Parbattie Poonwasee v. Cecilia Plaza, 2018 ONSC 3797
COURT FILE NO.: CV-12-450447
DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PARBATTIE POONWASEE
Plaintiff
– and –
CECILIA PLAZA
Defendant
A. Honner, for the Plaintiff
W. Jesseau and S. Cox, for the Defendant
HEARD: June 14, 2018
RULING RE: QUESTIONS TO JURY
SCHRECK J.:
[1] When should a jury in a negligence action be asked to provide particulars of the defendant’s negligence if they find that such negligence was proven?
[2] This issue arose in this case, a negligence action arising out of a motor vehicle accident. Counsel initially proposed questions for the jury that included a request that the jury provide particulars of the defendant’s negligence if such negligence was proven, as well as a request that they list the plaintiff’s injuries if they find that the injuries were caused by the action. During the pre-trial conference, counsel for the plaintiff changed his position and submitted that those questions should not be put. Counsel for the defendant took the position that the questions should be put.
[3] After hearing submissions, I decided that the questions would not be put and indicated that I would provide reasons at a later date. These are those reasons.
I. FACTUAL CONTEXT
A. The Accident
[4] The facts respecting the accident are not in dispute. On May 13, 2010, the plaintiff had picked up her nine-year-old son from school and was on her way home to have lunch. She was driving a Toyota Tercel and stopped in the curb lane of Jane Street at a red light at the intersection of Woolner Avenue. Another car was beside her. The plaintiff did not see any cars behind her. Suddenly, a black Mercedes drove between the plaintiff’s car and the car next to her. It hit the plaintiff’s car with sufficient force to push it into the intersection. The damage to the plaintiff’s car was significant enough that it had to be written off.
[5] There is no issue that the defendant was driving the Mercedes. However, she was not called as a witness. In my Charge to the Jury, I told the jurors that it was open to them to draw the inference that the defendant did not testify because her evidence would not have been helpful to her case. No objection was taken to this instruction.
B. The Plaintiff’s Injuries
[6] The plaintiff claimed that as a result of the accident, she suffered torn rotator cuff tendons in both shoulders as well as injuries to the facet joints and sacroiliac joints in her lower back. These injuries led to sensitization of her nerves, resulting in neuropathic pain. As well, she was limited in her range of movement, particularly with respect to her ability to raise her arms. In support of her claim, the plaintiff called a number of expert witnesses, including a physiatrist and an orthopedic surgeon. The defendant called its own physiatrist and orthopedic surgeon.
[7] There was no issue that the plaintiff had torn rotator cuff tendons in both shoulders. However, the two orthopedic surgeons disagreed with respect to whether this was a degenerative condition that began before the accident or an injury that resulted from the accident. The plaintiff’s limited range of movement was largely not in dispute. However, whether the plaintiff had injuries to her facet and sacroiliac joints was in dispute, as was the presence of neuropathic pain.
C. How the Issue Arose
[8] The questions relating to liability and causation which counsel initially suggested were as follows:
Was there any negligence on the part of the defendant, Cecilia Plaza, which caused or contributed to the accident of May 14, 2010? [Followed by boxes which could be checked “yes” or “no”].
If the answer to question 1 is yes, please provide particulars: [Followed by space in which the jurors could detail the particulars].
Did the motor vehicle accident cause the Plaintiff any injuries? [Followed by boxes which could be checked “yes” or “no”].
If your answer to question #3 is ‘yes’, please list the Plaintiff’s injuries as a result of the accident: [Followed by space in which the jurors could list the injuries.]
[9] During the pre-trial conference, I questioned counsel about the necessity of including Questions 2 and 4. Counsel for the defendant took the position that they should be included. He pointed out that including them was the usual practice in this jurisdiction, and their inclusion would enable to court to determine whether the jurors reach a “perverse verdict”. Counsel for the plaintiff submitted that the questions should not be included because they would unnecessarily complicate matters for the jury and potentially lead to unnecessary appeals.
