COURT FILE NO.: CV-12-459089
DATE: 20220113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEAN OMAR HENRY, personally and as Estate Trustee for the Estate of SANDY ROBINSON
Plaintiffs
Barbara A. MacFarlane and Michael D. Hodgins, for the Plaintiffs
- and -
DR. MARSHALL ZAITLEN, DR. EDGAR JAN, DR. JOSEPH FAIRBROTHER, DR. HILAIRE LOUISE SHEEHAN, DR. VERA BRIL, DR. ROBERT KURTZ, DR. JOHN DOE, JANE DOE, JOAN DOE, WILLIAM OSLER HEALTH CENTRE – BRAMPTON CIVIC HOSPITAL and UNIVERSITY HEALTH NETWORK – TORONTO GENERAL HOSPITAL
Defendants
Frank J. McLaughlin, Stephanie Sugar, and Christine Windsor, for the Defendant, Dr. Marshall Zaitlen
HEARD: November 8-10, 12, 15-19, 22-26, 29-30 and December 1-3, 6-10 and 13, 2021
A.A. SANFILIPPO J.
reasons for RULINGS – JURY QUESTIONS
Overview
[1] Sean Omar Henry brought this action on his own behalf and as Estate Trustee for the Estate of his deceased spouse, Sandy Robinson, for damages said to have been sustained by the alleged negligence of Dr. Marshall Zaitlen, a general neurologist. The Plaintiffs alleged that Dr. Zaitlen was the continuing neurologist with primary care in Mr. Henry’s treatment from January 29, 2010 to July 20, 2010 and was negligent in the delayed diagnosis and treatment of a spinal dural arteriovenous fistula. The Plaintiffs alleged that but for Dr. Zaitlen’s negligence, Mr. Henry would not have sustained his injuries.
[2] The trial of this medical malpractice action, with a jury, began on November 8, 2021 and continued for 25 days to December 13, 2021. This trial proceeded against only Dr. Zaitlen, as this action was either discontinued or dismissed as against all other defendants prior to trial.[^1] The trial began with working jury questions on the issues of standard of care, causation, and damages. The parties were in substantive agreement on the wording of the jury question on the issue of standard of care but disagreed on the jury questions on the issues of causation and damages. The parties filed written submissions regarding their positions on these jury questions, and made oral submissions on the formulation of the jury questions on November 29, 2021 and December 1, 3, and 6, 2021.
[3] The parties required two types of rulings in relation to the jury questions: (a) the formulation of the jury questions on the issues of causation and damages; and, (b) whether some of the categories of damages included in the damage question should be removed from the jury.
[4] On December 2, 2021, I ruled on the jury questions on the issues of standard of care and causation, including the issue of whether the jury should be asked to provide particulars in the event of a finding of causation. I ruled, as well, that the jury question on damages would be a single question, listing the categories of damages that the jury would be asked to assess. I directed the parties to prepare further drafts of the jury question on damages, and to make further submissions on December 3, 201 on the categories of damages to be determined by the jury. After hearing the parties’ further submissions, and largely on the consent of the parties, I ruled that the jury question on the issue of damages would be a single question containing eight categories of damages claimed by Mr. Henry and three categories of damages claimed by the Estate of the late Sandy Robinson (the “Estate”). On December 6, 2021, the parties agreed to remove four categories of damages from Mr. Henry’s claims for damages.
[5] On December 8, 2021, at the pre-charge hearing, the Defendant moved to remove two of the categories of damages from the jury question on damages: specifically, the claims by the Estate for: (i) Past value of care provided by Sandy Robinson; and (ii) Past value of housekeeping and home maintenance provided by Sandy Robinson. I ruled that the Estate’s claim for past value of care provided by the late Sandy Robinson be removed from the jury question on damages, but that the Estate’s claim for past value of loss of housekeeping would remain. This resulted in the damage question having six categories of damages for determination by the jury: four categories claimed by Mr. Henry and two categories claimed by the Estate.
[6] In the interest of defining the jury questions, but mindful of the rigid and tight schedule for this jury trial, I delivered my rulings with brief oral reasons, with more thorough reasons to follow. These are those reasons.
I. JURY QUESTIONS
[7] Civil jury questions are authorized by s. 108(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43: “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.”
[8] In Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387 (“Sacks (ONCA)”), at para. 59, leave to appeal refused, [2017] S.C.C.A. No. 491, Justice Lauwers explained that jury questions “serve to sequence and guide the jury in its deliberations”, working in tandem with the jury instructions. Justice Lauwers explained, at para. 61, that the jury questions serve the purpose of identifying and tracking the findings of fact that the jury is required to make, and described the characteristics of jury questions as follows, at para. 62:
The required characteristics of jury questions are plain enough. They should be tailored to the specific findings of fact necessary to decide the case. Jury questions should respond to the facts in issue and be logically sequential. They should be expressed as simply and clearly as possible; a question should not be compound or contain an embedded assumption. Jury questions should also be neutrally expressed and should not nudge the jury towards a particular result. It is better if the questions can be answered in a “yes” or “no” format followed by a blank space in which the jury can insert a damages figure if it finds liability, and its reasons if called for. The jury’s answers should permit the judge to complete the judgment. [Citations omitted.]
[9] Following best practice, the trial counsel conferred in advance of trial on the jury questions but were unable to reach agreement on all jury questions. In accordance with the trial judge’s gatekeeper role, I considered the parties’ written and oral submissions on the jury questions and issued rulings on the jury questions pertaining to standard of care, causation, and damages.
A. Standard of Care
[10] The parties agreed on the jury question on standard of care, designated as “Question 1(a)”, as follows:
1(a) Have the Plaintiffs proven on a balance of probabilities that Dr. Zaitlen breached the standard of care of a reasonably prudent general neurologist practicing in Ontario in 2010?
[11] The jury did not need to answer whether Dr. Zaitlen owed a duty of care to his patient, Mr. Henry, as this was conceded by the Defendant. Rather, the jury was required to determine the applicable standard of care of a reasonably competent general neurologist practicing in Ontario in 2010, and whether Dr. Zaitlen breached the standard of care. Question 1(a) properly identified and tracked the findings that the jury was required to make on this issue, and was consistent with standard of care questions put to juries in other medical malpractice cases.[^2]
[12] The parties agreed that the jury would be asked to explain in what way Dr. Zaitlen breached the standard of care. This was consistent with the statement by Justice Sopinka in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, 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.”
