Discharging a Jury: How Much Explanation is Required from a Trial Judge?
Overview:
In Penate v. Martoglio[1] the Court of Appeal concluded that when a trial judge discharges a jury, they must explain their reasons for doing so beyond conclusory remarks.
Background Facts:
The plaintiff, Norman Penate, was born on July 15, 1996 at St. Michael’s Hospital in Toronto. Doctors decided to induce labour by rupturing the amniotic sac, surrounding the fetus. When the sac was ruptured, the umbilical cord slipped through the cervix in front of the fetus, which can prevent the fetus from breathing. One doctor did not document the rupturing or the subsequent cord prolapse.
An emergency cesarian section was performed and Mr. Penate was delivered. He suffered a severe brain injury around the time of his birth. By the age of four, tests showed near total destruction of his brain.
History of the Litigation:
In 2014, around the age of 18, Mr. Penate, along with his parents and siblings, brought a claim against St. Michael’s Hospital, three doctors, and two nurses for medical malpractice. The plaintiffs chose to have a jury trial.
The defendants submitted 39 objections to plaintiffs’ counsel’s closing statement, including appealing to the jury’s sympathies and inaccurately referring to their opening statement as evidence. Despite neither side asking the trial judge to discharge the jury, Justice Ferguson did so and announced that she would decide the case herself.
In her decision regarding the jury, Justice Ferguson did not explain which of plaintiffs’ counsel’s comments were prejudicial or why. Rather, she quoted the legal standard and concluded that she was required to discharge the jury.[2]
In her trial decision, Justice Ferguson found that Mr. Penate did not suffer a brain injury due to the cord prolapse. She further found that all the defendants met the standard of care, apart from the one doctor’s failure to document (which did not cause the brain injury). As such, the case was dismissed.[3]
The plaintiffs challenged Justice Ferguson’s reasons for discharging the jury and alleged that she copied substantially verbatim 90% of the defendants’ submissions into her reasons.
The Law on Discharging the Jury and Providing Adequate Reasons:
Pursuant to s. 108 of the Courts of Justice Act,[4] civil litigants may require that the issues of fact be tried or the damages assessed by a jury.
The test to guide trial judges’ exercise of their discretion to discharge a civil jury comes from a 2021 Ontario Court of Appeal case, St. Marthe v. O’Connor:
[46] […] After deciding that a particular reference before a jury is prejudicial, the trial judge must determine whether the prejudice is so severe that specific instructions cannot dispel that prejudice. The jury should only be discharged if the prejudice cannot be cured. In most cases, the trial judge will be able to fashion a remedy short of discharging the jury.[5]
The Court of Appeal’s deference to the trial judge’s decision requires adequate reasons. As explained in Penate, “If the reasons are adequate, this Court will not interfere unless the appellant shows that the trial judge acted on a wrong principle, arbitrarily, capriciously, or unreasonably. However, no appellate deference is owed if the reasons are inadequate or do not exist.”[6] The Court of Appeal further clarified that statements of what a trial judge is supposed to do are not adequate reasons.
If a party is improperly denied their right to a jury trial, generally a new trial must be ordered. There is a narrow exception if the appellate court determines that any reasonable jury would have inevitably reached the same result as the trial judge.
Application of the Law:
In her decision, Justice Ferguson did not explain which of plaintiffs’ counsel’s comments were prejudicial nor why corrective instruction was inadequate. This was especially important as she initially stated that corrective instruction would be sufficient. Rather, Justice Ferguson’s comments restated the legal test and were conclusory, which does not allow the parties nor the Court of Appeal to understand her decision.
The Court of Appeal disagreed with the respondents’ claim that Justice Ferguson’s decision could be salvaged by considering her oral comments that most of the challenged comments were improper. Similar to her written decision, this is a conclusory remark.
Therefore, the Court of Appeal ordered a new trial. The narrow exception does not apply as this was a complex case with competing expert testimony and, therefore, it was not inevitable that the jury would have dismissed the action.
Takeaways:
This decision provides helpful commentary on a trial judge’s discretion to discharge a jury. As the right to a jury trial is fundamental, a trial judge must provide reasons for their decision to discharge a jury, including their analysis on which of and why counsel’s comments prejudiced the opposing party and why corrective instruction to the jury would be inaccurate. This case further confirms that restating the law and providing conclusory remarks is not sufficient to explain the judge’s reasoning.
[1] Penate v. Martoglio, 2024 ONCA 166 [Penate 2024].
[2] Penate v. St. Michael’s Hospital, 2021 ONSC 7381.
[3] Penate v. St. Michael’s Hospital, 2022 ONSC 4939.
[4] Courts of Justice Act, R.S.O. 1990, c. C.43, s.108.
[5] St. Marthe v. O’Connor, 2021 ONCA 790 at para 46.