Ontario Superior Court of Justice

Court File No.: CV-17-00003274-0000
Date: 2025-06-26

BETWEEN:
Andrew Sanayhie, Plaintiff
– and –
Durham Regional Police Services Board, Jonathan Hood and Kashif Polani, Defendants

Appearances:
Barry Evans and Kevin Mitchell-Gill, for the Plaintiff
Shannon M. Gaudet and Zahra Vaid, for the Defendants

Heard: March 26 and 27, 2025

REASONS FOR DECISION RE: JURY VERDICT
M. McKelvey

Introduction

[1] This action was commenced by the plaintiff, Andrew Sanayhie, against the Durham Regional Police Services Board and Constables Jonathan Hood and Kashif Polani. The plaintiff alleged he was wrongfully arrested after he failed to leave a Tim Horton’s restaurant in the early morning hours of December 22, 2015. The plaintiff also alleged that the officers used excessive force in removing him from the store and that he was subsequently maliciously prosecuted by Constable Hood when he was criminally charged with assault with intent to resist arrest and assault causing bodily harm.

[2] The action was tried by a jury in January, 2025.

[3] A dispute has arisen with respect to the jury verdict in this case. In the jury’s original verdict, it dismissed the plaintiff’s claim that he was wrongfully arrested and that the officers used excessive force in removing him from the restaurant. The jury assessed damages under these headings at zero. The original verdict also found that the charges against the plaintiff were not laid with an improper motive or malice. However, the jury then proceeded to quantify $55,000 in damages for malicious prosecution, $3,390 for actual legal expenses in defending the criminal charges and punitive damages of $5,000. In the instructions given to the jury, they had been told to enter zero for damages if they found there was no liability. However, in the written jury questions, the jury was told to assess damages without regard to their findings on liability.

[4] Following receipt of the initial verdict, the jury was then excused and the issue was addressed with counsel. Following that discussion, the jury was brought back and advised of an inconsistency in their verdict. The jury was sent out to reconsider the matter. The jury subsequently returned with a verdict finding that there was malice in laying the charges against the plaintiff and once again awarded damages as per its original verdict.

[5] The defence has brought a motion seeking judgment in favour of the defendants and dismissing the entire action in accordance with the jury’s original verdict. In the alternative, the defendants seek an order granting partial judgment on the claims for wrongful arrest and excessive use of force and declaring a mistrial on the claim for malicious prosecution.

[6] The plaintiff has brought a cross-motion for judgment in the sum of $63,900 together with interest and costs in accordance with the jury’s second verdict.

Factual Background

[7] The jury instructions were canvassed in advance with both counsel for the plaintiff and the defendants. As part of the jury instructions, the jury was instructed as to how the jury questions should be completed. With respect to the question of damages, the jury was instructed as follows:

[161] With respect to Section D of the jury questions, this asks you to insert the amount of damages you found are appropriate for each of the separate causes of action which have been argued before you.

[162] With respect to damages for the alleged wrongful arrest, you should set out the amount you conclude is reasonable if you find the plaintiff has satisfied you on a balance of probabilities that he was subject to a wrongful arrest. If you find the police had reasonable and probable ground to make the arrest when they did, you should insert zero under this heading.

[163] With respect to the damages for excessive use of force, if you find the plaintiff has satisfied you on a balance of probabilities that he was subject to excessive use of force, you should insert the amount you find is reasonable. If you find the plaintiff was not subject to excessive use of force, you should insert zero under this heading.

[164] If you find the plaintiff has satisfied you on a balance of probabilities that he was subject to malicious prosecution, then you should insert the amount you find is reasonable. If you find there was no malicious prosecution, then you should insert zero under this heading.

[165] Under the heading for actual expenses for legal bills associated with the plaintiff’s defence of the criminal charges against him, you should insert the figure based on the evidence given at trial if the plaintiff satisfies you on a balance of probabilities that there were no reasonable and probable grounds for the charges. If you find that there were reasonable and probable grounds for the charges, you should insert zero under this heading. The evidence of Mr. Risen is that he was paid $3,390, including HST.

[166] With respect to punitive and aggravated damages, if the plaintiff has satisfied you on a balance of probabilities that these damages are warranted, then you should insert the amount that you conclude is reasonable. If you are not satisfied that the plaintiff is entitled to punitive and aggravated damages, then you should enter zero under this heading. You are asked in Section D to enter the amounts separately for both punitive and aggravated damages.

