



COURT OF APPEAL FOR ONTARIO

CITATION: Cheung v. Samra, 2022 ONCA 195

DATE: 20220309

DOCKET: C69134

Simmons, Pardu and Brown JJ.A.

BETWEEN

Rhonda Hong-Ching Cheung a minor
    by her Litigation Guardian, Yuen Ni
Cheung-Kwan, Ronald Chun-Pok Cheung, Raymond S.H. Cheung
and the said Yuen Ni Cheung-Kwan personally

Plaintiffs (Appellants)

and

D. Samra, J. Ma, A. Joglekar, A.
    Madikiza, Rouge Valley Health System-
Centenary Health Centre Site, G. Mitchell, S. Treuer, P. Taylor,
J. Moses, A. Bartlay, M. Jacobs, A. Tranter, S. Reno

Defendants (Respondents)

Gavin MacKenzie and Hilik Elmaleh
[1]
, for the appellants

Darryl A. Cruz and Meghan S. Bridges,
    for the respondents

Alexi Wood and Laura Maclean, for the
    intervener Canadian Chiropractic Protective Association

Barbara A. Macfarlane, for the intervener
    Ontario Trial Lawyers Association

Heard: February 7, 2022, by video conference

On appeal from the order of the
    Divisional Court (Justices David L. Corbett, Thomas R. Lederer and R. Cary Boswell),
    dated August 27, 2020, with reasons reported at 2020 ONSC 4904, affirming the order
    of Justice Darla A. Wilson of the Superior Court of Justice, dated June 5,
    2018, with reasons reported at 2018 ONSC 3480.

Pardu J.A.:

(1)

Overview

[1]

Following a difficult birth, Rhonda Cheung suffered a seizure at two and
    a half months old and serious disabilities became evident. A jury concluded
    that the defendant physicians failed to meet the standard of care required of
    doctors looking after pregnant patients and that this failure caused Rhondas
    disabilities. Although the trial judge concluded that there was evidence
    capable of supporting the jurys decisions, she refused to enter judgment in
    accordance with the verdict on the ground that the particulars of causation
    given by the jury were insufficient and failed to explain the physiological
    mechanism of the injury.

[2]

The trial judge erred in refusing to give effect to the jury verdict. I
    would set aside her order requiring a new trial and substitute judgment in favour
    of the plaintiffs in
the agreed sum of $14.9 million, as
    set out in the minutes of settlement reflecting the agreement as to the amount
    of the damages, approved by the order of Archibald J. of March 15, 2018.

(2)

Background

Medical history

[3]

At the 35
th
week of the pregnancy, Rhonda was diagnosed as
    suffering from intrauterine growth restriction (IUGR). Repeated tests indicated
    that this condition continued to worsen over the following weeks. Babies with IUGR
    are at risk of serious complications, including asphyxia, abnormal fetal heart
    rate, cerebral palsy and developmental delay. Test results were increasingly
    concerning, but the mother was sent home on April 21, 2006. On April 22, 2006,
    the mother returned to hospital with vaginal bleeding. The babys heart rate
    showed that she was in distress and an emergency C-section followed.

[4]

Rhonda was born in very poor condition. She was pale, blue, limp and
    made no effort to breathe. For 28 minutes she had almost no heartbeat; her
    first breath was at 30 minutes of age. She had a long and difficult
    resuscitation, with chest compressions, intubation, ventilation and
    administration of drugs to reverse cardiac arrest.

[5]

When Rhonda was discharged from hospital on May 3, 2006, she was able to
    feed by breast and bottle. An EEG performed on April 25, 2006 and an MRI
    performed on April 26, 2006 were normal. Rhonda responded normally to sensory
    stimulation and the prognosis looked good.

[6]

In July 2006 Rhonda suffered a seizure and was admitted to hospital. She
    could no longer feed independently or control her head.

[7]

She has severe brain damage and has been diagnosed with hypotonic
    cerebral palsy and developmental delay. She cannot walk, talk or eat and must
    be fed through a tube. She needs help with every activity.

