



COURT OF APPEAL FOR ONTARIO

CITATION: Surujdeo v. Melady, 2017 ONCA 41

DATE: 20170118

DOCKET: C61550

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Indernil Surujdeo
, Elmer M. Abear and Imelda
    Abear

Plaintiff (
Respondent
)

and

Dr. Donald Louis Melady
,
Dr. Avrum Aron
    Soicher
, Dr. Zaid Husham Behiya, Dr. Laurie Leigh Hill, Dr. J. Doe, Nurse
    J. Doe and William Osler Health Centre  Brampton Memorial Campus

Defendants (
Appellants
)

Christopher M. Hubbard and Mira Novek, for the appellants

Tanya A. Pagliaroli, Richard M. Bogoroch and Justin H.
    Nasseri, for the respondents

Heard: November 9, 2016

On appeal from the judgment of
    Justice Arthur M. Gans of the Superior Court of Justice, dated April 15, 2015.

Brown J.A.:

I.

OVERVIEW

[1]

On February 20, 2005, Rossana Surujdeo was
    approaching her 36
th
birthday. On that day, she became quite sick.
    At about 9:45 p.m., she was taken by ambulance to the William Osler Health
    Centre, Brampton Memorial Campus (the Hospital). She died the following
    morning at 7:20 a.m. An autopsy revealed Rossana died of myocarditis, an
    inflammation of heart muscle caused by a viral illness.

[2]

Rossanas husband, the respondent Indernil
    Surujdeo, and her parents brought this negligence action against four of the
    treating physicians, the Hospital, Dr. J. Doe, and Nurse J. Doe.

[3]

By the time of trial, Rossanas parents had
    discontinued their participation in the action. As well, the action was
    proceeding only against two of the physicians  the appellants Dr. Donald Louis
    Melady, an emergency physician, and Dr. Avrum Aron Soicher, a respirologist.
[1]

[4]

As described by the appellants, two of the
    central issues at trial were the Test Results and Causation Issues. The Test
    Results Issue concerned whether the standard of care required the appellant
    physicians to actively seek out the results of two laboratory tests  lactate
    and arterial blood gases. The Causation Issue concerned whether there was
    anything the appellants reasonably could have done to avoid Rossanas death
    given the aggressive form of her viral myocarditis, the short amount of time in
    which to diagnose and treat her condition, and the lack of certain required
    treatment at the Hospital.

[5]

At the end of a 19-day trial, which included
    three days of deliberation, a jury found Drs. Melady and Soicher liable for
    damages in the amount of $600,000. The trial judge awarded the respondent costs
    totaling $450,000.

[6]

The appellants seek to set aside the
    judgment. They advance five main grounds of appeal, submitting the trial judge
    made the following errors:

(i)

In respect of the Test Results Issue: (i) he
    permitted the respondent to conduct some written discovery of the appellants at
    the start of the trial; (ii) he limited the appellants ability to adduce
    evidence from their experts on the discovery answers; (iii) he limited the
    appellants ability to adduce evidence about a policy of the Hospitals
    Department of Laboratory Medicine on the Communication of Critical Values; and
    (iv) he did not fairly charge the jury on the issue;

(ii)

the legal instruction he gave the jury on the
    Causation Issue was flawed; as well, he gave an unbalanced charge on the issue;

(iii)

he provided the jury with verdict questions
    that incorrectly stated the legal test for causation;

(iv)

he gave an incorrect response to a question
    from the jury about the number of jurors required to agree with each answer to the
    verdict sheet questions; and

(v)

he refused to poll the jury at the
    appellants request.

[7]

For the reasons that follow, I would dismiss
    the appeal. Although the trial judge used incorrect language in the jury
    questions regarding causation, no substantial wrong or miscarriage of justice
    resulted. In respect of the other grounds of appeal, I conclude the trial judge
    did not commit the errors alleged.

II.

THE TEST RESULTS ISSUE

[8]

Rossana died of myocarditis. The jury
    accepted the evidence of the respondents expert cardiologist that she had
    fulminant myocarditis. The clinical presentation of a patient with fulminant
    myocarditis is shock, a condition where decreased heart function causes
    inadequate blood flow to the organs.

[9]

Upon Rossanas arrival at the Hospital, Dr.
    Melady diagnosed her as suffering from viral pericarditis. He ordered several
    tests, including a lactate and arterial blood gas, or ABG, test.

[10]

Part of the respondents theory of liability
    at trial was that the results of those two tests showed Rossana was in shock,
    which should have prompted Dr. Melady to re-consider his initial diagnosis of
    pericarditis.

[11]

There was no dispute the appellants did not
    see or seek out the results of the lactate and ABG tests. There also was no
    dispute the results of those tests were posted or published on the Hospitals
    online Meditech platform. A significant issue at trial was whether the standard
    of care required the appellants to actively seek out those results.

[12]

Some context is necessary to understand the
    decisions the trial judge made concerning the test results the appellants
    submit were in error. Below I set out brief chronologies of the treatment
    Rossana received at the Hospital and the emergence of the dispute about the
    Test Results Issue in the lead-up to the trial.

A.

Chronology of events at the
    Hospital

[13]

On February 20, 2005 Rossana arrived at the
    Hospitals emergency department at 9:41 p.m. Over the ensuing 10 hours, the
    appellants provided the primary medical care to her.

[14]

Dr. Melady first assessed Rossana at 10:10 p.m.
    He diagnosed her with viral pericarditis, an inflammation of the sac around the
    heart caused by viral infection. At 10:40 p.m., he reassessed her. Shortly
    thereafter he ordered a lactate test. The Hospitals laboratory received the
    order at 10:45 p.m. and a blood sample was taken at 11:10 p.m. The lab called
    the lactate test results to an Emergency Department clerk at 11:43 p.m., and
    the results were broadcast on the Meditech computer system at 11:45 p.m.

[15]

The lactate test results were compromised,
    but the result reported was abnormally high, indicating Rossana had very poor
    blood flow to her organs and extremities, was critically ill, and had a poor outlook
    if the shock was not reversed.

[16]

Around 11:30 p.m., Dr. Melady paged Dr.
    Soicher for a consultation. They spoke at 11:45 p.m.

[17]

At 12:26 a.m., the lab received an order to
    perform an arterial blood gas (ABG) test. A blood sample was taken at 12:35
    a.m., and the ABG results were broadcast on Meditech at 1:00 a.m.
The ABG test revealed an abnormally low pH, indicating Rosanna was in shock.

[18]

Dr. Melady left the hospital for the night at
    1:30 a.m. Prior to his departure, he had not seen the results for the lactate
    or ABG tests he had ordered.

[19]

At 3:05 a.m., Dr. Soicher was notified that
    Rossanas condition was deteriorating and she was in pain. A nurses note
    recorded that Rossana was stable for transfer.

