Endorsement
Court File No.: CV-14-502664
Date: 2025-03-31
Ontario Superior Court of Justice
Re: Sabrina Maher, Plaintiff/Moving Party
-and-
Marija Kiric, John Doe and the Superintendent or Financial Services, Defendants/Responding Party
Before: Lorne Brownstone
Counsel:
Sylvia Guirguis and Lazar Andjelkovic, for the Plaintiff/Moving Party
R.K. McCartney and Jake Franchi, for the Defendant Marija Kiric/Responding Party
Heard: 2025-03-26
Introduction
[1] The parties disagree on two issues related to the jury questions.
[2] First, should the jury be asked to provide particulars for its answers? The defendant says it should; the plaintiff disagrees.
[3] Second, what should the language be in the causation and damages questions? The parties use various language in their draft question: “resulting from”, “due to”, “caused by”, or “caused or contributed to by”.
Particulars
[4] Whether to ask the jury to provide particulars is in the discretion of the trial judge: Cheung v. Samra, 2022 ONCA 195 at para. 71 (leave to appeal denied).
[5] There is a presumption that juries understand and properly apply the trial judge’s instructions, and that their answers result from a proper consideration of the evidence, the issues, and the legal instructions: Cheung at para. 49. The instructions work “hand in glove” with the questions: Sacks v. Ross, 2017 ONCA 773, at para. 59.
[6] The advantages and disadvantages to providing particulars are well summarized by Shrek J. in Poonwasee v. Plaza, 2018 ONSC 3797 at paras. 25-26. The advantages are “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 or to concentrate the jurors’ minds” (references omitted).
[7] The disadvantages are that where there are multiple reasoning paths that could lead to a finding, asking for particulars may undermine the integrity of a 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 give by way of reasons”: Cheung at para 71. The jurors may reach findings, for example, about causation, by different paths of reasoning. There is also a risk of revealing the substance of their deliberations, and the jurors may become distracted from their main task of determining liability and damages: Poonwasee at para. 26.
[8] It has been noted that requesting the jury to provide particulars of reasons for finding negligence is generally limited to complex cases such as medical malpractice cases. There may be standard of care issues that lend themselves to requiring particulars: Desmond v. Hanna, 2023 ONSC 4103 at para. 6.
[9] The defendant submitted that particulars may be helpful in any appeal the parties may wish to bring. He submits that there were no witnesses to the accident, so the jury’s findings on how the accident occurred are of particular interest. Because there is no request that each juror reveal its particular reasoning, there should be no concern about violating juror secrecy.
[10] These concerns would apply to most jury cases. The instructions, which will work “hand in glove” with the questions, will clearly advise the jury of the principles it is to apply. The jury should focus on applying those principles, and on reaching consensus in the answers to the questions that flow from applying the proper principles. As in Poonwasee, the jurors may not agree on all of the specifics of the accident or the injuries. Requiring particulars may reveal these disagreements, entrenching on jury deliberation. I do not see anything particular in this case that would require a testing of the instructions to be provided to the jury (Poonwasee paras. 23-24).
[11] In this case, therefore, I find that the disadvantages to requiring particulars outweigh the advantages, and particulars will not be sought.
The Language of the Jury Questions
[12] There is not much difference between the parties’ questions on causation and the accident. The defendant proposes to ask:
Was there any negligent action(s) or failure(s) to act by the Defendant, Marija Kiric which caused or contributed to the accident of Monday, October 28, 2013?
The plaintiff proposes:
Was Ms. Kiric negligent in operating her motor vehicle on October 28, 2013?
If your answer to question one is "yes", did Ms. Kiric's negligent operation of her motor vehicle cause, in whole or in part, the accident of October 28, 2013?
[13] In my view, given that the two proposed questions have the same meaning, the focus should be on clarity and ease of understanding by the jurors. Given that the parties are almost agreed on the language of these questions, I will hew closely to their language.
[14] The question shall be posed as follows:
[15] Was there negligence on the part of the defendant, Marija Kiric, that caused or contributed to the accident of October 28, 2013?
[16] With respect to the damages questions, the defendant’s draft questions use the phrase “as a result of” (Qs 5, 6, 7, 8,) or “cause” (Q 9). For example:
- Did the Plaintiff, Sabrina Maher sustain any injury(ies) as a result of the accident of Monday, October 28, 2013?
- At what amount do you assess the general damages for the injury(ies) suffered by Sabrina Maher as a result of the accident of Monday, October 28, 2013?
- Did the accident of Monday, October 28, 2013 cause the Plaintiff, Sabrina Maher to require any care in the future?
[17] The plaintiff’s proposed questions use the language of “due to” (Q 3) or “cause or contribute to” (Qs 4, 6, 8, 10). For example:
- In what amount, if any, do you assess Ms. Maher's damages for her pain and suffering and/or loss of enjoyment of life due to the motor vehicle accident?
- Did the motor vehicle accident cause or contribute to Ms. Maher suffering a past loss of income up to the date of trial?
[18] There is little difference between some of the parties’ proposed language – the defendant uses “as a result of”, and the plaintiff uses “due to” in the general damages questions. The plaintiff argues strongly for the use of “cause or contribute to” language, relying on Iannarella v. Corbett et al., 2012 ONSC 2253, at para 44; Osmani v. State Farm, 2023 ONSC 5438, at para 4; Ali v. Irfan, 2024 ONCA 758, at para 2; and Barry v. Anantharajah, 2024 ONSC 1267. Other instructions use different language: for example, see Desmond, Cheung.
[19] In my view, there is advantage to be gained by consistency for the jury. I will instruct the jury on the legal test for causation, and on the specific principles and considerations that apply in this case. Counsel will have the opportunity to make submissions on a draft version of the charge. The legal complexities of causation are not amenable to simplification to a word in a jury question. As noted by the Court of Appeal and referred to above, the jury question must work together with the fuller explanation provided in the charge. I am of the view that clarity can best be achieved by consistently using the language of causation, and properly and clearly explaining to the jury all of the considerations that go into determining what “cause” means.
Disposition
[20] The jury will not be asked to provide particulars or reasons for its verdict.
[21] The relevant jury questions will be phrased as follows:
Was there negligence on the part of the defendant, Marija Kiric, that caused or contributed to the accident of October 28, 2013?
In what amount, if any, do you assess Ms. Maher's damages for her pain and suffering and/or loss of enjoyment of life caused by the motor vehicle accident.
[22] The same language (“caused by”) shall be used for all of the damages questions.
Lorne Brownstone
Date: 2025-03-31