Jury Questions: When To Ask For Reasons - Case Study: Cheung v. Samra 2020 ONSC 4904

• Published date: 28 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Professional Negligence
• Law Firm: McCague Borlack LLP
• Author: Mr Michael Kennedy and Sydney McMahon (Articling Student)

Introduction

In Ontario, there is a well-established practice of asking jurors to provide reasons for their verdicts. This practice is grounded section 108(5) of the Courts of Justice Act, R.S.O. 1990 c. 43, which gives trial judges, for jury cases, the discretion to require the jury to give a general verdict or answer specific questions, meaning jurors may be required to explain how or why they arrived at their general verdicts when answering specific questions.

Despite section 108(5), the jury is not absolutely required to provide reasons for their verdicts, even in complex cases. It is deemed that juries understand and correctly apply the instructions provided to them by the trial judge.¹ In other words there is a presumption of integrity regarding general verdicts simply because the jury did not explain its verdict is not a ground for appeal.

The exception to this presumption arises in professional negligence cases. The Supreme Court of Canada directed that juries in professional negligence cases should be asked to give reasons explaining how the defendant was negligent.² The purpose of this is to test the jury's understanding and correct application of the trial judge's instructions regarding negligence.³ As such, and to ensure jurors are fairly deciding the case before them, it has become standard practice to require juries to provide particulars of how they arrived at their decisions regarding the standard of care and causation.⁴

However, requiring juries to provide reasons for their decisions is not always necessary. In straightforward cases, there may not be a need to test the jury's understanding of the judge's instructions on negligence, and thus no need to require the jury to provide particulars.5 For example, in a motor vehicle accident case in which liability is fairly obvious, asking the jury to explain they are holding the defendant liable may not be needed in the interest of justice. In Poonwasee v Plaza, the court stated that the advantages of the jury being required to provide particulars are the ability to test the jury's understanding of the judge's instructions, make sure that the jury did not disregard the law in favour of an emotional verdict, and to concentrate the jurors' minds. Conversely, the court considered the disadvantages of requesting particulars to be that doing so fails to account for the possibility that the jurors may disagree on the reasons for their unanimous decision, it risks revealing the substance of jury deliberations, and the jurors may become distracted from their primary task of determining liability and damages. This may open the door to an appeal... It is possible that the jury will give reasons that reveal a problem with their understanding or application of the judge's instructions, or that the jury will given insufficient reasons that are not responsive to the questions put to them. This may open the door to an appeal that would not have been available had the jury not been asked to provide particulars. The recent Divisional Court decision of Cheung v. Samra ("Cheng"),6 in which the Divisional Court agreed with the...