



COURT OF APPEAL FOR ONTARIO

CITATION: Patterson v. Peladeau, 2020 ONCA 137

DATE: 20200220

DOCKET: C65518

MacPherson, Sharpe and Jamal JJ.A.

BETWEEN

Ronald A. Patterson,
    Nadine J. Chapman

and Ronda Lee Patterson

Plaintiffs (Appellants)

and

Pascal Peladeau

Defendant (Respondent)

Joseph Y. Obagi and Thomas P. Connolly, for the
    appellants

Joseph W.L. Griffiths and Matthew G.T. Glass, for the
    respondent

Heard: February 6, 2020

On appeal from the judgment of Justice Charles T.
    Hackland of the Superior Court of Justice, dated May 14, 2019.

By the Court:

INTRODUCTION

[1]

This appeal arises from the trial judges dismissal of motions to strike
    the jury and to declare a mistrial in a motor vehicle personal injury action:
Patterson v. Peladeau
, 2018 ONSC 2625, 80 C.C.L.I. (5th) 213. During the
    jurys deliberations, the jury asked the court a question that revealed that it
    may have accessed inappropriate extrinsic information, namely, a statutory provision
    that was irrelevant and inapplicable to this case, but which, if applied, could
    impact the apportionment of liability.

[2]

The trial judge questioned the jury foreperson, who revealed that he had
    found the provision on an Ontario government website on the weekend at the
    beginning of the deliberations, and then shared it with the other jurors. The
    foreperson also revealed that this was the full extent of the extrinsic
    information and that no other juror had accessed the internet in relation to
    the case.

[3]

Based on these answers, the trial judge was satisfied that he did not
    need to question the other jurors and that this issue, while serious, could be
    dealt with through a correcting charge. He dismissed the appellants pre-verdict
    motion to strike the jury, as well as their post-verdict motion to declare a
    mistrial.

[4]

The appellants now appeal to this court. They contend that the trial
    judge failed to conduct a proper inquiry as to what extrinsic information the
    jury had obtained and then failed to analyze its prejudicial effect. The
    appellants assert that the trial judge should have polled every juror or
    permitted counsel to question them.

[5]

For the reasons that follow, we do not agree with the appellants
    submissions and dismiss the appeal.

BACKGROUND

(i)

The accident

[6]

On December 15, 2009, at 5:45 a.m., the appellant Ronald Patterson was
    hit by the respondents car while he was standing on the road next to his truck.
    The appellants truck was parked in complete darkness facing oncoming traffic in
    the driving lane of a two-lane country road. The appellant was trying to tow
    his van from a ditch that he had driven into after skidding on black ice
    earlier that morning.

[7]

Although the appellants truck was parked with its hazard lights activated
    and headlights on low beams, the respondent, who was travelling at about the
    speed limit, thought the lights were from an oncoming vehicle. He did not
    realize that the truck was parked and fully blocking his lane of travel until
    it was too late.

[8]

The respondent clipped the appellants truck, struck him, and collided
    with his van, which was parked in the ditch. While the respondent was not hurt,
    the appellant incurred a fractured pelvis and other significant injuries.

[9]

The appellant, together with his wife and daughter, claimed over $4
    million against the respondent in respect of his injuries. In addition, his
    wife and daughter claimed damages for loss of care, guidance, and companionship
    under the
Family Law Act
, R.S.O. 1990, c. F.3.

(ii)

The jurys question

[10]

One
    of the key issues at trial was the apportionment of liability for the accident.
    The trial judge instructed the jury that the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, sets out the rules and standards for the operation of
    motor vehicles and the use of roads, and advised them that s. 170(12) provides
    in relevant part that no person shall park or stand a vehicle on a highway in
    such a manner as to interfere with the movement of traffic. He instructed the
    jury that because it was manifestly obvious that the appellant had
    contravened this provision, the appellant was at least partially responsible
    for the accident, but it was for the jury to decide on the parties relative
    degree of fault.

[11]

After
    hearing eight weeks of evidence, closing arguments, and the trial judges jury
    charge, the jury retired to deliberate on a Friday afternoon.

[12]

The
    following Monday morning, the jury returned with several questions for the
    trial judge. The trial judge and counsel agreed that one question was quite obviously
    based on (without referring to by name) s. 17(2) of the
Fault Determination
    Rules
, R.R.O. 1990, Reg. 668, a regulation under the
Insurance Act
,
    R.S.O. 1990, c. I.8, for resolving property damage claims between insurers, but
    which was irrelevant to the liability issues in the action.