[20]

At some point between that time and 3:40 a.m.,
    Dr. Soicher assessed Rossana for the first time. At 4:00 a.m. he ordered a 2-D
    echocardiogram.

[21]

At 4:35 a.m., Rossana was transferred from
    the emergency unit to the coronary care unit. At 5:15 a.m, Dr. Soicher
    requested a consultation from the on-call cardiologist, Dr. Laurie Hill. Dr.
    Soicher ordered the echocardiogram machine be brought to the coronary care
    unit.

[22]

A Code Blue was called around 6:20 a.m.; the
    echocardiogram machine arrived at 6:26 a.m.

[23]

Sometime prior to 7:20 a.m., the on-call
    cardiologist arrived and performed the echocardiogram. Rossana was pronounced
    dead at 7:20 a.m.

[24]

The plaintiffs theory at trial was that if
    the appellants had sought out the results of the lactate and ABG tests, they
    would have appreciated their diagnosis  pericarditis  was incorrect. As a
    result, an urgent echocardiogram should have been performed. Had that occurred,
    an early diagnosis of acute myocarditis would have been made, and Rossana would
    have been transferred to a cardiac centre for treatment.

[25]

The appellants testified it was not their
    practice in 2005 to seek out test results electronically; they relied on paper
    printouts of test results placed in a patients chart or on a nurse bringing an
    important test result to their attention. An expert in emergency medicine the
    appellants called, Dr. David Boushy, opined the standard of care in 2005 did
    not require Dr. Melady to search out test results on Meditech.

[26]

Dr. Peter Liu, an expert cardiologist called
    by the appellants, opined Dr. Soicher met the standard of care and there was
    nothing he could have done to change the outcome given the rapid and aggressive
    form of myocarditis from which Rossana suffered.

B.

The emergence of the Test Results
    Issue in the lead-up to the trial

[27]

The January 9, 2007 statement of claim
    initially named as defendants the Hospital and Nurse J. Doe. The defendants
    filed statements of defence in August, 2007. In their statements of defence,
    the appellants cross-claimed against the Hospital and Nurse J. Doe for
    contribution and indemnity. In turn, the Hospital cross-claimed against the
    appellants for contribution and indemnity.

[28]

The plaintiffs discontinued the action
    against Nurse J. Doe on September 25, 2008.

[29]

Around 2012, discussions began about letting
    the Hospital out of the action. By letter dated April 4, 2012, appellants
    counsel wrote to respondents counsel stating:

Our clients are prepared to drop their crossclaim against the
    Hospital, but without prejudice to and while reserving their right to lead
    evidence of facts at trial.

Dr. Melady and Dr. Soicher would not use these facts for the
    purpose of pursuing a crossclaim against the Hospital or nurses,
nor would
    they use these facts to argue or allege that the Hospital or nurses fell below
    the requisite standard of care or to argue or allege that liability should be
    apportioned to the Hospital or nurses.

Instead, these facts may be elicited by Dr. Melady and/or Dr.
    Soicher to establish a substantive defence on the merits. For example, Dr.
    Melady and Dr. Soicher reserve their right to lead evidence in examination in
    chief and in cross-examinations regarding what people did or did not do, what
    they knew or did not know, and what they expected in terms of Hospital policy
    and communication from Hospital staff. They also reserve their right to lead
    evidence in examination in chief and in cross-examination to confirm that what
    was done or not done, and what was expected in terms of Hospital policy and
    communication from Hospital staff, was reasonable. [Emphasis added].

[30]

In the result, by consent order dated
    September 23, 2013 the action against the Hospital and all cross-claims as
    between the defendants were dismissed without costs (the Consent Dismissal
    Order).

[31]

However, as the trial approached, the
    practical effect of the Consent Dismissal Order became a matter of dispute
    between the parties. Consequently, the appellants brought a motion asking the
    trial judge to determine the effect, if any, of the Consent Dismissal Order on
    the appellants ability to lead evidence regarding the laboratory testing
    results. The appellants indicated they wished to adduce evidence on whether
    they contemporaneously received the results of certain laboratory testing
    conducted by the Hospital. They submitted the determination of the issue might
    require new or supplementary standard of care reports.

C.

The grounds of appeal

[32]

Although the trial judge permitted the
    appellants to adduce much of that evidence, they submit the trial judge made
    three errors in dealing with the Test Results Issue which, taken together,
    compromised their ability to respond to the issue and had a decisive impact on
    the verdict: (i) he required the appellants to submit to further discovery at
    the start of the trial; (ii) he made repeated evidentiary rulings precluding
    the appellants from eliciting evidence to explain why they were not aware of
    the test results; and (iii) in his charge, the trial judge invited the jury to
    conclude the appellants had not adequately addressed the Test Results Issue and
    gave an unbalanced and incomplete charge on the issue.

D.

First error: Permitting further
    discovery of the appellants at the start of the trial

The issue stated

[33]

On the first day of trial the trial judge
    dealt with the appellants motion regarding the Consent Dismissal Order. The
    appellants advised they wanted to testify about what they knew or did not know
    about the ordered test results. Respondents counsel made two objections.
    First, he contended the appellants pleading had not put in issue the delivery
    of test results to the appellants, so he had not examined exhaustively on the
    issue. As well, the appellants had not amended their pleading following the
    Consent Dismissal Order. Second, the Consent Dismissal Order estopped the
    appellants from giving such evidence because they would be pointing their
    fingers at the nurses and the Hospital for not doing their job in bringing the
    test results to the appellants attention. Respondents counsel informed the
    trial judge that on discovery the appellants had stated they did not have any
    concerns about the Hospitals conduct.

[34]

The trial judge did not agree the Consent
    Dismissal Order estopped the appellants from giving such evidence. He stated
    respondents counsel may not have twigged to the nuance of appellants
    counsels letter of April 4, 2012. In order to give everybody a fair shake
    and make the playing field even, the trial judge ordered the appellants to
    submit to further discovery on the Test Results Issue.

[35]

Following further discussions with counsel,
    the trial judge ordered the respondent to provide appellants counsel with a
    list of his discovery questions. That was done later on Day 1 of the trial. The
    trial judge ordered the appellants to provide written answers to those
    questions by the end of Day 3. Once delivered, the respondent accepted the
    written answers as adequate further discovery.

Analysis

[36]

In their factum, the appellants submit the
    trial judge erred in ordering the further discovery. They contend the trial
    judge made the order on his own initiative without any motion by the
    respondent. The appellants recognize that pursuant to r. 48.04(1) of the
Rules
    of Civil Procedure
the court can grant a party leave to continue discovery
    after setting an action down for trial. However, they submit the trial judge
    erred in granting leave because the respondent had not demonstrated a
    substantial or unexpected change in circumstances, as required by the
    jurisprudence under the rule.

