Lauréate du concours de dissertation pour les étudiants et étudiantes de la section du droit de la santé 2020

(disponible uniquement en anglais)

Medical Malpractice and Jury Secrecy: Is it time to lift the veil on causation?

Emily Wilson, Dalhousie University’s Schulich School of Law

Emily Wilson a obtenu un baccalauréat en droit (juris doctor) avec spécialisation en droit et politiques en matière de santé à la Faculté de droit Schulich de l’Université Dalhousie. Avant d’entreprendre ses études dans cette faculté, elle a obtenu un diplôme à l’Université Western avec spécialisation en criminologie et concentration en psychologie. Emily Wilson a effectué son stage à Toronto (Ontario) dans le service des réclamations juridiques de la société Intact Assurance, et retournera dans la compagnie en qualité de conseillère juridique. 

RÉSUMÉ

[TRADUCTION]
De profondes préoccupations ont toujours existé au sujet des jurys dans le contexte des procès pour faute professionnelle médicale, particulièrement lorsque le dossier comporte la question de la cause. La détermination de la cause est un exercice des plus difficiles, particulièrement en présence de preuves médicales complexes. Toutefois, en raison de la nature des lois actuelles, il est impossible de savoir si un jury a analysé le droit correctement.

Cet article analyse la question de savoir si les jurys devraient être tenus de fournir les détails de leurs conclusions concernant la cause. La discussion est axée sur le défi d’équilibrer d’une part l’importance du secret des délibérations du jury et d’autre part le droit des parties et du public de connaître les raisons pour lesquelles l’accusé est ou non responsable et de savoir que le verdict ne découle pas d’une erreur.

Introduction

In June 2018, the Ontario Superior Court of Justice held that there is no obligation for a jury to provide particulars in a negligence action.¹ This decision came just two weeks after the same court encountered “fatally flawed” answers by a jury on a medical malpractice case.² Less than a year before that, the Ontario Court of Appeal dealt with a jury verdict that had no grounding in evidence.³

In Canada, jury duty is considered an important contribution to the public and is a critical component to many cases.⁴ While the task of a jury is to decide on the liability of individuals, they often do so without relaying any reasons behind their final verdict. With the purpose of protecting the free and frank nature of jury deliberations, as well as protecting the privacy of jurors themselves, the courts have upheld the near-absolute secrecy of jury deliberations.⁵ The reasons behind a jury verdict are therefore never known unless specifically requested for by the trial judge.

When it comes to medical malpractice trials, there are many complex issues introduced to the jury, one of which may be causation. As a result of the jury secrecy rules, however, it is typically impossible to know on what basis the jury did or did not find causation to exist. The purpose of this paper is to take a deeper look at the issues surrounding jury verdicts, and whether juries should be required to provide particulars on their findings of causation.

The Legal Framework of Juries and Particulars

Pursuant to negligence law, medical malpractice refers to a health professional’s failure to exercise the degree of care and skill that someone else in the same medical specialty would use under similar circumstances.⁶ For a successful negligence action, the plaintiff must prove that the defendant owed him or her a duty of care, that the defendant breached the standard of care expected of him or her, and that this breach is what caused the plaintiff’s injuries.⁷

Causation is the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim.⁸ Only if this relationship is found will compensation to the victim from the wrongdoer be justified.⁹ The Supreme Court of Canada (the “SCC”) has affirmed that the test for causation requires the injured plaintiff to show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.¹⁰

Many factors must be considered when assessing causation in medical malpractice actions, including: the interplay of the human anatomy and physiology; pre-existing and co-morbid conditions; and the impact of time delays. This not only complicates the “but for” test, but it also complicates the ability to assess the injury due to the need to understand the medical concepts. There are therefore cases in which it is very difficult to prove whether or not a negligent act actually caused the subsequent injury.

When a trial proceeds by way of a jury, then the jury will typically be required to give either a general or a special verdict.¹¹ A general verdict means that the jury merely must find in favour of one party or the other, whereas a special verdict requires the jury to make findings only on factual issues, and then the judge decides the legal effect of the verdict.¹² Notably, neither scenario requires a jury to explain the reasoning behind their verdict. In other words, if causation is a component of the issue at trial that they must give a verdict on, then they are not required to give any reasons or particulars as to their finding of whether or not they found causation to exist.