[13]

The
    jurys question on this point was as follows:

In the highway traffic act there is a part which states It is
    illegal to park on a roadway outside a city town or village it also says if a
    vehicle is struck while illegally parked, then the parked vehicle is 100% at
    fault.

[14]

Section
    17(2) of the
Fault Determination Rules
provides as follows:

If automobile A is illegally
    parked, stopped or standing when it is struck by automobile B and if the
    incident occurs outside a city, town or village, the driver of automobile A
    is 100 per cent at fault and the driver of automobile B is not at fault for
    the incident.

(iii)

The trial judges inquiry into the extrinsic information

[15]

The
    trial judge conferred with counsel and it was agreed that he would question the
    jurors individually in open court to determine how they had obtained the
Fault
    Determination Rules
.

[16]

The
    first juror questioned, the foreperson, revealed that he was the source of the
    information and that he had found it on an Ontario provincial government website.
    He confirmed that he had not accessed or shared any other extrinsic information
    with the other jurors and that he was the only juror who had accessed the
    internet.

[17]

Having
    obtained this information, the trial judge concluded that it was unnecessary to
    question the other jurors. As he later noted in his reasons dismissing the mistrial
    motion, the
Fault Determination Rules
had been in the jury room for
    perhaps two hours as the jury discussed liability and formulated its questions
    for the court. He instructed the jury to cease discussion of the liability
    issues until he could further review their questions with counsel and provide a
    response.

[18]

The
    trial judge then canvassed counsel for their positions. Appellants counsel
    submitted that every juror should be polled and that counsel should have the
    right to ask these jurors questions to flush out perhaps in some more detail what
    the facts are. Respondents counsel objected to this. In his view, the court
    had already identified the one juror who was the source of the extrinsic
    information and had determined that it had been accessed through an Ontario
    government website. He submitted that counsel asking the jurors questions might
    invite further disclosure of their deliberations, which would itself risk a
    mistrial.

[19]

The
    trial judge expressed his strong inclination to issue a correcting charge. He provided
    counsel with a draft charge and asked them to reflect on their positions overnight.

(iv)

The motion to strike the jury

[20]

The
    next day, the appellants brought a motion to strike the jury and to proceed
    with the remainder of the trial by judge alone on the basis that extraneous
    material had been introduced into the jury room. The motion also sought an
    order that the trial judge conduct an inquiry and question each juror about
    whether they had obtained extrinsic information during deliberations and ask
    the foreperson to produce the results of his internet searches.

[21]

The
    trial judge dismissed the motion. He was satisfied that the court had isolated
    the source and extent of the issue and that the question made clear that the
    jury was seeking further direction from the court with respect to the
    information it had found. He concluded that the issue could be addressed
    through responses to the jurys questions and an appropriate correcting charge,
    accompanied by a strong warning to the jurors not to conduct any further
    extrinsic research.

[22]

The
    trial judges correcting charge, which he read to the jury and provided to them
    in writing, made clear that the only part of the
Highway Traffic Act
relevant to this case was s. 170(12), on which the trial judge had already
    instructed the jury. The trial judge asked the jury to re-read the relevant
    part of the charge. He also emphasized that the
Fault Determination Rules
had 
no relevance
 (underlining in original) to the liability issues in
    this lawsuit and that the jurors were to disabuse their minds of any
    consideration of this regulation. He stated that the jurys question reflected
    that a member of the jury had accessed the internet. He reiterated the instruction
    he gave at the beginning of the trial that 
it is completely improper to research
    or Google law and there must be no reoccurrence of this
 (bold in
    original). Finally, the trial judge stressed that the jurys verdict 
must
    be based exclusively on the evidence entered into the record in this trial and
    on the legal directions which I have given to you  There is to be no
    independent research conducted by any juror. I will answer any questions you
    have on the law or on any other matter
 (bold in original).

(v)

The jurys verdict

[23]

Three
    days later, the jury returned its verdict. The jury found the appellant 73%
    contributorily negligent in the collision and the respondent 27% at fault. As a
    result of the jurys verdict and assessment of damages, the trial judge awarded
    judgment to the appellants in the amount of $309,032.34.

(vi)

The motion for a mistrial

[24]

After
    the verdict, the appellants moved for a mistrial, again relying principally on the
    jury forepersons inappropriate internet research.

[25]

The
    trial judge dismissed the motion. He rejected the appellants claim that it
    could be inferred from the verdict that the jury ignored the courts correcting
    charge and relied on the
Fault Determination Rules
. He concluded that
    the jurys fault apportionment was amply justified by the evidence presented
    in this case.