[8] It is significant to note that in the written questions the jury was required to complete Section D as titled, “What damages, if any, should be awarded to the plaintiff?” Below that heading is recorded the following, “Without regard for your answers above, in what amount do you find the following:” The various headings of damages are then set out with a space for the jury to insert the amount of damages which they had assessed.

[9] It is apparent that the advice to jurors under Section D of the jury questions is inconsistent with the instructions contained in my jury charge. This may have been caused as a result of the fact that counsel submitted the jury questions which they had prepared on consent after preparation of the draft charge. Neither counsel nor myself picked up the inconsistency between the advice given to the jury in my jury charge to only enter an amount if they found that the claim had been proven and the suggestion contained in the jury questions that the jury’s assessment should be inserted regardless of the jury’s finding on liability.

[10] When the jury delivered their initial verdict, I concluded that there was an inconsistency between their answer that the plaintiff had not proven an improper motive or malice in the charges levied against the plaintiff and their findings with respect to damages.

[11] The jury was then excused and I reviewed with both counsel the jury’s verdict. At that time, both counsel agreed that there appeared to be an inconsistency in the jury verdict between my instructions and the jury’s award of damages. Both counsel further agreed that the jury should be asked to reconsider their verdict.

[12] Following is the transcript of my discussion with counsel on these issues:

The Court: … So, the issue obviously is the award of damages for malicious prosecution and punitive damages in the sum of $5,000 when the other – when the other causes of action have been dismissed. Ms. Gaudet?

S. Gaudet: Yeah, I – I guess the concern I’m having is if there’s no malice there can be no damages.

The Court: That’s correct. Mr. Evans?

B. Evans: Yeah, I’m just wondering if the jury understood that properly, Your Honour. I mean, Ms. Gaudet’s correct on that point of the law, but the answer should have been zero if that’s what they meant, so.

The Court: And what about the award of punitive damages?

B. Evans: Same thing.

S. Gaudet: So, Ms. Vaid has pointed out to me, she says, “Without regard for your answers above and what amount do you award the following”, that’s what D says. So, I – I don’t know if they thought had to fill out, this is what they would award and maybe the question was phrased, it says, “Without regard for your answers above and what amount do you find the following?” So –

The Court: I clearly said if there’s no malicious prosecution it’s zero.

S. Gaudet: Right.

The Court: I think I should bring in the jury and explain to them and then ask them to reconvene and complete another jury question form.

B. Evans: I think that’s correct, Your Honour, the correct way of doing it.

S. Gaudet: I think so, Your Honour, because I – I mean we can’t ask for the reasons of course, so – yeah.

The Court: I think I need to send them back out, explain that all three questions on the malicious prosecution must be answered yes in order to make an award of either the damages for malicious prosecution, the legal – the legal costs, and the punitive damages.

S. Gaudet: That’s right. Yeah, I think – I think that’s right, Your Honour. If you explain that they need to find all three.

The Court: Okay, could I have the jury back, please?

[13] With the consent of both counsel, I then proceeded to address the jury with respect to the issues that arose with their verdict. I advised the jury as follows:

The Court: Members of the jury, there is an issue with respect to the answers you have given in your decision. Paragraph 156 of my Charge outlines what must be proved in a claim for malicious prosecution. I’ll just read it for you again.

For a plaintiff to succeed in a claim for malicious prosecution, the plaintiff must prove on a balance of probabilities the following facts:

a) Proceedings must have been initiated by the defendants.

b) Proceedings must have been terminated in favour of the plaintiff.

c) The absence of reasonable and probable cause.

d) Malice or primary purpose other than that of carrying the law into effect.

In your - in your decision you have answered affirmatively that the plaintiff has proven that Jonathan Hood did not have reasonable and probable grounds to charge Andrew Sanayhie with assaulting Jonathan Hood causing bodily harm. You answered yes to that which is one of the criteria for the charge of assault causing bodily harm.

In question 6:

Has the plaintiff proven that Jonathan Hood did not have reasonable and probable cause to charge Andrew Sanayhie with assault - with assaulting Kashif Polani with intent to resist or prevent the lawful arrest or detention of himself?

Again, you’ve answered yes to that question which is again one of the criteria for a claim of malicious prosecution.

Question 7 you - you were asked a question:

Has the plaintiff proven that the charges against the plaintiff were laid with an improper motive or malice?

