Mid-Trial Ruling Re: Jury Questions

Court File No.: CV 16-00001984-0000
Date: 2025-04-25
Ontario Superior Court of Justice
Between:
David Fedoriuk, Plaintiff
and
Tracey Howard, Yvonne Bauer and Leamington District Memorial Hospital, Defendants

Before: Justice Spencer Nicholson
Counsel:
Joni Dobson and Danielle Ramsay for the Plaintiff
Deborah Berlach and Landan Peleikis for the Defendants
Heard: 2025-04-04

Introduction

[1] In this medical negligence trial the plaintiff, David Fedoriuk, sues two emergency room nurses, Tracey Howard and Yvonne Bauer, as well as the Leamington District Memorial Hospital. The trial is being conducted with a jury and is ongoing.

[2] This decision deals with two issues:

• Issue 1: The form of the jury questions on causation;
• Issue 2: Whether the jury should be asked to give brief reasons/particulars for their verdict on causation.

Both parties agree that there should be reasons given for any findings of breach of the standard of care, subject to my discretion.

[3] The brief recitation of facts are mine. It will be for the jury to find the facts in this case. Most, but not all, of the evidence has been called at this juncture.

Background Facts

[4] Emergency rooms in Canada have developed and relied upon the Canadian Emergency Department Triage and Acuity Scale (CTAS) to assign priority to patients that attend in emergency rooms based on the urgency of their condition. CTAS 1 is the most urgent and addresses conditions that are threats to life or limb that require immediate aggressive intervention to save life or limb. CTAS 2 is assigned for those conditions that are a potential threat to life, limb or function and require rapid medical intervention. CTAS 3 is assigned for conditions that could potentially progress to a serious problem requiring emergency intervention. These conditions are associated with significant discomfort or affecting ability to function at work or with activities of daily living.

[5] Each CTAS level has time frames for which the patient is to be assessed by the emergency room physician and for re-assessment by a triage nurse in the event the patient remains in the waiting room. The jury has heard evidence that these times are aspirational and depend largely on what other cases may be presenting within the emergency room at the time the patient attends.

[6] Mr. Fedoriuk, then 21 years old, attended the emergency room on August 14, 2014 with complaints of tinnitus in the left ear and that the entire left side of his body went numb. He was seen by Triage Nurse Howard at 13:02, and she assigned him CTAS Level 3. Mr. Fedoriuk was told to wait in the waiting area. At 14:22, Nurse Bauer noted that Mr. Fedoriuk was seated in the waiting area in “no distress and on his phone”. That constituted her “re-assessment” and Mr. Fedoriuk was not taken back into the Triage area as per the guidelines to be re-assessed.

[7] Mr. Fedoriuk left the waiting room without being seen at approximately 15:20. He walked the short distance home and then went to a friend’s house. Approximately 30 minutes later, Mr. Fedoriuk collapsed. An ambulance was called, arriving at 15:54.

[8] Mr. Fedoriuk was transported from Leamington to Windsor Regional Hospital. Enroute his vital signs deteriorated significantly, including his Glasgow Coma Scale, a measure of patient level of consciousness. He arrived at Windsor Regional Hospital at approximately 17:10. A CT scan confirmed a large right intracerebral hemorrhage. Mr. Fedoriuk had emergency brain surgery at approximately 18:10.

[9] The evidence indicates that Mr. Fedoriuk suffered a ruptured aneurysm and then a re-ruptured aneurysm. It is believed that he had already suffered an aneurysm by the time that he had been assessed by Triage Nurse Howard. He then suffered a re-rupture at approximately 15:50.

[10] Mr. Fedoriuk has been left with significant physical and cognitive impairment. He has left hemiparesis. He has left sided loss of vision. His left hand is fisted, and he has loss of dexterity. Cognitively, he struggles with executive functioning and disinhibition.

Theories of the Case

[11] The jury will be asked to determine whether the nurses met the standard of care in assigning him the CTAS score and their subsequent treatment, or lack of treatment of him, in the emergency room. The jury will also be asked to determine whether their acts or omissions “caused” Mr. Fedoriuk’s injuries.