Subsection 34(f) of the Judicature Act governs the only circumstance where a juror may have to provide particulars for a verdict.¹³ This section reads as follows:

34. Trials and procedure

Subject to rules of Court, the trials and procedure in all cases, whether of a legal or equitable nature, shall be as nearly as possible the same and the following provisions shall apply:

[…]
(f) upon a trial with a jury of any proceeding, except a proceeding for libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution or false imprisonment,

1. the judge, instead of directing the jury to give either a general or a special verdict, may direct the jury to answer any questions of fact raised by the issues,
2. such questions may be stated to them by the judge, and counsel may require the judge to direct the jury to answer any other questions raised by the issues or necessary to be answered by the jury in order to obtain a complete determination of all matters involved in the proceeding, […]¹⁴ [Emphasis added]

Not only do jurors not have to provide particulars for their verdict unless a judge specifically requests them to do so, but pursuant to section 649 of the Criminal Code, it is a criminal offence if they do.¹⁵ The scope of this Criminal Code provision applies to all matters intrinsic to the deliberation process of any legal proceeding, including any statements, opinions, arguments, or votes made by members of a jury in the course of their deliberations.¹⁶ The provision also prohibits any evidence from the jury room from being admitted in subsequent judicial proceedings.¹⁷

Together, section 649 of the Criminal Code and subsection 34(f) of the Judicature Act help to make up what is known as the jury secrecy rules, which have been held to be essential to the proper functioning of the jury.¹⁸ The consequence of these laws is that absent any particular questions from the judge, then the reasons behind a jury verdict will never be known to anyone other than the jurors themselves.

The question of whether a jury in a negligence action should be required to provide particulars of a finding of negligence was considered recently by the Ontario Superior Court of Justice in the case of Poonwasee v Plaza.¹⁹ While explaining that the practice of allowing questions to be given to a jury has been longstanding, the Court noted that there is little case law on the issue of what types of questions ought to be asked.²⁰ Ultimately, it was held that there is no obligation for a jury to provide particulars in a negligence action, and that based on the circumstances of each case, a trial judge should use his or her discretion to consider whether the advantages of asking the jury to provide particulars outweigh the disadvantages.²¹ The remainder of this paper will examine the issues of requiring juries to provide particulars on causation in a medical malpractice action.

The Intersection of Juries and the Law of Negligence

The Complexity of Causation

The issue of causation can be very complex in certain scenarios. Whether it be the ability to understand the definition of causation, or an inability to parse out the many possible competing causes, juries may face difficulties with this stage of a medical malpractice action. Each of these difficulties will be discussed.

Defining Causation: Then and Now

To establish causation, the breach of a health professional’s standard of care must have been the factual cause of the injury suffered by the plaintiff.²² To be the factual cause, it must be determined that the injury would not have occurred “but for” the defendant’s negligence.²³ Throughout history, however, causation has proven to be a complex factor. Around the 1970s, courts developed the notion that the rules governing causation were open to manipulation.²⁴ While the “but for” test continues to exist as the primary test, it was noted that it has the potential to result in false negatives.²⁵ That is, it could lead to findings of no causation, and thus no liability, despite fairness demanding the opposite.

The SCC briefly stepped away from the “but for” test in the case of Cook v Lewis.²⁶ When the plaintiff was unable to prove which of two defendants was at fault, the SCC held that the unique circumstances required that any doubt be handled by reversing the onus of proof and requiring each defendant to disprove that he caused the harm. In the absence of such disproof, both defendants would be liable.

In 1980, “market share liability” was invented by the California Supreme Court in Sindell v Abbott Laboratories.²⁷ The current status of market share liability in Canada remains uncertain, because although it has been adopted legislatively, it has not yet formed the basis of any final Canadian court judgement.²⁸ The 1980s also brought about the “loss of chance” doctrine,²⁹ which allows a plaintiff who cannot demonstrate “but for” causation to instead reconceive the loss as having been deprived of a chance of avoiding the injury. This doctrine, however, is the subject of considerable controversy, and although it remains available for some areas of negligence, it has been specifically rejected in cases of medical malpractice.³⁰

By 1990, the SCC acknowledged that while science requires certainties, the law tends to use probabilities. Consistent with this logic, the SCC held in Snell v Farrell that while the ultimate burden remains with the plaintiff, in the absence of evidence to the contrary adduced by the defendant, then a “robust and pragmatic approach” may be taken whereby an inference of causation is drawn despite no positive or scientific proof of causation having been adduced.³¹ This has been affirmed multiple times at the SCC.³²

To complicate causation further, in 1996, Athey v Leonati adopted the “material contribution” test from McGhee v National Coal Board as Canadian law.³³ This test maintained that even if the “but for” test failed, a defendant may still be liable if he “materially contributed” to the injury.³⁴ The SCC’s approval of this test left confusion among the courts, as it did not clarify what the actual test involved, nor when it should be used.³⁵ As a consequence, plaintiffs began to advance the material contribution test as a solution to their causation claim, and the confusion of the lower courts led to numerous applications for appeals, none of which clarified the test.³⁶ The confusion remained for 16 years until the tests for causation were rectified in the SCC’s 2012 decision in Clements.³⁷