And you said no. And having said no, one of the criteria for an award of damages for malicious prosecution is missing and therefore, the - the claim would fail for malicious prosecution. But in your - in your answers on the question of damages, you said damages for malicious prosecution $55,000 and -

Question 164:

If you find the plaintiff has satisfied you on balance of probabilities that he was subject to malicious prosecution, then you should insert the amount you find is reasonable. If you find there was no malicious prosecution, then you should insert zero under this heading.

So, there’s an inconsistency between your finding that there was no malice or improper motive associated with the charges and yet, you have inserted $55,000 for malicious prosecution, actual expenses of $3,390, and punitive damages of $5,000, presumably based on the finding of a malicious prosecution.

So, because there is an inconsistency between your finding that the charge - that the charges were not laid with improper motive of malice, there’s an inconsistency between that finding and your finding that you award damages for malicious prosecution of $55,000 plus actual expenses of $3,390, plus punitive damages of $5,000 which could only arise if there was a malicious prosecution because you have essentially found in favour of the defendant on the other allegations.

So, what I would like to do is to give you an opportunity to consider that issue and I will give you a further jury question form and would ask you to consider the issue that I have raised and for you to consider that and then return with a further verdict if I can call it that. But do you understand the inconsistency that I’ve outlined in your verdict? Okay, I see heads nodding. And, Madam Registrar, could you hand another verdict sheet to the jury?

Clerk Registrar: I don't have a clean copy, Your Honour.

The Court: Oh, okay.

Clerk Registrar: They should have extra copies.

The Court: Okay. Could we give another clean copy of the - the jury sheet - question sheet to the jury and then could I ask you to retire and consider this matter, and then advise us when you’re in a position to return, okay? But I just want to make sure you all understand clearly the - the difficulty that I have in receiving your verdict, is that clearly understood? Okay, thank you.

...Jury Exits

The Court: Okay, Madam Registrar, could I give you the jury questions which have been submitted or the jury answers which were submitted by the jury and that will be the next lettered exhibit.

Clerk Registrar: Letter Exhibit J, Your Honour.

Exhibit J: Jury Answers - produced and marked.

The Court: Thank you. And we will have to wait to see what the jury does in response. First of all, I - I - is there any objection to what I have told the jury?

B. Evans: No, Your Honour.

The Court: Ms. Gaudet?

S. Gaudet: I don't think so, Your Honour.

The Court: Thank you. So, we’ll adjourn now.

[14] After the jury advised that it had reached its verdict for the second time, the court reconvened. Upon reconvening, defence counsel sought a directed verdict in its favour. Following is the exchange which took place at that time:

The Court: I'm told the jury has another verdict?

S. Gaudet: Yeah. Your Honour, I - I wanted to flag that we’ve had an opportunity to think about this and look at the rules, and my submission is what would be proper in this case is a directed verdict. There’s some great inconsistency. The elements of the test weren’t made out, and I have some concern about responses changing and so I wanted to flag that for the record.

The Court: Mr. Evans?

B. Evans: Well, I think now that we’ve put the wheels in motion, we have to see what they say in any event. It may not be required depending on their answers.

The Court: Okay. I - I think I’ve told them, I’ve asked them to do this, I’ve given them another verdict sheet, I think we need to receive it.

S. Gaudet: You have my position.

The Court: Okay, thank you. Madam Registrar, could we have the jury back?

Analysis

[15] In my supplementary instructions to the jury, I inadvertently included the claim for legal expenses incurred with the claim for malicious prosecution. In fact, as noted previously in my initial instructions for the jury, in order to be entitled to his legal expenses, the plaintiff only needed to satisfy the jury that there were no reasonable and probable grounds for the charges. This is reflected at para. 165 of my original jury instructions which stated,

Under the heading for actual expenses for legal bills associated with the plaintiff’s defence of the criminal charges against him, you should insert the figure based on the evidence given at trial if the plaintiff satisfies you on a balance of probabilities that there were no reasonable and probable grounds for the charges. If you find that there were reasonable and probable grounds for the charges, you should insert zero under this heading. The evidence of Mr. Risen is that he was paid $3,390 including HST.

[16] In both their initial and subsequent verdicts, the jury found that there were no reasonable grounds to charge the plaintiff with the two grounds of assault made against him. It therefore follows that there is no ambiguity with respect to the plaintiff’s entitlement to the legal expenses which the jury awarded of $3,390. There must, therefore, be judgment for the plaintiff with respect to this amount.

[17] With respect to the claims for malicious prosecution and punitive damages, the defendants argue that those claims should not have been referred back to the jury for a second verdict. The defendants rely upon Rule 52.08(1) which provides that,

(1) Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

The trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.