[12] The plaintiff’s theory of the case is that Mr. Fedoriuk should have been assigned as CTAS 2, which would have resulted in him being assessed earlier by the emergency room physician. He argues that this would have resulted in an earlier detection of the hemorrhaging and earlier intervention which would have improved his outcome. It is not the plaintiff’s position that no injury would have occurred.

[13] The defendants argue that they did not breach the appropriate standard of care, but if they did, Mr. Fedoriuk’s condition was not caused by their negligence.

[14] Both parties agree with the form of the question regarding whether each defendant breached the standard of care. Citing ter Neuzen v. Korn, [1995] 3 S.C.R. 674, both parties are content that the jury be asked to give particulars with respect to how each defendant breached the standard of care if a breach is found.

[15] As noted, the dispute is with respect to the form of the jury questions on causation and whether the jury should be required to give reasons/particulars should causation be found. From reviewing the caselaw it appears that both of these issues are commonly argued by plaintiff and defense in medical negligence cases, with plaintiffs predictably arguing for “caused or contributed to” language and no particulars on causation given by the jury, and the defendant seeking “but for” language and requesting particulars.

Issue 1: The Form of the Jury Questions on Causation

[16] After asking the questions regarding whether the defendants have breached the applicable standard of care, and if so, how, the plaintiff proposes the following question on causation:

If your answer to question [*] is “yes”, has the plaintiff satisfied you on a balance of probabilities that the breach of standard of care by [the defendant] caused or contributed to the Plaintiff’s injuries?

[17] The defendants propose the following question on causation, after the jury deals with standard of care, and gives reasons for their finding on standard of care:

If your answer to question [*] is “yes”, has the plaintiff proven, on a balance of probabilities, that but for the breach of the standard of care, the injuries of the plaintiff would not have occurred?

[18] Both parties agree that the “but for” test applies and that this case does not call upon the exceptional application of the “material contribution to the risk test”. Thus, it is agreed that the plaintiff must prove on a balance of probabilities that “but for” the defendant’s negligent act or omission, the injury would not have occurred (see: Clements v. Clements, 2012 SCC 32).

[19] The plaintiff argues that as long as the defendant is part of the cause of an injury, the defendant is liable even though that defendant’s act alone was not enough to create the injury (see: Athey v. Leonati, [1996] 3 S.C.R. 458). The defendants agree that under the “but for” test, a defendant will be liable for all injuries caused or contributed to, by his or her negligence, even if other non-tortious causes are present.

[20] The plaintiff characterizes the case at bar to be a delayed diagnosis case, which he argues are the best examples of the situations contemplated in Athey where a defendant’s negligent conduct will never be the sole factual cause of the injury. It is argued that the focus is not on what the defendants did, but what they failed to do, and whether the plaintiff’s ultimate injury is caused by the disease process alone or in combination with a defendant’s breach of the standard of care. They point out that where there are multiple defendants, “cause or contributed to” has been preferred.

[21] The defendants argue that this is really a loss of chance case. In their submission, the “but for” language should be used because although there are multiple defendants, they are not pointing the finger at each other, this action is not particularly complex to warrant departure from the “but for” language, and the use of “caused or contribute to” would inevitably confuse the jury.

Causation and Damages: Legal Principles

[22] I pause to note that causation in the case before me must be separated from the issue of assessing damages. The Ontario Court of Appeal, in Donleavy v. Ultramar Ltd., 2019 ONCA 687, at para. 70, quoted from Professor Knutsen in “Coping with Complex Causation Information in Personal Injury Cases” (2013), 41:2 and 3 Adv.Q. 149, at pp. 153-154:

Nothing in the Clements case’s approach to the material contribution test alters traditional damages and contribution doctrinal analyses whereby multiple tortfeasor defendants may be partially responsible for some of a plaintiff’s injury, but not all of it (i.e. divisible and indivisible injuries) after they have been proven to be a cause of some of the plaintiff’s harm. The Clements analysis concentrates entirely on the causation threshold question—did the defendants cause the plaintiff’s injury, yes or no. It does not target the “how much” question. That is a damages question, not causation, and left for later on in the negligence analysis (along with joint and several liability issues about responsibility to pay for the harm).