[13] In Sacks (ONCA), at para. 64, the Court of Appeal commented that: “It has become standard practice in professional negligence cases for the jury to be asked to provide their reasons for any finding of negligence, in keeping with the observations of Sopinka J. in ter Neuzen”.
[14] The parties proposed different draft questions requiring the jury to specify in what respects the Defendant was negligent but agreed that their draft questions were substantively identical. After hearing submissions, the parties did not object to wording of the following question, designated as “Question 1(b)” for the purpose of asking the jury to specify in what respects the Defendant was negligent:
1(b) If your answer to question 1(a) is “yes”, please describe in what way Dr. Zaitlen breached the standard of care. Please provide clear and specific answers.
[15] After considering the parties’ written submissions and hearing the parties’ oral submissions on November 29, 2021 on the jury question on the issue of standard of care, noting the substantive concurrence of the parties to the wording of the question and noting that the question was compliant with applicable legal principles, on December 2, 2021 I directed that the jury questions on the issue of standard of care shall be Question 1(a) and Question 1(b).
B. Causation
[16] The parties agreed that the correct test for causation in this medical malpractice case is the “but for” test, not the “material contribution to risk” test. The parties’ disagreement was on how the question on “but for” causation would be put to the jury. Specifically, the Plaintiffs submitted that the wording “caused or contributed” should be used, while the Defendant submitted that the question would be most clearly stated to the jury with use of the words “but for”.
[17] The Plaintiffs’ proposed jury question on causation, designated as “Question 2(a)” was as follows:
2(a) If your answer to question 1 (above) is “yes”, have the Plaintiffs satisfied you, on a balance of probabilities, that Dr. Zaitlen’s breach of standard of care caused or contributed to the injuries of Sean Henry? [Emphasis added.]
[18] The Defendant’s proposed jury question on Question 2(a), causation, was as follows:
2(a) If your answer to question 1(a) is “yes”, have the Plaintiffs proven, on a balance of probabilities, that but for the breach of the standard of care, the injuries of Sean Henry would not have occurred? [Emphasis added.]
[19] The Supreme Court explained in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, that the test for showing causation is the “but for” test:
The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original.]
[20] The parties agreed that the “exceptional” resort to the causation test of “material contribution to risk of injury” required by cases in which it is impossible to determine which tortfeasor amongst many caused the injury, as explained by the Supreme Court in Clements at para. 13, had no application to this case. Here, the Plaintiffs brought their negligence action against a single defendant on a single negligence theory: breach of standard of care through delay in diagnosis and treatment. This type of case was referred to by the Ontario Court of Appeal in Sacks (ONCA), at paras. 42-43, as a simple negligence action, to which the “but for” test of causation is applicable.
[21] The contest between the parties was how best to describe the “but for” test of causation in the jury question to provide the jury with the greatest clarity of the correct test to be applied.
[22] The Plaintiffs submitted that in delayed diagnosis cases, the use of the words “caused or contributed” ensures that the jury turns its mind to the correct analytical approach. The Plaintiffs emphasized that the “but for” test of causation applies even where a defendant’s negligence is not the sole cause of the plaintiff’s injury, requiring that a plaintiff establish that the defendant’s negligence was “‘a’ cause of ‘some’ harm to be found liable in tort”: Donleavy v. Ultramar Ltd., 2019 ONCA 687, at paras. 62-63. The Plaintiffs relied heavily on the statements by the Court of Appeal in Sacks (ONCA), at para. 117, and in White v. St. Joseph's Hospital (Hamilton), 2019 ONCA 312, at para. 25, that: “In an action for delayed medical diagnosis and treatment, a plaintiff must establish that the delay caused or contributed to the unfavourable outcome.”
[23] The Plaintiffs submitted that the Court of Appeal’s decision in Sacks (ONCA), at para. 122, is authoritative on the formulation of the causation question and requires the use of the words “caused or contributed”, described in White, at para. 25, as the “normative test” applied by the Court. The Defendant maintained that the comments in Sacks (ONCA) on the use of “caused or contributed” to explain the “but for” test were made in obiter, and emphasized that Sacks (ONCA) and White were medical malpractice cases that involved multiple defendants.[^3] The Defendant submitted that the approach to best formulating the jury question on causation in a single defendant case must be different than in a case involving multiple defendants, in which there is a heightened necessity to emphasize the potential for liability through contribution by each of the defendants.
[24] The Defendant relied on the Court of Appeal’s decision in Surujdeo v. Melady, 2017 ONCA 41, 410 D.L.R. (4th) 538, decided several months before the Court of Appeal’s decision in Sacks (ONCA), where the Court of Appeal adopted, at para. 94, the analysis by Justice D. Wilson in Sacks v. Ross, 2015 ONSC 7238 (“Sacks (ONSC)”), at paras. 13, 15 and 16:
[T]here is no compelling reason not to use the language of causation from Clements and other cases when drafting the questions for the jury on causation. The legal test as articulated by the Supreme Court of Canada is clear: but for the defendant’s negligent act the injury would not have happened.
I will instruct the jury on the law as it relates to causation and will use the “but for” test. I see no advantage to departing from the legal test as articulated by the Supreme Court of Canada when asking the jury to answer the questions on causation.
The questions on causation will read as follows: If your answer to question 1(a) is YES, have the Plaintiffs proven, on a balance of probabilities, that but for the breach of the standard of care, the injuries of Jordan Sacks would not have occurred?
[25] A survey of recent cases shows that since the Court of Appeal decisions in Sacks (ONCA) and Surujdeo, trial courts have at times used the “but for” wording in the jury question on causation and have at times used the “caused or contributed” wording.
[26] In Cheung v. Samra, 2018 ONSC 3480 (“Cheung (ONSC)”), at paras. 16 and 44, aff’d 2020 ONSC 4904, 453 D.L.R. (4th) 295 (Div. Ct.) (“Cheung (Div. Ct.)”), Justice D. Wilson rejected the use of the words “caused or contributed” in the causation question, distinguishing the Court of Appeal’s reasoning in Sacks (ONCA) on the basis that it pertained to a negligence case involving multiple defendants as opposed to a malpractice case against a single defendant, writing: “The instant case is not one where there are multiple defendants involved, multiple potential causes and cumulative injuries, as discussed by the Court of Appeal in Sacks v. Ross.”