[26]

Further,
    the trial judge stated that while he shared the appellants concern that a
    juror had engaged in internet research concerning the law, he was satisfied
    that the jury respected the correcting charge and disabused themselves of any
    further consideration of the
Fault Determination Rules
.

ANALYSIS

[27]

The
    appellants make two arguments on appeal. They submit: (1) the trial judge
    failed to conduct a proper inquiry to determine the nature and scope of the
    extrinsic information that the jury obtained; and (2) the trial judge failed to
    appropriately analyze the prejudicial effect of this information. If either
    argument is accepted, the appellants submit that the appropriate remedy is a
    new trial.

(1)

Did the trial judge fail to conduct a proper inquiry to determine the
    nature and scope of the extrinsic information that the jury obtained?

[28]

The
    appellants first ground of appeal asserts that the trial judge misapprehended
    the evidence by failing to assess the nature and extent of the extrinsic
    information, thereby denying the appellants the right to know exactly what the
    jury considered. They contend that the trial judge should have questioned or
    polled each juror to determine what extrinsic information the jury received,
    and that failing to do so resulted in a miscarriage of justice.

[29]

We
    do not accept this submission.

[30]

A
    jury verdict may be impeached where the jury acquires extrinsic information if,
    based on an examination of the record, there is a 
reasonable
    possibility that the information had an effect on the jurys verdict
. This
    test involves a contextual, case-by-case analysis that requires a link between
    the extrinsic information and the jurys verdict: see
R. v. Pannu
,
    2015 ONCA 677, 127 O.R. (3d) 545, at paras. 71-74, leave to appeal refused,
    [2015] S.C.C.A. No. 498;
R. v. Farinacci
, 2015 ONCA 392, 335 O.A.C.
    316, at para. 26; and
R. v. Pan; R. v. Sawyer
, 2001 SCC 42, [2001] 2
    S.C.R. 344, at para. 59.

[31]

Where
    the trial judge learns that the jury acquired extrinsic information before the
    jurys verdict, and then conducts an inquiry and decides as to the suitability
    of individual jurors or the jury as a whole continuing with the trial, this
    court will defer to the trial judges decision, absent legal error, misapprehension
    of the evidence, or patent unreasonableness:
Pannu
, at para. 72.

[32]

Here,
    in our view, the trial judge did conduct a proper inquiry and made findings as
    to the nature and extent of the extrinsic information the jury received. He found
    on the evidence before him that only one juror had accessed extrinsic
    information, limited to the
Fault Determination Rules
obtained from an
    Ontario provincial government website. These findings were supported by the
    evidence.

[33]

The
    finding that the only extrinsic information accessed was the
Fault
    Determination Rules
from an Ontario government website was based on the
    following exchanges:

THE COURT: Can you help us, [Juror #1]. What, like, where, has
    somebody Googled that information? I guess so. Its an obvious.

JUROR #1: Provinc-, Provincial, Ontario Provincial, theres the
    Traffic Act.

THE COURT: Right?

JUROR #1: And so somebody has found it on the internet, yes,
    through the Ontario Provincial site.



THE COURT:  Now, has the Googling information gone beyond this
    particular statutory reference?

JUROR #1: I dont believe so. In terms of  I, Im not sure of
    the question.

THE COURT: Oh, yes, well, has, doctors been Googled or 

JUROR #1: No.

THE COURT: Right, so, its restricted to, if you like, law
    issues; is it?

JUROR #1: Correct.



THE COURT:  So, in any event, as, as far as you know the only
    inter-, internet sort of input into your discussions has been with respect to
    what were talking about here; that, thats right?

JUROR #1: Yes.



THE COURT:  Is, is just, is only one of the jurors Googling
    stuff or has there been more, do you know?

JUROR #1: On this particular issue, only one.

[34]

The
    finding that only one juror  juror #1, the foreperson  had accessed the
    internet and shared information obtained from the internet with the other
    jurors was based on the following exchange:

THE COURT: All right; and there, and youre telling me, sir,
    that there is only one of the six jurors who has actually accessed the internet
    or shared that with people?

JUROR #1: Yes.

THE COURT: Okay; and I, I think we might just want to chat with
    that one person just to see how the scope of, of his investigations, if I can
    put it that way and, and who would that be if you dont mind?

JUROR #1: Me.

