joni Dobson, for the Plaintiffs
Deborah Berlach and Gaetana Campisi, for the Defendant Strathroy Middlesex General Hospital
Kevin Ross and John Nicholson for the defendants Tigchelaar and Ferguson
David Hamer and Keegan Boyd for the defendant Bennett
HEARD: February 20, 2013
Grace J.
A. Background
[1] These are the longer reasons I promised to deliver explaining my decision that trial of this action is to proceed in two phases: the first involving the jury and the second to be heard by me alone.
[2] I start by providing some context for the disagreement that arose.
[3] There are two main issues in the trial: liability and, insofar as Dr. Bennett is concerned, whether special circumstances entitle the plaintiffs to relief from statutory limitation periods which expired before he was added as a party.
[4] The plaintiffs served a jury notice soon after commencing this action and before adding Dr. Bennett. The prescribed form utilized by the plaintiffs required that “this action be tried by a jury”.
[5] The parties agreed before trial that the jury would not determine the limitation issue. On the second day of trial, it became clear that they did not agree about the evidence that the jury would hear.
[6] The plaintiffs expressed their view that the jury could not and should not hear evidence relating to the limitation issue. The defendants strongly disagreed. While conceding that exposing the jury to that evidence was, to some extent, problematic, they submitted the solution was to strike the jury notice.
[7] Alternatively, the defendants argued the jury must hear all of the evidence irrespective of whether it related to liability or special circumstances. They advanced two reasons for their position: first, the evidence relating to the two issues is interwoven and second, an assessment of credibility and reliability of each witness should be based on all of their evidence, not excerpts.
[8] On February 14, 2013, I released an endorsement. I identified three categories of witnesses to be called during the trial. At para. 21, I wrote:
…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).
[9] I concluded “the jury need not and should not hear evidence from a witness in Category two.” I also explained my reasons for deferring decision with respect to Category three witnesses and the defendants’ oral motion to strike the jury notice pending further argument.
[10] On February 19, 2013, we reached the stage I contemplated for additional submissions: the examination in chief of Melody Ormerod (a Category three witness) with respect to liability was complete.
[11] As requested, counsel for the parties affected by the limitation issue searched for and found additional authorities. I also received the benefit of further argument from counsel for all of the parties concerning the procedure to be followed at trial.
B. The Position of the Parties
[12] Ms. Legate submitted that the evidence of witnesses in Category three could be categorized. She submitted that evidence concerning liability should be heard in the presence of the jury but not testimony concerning the limitation issue. If the court believed the trial would become too fragmented and unwieldy, she advocated a staged approach to the trial: evidence would not commence on the limitation issue until the jury had retired to consider the questions posed concerning liability.
[13] The defendants united in opposition. Once again they took the position that the evidence could not and should not be compartmentalized, that exposing the jury to evidence concerning the limitation issue was problematic and that the solution was to strike the jury notice.
[14] Counsel for Dr. Bennett argued that the plaintiffs’ alternative solution would result in bifurcation – or separate hearings – and would contravene rule 6.1 of the Rules of Civil Procedure. It reads:
With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.
[15] Dr. Bennett was not willing to consent to the approach Ms. Legate advocated.
C. Analysis
[16] Absent consent, a civil jury trial cannot be bifurcated.[^1]
[17] However section 108 (3) of the Courts of Justice Act provides:
On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.
[18] As mentioned, the parties agreed before trial that the limitation issue would not be determined by the jury. Disagreement relates to the extent to which the evidence will be heard in the presence of the jury irrespective of the issue to which it relates.
[19] The agreement to refer the limitation issue to the trial judge was an appropriate one. The question requires consideration of principles relating to equitable relief. The parties acknowledge the ultimate decision involves the exercise of discretion. Those are not, in my view, matters for the jury.[^2]
[20] The trial process and evidentiary issues under consideration are a natural consequence of the parties’ agreement to allocate one main issue to the jury and another to the trial judge.
[21] I emphasize that the plaintiffs’ response to the limitation issue in this case does not relate to discoverability. They seek to invoke the narrow doctrine of special circumstances. It seems they will rely almost entirely on facts occurring after John Ormerod’s death on July 9, 2001.
[22] Having agreed to remove the limitation issue from the jury, it is also appropriate to remove the questions of fact that relate to it.
[23] Evidence relating to events that occurred after Mr. Ormerod’s passing will not assist the triers of fact in determining whether one, some or all of the defendants failed to meet the appropriate standard of care when they treated him in late June, 2001.[^3] Testimony concerning events occurring after July 9, 2001 will not help the jury determine whether the plaintiffs are right in asserting that Mr. Ormerod would not have died had the standard of care been met.
[24] Mr. Hamer maintained that Dr. Bennett agreed that the disposition of the limitation issue would be left in the hands of the trial judge, not that evidence would be kept from the jury.
[25] With respect, consent of the parties is not a prerequisite to an order under s. 108 (3) of the Courts of Justice Act.[^4]
[26] Mr. Hamer submits that the jury must hear all of the evidence of the Category three witnesses in order to assess their credibility and reliability. In particular, he maintained that Dr. Bennett would be prejudiced unless his counsel was permitted to cross-examine Melody Ormerod about all of the facts relevant to the lawsuit whether the evidence relates to an issue the jury is to determine or not.