Clements outlined what remains as the current state of the law.³⁸ The basic rule of recovery for negligence was reasserted as being that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test.³⁹ In exceptional cases where it is impossible to determine which of a number of negligent acts by multiple individuals in fact caused the injury, but it is established that one or more of them did in fact cause it, then the defendant may still be liable on the basis that he or she materially contributed to the risk of the injury.⁴⁰ This was recently at issue in Uribe v Tsandelis, which specifically sought to determine which test for causation should be instructed to the jury.⁴¹

Overall, the ability to understand how to properly apply the test for causation has been an area of confusion and manipulation throughout history. As former Chief Justice McLachlin observed, “much judicial and academic ink has been spilled over the proper test for causation in cases of negligence”.⁴² Although the test is now more clear as a result of Clements, absent an understanding of the legal history as to what has been held to be invalid and what has remained, jurors may face difficulty with interpreting causation properly. It may prove especially difficult for them to distinguish and apply the “but for” versus the “material contribution” tests in appropriate circumstances. As Professor Knutsen noted post-Clements, “nothing in tort causes more confusion than causation.”⁴³

Disentangling the Cause from other Issues

 When determining if the causation test is met, juries must consider the implication of any potential competing issues. These could range from the influence of pre-existing or co-morbid conditions, counterfactuals, or the issue of remoteness.

Pre-Existing Conditions. People are often already ill when they see a health professional. It may therefore be difficult to prove that different medical treatment would have prevented the natural progression of their condition.⁴⁴

In Lindahl Estate v Olsen, the defendant physician failed to perform the proper examinations for the plaintiff patient, and consequently provided a diagnosis and treatment plan for hemorrhoids.⁴⁵ Later, it was discovered that the plaintiff actually had colon cancer, and he died soon thereafter. Upon hearing the evidence, Watson J. held that at the point in time where the plaintiff had met with the physician, the chances of a successful recovery were so well below probable that it could not be said that any negligence was a significant contributor to his decline in health and death.⁴⁶ As a result, the action was dismissed.

Similarly, the case of Barnett involved a physician who sent a patient home, who then died five hours later from arsenic poisoning.⁴⁷ Although the physician may have been negligent in discharging the patient, no treatment would have prevented him from dying. As a result, causation could not be proven.

Another scenario is when there are multiple co-morbid conditions that all could have been the cause, in addition to a negligent action. In Snell v Farrell, the defendant physician failed to discontinue a cataract surgery after discovering a retrobulbar hemorrhage.⁴⁸ Post-surgery, the plaintiff’s optic nerve atrophied, however, the evidence was unclear as to whether this was a result of the hemorrhage or one of her pre-existing conditions, which included high blood pressure, diabetes, and glaucoma.

Essentially, the issue of pre-existing conditions demonstrates that the injury or harm would have happened regardless of what the health professional did. Similarly, co-morbid conditions blur the boundaries between being able to determine the true cause of many potential causes, each of which involves the intricate complexities of the human body. If there is a clear breach of the standard of care by a health professional, then a jury might feel inclined to find that the breach caused the injury. However, if the injury would have happened in any event, then the “but for” test is clearly not met, regardless of any potential negligence that did occur. Jurors need to be careful to not deviate from the test, and instead ensure that they pinpoint the actual “but for” cause.

Counterfactuals. Conducting the “but for” test requires the trier of fact to place him or herself at a time just before the standard of care was breached, and to imagine a counterfactual universe which is like the real one in all respects, except that in the counterfactual the defendant’s behaviour was not faulty.⁴⁹ Proving causation therefore relies on imagining the position the claimant would have been in had the negligence not occurred. This cannot be done with absolute certainty as it will vary based on the perspective taken and the assumptions relied on.

Remoteness. Once the factual cause of an injury is established, causation requires that the defendant also be the legal cause of the injury. This means that the injuries must have been foreseeable to a reasonable person.⁵⁰ Any damage falling outside of that which is reasonably foreseeable is said to be “too remote” for the defendant to be held liable for it.⁵¹ In Martin v Inglis, a negligently-performed gastroplasty resulted in a gastric leak fourteen months after the surgery.⁵² Expert evidence proffered at the trial outlined that the worrisome period is typically the first 1-7 days post-surgery.⁵³ The injury was therefore not reasonably foreseeable, rendering the defendant was not liable due to remoteness.⁵⁴

It is evidently a challenge to establish causation in a medical malpractice action due to the potential that various intervening issues are operating simultaneously and/or post-injury. It is critical that juries acknowledge these issues, and systematically work through each of them on a case-by-case basis. Absent a critical review by the jury, the interwoven issues could lead to a misguided jury verdict. There is no available method, however, to discern whether any such review occurs.

The Role of the Jury

Analyzing whom a jury is composed of and how they are selected, as well as an analysis of the actual election to have a jury for a medical malpractice trial, will help to provide a better understanding of the role that juries play.