[35]

The
    appellants challenge to the trial judges inquiry involved a parsing of the
    transcript of these exchanges in particular. The appellants claimed that the
    exchanges were somewhat equivocal as to whether other laws might also have been
    researched. However, the trial judge saw and heard the juror and drew a
    contrary conclusion, in circumstances where the jury had forthrightly raised
    the issue with the court and had sought clarification. The trial judge was
    entitled to believe the jurors answers and to reach the conclusions he did. The
    mere possibility that these exchanges may be susceptible to the different inference
    posited by appellants counsel does not rise to the high threshold required for
    appellate intervention based on a misapprehension of the evidence. As the
    Supreme Court cautioned in
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 35, at para. 56:

[T]he narrowly defined scope of appellate review dictates that
    a trial judge should not be found to have misapprehended or ignored evidence, or
    come to the wrong conclusions merely because the appellate court diverges in
    the inferences it draws from the evidence and chooses to emphasize some
    portions of the evidence over others.

[36]

To
    conclude, the trial judge did not misapprehend the evidence as to the nature
    and scope of the extrinsic information reviewed by the jury. He identified the particular
    individual who obtained the specific extrinsic information at issue, isolated
    how he had obtained it, and confirmed that no other information had been
    obtained. Having done all that, the trial judge was entitled to conclude that he
    did not need to question or poll every juror or to permit counsel to do so.

(2)

Did the trial judge fail to analyze the prejudicial effect of the extrinsic
    information obtained by the jury?

[37]

The
    appellants second ground of appeal asserts, in the alternative, that even assuming
    the extrinsic information obtained by the jury was limited to the
Fault
    Determination Rules
, that information alone was extremely prejudicial to
    the appellants. The appellants contend that there is a reasonable possibility
    that this extrinsic information had an effect on the jurys verdict, which
    should therefore have resulted in a mistrial.

[38]

The
    appellants make three points in this regard.

[39]

First,
    the appellants assert that the trial judge failed to consider the prejudicial
    nature of the extrinsic information and its ability to affect the jurys
    verdict.

[40]

We
    do not agree with this submission. The trial judge undoubtedly did consider the
    prejudicial nature of the extrinsic information  that is why he gave the jury a
    correcting charge. As he explained in refusing to declare a mistrial, the real issue
    was whether the correcting charge is sufficient in the circumstances and
    whether there is any cogent reason to believe that the jury declined to follow
    it. The sufficiency of the correcting charge is addressed below.

[41]

Second,
    the appellants assert that the jury verdict used the terminology illegally
    parked in the verdict sheet, a phrase included in the
Fault Determination
    Rules
but not in the
Highway Traffic Act
. The appellants suggest
    that this raises a reasonable possibility that the jury applied the
Fault
    Determination Rules
, despite the correcting charge.

[42]

We
    do not accept this submission. The trial judge noted that the jury specified,
    as one of the particulars of the appellants negligence, the violation of s.
    170(12) of the
Highway Traffic Act
, which was drawn to the jurys
    attention in the jury charge and deals with parking a vehicle on a roadway and
    impeding traffic. He added that while s. 170(12) does not contain the word illegal,
    illegal is a term of general usage connoting a contravention or violation of
    the law and is not a concept specific to the
Fault Determination Rules
.
    Moreover, the trial judge noted that had the jury applied the
Fault
    Determination Rules
, it would have found the appellant 100% at fault, rather
    than only 73% at fault. He concluded that [t]his is a fault apportionment
    amply justified by the evidence presented in this case. We see no basis to disturb
    any of these conclusions.

[43]

Finally,
    the appellants assert that the correcting charge was inadequate to dispel the
    prejudice arising from the jury being provided with the
Fault Determination
    Rules
. The appellants contend that [t]he correcting charge was provided
    in a vacuum as if the extrinsic information was neutral or benign.

[44]

We
    would not give effect to this argument. As this court noted in
Pannu
,
    at paras. 71-72, absent legal error, misapprehension of the evidence, or patent
    unreasonableness, an appeal court should accord deference to a trial judges
    decision to provide a correcting charge rather than declare a mistrial.

[45]

Here,
    the trial judge concluded that the jury respected the correcting charge and
    disabused themselves of any further consideration of the
Fault
    Determination Rules
obtained from the internet. He observed that this
    was a very engaged and diligent jury on the whole and the verdict rendered at
    the conclusion of this lengthy trial is well supported by the evidence. The
    trial judge was very well positioned to make this finding as to the efficacy of
    the correcting charge, having presided over this trial that included eight
    weeks of evidence and having seen the jurys engagement and diligence first
    hand. We see no basis for this court to intervene.

CONCLUSION

[46]

Accordingly,
    despite Mr. Obagis forceful submissions, the appeal is dismissed. Costs are
    payable to the respondent in the amount of $12,000, inclusive of disbursements
    and taxes.

Released: February 20, 2020 (P.C.M)

J.C. MacPherson J.A.

Robert J. Sharpe J.A.

M. Jamal J.A.