[27] In Uribe v. Tsandelis, 2019 ONSC 6242 (“Uribe (ONSC)”), at para. 15, Justice Turnbull rejected the use of the phrase “caused or contributed” even where there were multiple defendants. Justice Turnbull concluded that the case before him was not sufficiently complex to depart from the “but for” wording, even though there were multiple defendants: “In the factual matrix of this case, the Sacks approach upon which the plaintiffs urge the use of causal terminology of ‘cause or contributing’ is not required. In my view the factual matrix is not so confusing that the conventional ‘but for’ test cannot be applied in this case even though there are multiple defendants.”
[28] In Parliament v. Conley, 2019 ONSC 3996, at para. 45, Justice Woodley ordered that the “caused or contributed” wording be included in the jury question on causation on the basis that the case involved “alleged medical malpractice as a result of delayed diagnosis and treatment involving more than one tortfeasor”. Justice Woodley found the Court of Appeal’s finding in Sacks (ONCA) instructive as the factual matrix in Parliament was also a complex medical malpractice case involving multiple defendants.
[29] An identical finding was made by Justice Koehnen in Cheesman v. Credit Valley Hospital, 2019 ONSC 4996, who determined, at paras. 66 and 69, that using the wording “caused or contributed” is appropriate in a case involving multiple tortfeasors, each advancing crossclaims. Justice Koehnen stated that the “cause or contribute” question is no different from the “but for” test but is the way to express the “but for” test in cases involving multiple defendants. Justice Koehnen distinguished Justice D. Wilson’s rejection of the use of “cause or contribute” in the causation jury question in Cheung (ONSC) on the basis that Cheung (ONSC) involved two physician defendants who provided distinct care at different times and did not advance crossclaims.
[30] In Doobay v. Fu, 2020 ONSC 1774, Justice Bale granted the plaintiff’s request to include “caused or contributed” in the wording of the causation question. Justice Bale’s determination was based on his assessment of the most clear way to express the causation question to the jury in a case involving physician, hospital and nurse defendants, against whom damages were sought not only for their individual breaches but also due to their failure to work as a team: Doobay, at para. 24. In a case involving multiple defendants, Justice Bale determined that the clearest expression of the “but for” test was to use the words “caused or contributed”.
[31] Having surveyed the applicable case authorities, I do not read the Court of Appeal decisions as mandating the use of the term “caused or contributed” when formulating a jury question on “but for” causation in a medical malpractice case involving a single defendant, as was urged by the Plaintiffs. It is not necessary to determine whether the words “caused or contributed” are required to properly express the “but for” test in cases involving multiple defendants, as that is not the case before me. Some Courts have endorsed the use of the term “caused or contributed” in framing the jury question in cases involving multiple defendants, and some Courts have commented that the use of the term “contribution” in description of the “but for” test could lead to confusion where the factual matrix does not call for it: Donleavy, at para. 72; West v. Knowles, 2021 ONCA 296, at para. 40.
[32] The Supreme Court in Clements and the Court of Appeal have clearly stated that the jury question on causation must be formulated in a manner that best expresses the causation test without risk of confusing the jury and leading them into error. The wording to be used is case specific and depends on the factual matrix. In endorsing the use of “caused or contributed” in the jury question in Sacks (ONCA), the Court of Appeal commented, at para. 51, that delayed diagnosis medical negligence cases with multiple tortfeasors “are among the most complex to assess from the perspective of causation”.
[33] And I am mindful that the jury questions work “hand in glove” with the jury instructions: Sacks (ONCA), at para. 59. It is not possible to infuse into the jury question the broad range of instructions that are contained in the jury charge, including: that “but for” causation must be applied in a robust, pragmatic, common sense fashion; that there is no need for scientific precision to find causation; and that the negligence of the defendant must be a cause of the plaintiff’s injury but need not be the sole cause of the plaintiff’s injury.[^4]
[34] This case involves a single defendant. This is unlike Sacks (ONCA), and those Courts that have applied it to cases involving multiple defendants. The parties did not provide a single caselaw precedent wherein the words “caused or contributed” were used to describe the “but for” causation test in a negligence case involving a single defendant.
[35] Using the phrase “caused or contributed” in a single defendant negligence case runs the risk, in my view, of the jury conflating two separate causation tests by causing the jury to struggle to find a distinction between “caused” and “contributed”. The jury could consider that the use of two terms, “caused” or “contributed”, connotes two different thresholds or two different tests when assessing the claims against a single defendant.
[36] The causation question must be expressed in a way that is meaningful and accessible to the jury. The jury question must be “tailored to the specific findings of fact necessary to decide the case” and be “expressed as simply and clearly as possible”: Sacks (ONCA), at para. 62. I concluded that packing into the jury question on causation, in a single defendant case, the concept of “contribution” would be less clear to the jury than simple expression of the “but for” test, accompanied by jury instructions that while the plaintiff must prove that the defendant’s negligence is a cause of the plaintiff’s injury, “but for” causation does not require that the plaintiff’s negligence be the sole cause.
[37] For these reasons, I saw no advantage to departing from the legal test set out by the Supreme Court in Clements when asking the jury to answer the question on causation, and directed, on December 2, 2021, that jury Question 2(a) shall be the question proposed by the Defendant which expressly stated the “but for” test, specifically: “If your answer to question 1(a) is ‘yes’, have the Plaintiffs proven, on a balance of probabilities, that but for the breach of the standard of care, the injuries of Sean Henry would not have occurred?”
C. Requiring Reasons on the Causation Answer
[38] The Defendant submitted that the jury should be required to provide particulars regarding how Dr. Zaitlen’s breach of the standard of care caused Mr. Henry’s injuries, in the event of a finding of breach of standard of care, designated as “Question 2(b)”, as follows:
2(b) If your answer to question 2(a) is “yes”, how did the breach of the standard of care cause Sean Henry’s injuries? Please provide clear and specific answers.
[39] The Plaintiffs objected, submitting that the jury should only be asked to give a general verdict regarding the issue of causation: “yes” or “no”. The Plaintiffs submitted that the jury should not be required to answer a specific question to explain its determination on causation.