Composition and Selection of a Jury

Parties to an action have a prima facie, substantive right to a jury trial.⁵⁵ If a party elects to have their action tried by a jury, then the jurors are selected through a long process involving a jury roll and panel.⁵⁶ Eventually, the names of eligible prospective jurors are randomly drawn and seated in the jury box. Counsel for the parties are then asked if they wish to challenge any of the jurors. If challenged, the juror leaves the jury box and is replaced by another juror who is called randomly from the panel.

In Nova Scotia, a jury for a civil trial shall consist of seven persons.⁵⁷ A jury must be a “representative cross-section of society, honestly and fairly chosen”.⁵⁸ Every Canadian citizen is thereby qualified to serve as a juror if he or she is residing in the province where the trial is to take place, and he or she has reached the age of eighteen years.⁵⁹ People are disqualified from serving as a juror, however, if they are a Member of Parliament, judge, barrister or solicitor, an articled clerk, engaged in the administration of justice, or have been convicted of a criminal offence and sentenced to a term of imprisonment of two or more years.⁶⁰

Notably, the listed disqualifications result in adult Canadian citizens being eligible to be a juror unless they have some form of education or other relation to the practice of law. As a consequence, a jury will be composed of laypersons who have no formal education or understanding of trial procedures or the relevant law.

Electing a Jury for a Medical Malpractice Action

The role of a jury is to make all necessary findings of fact on the evidence heard, and to then apply the law as instructed by the judge in order to reach a verdict.⁶¹ Although any party to a trial can elect to have a jury, another party may make a motion to have the jury notice struck.⁶² There are many different reasons for why this might be done. For example, one such basis for rejecting an application for a jury trial might be based on the argument that their ability to understand complex evidence in a medical malpractice trial would be lacking since they do not have any formal legal education, and there is the additional possibility that none of them are health professionals. This was the case in Marshall v Curry (No 2), whereby the court set aside a jury notice given by the plaintiff on the basis that the issues of fact raised by the pleadings required scientific investigation which could not conveniently be made with a jury.⁶³

At one point, it was considered a well-known fact that due to the scientific investigations and highly technical evidence involved, medical malpractice actions could not be tried with a jury, and that a judge had virtually no discretion to refuse to strike out a jury notice.⁶⁴ Since then, there has been a substantial change in the judicial approach as to whether juries should or should not be allowed in medical malpractice actions.⁶⁵ This change is due in part to the fact that it has now been held that factual complexity, by itself, is no longer sufficient to deprive a plaintiff of his or her right to trial by jury.⁶⁶ Rather, an assessment of the legal, factual, and evidentiary issues must identify cogent reasons for why the issues would be too complex for a jury.⁶⁷ The fact that judicial instruction on the law may be difficult is also not itself a ground for striking a jury, nor is the length of the trial or the time needed to render a decision.⁶⁸

The fact that the complexity and length of a trial no longer provides a basis to strike a jury is surprising. With the rise of education, technology, and medical procedures, medical malpractice actions are becoming more and more complex. With complexity also comes lengthier trials. It is unreasonable to have seven individuals with no medical or legal experience deciding cases which can significantly impact the plaintiff’s personal and medical life.

According to the Canadian Medical Protective Association, 80% of the judgments for medical malpractice trials in Canada over the past five years have ruled in favour of the defendant health professional.⁶⁹ This suggests that juries do not often side with patients over health professionals.⁷⁰ Although no reasons were given for this stark statistic, it could be due in part to the inherent difficulties that a jury faces with understanding complex cases. This trend, however, will be discussed in greater detail in the “Ability to Avoid Juror Emotions and Biases” section below.

Advantages of Requiring Particulars

Former Chief Justice McLachlin asserted that Canadian jurors, since our country’s earliest days, have met the challenge of judging their peers fairly and impartially.⁷¹ The legislation in place, however, has prevented the scientific community from ever conducting empirical research on Canadian juries in order to test this statement. In 1982, the Law Reform Commission of Canada recommended that an exception should be introduced into section 649 of the Criminal Code to permit access to jury deliberations for the purpose of scientific research, however, this was never acted upon.⁷² Jury secrecy therefore continues to completely restrict researchers from carrying out studies involving real Canadian juries. As a result, we cannot gain any true insight into the mechanics of the jury process, the effectiveness of judicial instructions, or the actual deliberation process.⁷³ All arguments for or against the effectiveness of a jury are therefore grounded in speculation or are based on studies from other jurisdictions.

Notwithstanding the limitations, several strong advantageous themes still emerge when analyzing whether juries should be required to provide particulars of their findings of causation. These include the opportunity to test the jury’s understanding of the judge’s instructions, the ability to avoid juror emotions or biases, reduce the likelihood of a retrial or an appeal, and the importance of a transparent and accountable judicial system.