[18] The defence argues that while the court retains some narrow discretion to remit a matter back to the jury, the jury’s original verdict that there was no malice should be accepted and that there was, therefore, no need to remit the issue back to the jury for reconsideration in this case. They argue that the claims for malicious prosecution and punitive damages should be dismissed.

[19] The defendants rely on a 1937 decision of the British Columbia Court of Appeal in Grant v. British Columbia Electric Railway, 1937 CarswellBC 58. In that case, the jury found negligence on the part of the defendant but also found that, notwithstanding that negligence, the plaintiff’s son (who died in the crash and was also a defendant) could have avoided the accident by exercising reasonable care. The jury apportioned liability at 60% to the plaintiff’s son and assessed damages. After the verdict was read, and in the presence of the jury, plaintiff’s counsel immediately rose and stated that, “I don’t think the jury understood, My Lord, that in answering question 6 that the plaintiff’s son could have avoided the accident, they were finding that the plaintiffs could not succeed.” Counsel further requested that the trial judge point out to the jury that the answer to question 6 meant that no damages could be recovered. At that point, one of the jurors rose and claimed there was a mistake as the jury did not intend to give a verdict against the plaintiffs. The court asked the jury to retire and to reconsider its verdict. When the jury returned, it changed its answer to question 6 and found that the plaintiff’s son could not have avoided the accident.

[20] The Court of Appeal held that while it may be that a judge could send a jury back for reconsideration of their verdict when it has been proved that a mistake is made, care should be taken not to do so where the jury have found the facts beyond any reasonable doubt. The Court of Appeal held that the jury’s first answer was clear and unequivocal. In the first instance, the jury found that the plaintiff’s son could have avoided the accident by exercising more caution. In the second instance, the jury found that the plaintiff could not have done so. Justice MacDonald stated in the decision,

Now in these circumstances I think it was a very dangerous thing to send the jury back for reconsideration of question 6. The jury did make a mistake in their verdict but that was not the mistake they really made. The only mistake I find in the first answer is that the jury, having found that the defendant deceased could have avoided the accident by the exercise of reasonable care which would have disposed of the case allowed answers on negligence and contributory negligence to remain. It was a mistrial and the remedy is a new trial which I would direct.

[21] The defence position is set out at para. 30 of their factum where they state,

In other words, within 20 minutes, the jury changed its answer and stated that the plaintiff had in fact proven that the charges by Officer Hood were laid with an improper motive or malice. This was despite the jury’s earlier finding that there was no malice, after over four hours of deliberation, and in the absence of anything to indicate that the jury either did not understand Justice McKelvey’s charge on that question or that they did not unanimously intend their original unambiguous answer to that question be final.

[22] The defence argues that once a jury has deliberated and delivered a verdict, there is no mechanism in the Courts of Justice Act for the court to send the jury back to reconsider their answers. The grounds upon which a trial judge may refuse to grant judgment in accordance with a jury verdict is limited by what is provided for in the rules and the case law.

[23] The defence position is set out clearly at para. 45 of their factum where they state,

A civil trial judge only has discretion to send a jury back for further deliberation if an “error” is discovered before the jury is discharged. To qualify as such an error, the issue must be something that could potentially change the outcome the case (sic). A possible misunderstanding by the jury that damages could still be awarded, despite a finding of no liability, is not an error that authorizes the trial judge to re-engage the jury; it is not provide (sic) “any basis for interfering with the jury’s verdict in fact or in law”.

[24] I have concluded, however, that a more modern view of the right to have a jury reconsider its verdict has evolved. This is reflected in Ontario Courtroom Procedure (Fourth Edition) (2016) by Michelle Fuerst and Maryanne Sanderson. In that text, the authors state that if a judge is concerned that the answers given by the jury are unresponsive, vague or conflicting, the judge should ask counsel if they have submissions to make concerning the answers. If a judge concludes that the answers are vague or unresponsive, the judge should ask the jury to reconsider the matter and provide some direction as to the nature of the problem with the answers given. The text further states that the judge may send the jury back as many times as considered necessary, but should not be repeated to the point where the jury is confused by all the supplementary charges, questions and suggestions. Finally, if the jury does not return with satisfactory answers, the text provides that the trial judge may direct that the action be retried with another jury pursuant to Rule 52.08(1).