[40] The parties referred to the information that the jury would be asked to specify as “explanation”, “particulars”, “details” or “reasons”, adopting the various characterizations used in the applicable case law and referring to them interchangeably. To avoid the imprecision that would result from the use of multiple terms to refer to the same element – that is, the information that the jury is asked to specify in answering a jury question – I adopt Justice Boswell’s analysis in Cheung (Div. Ct.), at paras. 121-127, and will refer to this information as “reasons”.[^5] In doing so, I should not be taken to intend that any jury should be asked to give reasons in the sense understood to be routinely provided by a trial judge, but rather I will use the term “reasons” to describe the jury’s explanation or specification of the particulars of its answer to the jury question, in the sense stated by Justice Sopinka in ter Neuzen, at para. 53.[^6]
(a) The Plaintiffs’ Position
[41] The Plaintiffs acknowledged that the trial judge has the discretion to ask a jury to provide specific answers – reasons – for their verdict but submitted that the general principle is that a jury should not be asked to provide reasons for its decision or verdict, relying on Balfour v. Toronto Railway Company (1901), 1902 7 (SCC), 5 O.L.R. 735 (C.A.), aff’d (1902), 32 S.C.R. 239, Newell v. Acme Farmers Dairy Ltd., 1938 75 (ON CA), [1939] O.R. 36 (C.A.), and Beach v. Healey, 1943 7 (SCC), [1943] S.C.R. 272. The Plaintiffs submitted that the Supreme Court developed a narrow exception to this general rule in ter Neuzen in medical malpractice cases, but only for the question on standard of care, and that the principles underlying the provision of reasons on the issue of standard of care are inapplicable to the jury question on causation. The Plaintiffs relied on the analysis set out in Poonwasee v. Plaza, 2018 ONSC 3797, Doobay, and the dissenting judgment of Justice Corbett in Cheung (Div. Ct.) in support of their contention that requiring the jury to explain its reasons on causation compromises the secrecy of the jury’s deliberations, is unfair to the plaintiff and improperly suggests to the jury that they must all agree on the basis for their finding on causation.
(b) The Defendant’s Position
[42] The Defendant submitted that the Court of Appeal and Divisional Court have stated that asking the jury for reasons on their determination of causation is standard practice and appropriate in medical negligence cases, relying principally on the Court of Appeal’s statements in Surujdeo and Justice Boswell’s reasoning for the majority in Cheung (Div. Ct.). The Defendant submitted that requiring reasons on the issue of causation ensures the integrity of the trial process, by allowing for a means by which to ensure that there was no legal error, relying on Surujdeo, at paras. 114 and 120-121.
(c) Analysis
[43] The parties agreed that a trial judge has the discretion, under s. 108(5)(a) of the Courts of Justice Act, to direct the jury to give a general verdict or to answer specific questions. And, as explained earlier, the parties agreed that the jury would be asked to explain in what way Dr. Zaitlen breached the standard of care. This is consistent with the Supreme Court’s requirement in ter Neuzen, at para. 53, and the Court of Appeal’s affirmation in Sacks (ONCA), at para. 64 that it is “standard practice” in professional negligence cases for the jury to be asked to provide their reasons for any finding of negligence. Here, this became Question 1(b).
[44] The Defendant submitted that the cases relied on by the Plaintiffs in support of their position a jury should not be asked to provide reasons for its decision did not reflect the current state of the law in this area because they were decided before the Supreme Court’s statements in ter Neuzen. I observe that asking juries to provide reasons for their specific answers did not originate in ter Neuzen. In Herd v. Terkuc, 1960 10 (SCC), [1960] S.C.R. 602, the Supreme Court upheld a trial judge’s decision to send a jury back for further deliberations when the jurors had not fully answered jury questions, which included reasons for their answers on the issue of negligence. Herd was applied by the Ontario Court of Appeal in Allen v. Brazeau, 1967 329 (ON CA), [1967] 2 O.R. 665 (C.A.), in which jurors were asked to “state fully and clearly every act or omission which constituted negligence.”
[45] The B.C. Court of Appeal considered the effect of ter Neuzen in Lush v. Connell, 2012 BCCA 203, 349 D.L.R. (4th) 257, at paras. 84 and 92, leave to appeal refused, 2012 66231 (S.C.C.), and concluded that the Supreme Court was instructing that a jury should be asked for reasons where it was advisable “to reveal whether the jury has understood and applied the judge’s instructions”.
[46] The Court of Appeal explained, in Surujdeo, at para. 114, that it is currently standard practice in negligence cases to require a jury to provide reasons on their answers on both standard of care and causation:
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.
[47] In Cheung (Div. Ct.), at para. 116, the Divisional Court stated that it has become common, although not universal, practice in negligence claims to require juries to explain their answers in relation to standard of care and causation:
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, [footnoted citations] 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.
[48] The reference by the Divisional Court in its statement that the requirement for reasons is “not universal” cited two cases: an unreported decision;[^7] and Doobay. In Doobay, Justice Bale weighed whether the advantages of requiring the jury to provide reasons for their determination on causation outweighed the disadvantages, applying the analytical framework set out in Poonwasee, at paras. 25-27. Justice Bale concluded, at paras. 31-32, that he would not require the jury to provide reasons for their answer on causation as the jurors might find it difficult to express themselves and because the jurors might come to the same verdict but for different reasons. I note, however, that in Surujdeo, the Court of Appeal held that “a jury is entitled to arrive at a verdict by different evidentiary routes and need not rely on the same facts”.[^8]
[49] In Poonwasee, at paras. 10-24, Justice Schreck thoughtfully surveyed the legislative authority and caselaw pertaining to what types of questions ought to be left to the jury and observed that there is a longstanding practice of asking a civil jury to provide particulars. Justice Schreck carefully set out, at paras. 25-27, what he considered to be the correct approach, stating that there are advantages and disadvantages to requesting the jury to provide particulars: the advantages include the ability to “test” the jury’s understanding of judicial instructions; to ensure that they did not disregard the law; and to concentrate the juror’s minds. The disadvantages are that asking for reasons “fails to account for the possibility that the jurors may not agree on their unanimous decision” and “risks revealing the substance of the jury’s deliberations”. I agree with Justice Schreck’s conclusion that the questions to be put to the jury are within the trial judge’s discretion, to be exercised after analysis of these advantages and disadvantages.
[50] The Plaintiffs relied on the Court’s decision in Poonwasee not to ask the jury to provide reasons. However, this decision was based on the factual matrix raised by that action. Poonwasee was a motor vehicle action and thereby did not come within the grounds set out in ter Neuzen, at paras. 53-54, for the provision of reasons in answering the question on standard of care in a medical malpractice case: Poonwasee, at paras. 16-17; Cheung (Div. Ct.), at para. 116: “The ter Neuzen exclusion relates only to professional negligence claims and only to questions relating to the standard of care”. Further, the Court observed, at para. 18, that the ter Neuzen requirement for reasons applies to “cases involving difficult and complex issues”, unlike Poonwasee, which involved claims arising from a single motor vehicle accident against a single defendant.