II. ANALYSIS
A. The Legislative Authority for and Purpose of Questions to the Jury
[10] Section 108(5) of the Courts of Justice Act provides as follows:
- (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, subject to section 15 of the Libel and Slander Act; and
(b) judgment may be entered in accordance with the verdict or the answers to the questions.
[11] In Ontario Courtroom Procedure, 4th ed. (Toronto: LexisNexis Canada, 2016), the authors stated:
The 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. This procedure also safeguards against the power of the jury to disregard the law in favour of an emotional verdict. [Citations omitted].
B. Relevant Caselaw
[12] There is little caselaw on the issue of what types of questions ought be left to the jury. However, the practice of asking the jury to provide particulars appears to be one of long standing. In Landreville v. Brown, 1941 11 (SCC), [1941] S.C.R. 473, the jury was asked a question respecting the defendant’s negligence followed by a question respecting the plaintiff’s contributory negligence. Following the second question, the jury was asked to provide particulars if the question was answered in the affirmative, but there was no such direction with respect to the first question. Crocket J., writing for himself and Rinfret J., concluded at pp. 479-480 that this was misleading on the basis that the lack of a request to provide particulars of the defendant’s negligence suggested to the jury that no negligence should be found. Two other members of the Court agreed that the appeal should be allowed, but on different grounds, and one member dissented.
[13] It would appear that following this decision, the practice in Ontario was to ask juries in negligence cases to provide particulars, at least until the Supreme of Court of Canada released its judgment in Beach v. Healey, 1943 7 (SCC), [1943] S.C.R. 272. In that brief judgment, Duff C.J. stated (at p. 274):
We think, however, we ought to say explicitly that the proper course was not followed in respect of the form of the questions submitted to the jury. These questions were considered by counsel and agreed to; and it appears that trial judges in Ontario have in this matter felt themselves under some constraint by reason of some observations made in this Court in Landreville v. Brown. These observations were not sanctioned by the majority of the Court. The proper procedure is laid down by the Court of Appeal in Newell et al. v. Acme Farmers Dairy, Ltd. 1938 75 (ON CA), [1939] O.R. 36.. In the report of that case the headnote is in these words:--
Where in an action for the recovery of damages for personal injuries alleged to have been caused by the operation of a motor vehicle by the defendant, the onus of proof is on the defendant to disprove negligence by virtue of sec. 48(1) of The Highway Traffic Act, R.S.O. 1937, ch. 288, the only question the trial judge should put to the jury as to the negligence of the defendant is as follows: “Has the defendant satisfied you that the plaintiff’s injuries did not arise from the negligence or improper conduct on the part of the defendant?” The trial Judge should not put to the jury a further question or direction that, if their answer to the aforesaid question is “No”, they should state fully what acts or omissions constituted negligence on the part of the defendant.
With the decision as thus stated, we are in agreement.
[14] In Newell et al. v. Acme Farmers Dairy, Ltd., upon which the Court the relied in Beach, the problem with requesting particulars from the jury was described in the following terms:
The importance of this is that the jury may find itself quite satisfied that the defendant has failed to meet the statutory onus cast upon him. But each of the jurors may have a different ground for so thinking, and it may be impossible for a jury who rightly believe that the accident was caused by negligence to specify exactly in what the negligence consisted.
[15] Both Beach and Newell were cases where the onus of disproving negligence was on the defendant by virtue of provisions of the Highway Traffic Act. It would appear that in cases where the plaintiff had the onus of demonstrating negligence, juries were still asked to provide particulars: Godfrey v. Gadbois, 1949 302 (ON CA), [1949] 4 D.L.R. 844 (Ont. C.A.), at pp. 845, 847-848. It is unclear why the concern about jurors having different grounds for the same conclusion applied in cases where the onus was on the defendant but not cases where it was on the plaintiff.
[16] Support for the practice of asking the jury to provide particulars can be found in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, where Sopinka J. stated (at para. 53):
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.