[37]

At the hearing of the appeal, the appellants
    backed away from their contention the trial judge had erred in ordering further
    discovery. Nevertheless, I would not accept either submission advanced by the
    appellants in their factum.

[38]

The trial judge did not raise the matter of
    further discovery on his own initiative. The respondent raised the matter in
    the context of the appellants motion concerning the effect of the Consent
    Dismissal Order. As noted above, the respondent objected to the appellants
    request to adduce evidence regarding contemporaneous communication of test
    results in part because the respondent had not conducted discovery on the issue.
    The trial judge dealt with that objection by ordering further discovery.

[39]

The trial judge possessed the power to permit
    further discovery pursuant to r. 48.04(1) and his inherent powers to control
    the trial process. In exercising those powers, the trial judge considered the
    litigation history leading up to the discovery request and the relevance of the
    information sought on discovery, fairly balanced the interests of both parties,
    and crafted an order limited in both the scope and method of examination. The
    order caused no prejudice to the appellants. Accordingly, I see no error in the
    trial judges order.

E.

Second Error: Evidentiary Rulings
    on the Test Results Issue

The issue stated

[40]

The appellants submit the trial judge
    improperly prevented them from eliciting or adducing relevant evidence on the
    Test Results Issue in three respects: (i) they were prevented from giving
    evidence of their personal knowledge of relevant events; (ii) their experts
    were prevented from providing relevant supplementary opinion evidence; and
    (iii) the trial judge limited the scope of their cross-examination of an expert
    the respondent called.

Limitations on the appellants
    evidence

[41]

In their factum, the appellants submit the
    trial judge unreasonably circumscribed their own evidence regarding their usual
    practice about obtaining test results and the reliance they placed on Hospital
    and nursing staff to advise them about such results.

[42]

I do not accept this submission. The
    transcript does not disclose the trial judge placed any such limits on the
    appellants evidence.

[43]

Part way through Dr. Meladys testimony, his
    counsel canvassed with the court and opposing counsel a set of questions about
    the test results she intended to pose to both appellants. The questions dealt
    with: (i) the appellants experience in 2005 with the Meditech system; (ii)
    generally how they learned about laboratory results; (iii) whether they were
    aware of the lactate and ABG results; and (iv) their usual practice about
    charting test results. On Day 9, the trial judge ruled the appellants could give
    evidence on those matters.

[44]

In his examination in chief, Dr. Melady was
    asked and answered those questions. He testified he probably was not aware of
    the lactate and ABG test results while he was involved with Rossanas care.

[45]

Appellants counsel asked Dr. Soicher in
    chief about his familiarity in 2005 with the Meditech system and generally how
    he found out about laboratory tests. However, respondents counsel objected to
    Dr. Soicher testifying about whether he believed he was aware of the lactate
    and ABG results at the time and, if he was, what he would have done. A
    discussion ensued in the absence of the jury. The trial judge ruled Dr. Soicher
    could testify as to his practice of noting test results and whether he noted
    Rossanas lactate and ABG results. Appellants counsel stated: Im fine with
    that, Your Honour. When the jury returned, Dr. Soicher answered those
    questions.

[46]

The trial judge permitted both appellants to
    give evidence in the four areas sought by their counsel. I see no error by the
    trial judge.

Refusal to admit supplementary
    opinion evidence from the appellants experts

[47]

Prior to trial, the appellants served
    responding expert reports from two experts  Dr. David Boushy, an expert in
    emergency medicine, and Dr. Peter Liu, a cardiologist. Their reports responded
    to expert reports served by the respondent/plaintiff from Dr. Edwin Brankston,
    on the issue of emergency medical treatment, and Dr. David Fitchett, a
    cardiologist.

[48]

In their reports, Drs. Brankston and Fitchett
    opined it was the physicians responsibility to obtain the results of the
    lactate and ABG tests as part of their continuing assessment of Rossana. In
    their reports delivered before trial, the appellants experts did not respond
    to those opinions; they did not opine on whether the failure to seek out those
    test results constituted a breach of the standard of care. The appellants
    experts based their opinions on the assumption that neither appellant had seen
    the lactate or ABG test results.

[49]

On Day 3 of the trial, the appellants
    delivered their responses to the written discovery questions the trial judge
    ordered. They then served short supplementary reports from both their experts.
    Dr. Boushy wrote that Dr. Melady would not have been expected or obligated to
    search out the test results and was entitled to expect hospital staff would put
    any results directly in the patients chart. Dr. Liu wrote that Dr. Soicher was
    entitled to rely on the hospital staff to put lab results in the patients
    chart and to bring markedly abnormal results to his attention.

[50]

Respondents counsel objected to either
    expert proffering new opinions in their testimony before the jury.

[51]

The trial judge sustained the objection for
    two reasons: (i) before trial the respondents experts had squarely raised the
    issue in their reports, yet neither appellants expert had responded to that
    issue  the supplementary reports were too little too late; and (ii) both
    experts seemed to point a finger at the nurses, which was not permissible
    given the Consent Dismissal Order in favour of the Hospital.

[52]

The appellants submit the trial judge erred
    in so ruling.

[53]

I disagree. It was a matter within the trial
    judges discretion whether to grant leave to permit the filing of supplementary
    expert reports beyond the timelines stipulated in the
Rules of Civil
    Procedure
or to permit the appellants experts to testify on an issue not
    set out in their reports: rr. 53.03(3) and (4) and 53.08. In the present case,
    the appellants experts had not responded to the opinions the respondents
    experts initially gave on the issue. Their initial reports assumed the
    appellants were not aware of the test results, an assumption confirmed, not
    changed, by the appellants interrogatory responses. As well, their
    supplementary opinions were inconsistent with the consent release of the
    Hospital from the action. Given those circumstances, I see no error in the
    trial judges exercise of his discretion in denying leave.

[54]

In any event, as the evidence of the
    appellants experts unfolded, much of their supplementary evidence found its
    way into the record: (i) Dr. Boushy testified in chief that the written
    interrogatory responses did not change his opinion that Dr. Melady had met the
    standard of care and that it was not necessary for Dr. Melady to follow up on
    the results of the lactate and ABG tests; and (ii) Dr. Liu testified in chief
    that the appellants trial evidence had not changed his opinion that Dr.
    Soicher had met the standard of care.

Limiting the re-examination of an
    appellants expert witness

[55]

In her re-examination of Dr. Boushy,
    appellants counsel asked whether Dr. Melady was required to seek out test
    results in the computer system. The trial judge did not permit Dr. Boushy to
    answer, ruling that he didnt touch that and thats not the evidence. And you are
    then traveling into dangerous territory. The appellants submit the trial judge
    erred in so ruling.

