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There are many discussion being had around the province about when civil juries are appropriate. Certainly, for the vast majority of medical negligence lawyers, the consensus seems to be that given the importance of health law to the public interest and the diversity of perspectives one finds on a jury, that juries should remain available to either party in a medical negligence action. As of the writing of this article, civil litigants have a substantive right to trial by jury. 

A litigant also has a fundamental right, but only when an issue is determined by a judge, to know why a judge ruled for or against them. In addition to the fundamental sense of injustice that results when a decision is made against you without adequate explanation, our system of “common law” is based on the development of law through judicial decisions. Where a judge’s decision is incorrect, it is the Court of Appeal’s job to correct it. Without an adequate explanation of why a judge decided a certain way (called “reasons”), it is often impossible for the Court of Appeal to make this determination. 

These two fundamental rights intersected in the case of Penate v. Martoglio, 2024 ONCA 166 (CanLII), an appeal of a Trial Judge’s decision to dismiss a medical negligence action after ruling that the Jury should be discharged. This is a power granted to Trial Judges in cases that are to be determined by a jury: If the Trial Judge determines that a Jury cannot possibly adjudicate a dispute fairly, they can “discharge” the jury and decide the case themselves. Because discharging a jury infringes on the fundamental right to a jury trial, it should only be done in the most extreme of cases where the parties’ right to an impartial decision maker applying the correct law would also be infringed. Usually, a jury that is argued to be “tainted” by some improper comment made by one of the lawyers can be fixed by having the Trial Judge instruct the Jury on the proper application of the law and what they should/should not consider. Certainly, if a Jury is going to be taken away, the party who requested their case be tried by a jury deserves a fulsome explanation as to why. 

In Penate, the Defendants, a hospital and physician in a medical negligence action, objected to a number of remarks that were made by the Plaintiffs’ lawyers during closing submissions. As the name suggests, “closing submissions” refers to the remarks made by each lawyer at the conclusion of the case. They summarize for the jury their side’s view of the evidence, and argue why the jury ought to find for them in light of the evidence. However, what is important to remember is that what the lawyer says in his or her closing submission is not evidence itself. Nor is the lawyer’s interpretation of the law that the jury must apply the final word- that comes from the Trial Judge. At the end of a lengthy medical malpractice trial like Penate, it is not uncommon for lawyers to advocate zealously during their closing submissions, and if they go too far the opposing party may object on the basis that irrelevant factors have been mentioned or evidence misstated. Generally, if the Trial Judge agrees they can bring the jury back from their deliberations and instruct them to disregard the offending statements. 

In Penate, the Defendant’s indeed raised an objection, numerous objections in fact, to what they viewed as misstatements of the evidence. Importantly, the Defendants did not ask for the Jury to be discharged when raising these objections, likely recognizing themselves as experienced trial lawyers what an extreme remedy this would be. However, after reviewing the Defendants’ objections and agreeing that the Plaintiff’s lawyer had made improper comments, the Trial Judge determined that these comments were cumulatively so severe that any corrective instruction would be “unwieldy and ineffective.” However, the reasons provided by the Trial Judge did not specifically identify which objections were prejudicial or why corrective instruction was not appropriate. 

At paragraph 19 of the decision, the Court of Appeal reviewed the test for Discharging a Jury, which requires the judge to determine that (1) the lawyer’s comments prejudiced the opposing party, and (2) the prejudice was so severe that a corrective instruction would not cure it. The Court of Appeal noted that the reasons for discharging a Jury must be substantial to override the substantive right of a jury trial and that in most cases such a ruling would not be appropriate. At paragraph 20 and 21, the Court of Appeal notes that despite this high threshold, an Appeal Court, who was not present at the Trial themselves, will defer to the Trial Judge’s application of the law, provided it was correct and not applied arbitrarily or unreasonably. However, in order to make this determination, the fundamental right of litigants to adequate reasons must be followed. Reasons that are not merely conclusory (i.e. reiterations of stock phrases about what the law requires) are inadequate and must be responsive to the issues and arguments.

The Court of Appeal held that in this case, the Plaintiffs (who opposed the discharge of the Jury) did not receive adequate reasons. While the Trial Judge’s decision correctly identified the circumstances in which a Trial Judge can discharge a Jury, they did not identify exactly what was prejudicial about the objectionable comments in this case nor why a corrective instruction would not be adequate to remedy any concerns. 

Finding that the reasons for discharging the Jury were inadequate necessarily meant that the Trial Judge’s decision at large dismissing the action could not stand, and therefore a new trial, to be heard by a new Jury, was ordered. It is only in the clearest of cases where the Court of Appeal can substitute its own ruling for that of a Judge or Jury, since they are only given a transcript of the evidence and were not present to make determinations of witness credibility, etc. That high bar was not met in this case.