In Cheung v. Samra, 2022 ONCA 195, the court heard that after a “difficult birth, Rhonda Cheung suffered a seizure at two and a half months old and serious disabilities became evident.”
“A jury concluded that the defendant physicians failed to meet the standard of care required of doctors looking after pregnant patients and that this failure caused Rhonda’s disabilities,” the court noted, adding that although the trial judge, Justice Darla Wilson of the Superior Court of Justice, “concluded that there was evidence capable of supporting the jury’s decisions, she refused to enter judgment in accordance with the verdict on the ground that the particulars of causation given by the jury were insufficient and failed to explain the physiological mechanism of the injury.”
Justice Gladys Pardu, writing for the Ontario Court of Appeal, found that Justice Wilson “erred in refusing to give effect to the jury verdict.”
“I would set aside her order requiring a new trial and substitute judgment in favour of the plaintiffs in the agreed sum of $14.9 million,” she determined, with Justices Janet Simmons and David Brown in agreement, in a decision released March 9.
According to court documents, Rhonda was “diagnosed as suffering from intrauterine growth restriction (IUGR)” in the “35th week of the pregnancy.
“Babies with IUGR are at risk of serious complications, including asphyxia, abnormal fetal heart rate, cerebral palsy and developmental delay,” the court explained, noting that test results were “increasingly concerning,” but Rhonda’s mother was “sent home on April 21, 2006.”
The following day, Rhonda’s mother returned to the hospital with “vaginal bleeding” and Rhonda’s “heart rate showed that she was in distress and an emergency C-section followed.”
According to court documents, “Rhonda was born in very poor condition” and for “28 minutes she had almost no heartbeat; her first breath was at 30 minutes of age.”
The court noted that when Rhonda was discharged from the hospital “she was able to feed by breast and bottle” and her EEG and an MRI “were normal.”
The baby “responded normally to sensory stimulation and the prognosis looked good,” the court added.
However, in July “Rhonda suffered a seizure and was admitted to hospital. She could no longer feed independently or control her head.”
Court documents noted that Rhonda has “severe brain damage and has been diagnosed with hypotonic cerebral palsy and developmental delay.”
“She cannot walk, talk or eat and must be fed through a tube. She needs help with every activity,” the court explained.
According to court documents, the trial evidence “about causation featured opposing theories by the plaintiffs and the defendants.”
The plaintiffs’ position, the court noted, was that “Rhonda suffered a brain injury caused by deprivation of oxygen to the brain in the period immediately before birth” while the defendants’ position was “Rhonda’s brain injury occurred more than two months after birth, possibly as a result of a genetic disorder, and that her impairments are not attributable to the management of her pregnancy or delivery.”
Both parties brought forth numerous experts to support their evidence at trial.
Justice Wilson “instructed the jury that the plaintiffs had to establish on the balance of probabilities that the failure to deliver the child earlier was a necessary cause of the brain damage, and that the injury would not have occurred without the defendant’s negligence.”
The trial judge also instructed that “scientific precision was not required to find causation and that they were entitled to consider all the facts and circumstances established by the evidence.”
“Direct evidence of causation,” the court explained, “was not necessary,” and the jury was “entitled to draw an inference of causation through the application of reason and common sense.”
“To establish causation” the court noted, “the plaintiffs had to establish that it was more likely than not that Rhonda would not have sustained brain damage, but for the substandard medical care.”
Justice Wilson “pointed out that the experts had different opinions about what caused Rhonda’s condition. The plaintiffs’ experts related the brain damage to events around the time of birth, while the defendants’ experts disagreed and attributed her condition to genetics perhaps, or a metabolic disorder.”
According to court documents, Justice Wilson “gave the jury questions to answer.”
“If they found that a doctor’s care caused the brain damage, she instructed them to explain how the breach of care caused the injuries, with ‘clear and specific answers,’ ” the court explained, noting that the jury “returned with answers indicating that they were satisfied on the balance of probabilities that but for the breach of the standard of care, Rhonda would not have sustained brain damage.”