[56]

I do not accept their submission. As noted,
    in chief Dr. Boushy testified it was not necessary for Dr. Melady to follow up
    on the lactate and ABG test results.  During cross-examination, Dr. Boushy was
    asked to assume those results were available for Dr. Melady to view on the
    computer system. Dr. Boushy replied he was not sure how the Meditech system
    worked, but repeated his view that Dr. Melady was not under an obligation to
    seek out those test results. Given that evidence, the re-examination question
    posed to Dr. Boushy was not a proper one since there was no uncertainty or
    confusion in his evidence on the point in cross that required clarification.

[57]

I also would observe that, in his closing,
    appellants counsel referred the jury to Dr. Boushys position: According to
    Dr. Boushy, it was not necessary for Dr. Melady to actively search out test
    results on Meditech. The appellants position was put squarely before the jury
    for its consideration.

The appellants cross-examination
    of the respondents experts

[58]

Finally, the appellants submit the trial
    judge erred by preventing them from cross-examining the plaintiffs expert, Dr.
    Brankston, on a hospital policy and the standard practice of physicians
    concerning the communication of test results.

[59]

The parties joint book of trial documents
    contained the policy of the Hospitals Department of Laboratory Medicine on
    Communication of Critical Values (the Policy). The Policy defined critical
    results as action level results that are potentially life threatening and
    required their reporting as soon as possible. The Policy required designated
    staff to report critical results to the physician/patient care area which,
    in the case of a patient located in the emergency department, was the
    emergency unit RN.

[60]

Dr. Brankston did not review the Policy when
    preparing his reports. Indeed, none of the experts reports contained comments
    on the Policy. However, appellants counsel wanted to test Dr. Brankstons
    opinion that Dr. Melady should have sought out the test results before he left
    the Hospital at the end of his shift by putting the Policy to him on cross. As
    well, appellants counsel wanted to ask him about the relationship between
    nurses and doctors, that the doctors can rely on nurses to advise them of
    material developments with the patient.

[61]

Respondents counsel objected, taking the
    position it would open up the issue of the nurses responsibility to bring test
    results to the physicians attention, an issue the trial judge had ruled
    off-limits on the first day of the trial.

[62]

Appellants counsel provided the trial judge
    with specific questions he wished to put to Dr. Brankston on cross-examination.
    The trial judge only expressed concern about one  a question whether nurses
    would notify the physician of any material lab results. In the trial judges
    view, that would take the evidence into an area he had ruled was not
    appropriately discovered on at this moment in time.

[63]

Appellants counsel then expressed his
    concern that at the end of the trial respondents counsel likely would tell the
    jury Dr. Melady should have gone and sought out those results either by
    checking them on Meditech or asking the nurses where they were. The trial judge
    stated respondents counsel would not be able to do that: He is going to be
    able to say all we have heard is that they were available on Meditech.
    Appellants counsel responded: If thats it, I am content. I am very content.
    There the matter of cross-examining Dr. Brankston on the Policy and standard
    test result reporting practice was left.

[64]

On cross-examination, Dr. Brankston admitted:
    (i) emergency room physicians may rely on nurses to notify them of material
    changes in a patients condition; (ii) it is reasonable for an emergency room
    physician to expect nurses will come to him if they have concerns about a
    patient; and (iii) it is reasonable for an emergency room physician to assume
    that if a nurse has not come to him to report a concern, no acute issue exists
    to which he needs to attend.

[65]

The Policy remained in the joint exhibit book
    viewed by the jury, and appellants counsel commented on the Policy in his
    closing.

[66]

Though the appellants now characterize as
    errors the trial judges limitations on their cross-examination of Dr.
    Brankston, it is far from clear they maintained live objections on this issue
    following counsels exchange with the trial judge. The record strongly suggests
    a solution acceptable to both parties had been worked out with the trial judge.

[67]

Moreover, prior to trial the appellants had
    made the strategic decision to consent to letting the Hospital out of the
    action, including dismissing their cross-claim against the Hospital. That
    decision precluded the appellants from pointing a blaming finger at the
    Hospital and its nursing staff during the trial. Since the appellants motion
    on the first day of the trial, the trial judge attempted to deal with the
    practical consequences of the appellants strategic decision, policing the line
    dividing permissible examination and cross-examination of witnesses from impermissible
    finger pointing at a party who was not in the trial courtroom because of the
    Consent Dismissal Order.

[68]

While other trial judges might have permitted
    limited questioning on the Policy, in my view the trial judge did not commit an
    error in principle in setting the boundaries of the permissible
    cross-examination of Dr. Brankston as he did.

F.

Third error: Charge to the Jury on
    the Test Results Issue

[69]

Finally, the appellants submit the limits the
    trial judge placed on their ability to adduce evidence were compounded by three
    errors in his charge on the Test Results Issue. Specifically, they contend the
    trial judge (i) improperly commented on the state of the evidence regarding the
    issue, (ii) misstated the legal test on the standard of care and the
    respondents onus regarding proof of causation and (iii) gave an unbalanced
    charge because he failed to articulate the appellants evidence and position on
    the issue.

The trial judges comments on the
    evidence

[70]

Dealing with the first issue, the appellants
    submit the trial judge improperly invited the jury to conclude the doctors had
    failed to address the Test Results Issue when he stated: The one piece in this
    puzzle which you might find has not been appropriately addressed or reconciled
    by the defendants is the fact, simply put, that neither doctor had the lactate
    and ABG test results and neither was aware of them

[71]

I see no error by the trial judge in making that
    comment. A trial judge is entitled to express his own views of the facts or on
    the credibility of witnesses provided (i) he does not use such language as
    leads the jury to think that they must find the facts in the way he indicates
    and (ii) the charge does not deprive a party of a fair presentation of his case
    to the jury:
R. v. Ruddick
(1980), 57 C.C.C. (2d) 421, [1980] O.J. No.
    1535 (C.A.), at para. 39.

[72]

In the present case, the trial judge
    repeatedly instructed the jury that they, not he, were the triers of the facts.
    He specifically stated that if he commented on the evidence, they were in no
    way bound to follow my opinion insofar as the facts are concernedif your views
    are at variance with mine, you must disregard my comments. The trial judge also
    stated he would leave it to the jury to determine on the basis of the expert
    evidence proffered whether [Dr. Meladys failure to access the lactate and ABG
    results before he left the emergency room] was or was not relevant to
    [Rossanas] diagnosis and the standard of care issue.

[73]

Nor did the trial judges statement deprive
    the appellants of a fair presentation of their case on the Test Results Issue.
    Shortly before making the statement the trial judge recalled for the jury the
    comment of the appellants expert, Dr. Boushy, that a physician would not be
    so obliged to look for such test results Immediately after making the
    statement, the trial judge stated: [Y]ou have to choose between the positions
    of the plaintiff, that the results were readily accessible on the records
    monitor in the ER against the position of the defendants that they relied on
    paper copies located in the hard copy of the patients file.