[17] However, regard must be had to the context in which this was said. The issue in ter Neuzen, which was a medical malpractice case, was whether it was open to a jury to find that a standard medical practice was negligent and, if so, in what circumstances. The Court concluded that as a general rule, a jury could not find that a physician whose conduct was in accordance with standard medical practice was negligent. However, there was an exception to the general rule in cases where the standard practice “fails to adopt obvious and reasons precautions which are readily apparent to the ordinary finding of fact” (at para. 51). Whether or not it was open to the jury to find that an exception to the general rule applied is a question of law for the trial judge (at para. 52). It was in this context that Sopinka J. recommended that the jury be asked to provide particulars. Immediately following the quote reproduced above, he stated (at para. 53):
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.
[18] It would appear that the recommendation in ter Neuzen to ask juries for particulars has been interpreted to apply in cases involving difficult and complex issues. In Sacks v. Ross, 2015 ONSC 7238, aff’d 2017 ONCA 773, 417 D.L.R. (4th) 387, D. Wilson J. stated (at para. 22):
In ter Neuzen the Supreme Court of Canada articulated why in negligence claims involving standard of care complexities and expert opinion, it was necessary that the jury provide answers to its findings on breach of standard of care: to ensure the jury understood and applied the judge’s instruction. I see no reason why the same concern would not apply to the jury’s deliberations on causation, which is a difficult and complex area of the law. The case before me is one in which it is alleged numerous defendants were negligent in different ways. The medical issues are complex and experts have testified with disparate opinions on causation. In my view, following the reasoning in ter Neuzen the jury ought to be required to provide answers to the particulars of causation, if causation is found.
[19] As D. Wilson J. observed, courts have considered juries’ responses to questions about particulars in determining whether a jury verdict was reasonable or ought to be set aside: Goodwin (Litigation Guardian of) v. Oupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 33; Salter v. Hirst, 2010 ONSC 3440, 97 C.P.C. (6th) 353, at para. 22, aff’d 2011 ONCA 609, 107 O.R. (3d) 236.
[20] The desirability of asking jurors to provide particulars was commented on by Southin J.A of the British Columbia Court of Appeal in two cases. In her dissent in Dhaliwal v. Robertson, 1999 BCCA 309, 68 B.C.L.R. (3d) 33, at para. 28, she said the following,
Although that be so, for a trial judge to put such stark questions to a jury as 1., 2. and 3. may cause, because of the limitations on this Court’s power of review of a judgment founded upon a verdict of a jury, a miscarriage of justice. A judge would not be thought to be living up to the standards we now expect of our judges if his or her reasons for judgment in a serious case were nothing more than, “I find both at fault and I fix the fault at 85% on the plaintiff and 15% on the defendant.” This jury ought to have been asked, “Of what did the negligence (or fault) or contributory negligence (or contributory fault) consist?”
On this point, McEachern C.J.B.C. agreed with Southin J.A. (at para. 23), although he disagreed as to the result.
[21] In separate concurring reasons in Melgarejo-Gomez v. Sidhu, 2002 BCCA 19, 97 B.C.L.R. (3d) 154, at para. 60, Southin J.A. stated:
I have never understood why trial judges do not insist on putting such questions, no matter what counsel want. The jury here plainly had a great deal of difficulty in arriving at a verdict for, in the end, it was 6-2. Questions would have concentrated their minds.
[22] In Huang v. Stogryn, 2007 BCSC 1986, 301 D.L.R. (4th) 506, Smith J. did not allow a question asking for particulars based on the same concerns expressed in Newell over six decades earlier (at para. 15):
If I were hearing this case without a jury, I would have to give reasons for judgment specifying whether or not I found the defendant to have been in breach of the standard and under which of those bases and upon which evidence I reached that conclusion. However, to ask a jury to state the basis of their findings in this context is to ask that they be unanimous on the reasons for those findings. I know of no authority that would permit a jury to state that some number of them found a breach of standard on one basis and some others found a breach of standard on the other basis. To ask that would come perilously close to asking the jury to reveal what went on during their deliberations, which they are not permitted to do.