[51] In several recent cases, trial judges have ordered that the jury provide reasons for their answer on the causation question. In Sacks (ONSC), at paras. 17-22, , Justice D. Wilson ordered that the jury provide particulars of causation, if causation was found, because the medical issues were complex, and the experts provided disparate opinions on causation. This issue was not pertinent on appeal, because since the jury did not find that causation had been proven, no reasons were required: Sacks (ONCA), at paras. 4 and 173-174. In Uribe (ONSC), at para. 23, Justice Turnbull directed that the jury be asked to answer how the defendant’s breach of standard of care caused the plaintiff’s injuries, in a complex medical malpractice case involving multiple defendants.
[52] In unreported trial rulings in Baldonado v. Shilletto[^9] and Carroccia v. Ayow[^10], both medical malpractice cases, Justice Chalmers ordered that the jury provide reasons for its determination on causation. In Carroccia, Justice Chalmers referred to Justice Koehnen’s decision in Cheesman to require that the jury provide reasons on the issue of causation, and applied Justice Koehnen’s statement, at para. 73, that it is desirable to have the jury provide brief reasons if they find that the defendant’s breach of standard of care caused injury because “[i]t keeps jurors focused on the need for a rational analysis and diminishes the risk of verdicts being driven by sympathy.”
[53] Justice Chalmers rejected the plaintiff’s submission that the reasoning in Doobay should be followed, noting that Doobay was decided before the Divisional Court’s decision in Cheung (Div. Ct.), wherein Justice Boswell reiterated, at para. 134, the value of having juries provide particulars of causation:
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.
[54] In Cheung (Div. Ct.), Justice Corbett, in dissent, provided comprehensive and thoughtful reasons why juries should not be asked to give reasons for their answers in civil jury trials. Justice Corbett recognized, at para. 216 and following, that there is appellate authority that “could be seen as running counter” to this finding, and concluded, at para. 241, that based on the binding effect of ter Neuzen and Ontario Court of Appeal authorities, “it is not open to this court to conclude that questions requiring a jury to give reasons are impermissible”. Justice Corbett stated, at para. 242, that the jury should be asked to provide answers for their determinations only “when the advantages of asking further questions of a jury outweigh the disadvantages, such as in ter Neuzen” and that such circumstances would be exceptional.
[55] Justice Boswell, writing for the majority in Cheung (Div. Ct.), stated that Justice Corbett’s reasons for curtailing the practice of asking jurors to provide explanations for their verdicts were, in his view, valid. I agree. However, I also agree with Justice Boswell’s statement, at para. 103, that this practice derives from Supreme Court and Court of Appeal authority and can only be varied by those Courts:
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.
[56] In considering whether to order that the jury provide reasons if causation is found, I am guided in the exercise of my discretion by the Supreme Court’s statements in ter Neuzen, by the Court of Appeal authorities and by the Divisional Court. I analysed the advantages and disadvantages of requiring the jury to provide reasons on their answer on the issue of causation, consistent with the principles that emerged from the case law. I concluded that the advantages of requiring the jury to provide reasons if they find that the Defendant’s breach of the standard of care caused injury outweighed the disadvantages, following the analysis conducted by Justice D. Wilson in Sacks (ONSC), Justice Chalmers in Carroccia, Justice Turnbull in Uribe (ONSC) and Justice Koehnen in Cheesman, and following the principles identified by Justice Schreck in Poonwasee, which were approved by Justice Corbett in Cheung (Div. Ct.), at paras. 234, 242.
[57] As these cases make clear, heavy consideration must be given to the complexity of the issues that the jury must decide, and the extent to which it is necessary to test the jury’s understanding of the instructions. Here, five medical experts were admitted to provide expert opinion evidence on the issue of causation, three for the Plaintiffs and two for the Defendant.[^11] The expert opinion evidence on causation was founded on evidence tendered by numerous other witnesses, including Mr. Henry, Dr. Zaitlen, and other medical experts. The trial comprised 18 days of witness testimony. The parties had agreed, and I concurred, that the jury would specify in what way the Defendant was negligent. I was satisfied that requiring the jury to describe how the breach of standard of care caused Mr. Henry’s injuries, in the event of a finding of breach of standard of care, would focus the jury on deriving a rational analysis and determination with application of the legal principles set out in the jury instructions.
(d) Conclusion
[58] For these reasons, after consideration of the parties’ written submissions and hearing their oral submission on November 29, 2021, I accepted the Defendant’s submission that the jury should be directed to specify how the Defendant’s breach of standard of care caused Mr. Henry’s injury and ordered, on December 2, 2021, that the jury Question 2(b) shall be the question proposed by the Defendant, specifically: “If your answer to question 2(a) is ‘yes’, please explain how the breach of the standard of care caused Sean Henry’s injuries. Please provide clear and specific answers.”
D. Damages
[59] The parties each presented a draft jury question on the issue of damages that differed in two material ways: first, the Defendant requested that a separate question be put to the jury on the Defendant’s mitigation defence; second, the Plaintiffs’ draft jury question contained fourteen types of damages and required that the jury assess Mr. Henry’s claim for future care costs in six sub-categories as opposed to a single question requiring quantification of all future care costs.
[60] On December 2, 2021, I ordered that there shall be a single jury question on the issue of damages, listing the categories of damages that the jury must answer. I directed that the parties prepare a further draft of the jury question on damages consistent with this ruling, which was provided, together with further oral submissions, on December 3, 2021. I will explain, first, the basis for my ruling that there be a single question on the issue of damages, and will then explain the categories of damages listed in the damage question.
(a) A Single Jury Question on the Issue of Damages
[61] The Plaintiff proposed that the jury be asked the following question on damages:
- Regardless of your answers on questions 1-2, and disregarding any benefits the Plaintiff, Sean Henry has received or will receive, and disregarding income tax that may be payable on future earned income, at what amount do you assess the total damages sustained by the Plaintiffs in the following categories? [List of 14 categories with 26 sub-categories of damages]
[62] The Defendant proposed that the jury be asked the following question on damages:
- Irrespective of your answers to the questions above, at what amount, if any, do you assess the damages under the following categories? [List of 6 categories with 13 sub-categories]
[63] The Defendant proposed, as well, that the jury be asked to answer a three-part question on the Defendant’s mitigation defence (the “Proposed Question #4”):
- (a) Has the defendant proven on the balance of probabilities that Sean Henry has failed to mitigate his damages? Yes _____ No _____
(b) If your answer to question 4(a) is “yes”, how did Sean Henry fail to mitigate his damages? Please provide clear and specific answers.