Opportunity to Test the Jury’s Understanding of the Judge’s Instructions

After a judge provides a jury with instructions as to how to apply the law to the findings of fact, the jury deliberates and then provides the court with a verdict.⁷⁴ Unless the jury is instructed to answer specific questions, then there is no method to ever test or know whether the jury did in fact understand and follow the instructions given. As a result, there is also no ability to measure in any meaningful way whether the procedures that are in place (i.e.: full and frank discussion) to ensure that a jury functions properly are, in fact, effective.⁷⁵ Requiring juries to provide particulars would solve this problem, because the reasons as to how they did or did not find causation would indicate whether or not they applied the correct legal tests.

In Clements, the then Chief Justice McLachlin claimed that the “but for” causation test must be applied using a “common-sense inference” that usually flows without any difficulty.⁷⁶ This implies that a jury should not have any issues with applying the law to the facts. However, other cases have raised different opinions, and the possibility that juries will sometimes reach a verdict in error is inescapable.⁷⁷

The jury’s understanding of the instructions given in ter Neuzen was tested by requiring the jury to provide particulars as to how the defendant was negligent; Sopinka J. stated that doing so would act as a “precaution”.⁷⁸ The recommendation in ter Neuzen to ask juries for particulars has since been interpreted to apply to medical malpractice cases with difficult and complex issues. In Sacks v Ross, Wilson J. explained that it is necessary for juries to provide answers to its findings on the standard of care to ensure that they understood and applied the judge’s instruction properly.⁷⁹ Wilson J. continued by claiming that causation is a difficult and complex area of the law, and that this reasoning should therefore apply to it just as well.⁸⁰

Sacks v Ross was an appeal of a medical malpractice action concerning the proper test for causation in a delayed diagnosis involving multiple tortfeasors.⁸¹ There, P. Lauwers J.A. admitted that the jury questions and instructions were indeed problematic.⁸² It was also stated that the causation doctrine needs to be explained in “jury-accessible language”.⁸³ This is therefore an example of a case that proceeded to the appellate level merely because the test for causation is unclear.

Even more telling of the difficulty with instructions was in the case of Cheung. There, the jury was specifically instructed to explain how the defendant(s) did or did not cause the brain injury at issue. When providing their answer, however, the jury merely stated “[the defendant’s] failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage” (emphasis added).⁸⁴ Even on a liberal interpretation, the answer failed to set out the “but for” causal link between the breach and the outcome. The jury’s answer therefore demonstrated that their reasoning was flawed; they concluded that being at a “higher risk” caused brain damage, which was held to be clearly erroneous, as Wilson J. explained the following:

The answers provided are 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. It is clear to me that they misunderstood what they were required to do in answering the causation questions. It is apparent they did not follow my instructions on how to deal with the causation analysis […].⁸⁵  [Emphasis added]

As a result, a new trial was ordered.

Importantly, asking for particulars is a now-or-never approach. If a jury issues a verdict, and afterwards is asked to outline the particulars, then this may be perceived by the jury as a direction to decide the matter differently.⁸⁶ As discussed in the trial decision of Salter; a jury’s deliberations can be tainted by receiving additional instructions, a repetition of the charge on causation, or an emphasis of particular clauses.⁸⁷ This would consequently taint their subsequent answers to the questions, which would then render the answers to be of little assistance. This was agreed upon in Cheung, where Wilson J. refused to recall the jury to provide a third instruction on answering the causation questions, for fear that the dangers outlined in Salter were already increased, thus another instruction would serve no useful purpose.⁸⁸

Ability to Avoid Juror Emotions and Biases

The effects of juror emotions and biases are additional factors that could impact a verdict. Juries are presumed to be impartial, and there are many safeguards in place which are designed to help ensure their impartiality.⁸⁹ For example, jurors must swear an oath or affirmation that they will give a true verdict based on the evidence, and subsection the Criminal Code ensures that they remain sequestered while deliberating.⁹⁰

The test for considering whether a jury is impartial is whether there is a “reasonable apprehension of bias”. The SCC has held, however, that courts should be reluctant to conclude that a jury has failed to remain impartial.⁹¹ This was based on the reasoning that an allegation of bias would question the integrity of the jury and the overall administration of justice. On the contrary, the administration of justice would be called into even greater question if there were an actual presence of bias which was disregarded. The potential for bias to arise should therefore be regarded with vigilant caution.

Medical malpractice actions are typically between an injured plaintiff and a health professional. As mentioned above, statistics show that juries typically side with the defendant health professional.⁹² Upon conducting systematic empirical research on the jury system in the United States of America (the “USA”) over the past several decades, Vidmar found that jurors who serve on medical malpractice trials described their attitudes as either being (1) that the plaintiffs were people who wanted to get something for nothing, or, (2) that the health professionals were trying to help people and should not be blamed for simple human misjudgment or a momentary lapse of concentration.⁹³

There appears to be a degree of skepticism toward the plaintiff in medical malpractice actions – with a bias toward appreciating the health professional’s role. In the alternative, for cases that are decided for the plaintiff, it is possible that the jury could have been influenced by emotions or sympathy for his or her injury. As it is, however, jury secrecy makes it difficult to ever be able to prove the existence or effect of juror bias. Requiring juries to provide particulars of their findings also safeguards against the power of a jury to disregard the law in favour of an emotional or biased verdict.⁹⁴