Misstatement of plaintiffs onus

[74]

When the trial judge instructed the jury on
    the distinction between negligence and an error of professional judgment, he
    stated: I would observe that if the erroneous diagnosis
might have been
    otherwise
had the physician availed himself of all relevant available
    information or the doctor was obliged to conduct additional or repeat tests, he
    cannot be heard to say that the original diagnosis was but an error in judgment
    (emphasis added). The appellants submit the trial judge misstated the onus of
    proof by using the phrase might have been otherwise; the trial judge should
    have stated likely should have changed the diagnosis.

[75]

An appellate court must examine any alleged
    error in a trial judges jury instructions in the context of the entire charge
    and the trial as a whole. Appellate courts should not examine minute details of
    a jury instruction in isolation because it is the overall effect of the charge
    that matters:
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para.
    39.

[76]

Although the language appellants trial
    counsel proposed might have been preferable in the circumstances, the trial
    judges choice of words did not mislead the jury. As he said in response to the
    appellants objection: [The jury has] to be satisfied on a balance of
    probabilities. Ive only said that 15 times. Indeed, the trial judge
    repeatedly instructed the jury the respondent bore the onus of proving a breach
    of the standard of care and causation on a balance of probabilities. Having
    regard to the charge in its entirety, the jury would have understood the law
    concerning the plaintiffs onus:
Goodwin (Litigation guardian of) v. Olupona
,
    2013 ONCA 259, 305 O.A.C. 245, at para. 79. There could be no confusion on
    their   part.

[77]

Before us, the appellants advance an
    additional objection to this part of the charge  by referring to all relevant
    available information the trial judge misstated the law with respect to the
    standard of care. The proper question, they say, is whether the physician
    failed to avail himself of information that he ought to have obtained.

[78]

I see no error by the trial judge. First,
    this objection was not advanced at trial, an omission that weighs heavily
    against its consideration on appeal. Second, elsewhere in his charge the trial
    judge clearly instructed the jury on the meaning of the standard of care as
    applied to a medical practitioner, including the role of expert evidence in
    their assessment of whether the appellants conduct met the standard of care.

Failure to adequately present
    appellants case

[79]

The appellants also submit the trial judge
    erred in his charge by devoting a disproportionate amount of time to the
    respondents evidence and position on the Test Results Issue, while failing to
    articulate that of the appellants.

[80]

Their submission is not borne out by a review
    of the charge as a whole. The trial judge placed before the jury the positions
    of both sides on each aspect of the standard of care issue, including the
    reasonableness of the appellants diagnoses. He specifically recalled for the
    jury the evidence of experts both parties called as to whether the appellants
    were obliged to look for the test results. I am satisfied the trial judge
    placed before the jury the appellants theory on all aspects of liability,
    including the test results, the related factual issues, and the appellants
    position concerning the testimony integral to those issues:
Brochu v. Pond
(2002), 62 O.R. (3d) 722 (C.A.), at para. 60.

III.

THE CHARGE ON CAUSATION

[81]

The appellants submit the trial judges
    charge on the issue of causation was deficient in two ways. First, the trial
    judge devoted little time to the issue of causation, notwithstanding its
    importance. Second, the charge on causation was unbalanced, incomplete, and
    skewed in the respondents favour.

[82]

The adequacy of a jury charge on a particular
    issue is not assessed by comparing the number of words the trial judge devoted
    to the issue as compared to others. Indeed, brevity in a jury charge is
    desired:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 56.
    Rather, the extent to which a judge must review the evidence depends upon the
    particular case. The test is one of fairness. The charge will be adequate when
    the judge puts the evidence to the jury in a manner that will allow it to fully
    appreciate the issues and the defence presented:
R. v. Rodgerson
, 2015
    SCC 38, [2015] 2 S.C.R. 760, at para. 30.

[83]

Accordingly, an appeal court must assess the
    adequacy of a charge in the context of the entire trial and ask if the jury
    would have understood the issues of fact, the relevant legal principles, how
    the facts related to the law, and the positions of the parties:
Caza v.
    Kirkland and District Hospital
(2003), 172 O.A.C. 388 (C.A.), [2003] O.J.
    No. 2438, at para. 36.

[84]

In the present case, the fairness of the
    trial judges charge on causation also must be assessed against the background
    of the closing submissions appellants counsel gave the day before the charge:
Daley
,
    at para. 58. In his closing, appellants counsel argued the respondents theory
    contained five key steps that formed a chain of causation. According to the
    appellants, the respondent could not establish that any breach of the standard
    of care by the appellants had caused Rossanas death unless he proved each one
    of the key steps probably would have occurred. The key steps were: (i) the
    existence of a strong suspicion Rossana suffered from cardiac tamponade, which
    would justify calling a cardiologist into the Hospital; (ii) the cardiologist
    would be able to drive a long distance to the Hospital in inclement weather in
    sufficient time to perform an echocardiogram and fortuitously diagnose viral
    myocarditis; (iii) the prescription of two temporizing measure drugs 
    vasopressors and inotropes  and proof they would have a beneficial effect;
    (iv) Rosanna would have received some sort of mechanical heart support in time;
    and (v) all those steps would occur within nine hours of Rossanas admission.

[85]

Appellants counsel devoted slightly more
    than half of his closing to exhaustively reviewing for the jury the evidence
    relating to each of the five key steps. He also spent considerable time
    explaining why the jury should prefer the appellants experts evidence over the
    respondents.

[86]

The trial judge charged the jury the day
    after both counsel gave their closing submissions. He described his
    instructions on causation as a very brief, but very important section of
    his charge. He emphasized it was not sufficient for the respondent to establish
    the appellants had fallen below the standard of care in their treatment of
    Rossana. As well, [y]ou must be satisfied that but for the substandard conduct
    you have identified it was more likely than not that [Rosanna] would not have
    died.

[87]

In his charge on the standard of care, the
    trial judge referred to the 5-point analysis appellants counsel set out in
    his closing. The trial judge referred to it again in his section on causation,
    dealing with some of the specific elements of the appellants analysis.

[88]

There was no need for the trial judge to
    repeat the exhaustive review of the evidence on the 5 key steps appellants
    counsel had given the day before in his closing. Instead, the trial judge
    properly instructed the jury on the legal principles of causation and provided
    them with an adequate summary of the evidence and the parties positions on the
    issue.

[89]

I am satisfied the trial judge adequately
    directed the jurys attention to the issues of fact regarding causation and to
    the material evidence bearing on them:
Landolfi v. Fargione
(2006), 79
    O.R. (3d) 767 (C.A.), at para. 120. His charge on causation was fair in the
    circumstances. I see no error.

IV.