[23] A similar concern was expressed in Lush v. Connell, 2012 BCCA 203, 34 B.C.L.R. (5th) 244, where the Court observed that the principle that a jury need not be unanimous in its reasons for a unanimous verdict can be traced back as far as Bushell’s Case (1682), 124 E.R. 1006 (at para. 87). In that case, the Court considered both Beach and ter Neuzen and concluded as follows (at para. 84):
In my view, the majority in ter Neuzen were not proposing a wholesale change from the general practice described in Beach, but rather adapting that general practice for cases where it is deemed advisable to ask such a question in order to 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.
[24] Notwithstanding this conclusion, the Court went on to say the following (at para. 92):
Notwithstanding Beach, para. 53 of ter Neuzen represents a direction to trial courts and should be accepted as authoritative in cases where a trial judge considers that the jury’s understanding of its instructions may need to be tested. It is my opinion that such a question could properly be asked in this case.
C. The Correct Approach
[25] 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 (ter Neuzen, Sacks, Lush), to ensure that the jury did not disregard the law in favour of an emotional verdict (Ontario Courtroom Procedure) or to concentrate the jurors’ minds (Melgarejo-Gomez). 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. It is well established that a judge’s reasons are subject to expectations of transparency: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. No such transparency is expected of a jury’s decision: R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at para. 44. This is so even though the absence of reasons from juries makes appellate review more difficult: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 37-38.
[26] 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 (Newell, Huang) and that it risks revealing the substance of the jury’s deliberations (Huang). 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.
[27] 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.
D. Application to This Case
[28] In my view, there is nothing in the facts of this case to suggest that there is any need to “test” the jury’s understanding of the instructions on negligence.
[29] With respect to the issue of negligence, this was really an instance of res ipsa loquitor. The uncontradicted evidence was that the plaintiff was stopped in the middle of the day next to another car waiting for a red light to change when the defendant drove between the two cars, striking the plaintiff’s car with enough force to push it into the intersection. The defendant led no evidence to explain her conduct. The jury was given the standard instruction on negligence, to which no objection was taken. While counsel for the defendant requested that the jury be asked to provide particulars in order to guard against a “perverse verdict”, it is difficult to conceive of a perverse verdict in this situation that would be prejudicial to the defendant. In my view, in the circumstances of this case the jury’s focus is likely to be on the issues of causation and damages, and nothing would be served by requiring them to articulate the nature of the defendant’s negligence.
[30] With respect to the plaintiff’s injuries, I am unable to see how asking the jury to list them would test the jury’s understanding of the instructions. There was conflicting evidence with respect to the nature and extent of the plaintiff’s back injuries, as well as whether they were caused by the accident. There was no real issue that the plaintiff had significant problems with her shoulders, although the parties disagreed on whether those problem pre-dated the accident. The jury was provided with the standard instructions on causation, again with no objection. Whether the jury listed the back injuries, the shoulder injuries, or both would not provide any insight into whether the jury understood the instructions on causation.
[31] Moreover, given the conflicting evidence respecting the nature, extent and cause of the injuries, there was a real possibility that the jurors could agree that the plaintiff had injuries caused by the accident but disagree on what those were. While the Court in Lush suggested that juries could be instructed that they need not agree on the reasons for this conclusion, such an instruction would not assist them in creating a list of the plaintiff’s injuries and may very well confuse them unnecessarily.
III. DISPOSITION
[32] For the foregoing reasons, the questions to the jury will not include a request to provide particulars of the defendant’s negligence or a request to list the plaintiff’s injuries.
Schreck J.
Date: June 18, 2018.
COURT FILE NO.: CV-12-450447
DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PARBATTIE POONWASEE
Plaintiff
– and –
CECILIA PLAZA
Defendant
RULING RE: QUESTIONS TO JURY
Schreck J.
Released: June 18, 2019.