Court File and Parties

COURT FILE NO.: CV-18-00589770-0000 DATE: 20240402 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Paul Meldazy, Plaintiff AND: Wadi Nassar and Toronto Transit Commission, Defendants

BEFORE: Merritt J.

COUNSEL: Peter Cho, Tim Daly and Shawn Snider, Counsel for the Plaintiff Justin Lim, Chad Townsend and Maximir Luburic, Counsel for the Defendants

HEARD: March 25, 2024

Endorsement

[1] The plaintiff Paul Meldazy brings this action in negligence for injuries sustained in an automobile accident on January 18, 2016. The defendants have admitted liability and the trial is proceeding on damages only before a jury. The litigation concerns only the accident with the defendants and there are no third-party claims and no other actions or settlements.

[2] Counsel do not agree on the wording of the questions to be put to the jury. I have appended the plaintiff’s proposed jury questions and the defendants’ proposed questions as Schedules A and B to my endorsement.

[3] Jury questions should be simple and clear. They should not contain compound questions or contain assumptions. They should not nudge the jury towards a particular result: Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, at para. 62.

[4] For the reasons below, the defendants’ proposed jury questions contain embedded assumptions, are overly complicated, and risk causing confusion leading to error. The jury questions will be in the form proposed by the plaintiff.

[5] The defendants propose that a question on causation be put to the jury.

[6] Having admitted liability, the defendants have admitted negligence; meaning, they owed a duty of care to the plaintiff, they breached that duty, and their breach of that duty caused damages to the plaintiff. The defendants have admitted cause, in fact and in law; there is a link between the defendants’ breach and the plaintiff’s harm: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 19.

[7] Having found that the defendants have admitted causation, I find that their first question “Has the Plaintiff proven on a balance of probabilities that the accident of January 18, 2016 caused an injury to the Plaintiff, Paul Meldazy?” is unnecessary, inappropriate and will not be put to the jury.

[8] In oral argument the defendants proposed, as an alternative, that I embed the “but for” causation test in the damages question along the lines of the following: “In what amount has the plaintiff proven damages for the following items that, but for the negligence of the defendant, would not have occurred?”

[9] I find this question confusing and unnecessary.

[10] This is not to say that the defendants are automatically responsible for all of the plaintiff’s difficulties. The question is one of damages. The tort concepts of restoration and responsibility are engaged: Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 20, 24.

[11] Tort law requires the trier of fact to put the plaintiff in the position he was in before the TTC bus accident, and the defendants are only responsible for the harm caused by the TTC bus accident. The question in this trial is what damages the plaintiff suffered as a result of the bus accident.

[12] In Athey, the plaintiff sustained back injuries in two successive motor vehicle accidents, and subsequently experienced a disc herniation during a mild stretching exercise. The herniation was caused by a combination of the injuries sustained in the two motor vehicle accidents and a pre-existing disposition. The court said, at paras. 19-20:

The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm: Fleming, supra, at p. 200. It is sufficient if the defendant’s negligence was a cause of the harm: School Division of Assiniboine South, No. 3 v. Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746 (Man. C.A.), at p. 753, aff’d, [1973] 6 W.W.R. 765 (S.C.C.), [1973] S.C.R. vi; Ken Cooper-Stephenson, Personal Injury Damages in Canada (2nd ed. 1996), at p. 748.

This position is entrenched in our law and there is no reason at present to depart from it. If the law permitted apportionment between tortious causes and non-tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant’s negligence was the sole cause of the injuries. Since most events are the result of a complex set of causes, there will frequently be non-tortious causes contributing to the injury. Defendants could frequently and easily identify non-tortious contributing causes, so plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury. This would be contrary to established principles and the essential purpose of tort law, which is to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant. [Emphasis in original.]

[13] In this case, the defendants’ proposed jury questions ask the jury to quantify the plaintiff’s damages from the date of the TTC bus accident to the date of a subsequent accident on September 5, 2017, and then ask whether the plaintiff suffered ongoing pain or limitations extending beyond September 5, 2017 and if so, to quantify the damages after September 5, 2017 and then apportion them between the TTC bus accident, the September 5, 2017 accident and the July 7, 2021 accident.

[14] As set out in Athey, at paras. 22-23:

Apportionment between tortious causes is expressly permitted by provincial negligence statutes and is consistent with the general principles of tort law. The plaintiff is still fully compensated and is placed in the position he or she would have been in but for the negligence of the defendants. Each defendant remains fully liable to the plaintiff for the injury, since each was a cause of the injury. The legislation simply permits defendants to seek contribution and indemnity from one another, according to the degree of responsibility for the injury....

