The Importance of Objecting to an Improper Jury Charge

Vokes Estate v. Palmer, 2012 ONCA 510 (C.A.)

This appeal decision illustrates the importance of objecting to a judge's charge to the jury, as well as the difficulty in overturning jury verdicts on appeal.

The case involved a fatal motor vehicle accident.  The defendant appealed the jury`s verdict, arguing that the trial judge failed to properly charge the jury with respect to s. 139(1) of the Highway Traffic Act (concerning the duty owed by the deceased on entering a highway) and failed to instruct the jury on the proper range of damages for loss of care, guidance and companionship.  The defendant also argued the jury award was gross and excessive.

The trial judge advised that he intended to charge the jury by omitting the words underlined below.

That section therefore imposes a very positive duty on Michelle Vokes in this case, breach of which would clearly constitute negligence. On the other hand, this positive duty on Ms. Vokes does not relieve Mr. Palmer who was operating his motor vehicle on the [through] highway from exercising ordinary care in the circumstances.

Counsel for the defendant did not object to the charge and in fact described the charge as an

“exercise in perfection”.  The Court of Appeal held that while the failure to object is not fatal, in most cases, an alleged misdirection or non-direction will not result in a new trial unless a substantial wrong or miscarriage of justice has occurred.

The remainder of the appeal was also dismissed, as under s. 118 of the Courts of Justice Act the judge may give a range of damages, but is not obligated to do so.  In addition, the threshold for overturning a jury`s award of damages is very high.  The assessment must be so inordinately high as to constitute a wholly erroneous assessment of the loss of care, guidance and companionship, which was not the case. 

Court of Appeal - Striking a Jury Notice

There is an interesting recent Court of Appeal decision in which the court discusses the appropriateness of a jury notice where there is a significant pre-accident medical condition. In Placzek v Green, (January 26, 2012, Ontario Court of Appeal) the plaintiff was injured in a rear end collision. The plaintiff had suffered from "severe fibromyalgia" for many years before the accident. The defendant argued that, to the extent that the plaintiff's physical problems interfered with her life after the accident, both problems were attributable in whole or in the main to the serious pre-existing condition and not to the relatively minor accident involving the vehicle driven by the defendant.

The trial judge struck the jury at the outset of the trial and held that, with respect to damages, despite the plaintiff's prior physical problems, the injuries suffered as a result of the car accident had caused significant problems for the plaintiff. The trial judge awarded damages in the amount of $919,237.

The defendant appealed on the basis that the trial judge should not have discharged the jury and that she did not quantify the damages on the basis of a rational analysis of the evidence.

With respect to discharging the jury, the Court of Appeal pointed out that the decision to discharge a jury is a discretionary one and that the court will defer to the exercise of that discretion unless it is shown that it was exercised on a wrong principle or that the exercise in the circumstances can be properly characterized as arbitrary, capricious or unreasonable.

In this case, the trial judge dismissed the jury on the basis of the anticipated complexity of the evidence to come relevant to the damage assessment. The complexity arose out of the plaintiff's pre-existing medical condition and the need to determine the impact of that condition on the plaintiff's post accident medical condition. In addition, there was competing expert evidence relating to the plaintiff's lost income and loss of future income claims. The plaintiff was a self-employed realtor and there were several factual variables relevant to her lost income claims. Finally there was competing and somewhat complex medical, engineering and biomedical evidence.

The Court of Appeal acknowledged that the defendant had made a powerful argument in support of his position that this was not really a complicated case at all, but found that they were unable to describe the trial judge's characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. The Court of Appeal acknowledged that other judges might have reached a different assessment of the complexity of the evidence and declined to strike the jury, but that is not a basis upon which the trial judge's exercise of her discretion can be interfered with.

Of interest, the Court of Appeal went on to discuss other factors which the trial judge thought supported the exercise of her discretion in favor of striking the jury. For example, the Court of Appeal was of the view that the manner in which some of the evidence might be put before the jury and the advantages or disadvantages that one side or the other might have as a consequence, is irrelevant to the decision as to whether the jury should be struck before the trial started. Also, concerns about the position taken by the defendant with respect to liability could not provide any basis for striking a jury.

However, because the trial judge made it clear in her reasons that she struck the jury because of the anticipated evidentiary complexity on matters relating to damages, errors in respect of other matters considered did not taint the exercise of the trial judge's discretion.

With respect to the second ground of appeal, the defendant argued that the trial judge did not attempt to quantify the damages based on a critical assessment of the evidence, but instead simply picked a point somewhere in the middle between the various scenarios advanced by the parties. The Court of Appeal gave short shrift to that argument which apparently did not have much basis in evidence.

This case should be of some concern to defendants who believe that their cases are best determined by a jury. In most injury cases, certainly most cases which proceed to trial, there are issues relating to pre-existing medical conditions and there are issues relating to the calculation of future lost income. We certainly hope that Courts will not develop the habit of striking juries on those types of cases.

- Colin Osterberg

Summary judgment in jury cases

Is summary judgment available in jury cases?

Cooke v. Toivonen (2011), 105 O.R. (3d) 232 (S.C.J.)

This case involved a multi-vehicle automobile collision. The Cooke vehicle was hit from behind by Price, and in turn Cooke hit Toivonen. Toivonen hit the vehicle in front of him.

The plaintiffs consented to an order releasing Toivonen from the action; however, the remaining defendants objected, arguing that to do so would amount to bifurcating the trial. Rule 6.01 permits bifurcation only if all parties consent. In Kovacs v. Kovacs, the Court of Appeal held that jury cases are an exception to the court’s inherent power to split a trial.

The Court held that it has the authority to order summary judgment in jury cases. Summary judgment is not at odds with a litigant’s right to a jury trial. There was no air of reality to a claim that the Toivonen vehicle could be liable and the action and crossclaims against Toivonen were dismissed.