THE CAUSATION LANGUAGE IN QUESTIONS
    FOR THE JURY

[90]

The trial judge approved two jury questions
    for each appellant. The first asked whether the appellant had breached the
    standard of care. If the jury concluded the appellant had, the second question
    went on to ask:

[H]as the plaintiff established on a balance of probabilities
    that [the doctor's] breach of the standard of care was
a cause

of Rossana Surujdeo's death? [Emphasis added].

[91]

At trial, the appellants objected to that
    form of question. They pointed out the parties agreed the but for causation
    test applied. They submitted the inclusion of the words a cause in the second
    question ran afoul of the requirements of the but for test set out by the
    Supreme Court of Canada in
Clements v. Clements
, 2012 SCC 32, [2012] 2
    S.C.R. 181 and
Ediger v.
    Johnston,
2013 SCC 18,
    [2013] 2 S.C.R. 98. The appellants proposed five alternative formulations for
    the causation question, each derived from the language of the
Clements
and
Ediger
cases.

[92]

In rejecting the
    appellants formulations and adopting, instead, the a cause language, the
    trial judge ruled:

I have acted in a Solomonic fashion on this one. I have given
    some to each side and taken away from each side. So I have stayed with a
    cause as opposed to cause, but otherwise I corrected the question references
    that were in the version that [appellants counsel] handed me up.

[93]

In so ruling, the trial judge erred in law by
    approving jury questions that did not reflect the applicable but for causation
    test.

[94]

Guidance on the proper approach to
    formulating such causation questions in a negligence case can be found in the
    reasons of D. Wilson J. in
Sacks v. Ross
, 2015 ONSC 7238, [2015] O.J.
    No. 6980. I adopt the following analysis of D. Wilson J. at paras.13, 15 and
    16:

[T]here is no compelling reason not to use the language of
    causation from
Clements
and other cases when drafting the questions for
    the jury on causation. The legal test as articulated by the Supreme Court of
    Canada is clear: but for the defendants negligent act the injury would not
    have happened.



I will instruct the jury on the law as it relates to causation
    and will use the but for test.  I see no advantage to departing from the
    legal test as articulated by the Supreme Court of Canada when asking the jury
    to answer the questions on causation.

The questions on causation will read as follows: If your answer
    to question 1(a) is YES, have the Plaintiffs proven, on a balance of
    probabilities, that but for the breach of the standard of care, the injuries of
    Jordan Sacks would not have occurred?

[95]

The causation questions for each appellant the
    trial judge approved were legally flawed. However, not all errors necessitate a
    new trial. The appellants must establish the error produced some substantial
    wrong or miscarriage of justice:
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, s. 134(6);
Goodwin
, at para. 80.

[96]

In the circumstances of the present case, the
    trial judges error did not produce a substantial wrong or miscarriage of
    justice.

[97]

First, his charge thoroughly, accurately and
    repeatedly instructed the jury on the but for causation test.

[98]

Second, in the portion of his charge
    reviewing the jury questions, the trial judge reminded the jury that causation
    involved establishing that it is more  likely [than] not that Rossana
    Surujdeo would not have died but for the negligent conduct or breach of the
    standard of care by [the appellant].

[99]

Finally, two days following the charge the
    jury asked for clarification on how to answer the questions seeking particulars
    of how the breach of the standard of care caused Rossanas death. The trial
    judges answer clearly explained the respondent was required to prove on a
    balance of probabilities that but for the conduct you have identified as
    breaching the standard of carethe injury would not have occurredYou must be
    satisfied that but for the substandard conduct you have identified it was more
    likely than not that [Rossana] would not have died.

[100]

The
    trial judge gave clear instructions on the but for causation test before the
    jury retired to deliberate and then two days later, towards the end of their
    deliberations. In those circumstances, I am satisfied the jury would have
    clearly understood they were required to apply the but for causation test and
    the incorrect language in the jury questions would not have misled them.
    Accordingly, the trial judges error in respect of the jury question language
    does not necessitate a new trial.

V.

INSTRUCTIONS TO THE JURY ON THE
    REQUIREMENT TO AGREE

The
    issue stated

[101]

Following
    the charge, the jury asked questions of the trial judge. The appellants submit
    the trial judge erred in his response to Jury Question No. 1 about how to
    answer the particulars part of the questions put to them.

[102]

Unanimity
    is not required of the six members of an Ontario civil jury. Section 108(6) of
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43, states:

It is sufficient if five of the jurors agree on the verdict or
    the answer to a question, and where more than one question is submitted, it is
    not necessary that the same five jurors agree to every answer.

[103]

In
    his charge, the trial judge gave the following instruction to the jury:

As you have already been told, you will be required to answer a
    series of questions. In answering these questions you need not be unanimous. If
    you can arrive at an answer in which five of you agree, then it is sufficient
    to enable your foreperson to note the answer on the form that we are about to
    provide you. Furthermore, it is not necessary that the same five of you agree
    on each question. A different five can find agreement on a different question.

[104]

At
    trial, the appellants agreed that instruction was a proper one.

[105]

The
    jury was given two questions for each appellant. The first question addressed
    the standard of care: (a) had the plaintiff established on a balance of
    probabilities that the appellant breached the standard of care and (b) if the
    answer was yes, to state the particulars of the breach of the standard of
    care. The second question, as noted earlier, dealt with causation: (a) did the
    appellants breach of the standard of care cause Rossanas death and (b) if it
    did, how did the breach of the standard of care cause her death?

[106]

Shortly
    after the jury retired to begin their deliberations, they sent a question to the
    trial judge concerning the second, or particulars, part of each of the four
    questions for the jury. Their question read:

In Justice Ganss presentation, he indicated that 5/6 of the
    jurors need to agree on each question; but each may have come to that conclusion
    for different reasons.

We need clarification on what is required for the reasons
    needed in questions 1b), 2b), 3b), 4b).

-

Do 5/6 need to agree on each reason, or

-

Do 5/6 need to agree on all reasons as a whole, or

-

Do we simply list out all reasons provided by all jurors?

I
    will refer to these approaches as Options A, B, and C respectively.

[107]

The
    respondent submitted the trial judge should instruct the jury to use Option C 
    for the particulars part of each question, the jury should list out all reasons
    provided by all jurors.

[108]

The
    appellants disagreed. They submitted the jury should use Option A - when the
    jury answers the particulars part of each question, they should only write down
    reasons that five of them agreed upon.

[109]

In
    the appellants view, using Option A was necessary to ensure consistency
    between the jurys identification of the appellants conduct that fell below
    the standard of care and their answer to the related causation question in
    respect of the appellant. At trial, the appellants framed their concern in the
    following way:

So five of six agree then they can answer yes, there was a
    breach. Then they go to if so, how. And if only one of six thought he had to
    prescribe inotropes and one of six thought he had to call Dr. Hill, and one of
    six  which of those reasons do they then use for the jumping off point for
    their causation analysis? Then are all of those fair game?