[25] There is considerable support for this summary of the law. In the Supreme Court of Canada decision in Herd v. Terkuc, the jury verdict failed to grapple with the question as to which driver had the signal light in his favour, which had been clearly presented to them as the essential point which they were required to determine. The court found that in these circumstances, the trial judge had the power and it was in fact his duty to instruct the jury to deal with that question. The court, in that case, referred to a decision in Napier v. Daniel and Welsh, at 63, where the Court stated,

I always understood the rule to be, that the jury are at liberty to alter the verdict before it was recorded, but not after. This is laid down in Co. Litt. fol. 227, b, where it is said, “After the verdict recorded, the jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand.”

[26] The Court also refers to a decision in R. v. Meany, where the Court stated,

There is no doubt that a judge, both in a civil and criminal court, has a perfect right, and sometimes it is his bounden duty, to tell the jury to reconsider their verdict. He may send them back any number of times to reconsider their finding. The judge is not bound to record the first verdict unless the jury insist upon its being recorded. If they find another verdict that is the true verdict.

[27] In the Ontario Court of Appeal decision in Maher v. Great Atlantic and Pacific Company of Canada Limited, 2010 ONCA 517, the Court noted at para. 30,

Where the jury may have misunderstood the effect of its verdict or the instructions of the trial judge, and would need to have further deliberations to reconsider the verdict, the law is clear that in that case, there is no jurisdiction in the court to make inquiries or to allow the jury to reconsider the verdict if this occurs after it has been discharged. Of course, if such an error is discovered before the jury is discharged, then the court is not functus and it may send the jury back for further deliberations.

[28] With respect to the defendants’ position that the initial finding of no malice should be determinative of the result in this case, I find that the reasoning of Justice Lauwers of the Court of Appeal in Sacks v. Ross, 2017 ONCA 773, is very relevant. At para. 62 of his decision, he comments on the appropriateness of jury questions being linked to an award of damages. He states,

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.

It is significant to note that Justice Lauwers then makes reference to the text Ontario Courtroom Procedure which has been referenced earlier in these reasons. His comments support a conclusion that it is appropriate to ask questions of the jury which call for them to make findings of liability.

[29] I find that there was an inconsistency in the jury’s original verdict. They were instructed in the jury charge to only include on the jury sheet an award of damages if they found liability for an unlawful arrest or use of excessive force or malicious prosecution. They appear to have followed those instructions by dismissing the claims for unlawful arrest and excessive use of force and by inserting zero for damages under these headings. Their award of damages for malicious prosecution therefore appears to support a finding that they found malicious prosecution, even though they did not answer “yes” to the question as to whether the charges against the plaintiff were laid with an improper motive or malice.

[30] The fact that the jury awarded punitive damages, further suggests that the jury found the laying of the charges to be egregious. All of this leads me to conclude that there was an inconsistency in the verdict. At a minimum, given the inconsistences between the jury charge and the jury questions, there was some confusion with respect to how to properly interpret the initial verdict of the jury. It was simply not clear whether the jury intended to make an award for malicious prosecution or not. Given this confusion or inconsistency in the jury’s verdict, there was a reasonable basis to go back to the jury and ask them to clarify their verdict. This was not a case where the jury’s initial verdict had been recorded. Nor had the jury been discharged and was functus.

[31] The process to be followed in this case was reviewed with counsel following receipt of the initial verdict. Both counsel agreed to the proposed reconsideration of the verdict by the jury. No objection was taken by either counsel to the instructions which were given to the jury with respect to the inconsistency and the need to address that in their verdict. The first indication that the defence had an objection occurred when the jury returned with their second recorded verdict.

Disposition

[32] For the above reasons, I dismiss the defendants’ motion for an order granting judgment in favour of the defendants on the claim for malicious prosecution. I do order that the record be endorsed granting judgment in favour of the defendants on the claims for unlawful arrest and excessive use of force. I further order that the record be endorsed that the plaintiff is entitled to damages for malicious prosecution against the defendant Officer Hood and the defendant Durham Regional Police Service in the sum of $55,000 and punitive damages of $5,000. Finally, I order that the plaintiff is entitled to an award $3,390 in relation to the costs of defending the criminal charges. The plaintiff is also entitled to pre-judgment interest on the above amounts.

[33] If counsel are not able to agree on costs, then an appointment may be taken out through the Trial Coordinator’s Office within thirty days of the release of these Reasons to set a date for an attendance before me to deal with the issue of costs. In the event that an attendance before me is necessary to deal with costs, then the parties at least two days prior that hearing are to submit brief written submissions on the issue of costs.

Justice M. McKelvey
Released: June 26, 2025