(c) If your answer to question 4(a) is “yes”, what discount to the quantum of damages do you apply on account of Sean Henry’s failure to mitigate?
[64] While the Plaintiffs did not dispute that the Defendant’s mitigation defence must be put to the jury, the Plaintiffs objected to the jury being requested to answer a separate question on the mitigation defence, submitting that instead the issue of mitigation should be included in the jury instructions on the question on damages. The Plaintiffs submitted that while the Defendant referred to several authorities on the proper instruction to a jury on the defence of mitigation,[^12] the Defendant did not present a single case authority where the mitigation defence was presented to the jury as an independent question. The Defendant agreed that there is no precedent for presenting the jury with an independent question on the issue of mitigation as opposed to instructing the jury on principles of the defence of mitigation for application in its assessment of damages.
[65] The Plaintiffs submitted that a separate mitigation question would be less clear to the jury than instructing the jury on the treatment of the defence of mitigation as part of the jury instructions on damages. I agreed, on the basis that the Defendant’s proposed jury question on mitigation ran the risk of a double-application of the mitigation defence through the jury’s consideration of it as part of its assessment of damages and then a second treatment as part of answering an independent question on the defence of mitigation.
[66] The Plaintiffs submitted, in an alternate proposed jury question on the issue of damages, that the jury question should specifically state, in regard to the category of damages to be assessed for loss of income and future care costs, that the jury must conduct their assessment without deduction for collateral benefits or income tax liability. The Defendant agreed that the jury must not assess these damage categories by applying deductions for collateral benefits or income tax liability, but submitted that these issues are best addressed by the jury instructions and not by inclusion in the damage question.
[67] In the course of submissions, the Defendant withdrew his request for a separate jury question on the issue of mitigation, the Proposed Question #4, as well an alternate proposal by the Defendant to incorporate the mitigation defence into the jury question on damages, on the submission that the jury question on damages ought not to make any reference to the necessity that the jury disregard collateral benefits and income tax liability in its assessment of damages.
[68] I agreed with the Defendant’s submission that all three elements proposed to either form part of the jury question on damages or an independent, fourth question – mitigation, and the necessity to make no deduction for collateral benefits or income tax liability – be removed from the wording of the jury question on damages and dealt with in the jury instructions on the principles affecting the jury’s answer of the question on damages.
[69] In my view, it is unworkable and would be unclear to the jury to lift discrete components of the jury charge on the issue of damages and incorporate them into the jury question. If this approach were taken in formulating the jury question on damages, the question would be where to stop, because there are more considerations that go into the damage assessment than the defence of mitigation, and the requirement that the jury not discount for collateral benefits and income tax liability. The list of all issues pertaining to damage assessment cannot be incorporated into the jury question on damages without compounding the question to the point that it is overly complex and unclear. If only a partial list were included, as was proposed by the Plaintiffs, the jury may be confused regarding why some of the principles on which they were instructed pertaining to their assessment of damages were given prominence in the jury question and others were not.
[70] Having considered the parties’ written submissions on the jury question on damages, having reviewed their alternate proposed jury question, and having heard their oral submissions on this issue on December 1, 2021, I ruled on December 2, 2021 that the jury question on damages would consist of a single question, designated as Question #3, as follows:
- Irrespective of your answers to the questions above, at what amount, if any do you assess the damages under the following categories.
[71] I directed the parties to deliver a further draft of the categories to be included in Question #3, together with further submissions.
(b) Refinement of the Damage Categories
[72] On December 3, 2021, the parties made further submissions on the categories to be listed in the jury question on damages. Their main disagreement was the treatment of the claim for future care costs. The Plaintiffs sought the inclusion of sub-categories within the claim for future care costs, based principally on perceived impediment to the jury’s assessment by reason of the Plaintiffs not having tendered evidence of the present value of the future care costs presented through the Plaintiffs’ life care planning expert, Ms. Patricia Howell. This issue was addressed on December 6, 2021 by the granting of leave to the Plaintiffs, unopposed, to re-open their case to recall Dr. Eli Katz to provide expert opinion evidence on the present value of the future care costs of Ms. Howell’s life care plan for Mr. Henry.
[73] On the basis of the parties’ oral submissions on December 3, 2021, and their further drafts of the jury question on damages as refined to comply with my ruling of December 2, 2021, I directed that the working draft of the jury question on the issue of damages, subject to further submissions on December 6, 2021, be as follows:
- Irrespective of your answers to the questions above, at what amount, if any do you assess the damages under the following categories.
SEAN HENRY
(a) General Damages
(b) Out-of-pocket expenses
(c) Past Income Loss
(d) Future Income Loss
(e) Ontario Ministry of Health – Past Losses
(f) Ontario Ministry of Health – Future Losses
(g) Manulife Claim – Past Losses
(h) Future Care Costs
THE ESTATE OF SANDY ROBINSON
(i) Loss of Care, Guidance and Companionship
(j) Past value of care
(k) Past value of loss of housekeeping and maintenance
[74] On December 6, 2021, the Plaintiffs agreed to withdraw Mr. Henry’s claim for out-of-pocket expenses. The parties agreed that the question on future care costs should be put to the jury without sub-categories and, being unable to agree on a working chart of future care expense sub-categories for the jury to use as an aide memoire, were satisfied that the jury could calculate the issue of future care costs using trial exhibits.[^13]
[75] The parties agreed, as well, that the Ontario Ministry of Health claims (past losses and future losses) and the Manulife claim be removed from the jury. The parties agreed on the amount of these claims, based on the values set out in Ex. 4(d), but the Defendant denied that the Plaintiffs had established any basis, in law or in the trial evidence, for recovery of these amounts. The parties, agreed, however, that there was no determination for the jury to make in relation to these claims, as the quantification had been agreed upon and the determination of the Plaintiff’s entitlement to these amounts, at law, was not properly before the jury but rather the subject of a post-verdict motion, should the Plaintiffs be so advised. The damage questions in relation to the Ontario Ministry of Health claims and the Manulife claim were thereby removed from the jury question on damages, on the parties’ agreement.
[76] Accordingly, on December 6, 2021, based on the parties’ submissions that day as well as on December 1 and 3, 2021, and on the parties’ agreements as stated on December 6, 2021, I ordered, on December 6, 2021, that the jury question on the issue of damages, designated “Question 3(a)-(g)”, be as follows:
- Irrespective of your answers to the questions above, at what amount, if any do you assess the damages under the following categories.
