COURT FILE NO.: CV-14-515860
DATE: 2021-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NORMAN PENATE, a person under disability by his Litigation Guardian, LUZ PENATE, WILLIAM A. PENATE, JESIEL PENATE, WILLIAM S. PENATE, and the said LUZ PENATE personally
Plaintiff
– and –
A. MARTOGLIO, G. LUI, M. DANELICE, J. WASSERMAN, J. CHONG, S. SHINOFF, MARY BEVERIDGE and DAVID BEVERIDGE as Executors of the Estate of DONALD MARTYN, ST. MICHAEL’S HOSPITAL, S. KING-FORBES, S. SLOAN, R. STEWART, C. STARK, M. LAU, M. GEORGE, M. TITCHNER
Defendants
Hilik Elmaliah and Jeremy Syrtash, for the Plaintiffs
Anne Spafford, Adam Patenaude and Carly Moore, for the Defendant Physicians
Katharine Byrick, Logan Crowell and Neda Foroughian for the Defendant St. Michael’s Hospital
HEARD: October 28, 2021
REASONS FOR DECISION ON MOTION TO STRIKE THE JURY
J.E. Ferguson J.
[1] On October 28, 2021, I discharged the jury following the plaintiff’s problematic closing. Attached as Schedule “A”, is the defendant doctors’ list of objections regarding specific evidence commented on by plaintiff’s counsel. Attached as Schedule “B”, is the defendant hospital/nurses’ list of objections regarding specific evidence commented on by plaintiff’s counsel. In view of all the problems, it was impossible to do a correcting charge.
[2] I am being provided with comprehensive written submissions early next year in order that I can render the decision.
[3] I am following a recent case on point - OZ Merchandising Inc. v. Canadian Professional Soccer League Inc. In that case, the law is set out as follows.
[20] The purpose of the jury address is “to present the party’s case clearly and in a way that is of help to the court in the performance of its duty” (R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 104). Considerable latitude is afforded counsel to enable her to advance the client’s cause fearlessly and with vigour (Landfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 76-77). There are, however, important limits on the bounds of a closing jury address to ensure that the jury is not distracted from its task of deciding the case on the evidence and to ensure that neither the appearance nor the reality of trial fairness undermined (Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 C.A., at paras. 15-16).
[21] Objectionable comments in counsel’s closing address include (see Geoffrey D.E. Adair, On Trial: Advocacy Skills Law and Practice, 2nd ed. (Markham, LexisNexis Canada Inc., 2004):
• Misstatements on the evidence: “It is trite to say that such evidence as is referred to by counsel must be accurately stated to the jury” (at p. 466).
• Invitations to the jury to consider irrelevant matters: This is “a most serious transgression” as it tends to sway the jury from their proper task of deciding the case on the evidence (at p. 467).
• Comments that inform the jury of factual matters not in evidence: Any attempt by counsel to give evidence before the jury is, of course, highly inappropriate (at p. 470).
• Statements that call the attention of the jury to the consequences of their verdict: The consequences of a verdict are not properly within the scope of the jury’s concern (at p. 472).
• Unfair comment on the evidence: Counsel must refrain from comment upon the evidence that is unfair; it is the duty of the advocate not to take unfair advantage of the evidence (at p. 475).
[22] The right to trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons. A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial which merit the discharge of the jury. In the end, the court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 496, at paras. 36-37).
[23] The object of a civil trial is to provide justice between the parties. The paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible. Neither party should have an unfettered right to determine the mode of trial. Instead, when a disagreement arises, the court should have the power to determine whether justice to the parties will be better served by trying a case with or without a jury. Considered in this context, the broad discretion conferred on a court confronted with a motion to strike a jury is a “sensible” one (Cowles, at paras. 38-39).
[24] In dealing with an improper address to the jury, the trial judge has three options (Adair, at p. 477-478):
She can immediately correct any misstatements of counsel during the address or after.
She can dismiss the jury and take the matter from the hands of the jury, provided that non-offending counsel are given the option as to whether or not they wish the matter to continue with a new jury.
She can declare a mistrial if she is of the opinion that the offending remarks are likely to make it difficult if not impossible for the jury to properly discharge their function.
[4] I recognize the considerable latitude extended to counsel in their closing address to enable counsel to fairly and fully advance their client’s cause. But there are limitations. In this case, plaintiff’s counsel crossed the line many times. The cumulative effect of all the misstatements rendered correction by an appropriate charge impossible; any such charge would be both unwieldy and ineffective. The plaintiff’s closing address undermined the fairness of the trial process. Justice to the parties would be better served if this matter did not remain in the hands of the jury.
[5] For these reasons, and with considerable regret given the stage of the trial, I discharged the jury on October 28, 2021. I will determine the issues of liability and damages.
J.E. Ferguson J.
Released: November 5, 2021
COURT FILE NO.: CV-14-515860
DATE: 2021-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NORMAN PENATE, a person under disability by his Litigation Guardian, LUZ PENATE, WILLIAM A. PENATE, JESIEL PENATE, WILLIAM S. PENATE, and the said LUZ PENATE personally
Plaintiff
– and –
A. MARTOGLIO, G. LUI, M. DANELICE, J. WASSERMAN, J. CHONG, S. SHINOFF, MARY BEVERIDGE and DAVID BEVERIDGE as Executors of the Estate of DONALD MARTYN, ST. MICHAEL’S HOSPITAL, S. KING-FORBES, S. SLOAN, R. STEWART, C. STARK, M. LAU, M. GEORGE, M. TITCHNER
Defendants
REASONS FOR DECISION ON MOTION TO STRIKE THE JURY
J.E. Ferguson J.
Released: November 5, 2021