So all of them might agree that if he prescribed inotropes the
    death would have been avoided. But if only one of them agree that thats the
    right reason for the breach of standard, youre then finding causation on the
    basis of what only one of them think.
So its when it gets tied into the causation
    issue that it becomes watered down
. [emphasis added]

[110]

The
    trial judge ruled he would instruct the jury to use Option C - to list, in the
    particulars part of each question, all reasons provided by all jurors. He
    explained:

[I]n my view the questions are best answered by permitting the
    jury to list all matters that they believe answer the questions 1(b), 2(b),
    3(b) and 4(b).



I think section 108(6) is very clear and it says that it is not
    necessary that the same five jurors agree to every answer which implicit in
    that is they can have five different answers on each of the questions.

I instructed the jury that they individually need not come to
    their own conclusion in respect of any question through the same modality as
    their colleagues so long as the matter is fully canvassed by them. Implicit in
    that, if not explicit in that, is you can arrive at this through five different
    roads; thats your choice so long as five of you are agreed on the conclusion
    to the syllogism and, therefore, I think theyre at liberty to list all.

[111]

The trial judge acknowledged the appellants
    concern about the possible lack of internal coherence in a jurys findings, but
    stated:

[W]e can revisit this issue if it becomes apparent from those
    things that are listed by the jury that there is an absence of evidence in
    respect to any of the matters that they specify by way of example that they
    believed amounted to a cause, answered the causation, and then we can revisit
    it.

[112]

After
    calling back the jury and reading their question, the trial judge then
    instructed them in the following terms:

I will not read the three options, but the answer is its the
    third option.
You simply list out all the reasons that each juror who as
    part of the five whos come to the conclusion on any one of these questions
    believes is the deciding bit for that person.
So the answer is question 3.
    [Emphasis added].

[113]

Before
    this court the appellants submit the trial judges direction was in error
    because the jury may have granted judgment based on answers to questions
    regarding breaches of the standard of care and modes of causation to which
    fewer than five jurors agreed.

Analysis

[114]

In
    Ontario, the standard practice in negligence cases is to require the jury to
    answer specific questions, not deliver a general verdict:
Courts of Justice
    Act
, s. 108(5). As in this case, each question on the breach of the
    standard of care and causation typically is broken down into two parts. Part
    (a) asks the jury to state their conclusion, or bottom line, on an issue.
    Part (b)  the particulars  asks them to explain how they reached their
    bottom line by identifying the defendants conduct that led them to their
    conclusion of liability or causation.

[115]

Section
    108(6) of the
Courts of Justice Act
does not speak in terms of a first
    or second part of a jury question. It simply states: It is sufficient if five
    of the jurors agree on  the answer to a question, and where more than one
    question is submitted, it is not necessary that the same five jurors agree to
    every answer.

[116]

The
    trial judge interpreted s. 108(6) as requiring the five jurors who agreed on an
    answer to the bottom line  Part (a) of a question  to list in the
    particulars  Part (b) of the question  all of the reasons that led those
    five to reach that conclusion. He instructed the jury accordingly.

[117]

That
    is a correct interpretation of s. 108(6).
A
    jury is entitled to arrive at a verdict by different evidentiary routes and
    need not rely on the same facts:
R. v. Morin
, [1988] 2 S.C.R. 345, at p.
    360;
R. v. Robinson
(2004), 190 O.A.C. 271, 189 CCC (3d) 152, at paras.
    71-72;
Balfour v. Toronto Railway Co.
(1903), 5 O.L.R. 735 (C.A.),
    [1903] O.J. No. 331, at para. 13;
R. v. G.L.M.
, 1999 BCCA 467, 138
    C.C.C. (3d) 383, at paras. 24 and 31. The trial judges direction was consistent
    with that principle.

[118]

Further,
    the trial judges ruling also correctly interpreted the part of s. 108(6) that provides
    where more than one question is submitted, it is not necessary that the same
    five jurors agree to every answer. If five jurors agreed one appellant breached
    the standard of care, it was open to a different configuration of five jurors
    to find the breach caused the injury or death.

[119]

The
    appellant contends such an approach risks inconsistencies between jury
    responses to questions about the breach of the standard of care and questions
    regarding causation. The trial judge was alive to that risk, advising counsel
    they could revisit this issue if it becomes apparent from those things that
    are listed by the jury that there is an absence of evidence in respect to any
    of the matters that they specify.

[120]

The
    trial judges approach was correct. It recognized the difference between
    crafting jury questions in order to focus the jury on the issues they must
    decide and assessing the sufficiency or reasonableness of the jurys resulting
    answers. As put by Michelle Fuerst and Mary Anne Sanderson, [t]he purpose of
    submitting questions to the jury is so that the court can examine the
    particulars of the jurys findings and ensure that the jury did not ignore an
    essential issue:
Ontario Courtroom Procedure,
3rd ed. (Markham, ON:
    Lexis Nexis, 2012), at p. 1152. As well, a jurys answers may disclose on their
    face that an insufficient number of jurors agreed upon the answer to a
    question, as was the case in
Peakes Limited v. Higgins
, [1931] 1 D.L.R.
    993, 1930 CarswellNB 17 (N.B.S.C, App. Div.), at para. 10. However, there was
    nothing on the face of the jurys answers in the present case to suggest that
    less than five jurors had agreed on the answer to each bottom line question.

[121]

Procedural
    remedies are available where questions arise about the sufficiency or
    reasonableness of a jurys answers or verdict. For example, r. 52.08 provides,
    in part, that where the jury gives conflicting answers so that judgment cannot
    be granted on its findings, the trial judge may direct a new trial. As well, a
    defendant may oppose the entering of judgment in accordance with the verdict on
    the ground there is no evidence on which a judgment for the plaintiff could be
    based and may ask that the action be dismissed: r. 52.08(1); see also J.
    Kenneth McEwan,
Sopinka on The Trial of an Action,
3rd ed. (Toronto, ON:
    LexisNexis, 2016), at § 8.13.

[122]

In
    the present case, the appellants brought such a motion to dismiss, arguing
    there was no evidence in respect of a key element of causation and no finding
    by the jury on which judgment could be granted. The trial judge dismissed the
    motion and granted judgment in accordance with the jurys answers: 2015 ONSC
    7443, [2015] O.J. No. 6513. Although in their notice of appeal the appellants
    stated the trial judge erred in dismissing their motion and granting judgment,
    they did not pursue that ground of appeal in their factum. And, at the hearing,
    the appellants stated they were abandoning their challenge to the trial judges
    rule 52 decision.
[2]


[123]

For
    these reasons, I would not give effect to this ground of appeal.

VI.

POLLING THE JURY

The
    issue stated

[124]

The
    appellants final ground of appeal concerns the trial judges denial of their
    request to poll the jury once it announced its verdict.