Apportionment between tortious and non-tortious causes is contrary to the principles of tort law, because the defendant would escape full liability even though he or she caused or contributed to the plaintiff's entire injuries. The plaintiff would not be adequately compensated, since the plaintiff would not be placed in the position he or she would have been in absent the defendant's negligence.

[15] Section 1 of the Negligence Act, R.S.O. 1990, c. N.1, provides:

Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

[16] Section 6 provides that where there is a jury, “the degree of fault or negligence of the respective parties is a question of fact for the jury.”

[17] In this case, there is only one defendant at fault or negligent and therefore there is no apportionment under the Negligence Act.

[18] Where there are distinct and divisible injuries, separating them is not truly apportionment; it is simply making each defendant liable only for the injury they cause. Separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes, because the defendant is not liable for injuries which were not caused by his or her negligence. Where there is a single indivisible injury, division is neither possible nor appropriate. If the plaintiff’s injury and consequences are one injury, then the defendant will be fully liable for it: Athey, at paras. 24-25.

[19] The plaintiff’s position is that the second accident caused only a minor aggravation of his injuries. The defendant’s position is that the TTC bus accident did not cause the injuries claimed by the plaintiff.

[20] The questions as framed by the defendants seek apportionment from the date of the second accident onwards and presume that the plaintiff has suffered divisible injuries. The questions as framed by the defendants lean the jury towards giving weight to the second accident and in this sense, they are not fair and neutral.

[21] It is for the jury to determine whether the plaintiff’s injuries are divisible or indivisible. Jury questions should not contain an embedded assumption: Sacks, at para. 62.

[22] The legal issues to be considered by the jury in assessing damages will be the subject of the jury charge. Breaking down the jury questions in the manner proposed by the defendants is, in effect, asking the jury to explain their causation reasoning process. The defendants have also suggested the jury provide particulars of their findings about the plaintiff’s injuries.

[23] There is a presumption that juries understand and properly apply the trial judge’s instructions and that, in rendering their verdict, they properly consider the evidence and the issues and follow the instructions: Cheung v. Samra, 2022 ONCA 195, 467 D.L.R. (4th) 708 (“Cheung (ONCA)”), at para. 49.

[24] Subsections 108(4), (5) and (6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provide as follows:

(4) Where a proceeding is tried with a jury, the jury shall be composed of six persons…. (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…; and (b) judgment may be entered in accordance with the verdict or the answers to the questions. (6) It is sufficient if five of the jurors agree on the verdict or the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer.

[25] It is within the discretion of the trial judge whether to ask questions that require a jury to particularize its answers and there is no general rule: Cheung (ONCA), at para. 71; Doobay v. Fu, 2020 ONSC 1774, 150 O.R. (3d) 616, at para. 32.

[26] Although it was not an issue on the appeal, in his dissent in Cheung v. Samra, 2020 ONSC 4904 (“Cheung ONSC”), at paras. 198-99, Corbett J. addressed jurors giving reasons:

Section 108 does not authorize the court to require the jury to give reasons for its decision or for any part of its decision. While there is no doubt that the trial judge has broad discretion to determine the questions to be put to the jury, that discretion is bounded by the role of the jury, which is to decide, but not to explain, and it is bounded by the text of s.108.

This boundary is expressed in the terms of s.108(6). It is “sufficient” if five jurors agree on the answer to a question. By necessary implication, it is “not sufficient” if there are not at least five jurors who agree on the answer to a question. This makes it clear that the jury may not be asked questions for which members of the jury may have different answers supporting the verdict they have reached. And this is another way of saying that juries may not be asked to provide reasons for their decisions.

[27] As explained by Corbett J., there are many reasons why a jury should not be asked to give reasons for its answers to questions. Although Corbett J. was addressing jury questions related to causation, many of the same principles apply more generally. Justice Corbett’s reasons for curtailing the practice of requiring juries to provide particulars can be summarized as follows:

(a) Juries do not have to agree on the reasons for the answer to the questions posed to them, only the answer itself; (b) Since the jurors in this trial were told they had to agree on each answer, it follows that the reasons provided may have been the only reasons each juror could agree upon; (c) Asking the jury to explain its reasons for causation impinges on the secrecy of jury deliberations; (d) Asking the jury to give reasons if they find that the negligence of the defendant caused the plaintiff’s injuries but not if they do not make a finding of causation is unfairly asymmetrical; (e) Whether to require an explanation from the jury on its findings of causation should not be discretionary – either all or no defendants should be entitled to know; (f) Criminal juries are not asked to provide reasons despite often having complex questions before them; and (g) The exception set out by the Supreme Court of Canada in ter Neuzen v. Korn, [1995] 3 S.C.R. 674, should be construed narrowly to situations where there are several theories of liability so that the court may know on what basis liability has been found.