In nearly all instances [of an indivisible injury involving multiple tortfeasors], it will be possible for the plaintiff to apply the “but for” test in proving that the target tortfeasors’ negligent conduct was a cause of some of the global total harm. If the question is about “how much” of that harm each target tortfeasor is responsible for, that is not a causation question but one of extent and damages, dealt with later in the negligence analysis. The fact that the injury is indivisible does not affect the workability of the causation test.

[23] The Court in Donleavy, at para. 71, then quoted McLachlin C.J. in Blackwater v. Plint, 2005 SCC 58, at para. 78, as follows:

[78] It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been.

[24] Loss of chance was dealt with in Cottrelle v. Gerrard, where Sharpe J.A. described, at para. 25, that in an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. If, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. Where the evidence only shows that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome, the claim has not been proven unless that chance surpasses the threshold of “more likely than not”.

[25] In Beldycki Estate v. Jairpargas, 2012 ONCA 537, the issue was the misdiagnosis that a tumour had been completely removed. As a result of that misdiagnosis, no post-operative surgery was scheduled. The plaintiff died as a result of the cancer spreading. Watt J.A. described as follows at para. 44:

[44] Third, in an action for delayed medical diagnosis and treatment, a plaintiff must establish on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. A plaintiff who fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment will fail to establish his or her claim. It is not enough for a plaintiff to prove that adequate diagnosis and treatment would have afforded the plaintiff a chance of avoiding the unfavourable outcome unless the chance surpasses the threshold of “more likely than not”: Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.), at para. 25; see also Laferriere v. Lawson, [1991] 1 S.C.R. 541.

[26] Thus, where the issue of causation relates to delayed medical diagnosis and treatment, the “but for” test requires the plaintiff to prove on a balance of probabilities that the delay “caused or contributed to the unfavourable outcome” (see also: White v. St. Joseph’s Hospital, 2019 ONCA 312, at para. 25, and Salter v. Hirst, 2011 ONCA 609, at para. 14). Cottrelle provides that a mere loss of chance of a better outcome is not a sufficient basis upon which to find causation. However, causation is made out under the “but for” test if a defendant’s breach of the standard of care caused the whole of the plaintiff’s injury, “or contributed, in some not insubstantial or immaterial way to the injury that the plaintiff sustained” (see: Donleavy, supra, at para. 71).

Jury Questions on Causation: Case Law Review

[27] In terms of jury questions on causation, the plaintiff relies upon Sacks v. Ross, 2017 ONCA 773, where the plaintiff suffered serious complications after routine bowel surgery. As a result of a leak that occurred post-surgery, bowel contents were spilled into Mr. Sacks’ abdominal cavity. Mr. Sacks developed an infection and was in septic shock before treatment could be commenced. He was in a coma for weeks and ultimately required amputation of both legs and all of his fingertips. It was alleged that the defendants failed to discover the leak in a timely fashion.

[28] Lauwers J.A. described that the appeal concerned the “proper test for causation in delayed diagnosis medical negligence cases involving multiple tortfeasors.” He then quoted from Clements, supra, para. 8, as follows:

[8] 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 negligent 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 by McLachlin C.J.]

[29] At paragraph 46 of Sacks, Lauwers J.A. distinguished between cases where the complaint is about something the defendant did and cases about something that the defendant failed to do in breach of the standard of care. Lauwers J.A. described that in the case of an omission, the trier of fact is required to attend to the fact situation as it existed in reality the moment before the defendant’s breach of the standard of care, and then to imagine that the defendant took the action the standard of care obliged her to take, in order to determine whether her doing so would have prevented or reduced the injury.

