Success at the Ontario Court of Appeal: Tanya Pagliaroli and Justin Nasseri obtain dismissal of an appeal from a jury’s verdict finding two physicians liable for medical negligence.

In Surujedo v. Melady, 2017 ONCA 41, the Ontario Court of Appeal provides guidance on three important issues which arise in jury trials: (1) the proper framing of the causation question to the jury; (2) the proper instruction to a jury on s. 108(6) of the Courts of Justice Act; and (3) polling a civil jury.

  1. Framing the causation question in a negligence trial: The trial judge had framed the causation questions to the jury by asking whether each physician’s breach of the standard of care was “a cause” of the patient’s death. The appellants argued that the trial judge had erred by failing to ask whether the breach was a but-for cause of the death, as opposed to simply a cause. In making this submission, the appellants relied on the Supreme Court’s holding in Clements v. Clements, 2012 SCC 32, that the presumptive test for causation in any negligence case is whether the defendant’s breach of the standard of care was a “but-for” cause of the injury complained of.For the first time in Ontario’s appellate jurisprudence, the Court provided guidance on how the causation question for a jury has to be worded, holding that the trial judge had erred “by approving jury questions that did not reflect the applicable “but for” causation test”. The Court cited with approval Wilson J.’s ruling in Sacks v. Ross, 2015 ONSC 7238 in which Her Honour held that there was “no advantage to departing from the legal test as articulated by the Supreme Court of Canada when asking the jury to answer the questions on causation.” Consequently, trial judges in all future negligence trials by jury are well-served to ensure that the causation questions reflect the but-for causation test as enunciated by the Supreme Court of Canada.However, Tanya and Justin successfully argued that the trial judge’s error was not a reversible one, since he had taken great care to “thoroughly, accurately and repeatedly [instruct] the jury on the “but for causation test” in his charge, and a subsequent re-charge. When the questions were viewed in context of the charge, the jury was sufficiently instructed on what was required to make a proper causation finding.


  1. Interpreting s. 108(6) of the Courts of Justice Act: Under s. 108(5) of the Courts of Justice Act, in jury trials, the judge may ask the jury to answer specific questions, and enter judgment in accordance with the answers to those questions. S. 108(6) clarifies that it is sufficient if five of the six jurors in a civil trial agree on 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.” The interpretation of this provision was raised on appeal:The jury was provided with questions to answer when rendering its verdict. For each physician, the jury was asked to (i) answer whether the physician breached the standard of care (yes/no); (ii) provide particulars of any breaches of care; (iii) answer whether the physician’s breaches caused the patient’s death; and (iv) provide particulars of the causal links. The trial judge had instructed the jury that five out of six of them needed to agree on each question but that they may arrive at their conclusions in respect of each question for different reasons. The jury subsequently asked the judge whether, when providing particulars of the breaches of care and causation, (i) 5/6 needed to agree on each reason; (ii) 5/6 needed to agree on all reasons as a whole; or (iii) whether they could simply list out all the reasons provided by all jurors. The judge instructed the jury to proceed with option (iii).


    On appeal, the physicians submitted that as a result of the judge’s ruling, “the jury may have granted judgment based on answers to questions regarding breaches of the standard of care and modes of causation to which fewer than five jurors agreed.” In their view, the jury should have been instructed to list only particulars which five of six of them agreed on.


    The Court of Appeal rejected this argument, holding that the correct way to interpret s. 108(6) is that 5/6 jurors must agree on the answer to “bottom line” questions – meaning the yes/no questions regarding whether (i) the physicians breached the standard of care and (ii) whether those breaches caused the patient’s death. There is no requirement for five of six jurors to agree on every particular because jury members are entitled to rely on different parts of the evidentiary record to arrive at the same conclusion. Similarly, there is no requirement that the same five jurors agree on every questions. In this case, there was nothing on the fact of the jury’s answers to suggest that less than five jurors had agreed on the bottom line questions.


  1. Polling: At trial, the appellants had asked the trial judge to poll the jury out of a concern that a proper verdict had not been reached based on the jurors’ answers to questions. Specifically, they sought to poll the jury to ensure that five of the jurors had agreed on each of the particulars of the breach of the standard of care or causation. The trial judge declined to do so. The Court of Appeal, relying on Ontario cases in which civil juries were polled, held that “where concern exists in a civil trial as to whether five of the jurors have agreed on the answer to a “bottom line” question, it would be open to the trial judge to poll the jury to ensure the requirements of s. 108(6) of the Courts of Justice Act have been met.” This power falls under the broad umbrella of a Superior Court judge’s inherent jurisdiction. While the trial judge did have the power to poll the jury, his refusal to poll was correct because the appellants sought to poll for an impermissible purpose.


The Court’s decision is available here.