When the jury was discharged, the court noted, the defendants “moved for two alternative remedies: an outright dismissal of the action on the ground that the plaintiffs had failed to lead evidence that an earlier delivery would have led to a different outcome, or alternatively that the trial judge refuse to enter judgment and order a new trial on the ground that the jury’s answers as to how causation was established were insufficient.”
Justice Wilson “refused to dismiss the action,” but found that “the jury’s answers to the questions asking for particulars of causation were insufficient because they ‘fail[ed] to identify the mechanism of injury.’”
Justice Wilson “indicated that the answers of the jury made no reference to the expert evidence, including evidence that favoured the defendants” and “held that ‘[c]onclusory statements do not explain how the negligence led to the damage. A theory of causation must be rooted in hard evidence from experts. We are left with answers that do not explain the causal link between the negligence and the harm.’ ”
The trial judge also “held that the causation answers were ‘contrary to the law, do not explain the causal link between the negligence and the result, and cannot form a foundation for judgment. At best, the jury was confused and conflated the issues of standard of care with causation.’ ”
The plaintiffs appealed Justice Wilson’s decision “refusing to grant judgment” to the Divisional Court and the defendants “cross-appealed the refusal to dismiss the action.”
While the Divisional Court was “unanimous in dismissing the defendants’ cross-appeal, concluding that there was more than sufficient evidence to allow a jury, acting reasonably, to find that causation had been established,” it was “divided on the issue of insufficient jury answers on causation.”
“The majority,” the court noted, “upheld the trial judge’s decision to order a new trial.”
According to court documents, the majority of the Divisional Court “held that the reasons given were so conclusory as to be non-responsive and did not provide the necessary reassurance that the verdicts were based on solid footing.”
However, Justice David Corbett “dissented on the issue of causation,” noting that “the answers to the question were conclusory but were not inconsistent with the verdict.”
“The answers showed that the jury accepted the plaintiffs’ theory of causation and rejected the defendants’ theory. The path to their reasoning was not based on impermissible reasoning nor was it contrary to any principle of justice,” the court explained, noting that Justice Corbett “concluded that the defendants were not entitled to reasons for decision from the jury and suffered no injustice in not receiving them.”
“The conclusory nature of the answers did not mean that they were non-responsive or wrong or that they applied a wrong principle,” the court added.
According to court documents, Justice Corbett “observed that if the members of the jury reached findings of causation by different paths of reasoning they would have to find the common basis for the decision upon which they agreed” and “concluded that it would be reasonable to infer that the jury did exactly what it was asked to do and that the answers were the common account of causation upon which they could all agree: the conclusion.”
Justice Corbett also noted that to “ask a jury for reasons for its conclusion on causation would impinge on the secrecy of jury deliberations.” He concluded that Justice Wilson “erred in refusing to grant judgment in accordance with the verdict of the jury.”
Rhonda’s litigation guardian appealed to the Court of Appeal, arguing that Justice Wilson “erred in law in refusing to grant judgment in accordance with the verdict.”
The appellants note that “the answers provided a legal foundation for judgment and the trial judge had a duty to enter that judgment. Sufficiency of reasons was not a basis to refuse to do so. It was reasonable to infer that the answer given was the common outcome to which they all agreed.”
On the other hand, the defendants (respondents on appeal) argued that Justice Wilson’s decision to “require a new trial was a discretionary decision to which deference is owed.”
The respondents submitted that “the answers given were not responsive, and that the trial judge’s instructions to provide specific particulars were not answered.” They also argued that “the absence of responsive answers means that there was not a foundation for judgment within the meaning of Rule 52.08 of the Rules of Civil Procedure.”
“Failure to provide reasons undermines the integrity of the verdict and requires a new trial,” the court noted of the respondents’ argument.