[30] Accordingly, in Mr. Fedoriuk’s case, the jury will have to proceed with the following analysis:

1. First, the jury will have to determine what likely happened in actuality;
2. Second, the jury will have to consider what would likely have happened had the defendant not breached the standard of care:
   • a. If the jury draws the inference from the evidence that the plaintiff would likely have suffered the same injury in any event, regardless of what the defendant did in breach of the standard of care, then the defendant did not cause the injury; or
   • b. If the jury infers that the plaintiff would not likely have been injured without the defendant’s breach of the standard of care, then the “but for” test for causation is satisfied.

(see also: Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586)

[31] In the second part of this analysis, the jury will have to engage in a counterfactual exercise in which it attempts to isolate the defendant’s omissions to determine if the injury would have occurred had the defendant met the appropriate standard of care. If, in so doing, the jury concludes that Mr. Fedoriuk would still have suffered the same injury, then the defendant is not a “but for” cause of his injury. On the other hand, if some injury would not have occurred in the absence of the defendant’s conduct, the defendant is a “but for” cause of Mr. Fedoriuk’s injury.

[32] Lauwers J.A. also distinguished between cases involving one defendant and multiple negligent parties. He notes that delayed diagnosis medical negligent cases involving multiple tortfeasors typically raise several complexities in determining causation and are among the most complex to assess from the perspective of causation.

[33] In Sacks, the trial judge (Wilson J. as she then was), used jury questions that incorporated the “but for” language espoused by the defendants in the case before me. Lauwers J.A. was of the view that the “caused or contributed to” language proposed by the plaintiff was more appropriate in that case. It was his opinion that the latter formulation was more “jury-accessible”.

[34] I have considered Surujdeo v. Melady, 2017 ONCA 41, which slightly pre-dates Sacks. In that case, the plaintiff was taken by ambulance to hospital after becoming quite sick and died the next day of myocarditis. An issue was whether the defendants actively sought out the results of two laboratory tests. From a causation perspective, the issue was whether there was anything that could have been done in any event even had the results been obtained in a timely fashion.

[35] The trial judge was held to have used incorrect language in the questions put to the jury. The question was framed as follows:

Has the plaintiff established on a balance of probabilities that [the doctor’s] breach of the standard of care was a cause of [the plaintiff’s death]?

[36] The Court of Appeal agreed with the appellant that the language did not adequately convey the “but for” test. Interestingly, Brown J.A. held that the appropriate language was that used by Wilson J. (as she then was) in Sacks v. Ross prior to that appeal being allowed. Although Brown J.A. endorsed Wilson J.’s approach in Sacks, I do not take his decision as holding that “caused or contributed to” is inappropriate, but rather that the trial judge in Surujdeo failed to properly convey the “but for” test by simply using the word “cause”.

[37] Wilson J., again as a trial judge prior to her elevation, re-visited the issue of jury questions on causation in Cheung v. Samra, 2018 ONSC 3480. She again opted to employ the “but for” language in that case.

[38] Cole Parliament v. D.W. Conley and V. Park, 2019 ONSC 3996, was an action to recover damages for the plaintiff’s brain injury as against the defendant physicians. Delay in diagnosis/treatment was the central allegation. Woodley J. followed Sacks and utilized the “caused or contributed” formulation of the jury questions given that her case involved delayed diagnosis/treatment and involved more than one tortfeasor.

[39] Cheesman et al v. Credit Valley Hospital et al, 2019 ONSC 4996, also adopted the “caused or contributed to” formulation of the jury question on causation. In the case before him, there were four doctors and several nurses that comprised the defendants. By the time of trial, the plaintiff had settled with the nurses and defendant hospital and entered into a Pierringer Agreement. Koehnen J. referred to the circular causation problem (which was also referenced by Lauwers J.A. in Sacks), where three tortfeasors lean on a car parked on a cliff’s edge. Their combined weight causes the car to slide over the cliff. No one person’s weight was sufficient to cause the vehicle to fall, but the weight of two people was enough to do so.