[28] Juries are properly instructed that at least five of six of them must agree on each of the answers they provide on the verdict sheet. If members of the jury reach findings by different paths of reasoning, it may be difficult or impossible for them to answer the question with anything other than a conclusion.

[29] Jury deliberations are secret and asking for reasons impinges on that secrecy. If six jurors have six different reasoning paths, they cannot be polled without a detailed examination of each of their reasons. That jurors are unlikely to be able to and should not be expected to articulate their reasons for their decision was articulated by Corbett J. in Cheung (ONSC) as follows, at para. 233 (citing Doobay):

Jurors have no legal training. They bring a different set of skills to the job. In making their decisions, they rely upon their life experience and common sense. If required to give reasons, they may find it difficult to express themselves fluently and coherently. Such difficulty would be compounded in cases where individual jurors reached the same verdicts, but for different reasons. Requiring jurors to give reasons and then parsing those reasons may lead to unnecessary challenges to jury verdicts where the real problem lies in an inability to properly articulate those reasons.

[30] There are advantages of requiring juries to provide particulars, including the ability to test the jury’s understanding of judicial instructions, to ensure that the jury did not disregard the law in favour of an emotional verdict, and to concentrate the juror’s minds: Cheung (ONSC), at para. 232.

[31] This consideration comes from ter Neuzen. The Supreme Court of Canada did not say that juries should generally be required to explain their verdicts or give reasons. As explained by Corbett J. in Cheung (ONSC), the case was one where the evidence established that the physician conformed with the standard practice. It was in that specific context that Sopinka J. said, at para. 53, that requiring the jury to specify how the defendant breached the standard of care,

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.

[32] Juries may be asked, and in some cases should be asked, to give particularized verdicts. For example, where the jury is setting the standard of practice because there is no evidence of a standard practice, and where determining the standard of care does not involve difficult or uncertain questions of medical treatment or complex scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury. Another example would include one where it is open to the jury to find that the standard practice itself is negligent. In such cases, there may be policy reasons to have the jury particularize its verdict.

[33] Asking a jury to explain its reasoning process in determining damages is quite another matter. The assessment of damages is a factual determination; an art, not a science.

[34] A jury is entitled to arrive at its verdict by different paths and it is not necessary for the same five to agree on the answer to each question: Surujdeo v. Melady, 2017 ONCA 41, 410 D.L.R. (4th) 538, at paras. 117-18. Here, there are multiple reasoning paths that could lead to the same assessment of damages. One juror could find that the plaintiff suffered only minor damages as a result of the second accident and no damages as a result of the third accident. Another juror could find that the second accident significantly exacerbated the plaintiff’s injuries for several months or years. A third juror could find that the third accident caused a significant exacerbation. A fourth juror could find that all three accidents caused similar injuries. Some jurors may find the plaintiff’s injuries are primarily psychological, while others find that the physical injuries are more serious. Even so, at least five out of six jurors could still ultimately agree on the same quantum of damages for the TTC bus accident.

[35] There are various ways the members of the jury could approach the issue of sorting out what damages are caused by the accident with the defendants. They could use an approach similar to the one used in Hicks v. Cooper (1973), 1 O.R. (2d) 221 (C.A.), they could simply consider the relative contributions of each accident and incident, or they could use a combination of these two methods as proposed by the defendants.

[36] Asking the jury to answer the questions as posed by the defendants may undermine the integrity of the jury’s verdict more by infelicities of expression than any real concern for the merits of the jury’s decision or reasoning and may stretch the limits of what a jury can reasonably be expected to do: Cheung (ONCA), at para. 71.

[37] It is not appropriate to lift discrete components of the jury charge on the issue of damages and incorporate them into the jury questions: Sean Omar Henry v. Dr. Marshall Zaitlen, 2022 ONSC 318, 78 C.P.C. (8th) 311, at para. 69.

[38] There are better ways to ensure the jury understands than to require it to answer the detailed questions proposed by the defendants, for example, through careful jury instructions. As the Court of Appeal articulated in Sacks, at para. 59, jury instructions work “hand in glove” with the jury questions. A jury is assumed to be capable of rendering a just verdict if properly charged.