SEAN HENRY
(a) General Damages
(b) Past Income Loss
(c) Future Income Loss
(d) Future Care Costs
THE ESTATE OF SANDY ROBINSON
(e) Loss of Care, Guidance and Companionship
(f) Past value of care
(g) Past value of loss of housekeeping and maintenance
[77] In regard to Question 3(f) and 3(g), being the Estate claims for past value of care and past value of loss of housekeeping and maintenance, the Defendant notified the Plaintiffs, on December 6, 2021, of his intention to seek its removal at the pre-charge hearing on the basis of insufficiency of evidence.
II. REMOVAL OF JURY QUESTION
[78] At the pre-charge hearing on December 8, 2021, the parties were able to speak to any jury question on which they considered that there was insufficient evidence for the question to go to the jury. The only questions challenged were the Estate’s claims for past value of care and past value of loss of housekeeping and maintenance, designated as Questions 3(f) and 3(g).
[79] After hearing submissions on December 8, 2021, I ruled that jury Question 3(f) cannot go to the jury on my finding that there was insufficient evidence for a jury, properly instructed and acting judicially, to reach a verdict. There were no values or metrics on which the jury could reach a fair and just verdict on value of care. I denied the Defendant’s motion to remove Question 3(g) on the basis that there is reasonable evidence on which the jury could reach a verdict, as provided by Mr. Henry, the late Ms. Robinson and Dr. Eli Katz. I will now explain more fully the basis for these rulings.
A. Applicable Principles
[80] The test to be applied to whether a question should be put to a jury was affirmed by the Court of Appeal in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, at para. 51. The Court of Appeal stated that there must be “reasonable evidence” to allow a question to go to the jury for determination, applying the decision of Meredith J.A. in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.), at para. 50:
Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative.
[81] In M.B. at para. 59, the Court of Appeal explained that evidence of a “vague possibility” is not reasonable evidence sufficient to allow a question to be put to a jury. Rather, the evidence must be sufficient to support a verdict.
[82] Justice Charney applied these principles in Johnston v Walker, 2017 ONSC 3370, and declined to put the damage question of the plaintiff’s loss of earning capacity to the jury on the finding that there was insufficient evidence on which a jury, properly instructed and acting judicially, could reasonably calculate or quantify the damage claim. As there was no evidence of the Plaintiff’s current annual income or loss of income, putting the question to the jury “would invite them to speculate and pull a dollar figure out of thin air”: Johnston, at para. 10.
[83] Justice Charney applied the Divisional Court decision in Ayub v. Sun, 2016 ONSC 6598 (Div. Ct.), at para. 62, where the Court upheld the trial judge’s decision to refuse to put a question to the jury based on insufficiency of evidence, writing that for a question to be put to the jury “there must be some admissible evidence, upon which a jury properly instructed, could find a claim and calculate the claim”. See also Day v. Haiderzadeh, 2017 ONSC 7319.
[84] I adopted and applied these principles to the determination of whether there was sufficient evidence for questions 3(f) and 3(g) to be put to the jury.
B. Analysis – Damage Questions 3(f) and 3(g)
[85] The Estate’s claims are based on section 61 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), which confers to dependants a right to maintain an action for damages for losses resulting from the injury or death of a family member. The Defendant does not dispute that the Ms. Robinson was entitled to bring such a claim, and did so when this action was initiated in 2012, and the Defendant does not contest that the Estate is able to continue this claim on behalf of Ms. Sandy Robinson upon her passing in 2019.
[86] The Defendant does not dispute that the jury should be asked to answer Question 3(e) and assess the damages that have been proven by the Estate for the loss of care, guidance and companionship to the late Sandy Robinson caused by the injuries sustained by Mr. Henry, in accordance with s. 61(1) and 61(2)(e) of the FLA: “an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.”
[87] The Plaintiffs argued, without citing any case law, that Questions 3(f) and 3(g) arise out of distinct statutory claims under the FLA and that there was sufficient evidence tendered at trial to support both jury questions. The Defendant objected, stating that both questions arise out of s. 61(2)(d) of the FLA and ought not to be stated to the jury as separate questions and that, in any event, there was insufficient evidence to present either question to the jury.
[88] Sections 61(1) and s. 61(2)(d) of the FLA provide that where a person has been injured by the fault or neglect of another and is entitled to recover damages, and where the person’s spouse provided “nursing, housekeeping or other services for the person”, the spouse is entitled to claim for a “reasonable allowance for loss of income or the value of the services.”
[89] I accept the Defendant’s submission that both Question 3(f) and 3(g) are based on the same statutory claim, namely, s. 61(2)(d) of the FLA. There is no basis for the jury to be asked to answer two questions, and thereby assess two categories of damages, arising out of the same statutory entitlement. Question 3(f) (Past value of care) could be removed from the jury on this ground alone.
[90] But there is another reason to remove Question 3(f). I am satisfied that there was insufficient evidence on the value of Sandy Robinson’s care on which a jury, properly instructed and acting judicially, could find a claim and calculate a claim. The Plaintiffs read into evidence extracts from the late Ms. Robinson’s examination for discovery transcript where she testified that when Mr. Henry lost mobility in July 2010 she assisted him “100 %” with his care and personal needs. She testified that when Mr. Henry was in West Park Rehabilitation Centre from July 2010 to October 2010, she attended to provide support but Mr. Henry was receiving nursing care as a patient. She testified that she provided personal care for Mr. Henry until early-to-mid 2011.
[91] Ms. Robinson’s evidence, at its highest, supports a claim for the provision of personal care to Mr. Henry for a period of some 9 months. However, there was no reasonable evidence that Ms. Robinson lost income by reason of providing this care and there was no evidence of the value of the services. Similarly, Mr. Henry provided evidence of the care provided by Ms. Robinson by reason of his injuries, but only vague evidence of personal care outside of the initial period of some 9 months, and no reasonable evidence on which the jury could value the personal care that was said to be provided by Ms. Robinson.
[92] Simply, there were no values or metrics in the trial evidence on which the jury could assess the Estate’s claim for past value of care. The jury would have been required to “pull a dollar figure out of thin air”, meaning that Question 3(f) could not be put to the jury.
[93] I was satisfied that there was sufficient evidence to put Question 3(g) (Past value of loss of housekeeping and maintenance) to the jury. Ms. Robinson testified at her examination for discovery that prior to Mr. Henry’s injuries, the household tasks of cleaning and maintenance, the gardening, and the everyday services that supported their household, were divided 50:50 between the spouses. She testified that by reason of his injuries, that division of labour was now 90% to Ms. Robinson and 10% to Mr. Henry, who testified that he continued to cook and do some general household maintenance after the injury.