[40] In Cheesman, the defendants were pointing the finger at each other. Relying on Sacks for the proposition that the “cause or contribute” question is no different than the “but for” test, but is simply phrased more clearly when dealing with multiple defendants in a delayed treatment case, Koehnen J. adopted the “cause or contributed to” language in the jury question. Notably, he distinguished Cheung on the basis that it involved two doctors who did not crossclaim against each other and who provided distinct care at different times and in different circumstances.

[41] I have considered Uribe v. Tsandelis, 2019 ONSC 6242, a decision of Turnbull J. In that case, the minor plaintiff suffered permanent and severe brain damage at birth. By the time of trial, the only remaining defendant was Dr. Tsandelis, the attending obstetrician. The other defendants had settled with the plaintiff via a Pierringer Agreement. There was a crossclaim as between the settled defendants and Dr. Tsandelis.

[42] Turnbull J. found that the “but for” phrasing of the causation question was more appropriate in Uribe. He did so after reviewing both Sacks and Surujdeo. It was his view that the jury’s analysis with respect to causation and Dr. Tsandelis was distinct from their analysis regarding causation and the settled defendants. Importantly, there was a question about apportioning liability that was to be put to the jury.

[43] In Doobay (Litigation Guardian of) v. Fu, 2020 ONSC 1774, S.T. Bale J. dealt with a case that involved a stroke and the alleged failure of the defendant doctor and defendant nurse to recognize that the plaintiff could be treated by a specific type of therapy. The plaintiff suffered severe and permanent brain injury. Bale J. reviewed both Sacks v. Ross, as well as Surujdeo v. Melady. He also reviewed and distinguished several other cases where “but for” language was used, such as Cheung, supra and Uribe, supra. Bale J. opted for “cause or contributed to” language in his jury questions.

[44] This issue was also addressed by Sanfilippo J. in Henry v. Zaitlen, 2022 ONSC 318. That case involved a delayed diagnosis and treatment of the plaintiff’s spinal cord condition. After considering many of the cases that I have reviewed, Sanfilippo J. was of the view that the appellate authorities did not mandate 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. In the case before him, there was only one defendant, Dr. Zaitlen.

[45] In Vartanian v. McDowell, 2024 ONSC 5821, Chang J. used the “but for” language in the jury questions on causation. The case before Chang J. involved the delayed diagnosis of a cancerous lump in the plaintiff’s breast. The defendants were three physicians. However, there was no overlap in the different tasks that each of the defendants performed at different points in time between 2014 and 2017.

[46] The takeaway from these cases is that jury questions should be framed in a manner that will be as clear as possible in assisting the jury in answering them. The questions should be tailored to the particular factual matrix before the court.

Application to the Present Case

[47] In the case at bar, the alleged breach of the standard of care of Nurse Howard is that she incorrectly assigned a CTAS 3 designation to Mr. Fedoriuk after she assessed him during triage. It is then argued that had Mr. Fedoriuk been properly triaged, he would have been assigned CTAS 2, would have seen the emergency room physician sooner, had a CT scan sooner which would have demonstrated the aneurysm earlier, which would have led to earlier brain surgery, preventing some of the damage to his brain. That lengthy chain of events that it is argued would have occurred is alleged to have begun with the negligence of Nurse Howard.

[48] Nurse Bauer’s negligence, if any, is alleged to have occurred later. She is alleged to have failed to conduct the re-assessment in a timely fashion, regardless of whether the CTAS level was assessed at CTAS 2 or CTAS 3. She is also alleged to have conducted the re-assessment improperly, since she only observed Mr. Fedoriuk from across the waiting room and did not actually engage with him. Since her alleged negligence occurred at a different time, she is in a different position as to whether or not had she done so promptly and properly, it more likely than not would have prevented at least some of Mr. Fedoriuk’s injury.

[49] Accordingly, this case is dissimilar in some respects to Sacks. In Sacks, the concern was that there were multiple tortfeasors, none of whose negligence might have been “necessary” on its own to have caused the plaintiff’s injury and thus, the cumulative impact of their negligence might not be remedied. Sacks involved multiple defendants who were involved in the care of the plaintiff at different times over the course of days, and in different respects. There were different allegations of negligence made against each of them.