[27] I respectfully disagree. Rights of cross-examination are not unlimited. Even today the words written in 1909 by Anglin J. in Brownell v. Brownell are cited with approval. He wrote:
No doubt the limits of relevancy must be less tightly drawn upon cross-examination than upon direct examination. The introduction upon cross-examination of the issue of the witness’s credibility necessarily enlarges the field. But it does not follow that all barriers are therefore thrown down. That which is clearly irrelevant to…the issues raised in the pleadings is no more admissible in cross-examination than in examination in chief.[^5]
[28] Giving counsel license to examine witnesses broadly about facts relating to the limitation issue would, in my respectful view, be inappropriate. Allowing the jurors to hear evidence that ultimately will not concern them would not only be an unnecessary inconvenience but would create a very real risk that they will be influenced by evidence that strays far beyond that needed – or properly available - to assess credibility and reliability.[^6]
[29] I decline to strike the jury notice. The jury will continue to be the trier of fact with respect to the liability issue. It has no role to play with respect to the doctrine of special circumstances.
[30] What will the practical effect of the exercise of jurisdiction under s. 108 (3) of the Courts of Justice Act be on the trial?
[31] One possibility would have been to continue to follow the path we were on. As stated, in the presence of the jury Ms. Legate completed her examination-in-chief of Ms. Omerod on liability. She could have been directed to conduct the examination-in-chief on the limitation issue in the jury’s absence.
[32] That methodology would have applied to cross-examination of Ms. Ormerod and to the testimony of subsequent witnesses in category 3.
[33] I was very concerned that process would do much more harm than good – the jury would be frequently inconvenienced and there was a real danger of boundaries blurring for counsel, witnesses and me. The risk that immaterial evidence would play a role in the jury’s decision making process despite repeated instructions to the contrary was real and unacceptable.
[34] The alternative is the one I adopted over the objections of the defendants.
[35] As noted, the jury will be the trier of fact with respect to the liability issue as the plaintiffs contemplated when the jury notice was served. The jury’s role will end there. Each principal issue will be the subject of a different phase of the trial. The first portion – the one on which we have embarked – is the liability phase.
[36] Evidence relevant to that issue and to the jury’s fact finding role in relation to it, will continue to be heard in the jury’s presence.
[37] At the conclusion of that segment, the trial will carry on before me and without the jury. In the second phase, the parties will supplement the record with any additional evidence they wish me to consider as the sole trier of the limitation issue.
[38] I have not forgotten rule 6.1. I have also not forgotten that the defendants do not consent to separate hearings.
[39] The word “hearing” is defined in rule 1.03 to mean “the hearing of an application, motion, reference, appeal or assessment of costs, or a trial”.
[40] This is one hearing to determine two principal issues with one judge and one jury. The same trial judge will preside over both phases. During the liability segment, I will be assisted by the jury. I will then turn to the question the parties agreed I would determine alone.
[41] Proceeding as I have outlined respects the plaintiffs’ choice of a jury to determine the issue of liability and the parties’ agreement to withdraw one issue from its consideration. It also facilitates the conduct of the trial and avoids the possibility the jury will use – or misuse - irrelevant evidence in answering the questions it will be asked.[^7]
[42] In my view, proceeding in this fashion is contemplated by s. 108 (3) of the Courts of Justice Act. It neither engages nor offends rule 6.1.
“Justice A. D. Grace”
Grace J.
Released: March 11, 2013
COURT FILE NO.: 39608
DATE: 20130311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MELODY LYN ORMEROD and JOHNATHAN ORMEROD
Plaintiffs
- and -
STRATHROY MIDDLESEX GERNERAL HOSPITAL, T. TIGCHELAAR, IAN K. FERGUSON AND JOHN BENNETT
Defendants
ENDORSEMENT
Grace J.
Released: March 11, 2013
[^1]: In addition to rule 6.1, I was referred to 1018202 Ontario Ltd. v. Hamilton Township Farmers’ Mutual Fire Insurance Co., [2007] O.J. No. 364 (S.C.J.); Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 55 O.R. 92d) 56 (C.A.); Kovach (Litigation Guardian of) v. Kovach (2009) 2009 722 (ON SCDC), 95 O.R. (3d) 34 (Div. Ct.), aff’d (2010), 2010 ONCA 126, 100 O.R. (3d) 608 (C.A.) (“Kovach”); Wm. Whiteley Ltd. v. Gauthier (2010), 2010 ONSC 396, 86 C.P.C. (6th) 343 (Ont. S.C.J.); Trinity Anglican Church v. Janeiro, [2012] O.J. No. 3791 (S.C.J.); Sloane v. Toronto Stock Exchange (1991) 1991 7315 (ON CA), 5 O.R. (3d) 412 (C.A.); Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665 (C.A.); Aghsani v. Briglio, 2006 17322 (ON SC), [2006] O.J. No. 2071 (S.C.J.).
[^2]: Doe v. Bragg (2005), 19 C.P.C. (6th) 224 (S.C.J.) at para. 39.
[^3]: Mr. Ormerod was treated at another hospital and by other physicians and nurses from the early evening on June 29, 2001 until he passed away.
[^4]: Kovach (2010), 2010 ONCA 126, 100 O.R. (3d) 608 (C.A.) at paras. 25 and 30.
[^5]: (1909), 1909 21 (SCC), 42 S.C.R. 368. The passage is cited with approval in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Toronto: LexisNexis, 2009) at §16.122. See, too, R. v. N.S., 2010 ONCA 670 at paras. 49‑51; Krause v. The Queen (1986), 1986 39 (SCC), 29 C.C.C. (3d) 385 (S.C.C.) at pp. 391‑2; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193 at para. 41; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 at paras. 38‑39; rule 53.01 (2) of the Rules of Civil Procedure.
[^6]: The observation is identical to one made by Finlayson J.A. in Levesque v. Lipskie (1991), 1991 7327 (ON CA), 3 O.R. (3d) 98 (C.A.) at 101 as a reason for striking a jury notice.
[^7]: Calvin Forest Products Ltd. v. Tembec Ltd. (2004), 2004 50063 (ON SC), 73 O.R. (3d) 114 (S.C.J.) at paras. 22‑23.