Justice Pardu noted that “[A] trial judge can disregard the answers which form the jury verdict only if: 1. There is no evidence to support the jury finding; or 2. The jury gives an answer to a question which cannot in law provide a foundation for a judgment.”
“The analysis,” she added, “must begin with the presumption that juries understand and properly apply the instructions provided by trial judges and that the jury’s answers are the result of a proper consideration of the evidence and the issues and an adherence to the legal instructions provided in the trial judge’s charge.”
“It would be wrong to assume that juries might disregard the law and instructions; ‘this line of thinking could seriously undermine the entire jury system,’ ” she added.
Justice Pardu found that there were “two essential findings that the jury had to make for the defendant physicians to be liable in negligence: first, that they did not live up to the standard of care, and second, that that failure caused the injuries, on the balance of probabilities.”
“The jury made those findings. That they gave a conclusory answer to the particulars the trial judge asked them to provide does not mean that they did not make a finding about an essential matter,” she stressed.
“Contrary to what the trial judge found,” Justice Pardu added, “the answers did not indicate that the jury’s reasoning was clearly erroneous because their answers failed to indicate the physiological mechanism of injury.”
The Court of Appeal determined there was “no basis” to “set aside the verdict of the jury.”
“It cannot be said that the verdict ‘is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict,’ ” wrote Justice Pardu, noting that “the trial judge and the Divisional Court concluded that there was an evidentiary basis for the verdict.”
The Court of Appeal emphasized that “[J]urors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary.”
Justice Wilson, the court found, “did not ask the jury to identify the ‘mechanism of injury’ or the sequence of events and injuries that led to Rhonda’s brain damage.”
“The trial judge instructed the jury to explain how the breach led to the outcome and informed them that they could draw an inference of causation ‘through the application of reason and common sense,” the court explained.
“There is no basis to conclude that the jury proceeded on any erroneous premise or was confused or mistaken as to the instructions given to it. The answers given are not tainted by doubt or ambiguity,” Justice Pardu wrote.
The Canadian Chiropractic Protective Association and the Ontario Trial Lawyers Association were interveners in the case and, the court noted, they took “opposing positions on whether it is appropriate to continue to ask a jury to provide particulars of its findings.”
Gavin MacKenzie, MacKenzie Barristers
“Jury deliberations are not transparent, and there is an element of inscrutability to every jury verdict. Where there are, as here, multiple reasoning paths that could lead to a finding of causation, asking for particulars may undermine the integrity of the jury’s verdict more by infelicities of expression than any real concern for the merits of the jury’s decision or reasoning and may stretch the limits of what a jury can reasonably be expected to give by way of reasons,” she explained.
Gavin MacKenzie, of MacKenzie Barristers and counsel for the appellants with Hilik Elmaleh, said the Court of Appeal “reaffirmed several principles concerning the need for trial judges to respect juries’ verdicts.”
He said the lesson for “judges and lawyers alike is that juries’ findings of fact have to be, and should be, respected.”
MacKenzie noted that paragraph 67 of the decision, where the court wrote that jurors “are lay persons,” is “a very good reminder.”
“There are many cases that say that a jury’s verdict is entitled to a fair and liberal interpretation,” he said, noting that jury “answers should be given the fullest possible effect and supported by any reasonable construction.”
MacKenzie said jury answers should be taken “at face value” and interpreted “in a reasonable way.”
Hilik Elmaleh,Sommers Roth & Elmaleh
Regarding what the profession can learn from this decision, Elmaleh said that “you have to be very careful when crafting jury questions, to bear in mind that jurors are not judges. It’s not expected of them to provide detailed explanations.”
Elmaleh noted that paragraph 71 is “helpful” because it reminds the profession of the parameters of the Courts of Justice Act.
“I think in this respect, paragraph 71 of the court’s reasons is helpful because it tells us there are different routes they can arrive at in the verdict,” he said
Counsel for the respondents did not respond to request for comment before press time.
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