[125]

While
    the jury was deliberating, the appellants asked the trial judge to poll the
    jury once they had reached a verdict. Appellants counsel explained the reason
    for the request:

The reasonwhy we feel it is important in this case is because
    of the ruling in relation to jury question No. 1, and without polling we dont
    know whether that would make any difference. And so, for example,
at the
    end of the day if all five of them line up on all of the particulars of breach
    of standard in Question 1(b) for example, then it makes that a less important
    issue than it might if they are split on those particulars of the breach of
    standard.

So thats why we were thinking about the polling and felt that
    it was necessary for us to understand how they came to their decision. [Emphasis
    added].

[126]

The
    trial judge declined to poll the jury once they had reached their verdict. He
    ruled:

My inclination having regard to this is, is I will not engage
    in polling. I think polling flies in the face of section 108(6) of the
Courts
    of Justice Act

which talks about five of six having to give an
    answer, and if they give us an answer thats it.

If the answer or the circumstances suggest to you that there
    was no evidence upon which a jury properly instructed could come to the
    conclusion, then we have to revisit it

[127]

When
    the jury advised they had reached a verdict, but before they entered the
    courtroom, the appellants renewed their request to poll the jury. The trial
    judge again refused.

[128]

After
    the jury delivered its verdict, the appellants repeated their request for
    polling. The trial judge refused, ruling:

My ruling is that they will not be polled on the basis of the
    jurisprudence. Im not persuaded that the cases to which you directed my
    attention changes that, changes the law that roots back to 1951 and 1957 as I
    read it. So I shant poll.

[129]

The
    appellants submit the trial judge erred in law in concluding he lacked the
    jurisdiction to poll the jury. Further, they contend the trial judge should
    have polled the jury to determine whether his ruling regarding the number of
    jurors required to agree on an answer had any adverse impact on the verdict.

[130]

The
    respondent argues the trial judge acknowledged he had the jurisdiction to poll
    the jury, but he properly declined to exercise his jurisdiction because nothing
    in the circumstances warranted polling.

Analysis

[131]

The
    judge presiding in a civil jury trial has the power to poll the jury where
    circumstances warrant. This power rests in the trial judges inherent
    jurisdiction to ensure a fair trial.

[132]

In
    concluding polling flies in the face of
CJA
s. 108(6), the trial judge
    viewed as pretty dispositive the following passage from
Ontario Courtroom
    Procedure,
3rd ed., at p. 1157, that in a civil jury trial the jury is
    never polled to ascertain if each juror agrees with the verdict on the verdict
    sheet:
Judd v. Frost
, [1957] O.J. No. 526 (C.A.);
Spencer v.
    Stockloser (Guardian ad litem of)
, [1951] O.J. No. 23 (C.A.).Those two
    decisions of this court from the 1950s do not support the definitive
    prohibition advanced by the authors of the text. In both cases, the trial judges
    had polled the jury. In
obiter
, this court questioned the practice,
    calling it highly questionable in
Judd
, at para. 3, and noting the
    absence of authority for it in
Spencer
, at para. 7.

[133]

However,
    more recent decisions of this court have noted the polling of civil juries without
    making any critical comment about the practice:
Burlie v. Chesson
, 146
    O.A.C. 106, [2001] O.J. No. 1960, (C.A.), at para. 30;
Sedge v. Waddick
,
    2008 ONCA 885, 247 O.A.C. 246, at para. 9.

[134]

Although
    neither the
Courts of Justice Act
nor the
Rules of Civil Proced
ure
    expressly authorize judges to poll civil juries on their answers or verdicts, juries
    often are polled in criminal trials notwithstanding the absence of any
    provision in the
Criminal Code
dealing with the practice. In
R. v.
    Recalla
, [1935] O.R. 479, [1935] 4 D.L.R. 353, at p. 357, this court
    explained the basis for polling in criminal jury trials: [Polling] ismerely a
    convenient and customary method of ascertaining the essential thing, the
    unanimity of the jury; see also
R. v. Laforet
, [1980] 1 S.C.R. 869, at p.
    879.

[135]

So
    too, where concern exists in a civil trial as to whether five of the jurors
    have agreed on the answer to a bottom line question, it would be open to the
    trial judge to poll the jury to ensure the requirements of s. 108(6) of the
Courts
    of Justice Act
have been met. The trial judges power to do so rests in the
    inherent jurisdiction of a superior court judge to do justice between the
    parties and to secure a fair trial between them:
Endean v. British Columbia
,
    2016 SCC 42, 401 D.L.R. (4th) 577, at para. 23.

[136]

To
    the extent the trial judge in the present case thought s. 108(6) prevented the
    polling of the jury, he was mistaken.

[137]

However,
    his refusal to poll the jury for the reason proposed by the appellants was
    correct because the appellants sought to poll the jury for an impermissible
    purpose. Specifically, they sought to poll the jury to ensure that five of the
    jurors agreed on each of the particulars of the breach of the standard of care
    or causation found by the jury. As explained above, a jury is entitled to
    arrive at an answer to a bottom line question or verdict by different
    evidentiary routes. Consequently, polling jurors on their responses to the
    particulars portion of any question would be an exercise without legal
    relevance. Where, in a case, the jurys answers on their face give rise to
    questions about their sufficiency or reasonableness, other procedural devices
    are available to the trial judge to address such concerns, as explained in the
    preceding section.

[138]

In
    the circumstances of the present case, the trial judge did not commit an error
    of principle in exercising his discretion to refuse to poll the jury. I would
    not give effect to this ground of appeal.

VII.

DISPOSITION

[139]

For
    the reasons set out above, I would dismiss the appeal.

[140]

In
    accordance with the agreement of the parties stated at the hearing, the
    respondent is entitled to his costs of the appeal fixed in the amount of
    $50,000, inclusive of HST and disbursements.

Released: January 18, 2017 ("DB")

"David Brown
    J.A."

"I agree. G.R.
    Strathy C.J.O."

"I agree. G.
    Pardu J.A."





[1]
The plaintiffs discontinued the action against Dr. J. Doe and Nurse J. Doe by
    notice of discontinuance dated September 25, 2008. A January 19, 2011 consent
    order dismissed the action and cross-claims against Drs. Hill and Behiya. A
    further consent order dated September 23, 2013 dismissed the action and all
    cross-claims against the Hospital.



[2]
It is well-established that the verdict of a civil jury will not be set aside
    against the weight of the evidence unless it is so plainly unreasonable and
    unjust as to satisfy the court that no jury, reviewing the evidence as a whole
    and acting judicially, could have reached it:
McIntyre v. Grigg
(2006),
    83 O.R. (3d) 161 (C.A.), at para. 91. The trial judge identified in his reasons
    on the motion for judgment the evidence that provided some basis for the jury
    to reach the conclusion it did on causation: 2015 ONSC 7443, at paras. 21 to
    24.