[50] Here, the negligence of the two nurses is better thought of as sequential as opposed to cumulative. That is to say, Nurse Howard’s alleged negligence happened first in time, with Nurse Bauer’s alleged negligence occurring later in time. This is not a case where the “circular causation” problem will likely arise. This case is not nearly as factually causally complex as Sacks.

[51] I reject, however, the argument by defense counsel that because there is no crossclaim and because the nurses are represented by the same counsel with a single payer, that this is not a case of multiple tortfeasors. The jury is still being asked to treat the tortfeasors separately. However, it is true that the jury will not be asked to apportion liability as between them. The defendants are not pointing the finger at each other.

[52] Additionally, this is a case that has the added complexity of involving both a non-tortious cause and an alleged tortious cause. The evidence in this case is that Mr. Fedoriuk suffered an initial rupture that had either already occurred prior to attending in ER, or could not have been prevented by the time that he did arrive. At best, this is a case in which had the nurses acted as the plaintiff argues they should have, Mr. Fedoriuk’s injuries could or would have been minimized to some extent.

[53] The evidence on damages has now been adduced. The plaintiff takes the position that his physical injuries should be attributed to the initial aneurysm, which no act or omission by the defendants could have prevented, but that his cognitive impairment is attributable to the delay in diagnosis/treatment. It is proposed that the jury will address that differentiation in its assessment of the plaintiff’s damages. Thus, the plaintiff presents this case as one of divisible injuries.

[54] On the other hand, the defendants argue that the injuries are not so easily divisible and that this case is about the continuation of the same injury—the initial aneurysm.

[55] It will be for the jury to decide on the evidence whether the injuries are divisible or indivisible.

[56] As noted, the jury questions have to be considered in light of the jury instructions that I will provide to the jury. I intend to provide a written copy of my instructions to the jury to have in the jury deliberation room. It is clear that the jury instructions will have to do some heavy lifting given the complexities of causation. The “but for” test will be front and centre of those instructions, although the jury will be advised that the defendant’s negligence need not be the sole cause of the injuries. The charge will also include “cause or contribute to” language prominently.

[57] In the circumstances of this case, I do not feel it necessary to depart from the Clements formulation of the “but for” test in the jury questions on causation. It is my view that there is a risk of using the words “contribute to” that the jury will unwittingly stray into material contribution to the risk analysis where that exceptional causation analysis is uncalled for. This case is not on all fours with Sacks factually and the risk of circular causation is not likely to come to fruition.

[58] Accordingly, the defendants’ formulation of the causation question will be used in this case.

Issue 2: Whether the Jury Should Be Asked to Give Reasons/Particulars

[59] Cheung v. Samra, 2022 ONCA 195, is an important decision in this analysis. Following a difficult birth, the plaintiff suffered a seizure at two and a half months old and suffered serious impairments. A jury found that the defendant doctors had failed to meet the standard of care and that this caused the plaintiff’s injuries. The jury was asked to provide “reasons” for finding that causation was met. Their “reasons” were brief and not helpful. As noted earlier, the jury trial was conducted by Wilson J. (as she then was). She refused to enter judgment in accordance with the jury verdict on the basis that the particulars of causation given by the jury were insufficient. She ordered a new trial.

[60] The case was appealed to the Divisional Court (2020 ONSC 4904). Corbett J.’s dissent has garnered much attention. It was his view that the jury should not have been asked to provide “reasons” at all. In doing so, he considered the Courts of Justice Act, specifically s. 108(6), which provides that “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”. He noted that while all of the jurors found the plaintiff had established causation, each could have arrived at that conclusion by different paths. Thus, the stated “reasons” in response to the jury question may only have represented the reasoning path that at least five jurors endorsed. This would be a misrepresentation of what the jury had done.