[39] The defendants rely on B. (M.) v. 2014052 Ontario Ltd., 2012 ONCA 135, 109 O.R. (3d) 351, at para. 43:

[T]he jury should have been asked to assess the extent, if any, to which the other tortious incidents, i.e., the motor vehicle accident and the assaults by the respondent’s former husband, contributed to the respondent’s current condition. This would require the jury to first determine whether the respondent’s injuries were divisible, i.e., whether the contributions of the other tortious causes could be identified. From there, the jury would be asked to assess the respondent’s original position to determine whether she was suffering from depression or posttraumatic stress caused by one or both of the tortious incidents prior to the sexual assaults. That position would then be compared to her position after the sexual assaults, with the difference in severity between the two being the portion of damages attributable to the defendant: see Hicks.

[40] B. (M.) is about the jury charge not the jury questions.

[41] In Burhoe v. Mohammed, the plaintiff had a workplace injury prior to the subject motor vehicle accident and also had a history of depression and anxiety, back pain and a long drug and alcohol history. He was in two other motor vehicle accidents after the subject accident. The following frequently used questions 1 were put to the jury:

1. Were the Defendants negligent for the motor vehicle accident of December 21, 2001? (YES/NO)
2. If so, please provide the particulars of the said negligence.
3. Regardless of your answers to questions 1 and 2, in what amount do you assess the Plaintiff’s, a. General Damages b. Past Income Loss c. Past Housekeeping Loss d. Future Income Loss e. Future Housekeeping Loss TOTAL

1 See Agha v. Munroe, 2022 ONSC 2508, 23 C.C.L.I. (6th) 118, at para. 33.

[42] Requiring the jury to answer the questions posed by the defendants, and in effect explain their reasoning process, will effectively undermine the role of the jury charge and the assumption that the jury will follow the instructions. It will undermine the presumed integrity of the verdict.

[43] The jury will be asked the usual damages question as set out in the plaintiff’s proposed jury questions in the Schedule to this endorsement.

Released: April 2, 2024 Merritt J.

Schedule A

QUESTIONS FOR THE JURY

1. In what amount do you assess the damages of the Plaintiff, Paul Meldazy, arising from the motor vehicle collision on January 18, 2016, in the following categories: a. General, non-pecuniary damages (pain and suffering, loss of enjoyment of life)? b. Past loss of income to the time of trial? c. Past medical expenses? d. Future loss of income, loss of earning capacity, and loss of competitive advantage? e. Future cost of care and medical expenses? f. Future housekeeping and home maintenance expenses? g. Special damages (out-of-pocket expenses)?

DATE:

Jury Foreperson

Schedule B

Jury questions

1. Has the Plaintiff proven on a balance of probabilities that the accident of January 18, 2016 caused an injury to the Plaintiff, Paul Meldazy? Answer "Yes" or "No"

YES or NO

If your answer was "no" to question 1 then do not proceed to answer the remaining questions.

2. Please state the particulars of the injury caused by the accident on January 18, 2016

Answer:

3. In what amount do you assess the past damages of the Plaintiff, Paul Meldazy, caused by the January 18, 2016 accident up to and including September 5, 2017 a. Past general, non-pecuniary damages (pain and suffering, loss of enjoyment of life) up until September 5, 2016? b. Past loss of income up until September 5, 2016? c. Past cost of care and medical expenses up until September 5, 2016? d. Past housekeeping and home maintenance expenses up until September 5, 2016?

4. Has the Plaintiff proven on a balance of probabilities that the accident of January 18, 2016 caused ongoing pain or limitations extending beyond September 5, 2017? Answer "Yes" or "No"

YES or NO

If your answer was "no" to question 4 then do not proceed to answer the remaining questions.

5. In what amount do you assess the damages of the Plaintiff, Paul Meldazy, globally from the accidents of January 18, 2016, September 6, 2017 and July 7, 2021 from September 6, 2017 and ongoing. e. General, non-pecuniary damages (pain and suffering, loss of enjoyment of life)? f. Past loss of income to the time of trial? g. Past cost of care and medical expenses? h. Past housekeeping and home maintenance expenses? i. Future loss of income, loss of earning capacity, and loss of competitive advantage? j. Future cost of care and medical expenses? k. Future housekeeping and home maintenance expenses?

6. Please express in percentages the apportionment of the Plaintiff's damages from the three motor vehicle accidents from September 6, 2017 and ongoing (the total percentage must equal 100%).

DATE:

1. January 18, 2016 accident
2. September 6, 2017 accident
3. July 7, 2021 accident Total 100%

Jury Foreperson