On December 9, 2015, Justice Arthur Gans endorsed judgment in accordance with the jury’s verdict in Surujdeo v. Melady, 2015 ONSC 7443, argued by Richard Bogoroch. As a damages agreement had been reached prior to trial, the remaining issues at trial were standard of care and causation. The jury found that the two Defendant physicians had breached their respective standards of care and, in doing so, had caused the death of Rossana Surujdeo. The Defendants appealed.
In a decision released on January 18, 2017, the Court of Appeal dismissed the appeal and provided clarity with respect to procedure for civil jury trials. At this time, we are unaware whether the Defendants will seek leave to appeal to the Supreme Court of Canada.
The Appellants advanced five main grounds on appeal. The Court of Appeal held that the trial judge’s only errors were in the wording of the question to the jury regarding causation, and that the trial judge stated he did not have jurisdiction to poll the jury when he did. However, the Court found that the defects in the question to the jury did not necessitate a new trial, and that the trial judge was correct not to poll the jury in the circumstances, despite having the jurisdiction to do so.
Over and above the analysis of the above-mentioned errors, counsel representing Plaintiffs or Defendants at a jury trial for medical negligence, and at other civil trials, should be aware of the numerous procedural lessons to be gleaned from the Court of Appeal’s decision:
- The Causation Question to the Jury
The language of the jury question on causation must reflect the “but for” test and ought to track the language of Clements, although having the wrong wording does not necessarily produce a substantial wrong or miscarriage of justice.
- The Charge to the Jury
The jury charge’s sufficiency is not about number of words dedicated to a given issue. The charge needs to be read as a whole and, in some cases, in the context of closing submissions.
- The Requirement that 5 out of 6 Jurors Agree on an Answer to a Jury Question
In the analysis of section 108(6) of the Courts of Justice Act, the Court found that 5 jurors who agree on the “bottom line” conclusion asked in Part (a) of a question do not need to agree on each “particular” they are required to list in Part (b) that leads them to that “bottom line”. The Court of Appeal confirmed again that “a jury is entitled to arrive at a verdict by different evidentiary routes and need not rely on the same facts”.
- Polling the Jury
A trial judge has inherent jurisdiction to poll the jury to ensure a fair trial. However, polling the jury to ascertain whether each juror agrees on each of the “particulars” discussed above would be an “impermissible” reason to exercise this discretion.
While the unique factual matrix of the case, both substantively and procedurally, makes it difficult to extract further ratios, the inquisitive will benefit from reading the full decision in Surujdeo v. Melady.