[61] Among his reasons, Corbett J. also noted that asking a jury for reasons for its conclusion on causation infringes on the secrecy of jury deliberations. Further, he noted that giving “reasons” is one-sided. The jury is only asked to explain their decision on causation if they accept the plaintiff’s position, but not if they accept the defense position.

[62] Corbett J. also distinguished between the requirement to provide reasons in medical negligence cases as developed in ter Neuzen compared to other contexts. One benefit of the ter Neuzen approach is that it permits medical professionals to adhere to standards of care in future cases. The same benefit does not follow from the jury providing reasons on the issue of causation.

[63] The Court of Appeal allowed the appeal from the Divisional Court’s decision to uphold the trial judge’s order for a new trial. Accordingly, the Court of Appeal reinstituted the jury verdict in favour of the plaintiffs. The Court of Appeal noted the presumption that juries understand and follow jury instructions (at para. 49). The Court of Appeal also noted that jurors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary (at para. 67).

[64] The Court of Appeal makes it clear in Cheung that whether or not to put specific questions to a jury is a matter for the exercise of discretion of the trial judge in each case. In Cheung, the court noted that since there were multiple reasoning paths that could lead to a finding of causation, asking for particulars may undermine the integrity of the jury verdict.

[65] Finally, I note that should a jury provide particulars, any explanation provided by the jury for its conclusions must “be given the fullest possible effect and supported, if possible, by any reasonable construction” (see: Cheung at para 50 and Henry v. Zaitlen, 2024 ONCA 243, at para. 44).

[66] I reiterate that in Doobay, supra, Bale J. did not require the jury to answer questions regarding particulars of causation. Similarly, Woodley J. did not require particulars in Cole Parliament with respect to causation.

[67] I have considered Sanfilippo J.’s analysis on this issue in Henry v. Zaitlen, 2022 ONSC 318, where he concluded that the jury should provide “reasons” on both standard of care and causation in the case before him. However, it appears that Sanfilippo J. felt the weight of appellate authority favoured the jury providing reasons on the issue of causation. His decision predates the Ontario Court of Appeal decision in Cheung.

[68] Chang J.’s decision in Vartanian does not refer to Cheung. That is not to say that he was not within his discretion to require the jury to answer questions.

[69] Schreck J. provided a thorough analysis on this issue in Poonwasee v. Plaza, 2018 ONSC 3797, which was not a medical negligence case, but a motor vehicle accident case. He considered some medical negligence decisions, including ter Neuzen v. Korn, and Wilson J.’s decision in Sacks v. Ross, 2015 ONSC 7238, in which she held that reasons for both standard of care and causation should be requested from the jury.

[70] Schreck J. concluded that there were both advantages and disadvantages to requesting the jury to provide particulars. The advantages included 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 jurors’ minds. He noted that the disadvantages included that doing so fails to account for the possibility that the jurors may not agree on the reasons for their unanimous decision and that it risks revealing the substance of the jury’s deliberations. He also was concerned that the jury may become distracted from their main task of determining liability and damages if they had to articulate particulars.

[71] Finally, I have considered Uribe v. Tsandelis, 2021 ONCA 377. Recall that Turnbull J. had used the “but for” form of the question. The jury was of the view that the plaintiff had satisfied the “but for” test on causation (which gives me some confidence that “but for” language is understandable for juries). However, the “reasons” provided by the jury once again caused an issue that the Court of Appeal ultimately determined against the appealing defendant physician.

[72] I disagree with asking the jury to give “reasons/particulars” with respect to causation in this case. The disadvantages outweigh the advantages. Importantly, the jury has a very difficult job to complete in order to arrive at a verdict. Judges with extensive legal training and experience struggle to articulate findings on causation. Asking six laypersons to explain their findings on such a complicated area of law as causation, simply invites more confusion, not clarity, especially given that they may all come to the same conclusion on causation but by using different paths. A failure of articulation could potentially lead to an invalidation of a very thoughtful jury verdict.

[73] For those reasons, I decline to require the jury to give “reasons/particulars” on the issue of causation.

Justice Spencer Nicholson
Date: April 25, 2025