Making jury particulars more transparent would also have the potential to change the nature of the jury deliberations themselves. If jurors knew they would have to make their reasoning public, then this could encourage them to remain rational and refrain from deviating from the facts.⁹⁵ Poonwasee expressed the concern that requiring a jury to attempt to precisely articulate the particulars of their findings could in fact distract them from their main task of determining liability and damages.⁹⁶ It is more likely, however, that it would instead help to concentrate their minds on the facts and issues of the case, which in turn would help them address complex issues.⁹⁷

Reduce the Likelihood of a Retrial or an Appeal

After a verdict is given by a jury, the judge must grant an order for judgment consistent with the verdict.⁹⁸ As long as there is some evidence to support a jury’s verdict, high deference will be accorded, and the verdict will not be set aside even if another conclusion is available based on the evidence.⁹⁹ In Hill v Church of Scientology of Toronto, Carruthers J. set out the legal test for a trial judge to follow:

[A] trial judge may refuse to accept the verdict of a jury only when she or he considers that there is no evidence to support the findings of the jury, or where the jury gives an answer to a question which cannot in law provide a foundation for a judgment.¹⁰⁰  [Emphasis added]

The authority of a trial judge to refuse to enter a jury verdict is therefore very limited. This implies that a jury’s verdict is almost always followed, thereby playing a critical role in the action. Further, when interpreting this legal test, it is conflicting that an unfounded answer to a question permits a judge to reject a jury verdict, when had the question not been asked, it would never have been known that the verdict was unfounded.¹⁰¹

Since medical malpractice actions are based on negligence, and the “but for” test for causation is factual, finding it to have been conducted incorrectly would amount to a palpable and overriding error, which is the most stringent standard of review available.¹⁰² This stringency is applied equally to both judge and jury verdicts.¹⁰³ The general rule is that even appellate courts must accord great deference to a jury’s findings in civil negligence proceedings, and that the verdict of a jury will not be set aside “unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”.¹⁰⁴

Salter v Hirst represents an example where not only did the trial judge dismiss the jury’s verdict, but the Ontario Court of Appeal held that the trial judge was correct in doing so on the basis that there was in fact no evidence that could support a finding of causation.¹⁰⁵ As a result, both the trial judge and the appellate judges had to go over the case again and lay out their reasons as to why the causation test was not met. This therefore indicates that even though a jury is entitled to great deference, their verdicts on causation may still be applied so incorrectly that appellate courts must step in and assess the verdict.

Every year, several jury verdicts are reversed – and expensive new trials are ordered – due to the risk of a serious error having occurred in the jury deliberation process.¹⁰⁶ Anything from errors regarding the admissibility of evidence, improper comments by counsel, or improper instructions on the law by the trial judge, all have the potential to misguide the jury, which can then have an adverse impact on the verdict.¹⁰⁷ Due to the inability to determine if – or to what extent – an error could have impacted the verdict, the appellate court must speculate as to whether the error was likely to have adversely affected the jury’s deliberations.¹⁰⁸ If so, the court must conclude that the trial is vitiated and start again. In contrast, if particulars were required, then this would help enable the reviewing court to determine if the jury verdict was reasonable and grounded in the evidence.¹⁰⁹

It is a waste of judicial resources, time, and money for courts to have to proceed with caution and re-check jury verdicts at each level of court. For example, the parties in Salter spent more than two years waiting for a final decision from the courts.¹¹⁰ A medical malpractice case is likely to be brought by a plaintiff who is injured or ill – sometimes to a serious degree. It could also be during a time where the plaintiff, as a mere result of the cause of action, may not have much time left. Alternatively, however; requiring particulars could also result in more opportunities for leaves to appeal. This was briefly outlined in Sheppard, where it was stated that a judge’s reasons may assist the parties with considering a potential appeal.¹¹¹ Reasons represent an important function in the appellate process, as they may assist the appellate court(s) to conclude whether there was an unreasonable verdict, an error of law, or a miscarriage of justice.¹¹² In contrast, an absence of particulars means the appellate court must proceed on nothing more than the adequacy of the judge’s instructions and a consideration of the evidence presented.

