Introduction
This case serves as a refresher from the Ontario Court of Appeal on what constitutes adequate reasons and the implications of discharging a jury without them. As occurred here, a new trial may be ordered where it is not inevitable that the jury would arrive at the same conclusion as the trial judge did.
As the Court said, a jury trial is a fundamental substantive right. Although trial judges have the discretion to discharge the jury where certain criteria are met, it is a remedy of last resort. If a trial judge decides to remove a litigant’s right to a jury, they must support this decision with adequate reasons.
This case serves as a refresher from the Ontario Court of Appeal on what constitutes adequate reasons and the implications of discharging a jury without them. As occurred here, a new trial may be ordered where it is not inevitable that the jury would arrive at the same conclusion as the trial judge did.
Background
Norman Penate sustained a severe brain injury at the time of his birth. It was alleged that Norman’s brain injury was the product of negligence, specifically that the defendants failed to ensure Norman’s head was sitting low in the pelvis before labour was induced by rupturing the amniotic sac. This would constitute a breach of the standard because it would have increased the risk that the umbilical cord would slip through the cervix, in front of Norman, causing a hypoxic event. In fact, when the defendant resident ruptured the amniotic sac, she did encounter the umbilical cord and Norman was delivered via an emergency cesarian section. Unfortunately, Norman sustained life-altering injuries and his family started a medical negligence action against the hospital, nurses and physicians involved in labour and delivery. They also requested that the matter be tried before a jury.
At the close of a 25-day trial, the physician defendants argued that the closing address made by the plaintiffs’ counsel was inappropriate. The defendants argued that the closing address appealed to the jury’s sympathies and referred to the defendants’ opening address as evidence, rather than anticipated evidence. The trial judge initially remarked that these concerns could be remedied through corrective jury instructions but invited the defendants to submit additional objections in writing. The defendants responded with 39 written objections. This was followed by an oral hearing on the issues. After the submissions, the trial judge decided to discharge the jury and released a five-paragraph decision a week later, explaining her decision to do so. The trial judge later dismissed the plaintiffs’ action in its entirety, finding that the plaintiffs had failed to prove a claim of medical negligence.
The plaintiffs appealed, arguing, among other things, that the trial judge’s reasons were inadequate as they failed to explain which of the defendants’ objections were accepted, nor why any improper comments could not have been remedied through corrective instructions.
Decision
A jury is a fundamental substantive right. The decision to take it away ought not to be made lightly. It is a discretionary remedy of last resort that must only be exercised where a trial judge determines:
- Counsel’s comments prejudiced the opposing party; and
- The prejudice was so severe that issuing a corrective instruction to the jury would not cure it.[1]
If a trial judge chooses to take away a litigant’s right to a jury, they must explain why these two criteria are satisfied. Without adequate reasons, no appellate deference is owed. Adequate reasons also respect the dignity of the losing party as it shows them that the trial judge has heard and considered their arguments and why those arguments were unsuccessful.
Conclusory statements that merely assert that comments are prejudicial and cannot be remedied with corrective instructions are insufficient. Adequate reasons can be reasonably understood and an appellate court can meaningfully review. Adequate reasons are responsive, address key arguments and live issues, and make necessary findings of fact concerning those issues.
In her written decision, the trial judge failed to identify the comments she believed were prejudicial and why corrective instruction could not remedy the prejudice. In failing to do so, the appellants were barred from understanding why their right to a jury trial was taken away. An appellate court was, in turn, unable to meaningfully review the decision and was left to guess how the trial judge arrived at her conclusion.
Conclusion
This was not a case that fell within the narrow exception where any reasonable jury would have inevitably reached the same result. It was a complex matter with competing expert testimony and where the credibility and reliability of key fact witnesses were at issue. As such, the appropriate remedy was a new trial. Costs were awarded to the appellants for $35,000, inclusive of disbursements and taxes.
[1] St. Marthe v. O’Connor, 2021 ONCA 7901 and para 46, citing Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 SCR 1092 at paras 17 & 23.