[94] Dr. Eli Katz, an economist specializing in labour economics and finance, was tendered by the Plaintiffs to provide expert opinion evidence and was admitted to provide opinions on the Plaintiffs’ past and future economic losses and on present value calculation. Dr. Katz provided evidence on the value of housekeeping and maintenance services and quantified the value of Mr. Henry’s lost services on an annual basis from 2010 to 2020.
[95] The evidence thereby allowed for the jury’s determination of whether Ms. Robinson had proven that she provided “housekeeping or other services” for Mr. Henry and to what percentage extent. If so, the jury had expert opinion evidence on the value of housework capacity for the time period in which Ms. Robinson alleged to have provided such services. In my view, this evidence provided the jury with the tools to determine and to value the Estate’s claim for past value of loss of housekeeping and maintenance.
[96] For these reasons, I ordered, on December 8, 2021, that Question 3(f) (Past value of care) be removed from the jury, but that there was sufficient evidence for Question 3(g) (Past value of loss of housekeeping and maintenance) to be put to the jury. Question 3(g) was thereby re-designated as Question 3(f).
III. DISPOSITION
[97] The above reasons are the basis for my trial rulings on the jury questions.
A.A. Sanfilippo J.
Date: January 13, 2022
(Revised: January 26, 2022)
[^1]: Notice of Discontinuance of this action against Dr. Joseph Fairbrother and Dr. Hilarie Louise Sheehan, dated March 4, 2013; Notice of Discontinuance of this action against Dr. John Doe, Jane Doe, and Joan Doe, dated February 11, 2016; Order dated November 21, 2016 dismissing this action, on consent, as against Dr. Edgar Jan, Dr. Robert Kurtz, William Osler Health System (incorrectly identified as “William Osler Health Centre – Brampton Civic Hospital) and University Health Network (incorrectly identified as “University Health Network – Toronto General Hospital”); Order dated November 26, 2020 dismissing this action, on consent, as against Dr. Vera Bril.
[^2]: Uribe v. Tsandelis, 2021 ONCA 377, at para. 21: “Have the plaintiffs proven on a balance of probabilities that Dr. Tsandelis breached the standard of care of a reasonable prudent obstetrician on Ontario?”; Sacks (ONCA), at para. 74: “Have the Plaintiffs satisfied you on a balance of probabilities that there was a breach of the standard of care on the part of [*]?”; Salter v. Hirst, 2010 ONSC 3440, at para. 1, aff’d 2011 ONCA 609, leave to appeal refused, 2012 41193 (S.C.C.): “Did Dr. Hirst fail to meet the standard of care exercised of a physician in similar circumstances by not deciding to refer or transfer sooner?”; Lush v. Connell, 2012 BCCA 203, at para. 13, leave to appeal refused, 2012 66231 (S.C.C.): “Did the defendant, Dr. Connell, breach the standard of care expected of an ordinary, reasonably competent interventional radiologist when he treated Ms. Lush on February 20, 2008?”
[^3]: Other cases where the words “caused or contributed” were used involving multiple defendants include: Donleavy; Doobay v. Fu, 2020 ONSC 1774, 150 O.R. (3d) 616; Cheesman v. Credit Valley Hospital, 2019 ONSC 4996; Parliament v. Conley, 2019 ONSC 3996.
[^4]: Clements, at paras. 8, 9, 46(1) and 49; Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, at p. 328; Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98, at paras. 28 and 36; Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 84; Sacks (ONCA), at paras. 116-118; Donleavy, at paras. 62-63; White, at para. 25; Beldycki Estate v. Jaipargas, 2012 ONCA 537, 295 O.A.C. 100, at paras. 44-45.
[^5]: Cheung (Div. Ct.), per Boswell J., at para. 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.”
[^6]: Ter Neuzen, per Sopinka J., 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” (emphasis added).
[^7]: Samms v. Moolla, (June 5, 2007), Barrie, CV-12-109079, (Ont. S.C.).
[^8]: Surujdeo, at paras. 116-117: “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” (citations omitted).
[^9]: (January 30, 2020), Toronto, CV-15-523505, (Ont. S.C.)
[^10]: (October 8, 2020), Toronto, CV-15-528651, (Ont. S.C.).
[^11]: The Plaintiffs tendered the following experts on the issue of causation: Dr. Gordon Bryan Young (admitted to provide expert opinions on the issues of standard of care and causation); Dr. Timo Krings (admitted to provide expert opinion evidence on the radiological diagnosis and treatment in regard to the issue of causation); and Dr. Donald Lee (admitted to provide opinion evidence on the interpretation of MRI imaging studies conducted in January and March 2010 on the issue of causation). The Defendant tendered the following experts on the issue of causation: Dr. Mark Tarnopolsky (admitted to provide expert opinion evidence on the issues of standard of care of a general neurologist and causation); and Dr. Gerald Brock (admitted to provide expert opinion evidence on the issue of causation, assessment of Mr. Henry’s medical status and functioning, prognosis and impact of Mr. Henry’s urological and sexual functioning and capacity).
[^12]: Branco v. Ephstein, 2006 19941 (Ont. Div. Ct.), at para. 19; Ksiazek v. Newport Leasing Ltd., 2006 36958 (Ont. S.C.), at paras. 101-103, aff’d 2010 ONCA 341, 267 O.A.C. 58; Kapelus v. University of British Columbia, 1998 4163 (B.C.C.A.), at para. 68; Jones v. Niklaus, 2008 ONCA 504, 240 O.A.C. 43, at para. 56; Little v. Floyd Sinton Limited, 2019 ONCA 865, 149 O.R. (3d) 38, at paras. 26-27; Abdi v. Burnaby (City), 2020 BCCA 125, 36 B.C.L.R. (6th) 232, at para. 62.
[^13]: Mr. Henry’s claim for future care costs were set out in Patricia Howell’s Life Care Plan Chart (Ex. 36) and Dr. Eli Katz’s calculation of the present value of Ms. Howell’s Life Plan (Ex. 59). The Defendant’s response to Mr. Henry’s claim for future care costs was set out in Angela Fleming’s Life Care Plan (Ex. 53) and Dr. Douglas Hyatt’s calculation of the present value of Ms. Fleming’s Life Care Plan (Ex. 60).