Transparency and Accountability of the Judicial System

When a trial proceeds without a jury, the presiding judge must outline all of his or her reasons in the final written decision. There is no issue of not knowing how, or which, test was applied since the tests used and the reasoning behind them will typically be addressed in the decision. The dissent in Dhaliwal proposed that juries should have to provide particulars for the same reason that trial judges are obliged to provide reasons.¹¹³ In particular, the dissent explained that a judge would not be living up to the expected standards if he or she merely provided a statement declaring whether or not there was a finding of fault – yet this is all that a jury must currently provide.¹¹⁴

The requirement for judges to provide reasons is based on the expectation of transparency and accountability, and it acts as a duty owed to the public at large.¹¹⁵ The SCC has articulated that justice must not only be done, but must be seen to be done, and that this cannot be accomplished unless judges articulate their reasons for their judgements:

Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.¹¹⁶  [Emphasis added]

Essentially, the parties of an action and the interested public should be permitted to know why a decision was reached. This is seen in the USA, where the refusal to endorse a blanket prohibition on juror interviews helps ensure accountability to the public.¹¹⁷

Reasons are required by judges despite the presumption that they know the law and are able to competently deal with the issues of fact.¹¹⁸ This cannot be said of juries, especially considering they are disqualified from being a juror if they have a legal education or career. Further, it is recognized that even learned judges can err, and parties are entitled to have the correctness of a decision reviewed.¹¹⁹ The absence of reasons by a jury precludes this from being accomplished to the same extent.

Despite the inconsistencies between the requirements of judges versus juries, the SCC has held that transparency is simply not expected from a jury.¹²⁰ I have not been able to find any recent case law that justifies this distinction.

Disadvantages of Requiring Particulars

Although there are multiple advantages for requiring juries to provide particulars for their finding of causation, there are also strong disadvantages, including that it would risk revealing the substance of the jury deliberations, and that it would fail to account for the possibility that jurors might not all agree on the reasons for causation.

Risk of Revealing the Jury Deliberations

Jurors should be able to deliberate with the assurance that their reasoning will not be scrutinized by the public following the verdict. Requesting particulars would risk revealing the substance of the jury’s deliberations,¹²¹ which could conflict with the rationales that have long supported jury secrecy, including the importance of an honest and reliable verdict, and the protection of the juror members themselves.

Canadian Rationales. The rules governing the secrecy of jury deliberations exist to ensure the integrity and reliability of jury verdicts.¹²² Promising jurors that the deliberations will remain confidential promotes candour and the kind of full, free, and frank debate that is essential to decision making.¹²³ This, in turn, protects the integrity and the reliability of the verdicts. As explained by the SCC, jurors should be free to explore out loud all avenues of reasoning while being shielded from any outside influences and from any fear of exposure to public ridicule, contempt, or hatred.¹²⁴

A second rationale for the jury secrecy rule is the need to protect jurors from harassment, censure, and reprisals.¹²⁵ Parties to an action may have a right to a trial by a jury, but members of the public do not often have a choice as to whether they want to be a juror or not.¹²⁶ The system of jury selection is therefore sensitive to intrusions into the personal lives of jurors, which is dependent on ensuring their privacy and security.¹²⁷

Other Jurisdictions. The importance of concealing jury deliberations is seen in many different jurisdictions. As it stands, England and Wales,¹²⁸ and various Australian states,¹²⁹ have legislated to make it a criminal offence for any person to disclose details relating to jury deliberations. Out of these jurisdictions, some states in Australia are the most liberal by having exceptions to the offence. For example, the state of Victoria, Australia does not prohibit a juror from disclosing information from the judge, the jury commissioner, or a medical practitioner.¹³⁰ They can even disclose deliberations to the public so long as such disclosure is not capable of identifying the juror or the relevant legal proceeding.¹³¹ In the state of New South Wales, the prohibition is lightened by the phrase “except with the consent of the judge”.¹³²

In the USA, the First Amendment of the Constitution prohibits Congress from making any law that abridges the freedom of speech or of the press.¹³³ This is not hindered by jury secrecy to the same extent that it is in Canada.¹³⁴ While there are limits on having lawyers conduct post-trial interviews with jurors,¹³⁵ jurors are otherwise free to discuss their experience with members of the public and the media.¹³⁶ That said, there is no obligation on a juror to discuss the trial, and he or she has the right to refuse to discuss it.¹³⁷

The purpose of allowing post-trial interviews of jurors in the USA is to strike a balance between the right to inquire into a verdict, and the right of jurors to be free from harassment and secure in their verdicts.¹³⁸ In other words, a juror’s interest in privacy, and the public’s interest in knowing that a well-administered justice system exists, are both recognized and acted upon as important values.

Summary of Revealing Jury Deliberations. It is well established that protecting the ability to engage in a full and frank debate is important for jury deliberations. This brings about the question – whose interest does the freedom of debate actually promote? The positions taken by the USA and some states in Australia posit that not only do the jurors have an interest, but the parties of the action and the public do as well. The jurors are exercising their civic duty by sitting on a jury; the parties have an interest in knowing that the reasons behind the verdict are done with candour and reasonableness; and the public has an interest in knowing that the judicial system is working effectively.¹³⁹ Combined, it is unreasonable to have no exceptions to the jury secrecy rule, when there are multiple interested people at stake. As the United States Supreme Court noted, “the argument in favor of receiving [juror] evidence is not only very strong, but unanswerable – when looked at solely from the standpoint of the private party who has been wronged by such misconduct.”¹⁴⁰

Arbour J. of the SCC specifically stated that he was fully satisfied that a considerable measure of secrecy surrounding jury deliberations is essential to the proper functioning of a jury.¹⁴¹ While the importance of keeping the deliberations confidential is evident, this must be weighed in light of the advantages of making some exceptions. If the publication of a jury’s reasons were merely restricted to the finalized particulars of the issue of causation, then their freedom to explore out loud all avenues of reasoning remains substantially intact, and the risk of the actual deliberations being exposed would be low. The complete prohibition of all reasons is overbroad.

Fails to Account for Disagreement Between Jurors

Requiring a jury to state particulars for a verdict of causation implies that not only must they agree with the verdict, but that they also must agree with the reasons. Huang dealt with this issue – and after expressing the same concerns that Newell did over six decades prior – the court did not allow the question to be asked.¹⁴² Essentially, Huang and Newell explained that asking a jury to state the basis of their findings is to ask that they be unanimous on the reasons for those findings.¹⁴³ A jury does not have to be unanimous in its reasons, however, so long as they come to a unanimous conclusion. In other words, jury members are entitled to reach a unanimous verdict by different paths of reasoning.¹⁴⁴

Requiring jurors to provide particulars therefore fails to account for the possibility that they do not all agree on the reasons for their decision.¹⁴⁵ In the case of causation, however, the “but for” test is very narrow, in that it requires the trier of fact to identify the singular “but for” cause that led to the harm. It is unlikely that a jury would reach the same finding through different paths of reasoning if they are in fact applying this test correctly.

It is also important to recognize that for civil jury trials, the Civil Procedure Rules mandate that a verdict of answers must be unanimous only if it is given before the jury has deliberated for four hours.¹⁴⁶ If they deliberate longer than four hours, then only five of the seven jurors must agree on the verdict.¹⁴⁷ Further, jury questions may be answered by differently composed majorities of five jurors, thereby allowing room for disagreement on different issues.¹⁴⁸ The jurors are also informed during the judge’s instructions what kind of verdict or answers they will have to provide.¹⁴⁹ They therefore enter deliberations knowing what is expected of them, which may help them work toward a common goal.

Conclusion: Future Directions

This paper sought to analyze whether a jury should be required to provide particulars on its finding of causation in a medical malpractice action. After analyzing the history and complexity of causation, the selection and role of juries, and arguments for and against requiring particulars; the prevailing pattern is that an exception should be made in the jury secrecy rules to require particulars.

Historically, the complexity of medical malpractice actions mandated that they had to be heard by a judge without a jury. Since then, one’s right to a trial by a jury has strengthened, and complexity is no longer sufficient to remove this right. With more medical malpractice actions now being heard by a jury, concerns have emerged which have not been adequately dealt with.

The rule that the deliberations and reasons of a jury are to never be exposed unless requested by a judge has long been seen as essential for the proper administration of justice. Jury secrecy ensures that jurors can engage in free and frank discussion during deliberations, and that they are not forced to agree on reasons. However, as it is, the judicial system lets jurors decide if someone is liable in a malpractice action while remaining blissfully unaware of any misunderstandings or biases that may have led to that decision.

The near-absolute secrecy of a jury’s reasons ignores the need for balance while favouring pragmatic secrecy over principled openness. The legitimate interests protected by the current legislation could remain adequately protected by a less absolute form of jury secrecy. Australia and the USA have demonstrated that it is possible to balance the secrecy of the deliberations during the trial with the right of the public to have access to the information after the verdict has been made. The remedy need not be a general right of access to any jury deliberations, as any proposal to infringe heavily on jury secrecy should expect strong resistance. It is clear that some degree of jury secrecy is necessary to the fair and efficient administration of justice – but a balance must be struck.

The SCC has recognized that our current jury system has remained essentially unchanged since Canada was founded.¹⁵⁰ Parliament should therefore allow empirical research to be conducted on Canadian juries, which would then allow for appropriate parameters to be designed around the jury secrecy rule. This research would inform the legitimacy of the existing legislation and, if need be, would trigger legislative reform.

Overall, there are options available that could be put in place to ensure adequate safeguards are met. I submit that it is possible to maintain a high degree of jury secrecy while also allowing for greater insight into a jury’s reasons. Restricting the publication of a jury’s reasons to the particulars of their finalized, pinpoint conceptualization of the issue of causation would have minimal impact on their freedom to engage in free and frank debates with each other, and any potential breaches of privacy would be very minimal.¹⁵¹ Their findings would not have to relay a thorough analysis of the law and its application – as a judge’s decision often does – but could instead be more comparable to the way typical answers are succinctly provided to judges’ questions. Doing so would allow the parties and the public to have greater confidence in the verdict and the judiciary itself.

Endnotes