[8]

There is no challenge to the jury findings that the failure to advance
    the delivery to an earlier date was a breach of the standard of care.

[9]

The trial evidence about causation featured opposing theories by the
    plaintiffs and the defendants. The plaintiffs position was that Rhonda
    suffered a brain injury caused by deprivation of oxygen to the brain in the
    period immediately before birth. The defendants position was that Rhondas
    brain injury occurred more than two months after birth, possibly as a result of
    a genetic disorder, and that her impairments are not attributable to the
    management of her pregnancy or delivery.

The plaintiffs experts

[10]

The
    plaintiffs experts advanced different explanations for the mechanism of
    injury.

[11]

Dr.
    Oppenheimer, an obstetrician, testified that the severe IUGR was due to
    placental insufficiency, and that at some point the umbilical cord became occluded,
    preventing oxygen from reaching the baby. Because of the placental
    insufficiency, which had been ongoing for weeks, Rhonda had no compensatory
    reserve left to protect against the effects of cord occlusion. He testified
    that had the baby been delivered before April 21, it is likely that brain
    damage would have been avoided.

[12]

Dr.
    Perlman, a neonatologist, testified that Rhonda had a severe brain injury
    caused by deprivation of oxygen during the 30 minutes preceding her birth. Had
    she been born 30 minutes earlier, she probably would be normal today. Blood
    tests started at 2.5 hours of age showed a high level of lactic acid which did
    not abate for almost three days, indicating a severe lack of oxygen.

[13]

Dr.
    Hill, a pediatric neurologist, testified that the IUGR was due to placental
    insufficiency, which, combined with compression of the umbilical cord just
    before delivery, caused a severe deprivation of oxygen that caused her
    resulting disabilities.

[14]

Dr.
    Naidich, a neuroradiologist, testified that imaging studies done during the
    first three years of Rhondas life show severe permanent injury to her brain,
    caused by deprivation of oxygen. He discounted the significance of an MRI done
    shortly after birth, saying that 25-50% of MRI scans done after birth appear
    normal, even when there has been a brain injury caused by lack of oxygen.

[15]

Dr.
    Cohn, an expert in pediatric genetics and children with neuromuscular and
    neurogenetic disorders, testified that it was unlikely that a primary genetic
    disorder caused the disabilities. He attributed the disabilities to the lack of
    oxygen and distress before, during and following delivery.

The defendants experts

[16]

The
    defendants experts testified that Rhonda had not suffered a brain injury
    caused by deprivation of oxygen, and that her impairments are unconnected to
    anything occurring at or immediately before her birth.

[17]

Dr.
    Vezina is a neuroradiologist. He relied on the MRI scans taken after her birth
    to conclude that no brain injury had occurred from deprivation of oxygen around
    the time of her birth, but that her impairments are more likely related to
    genetic, metabolic or seizure disorders, although no such disorder has been
    specifically identified.

[18]

Dr.
    Tarnopolsky is an expert in pediatric genetics and neuromuscular,
    neurometabolic and neurogenetic disorders. He testified that Rhondas
    impairments were likely genetic in origin, and that she had recovered well from
    the trauma associated with her birth. The fact that the impairments did not
    manifest until 2.5 months of age indicated to him that they were consistent with
    a genetic disorder.

[19]

Dr.
    Saigal, a neonatologist, testified that Rhonda did not suffer a brain injury
    caused by lack of oxygen around the time of her birth.

[20]

Dr.
    Yager, a pediatric neurologist, testified that she had not suffered a brain
    injury due to deprivation of oxygen around the time of her birth, and that her
    impairments are likely genetic or metabolic in origin. He said no evidence of
    such injury manifested in the first 3 months of her life.

[21]

None
    of the defendants experts identified the genetic or metabolic disorder which
    they say might have been responsible for Rhondas disabilities.

The trial judges decision

[22]

There
    is no challenge to the jury charge on causation. The trial judge instructed the
    jury that the plaintiffs had to establish on the balance of probabilities that
    the failure to deliver the child earlier was a necessary cause of the brain
    damage, and that the injury would not have occurred without the defendants
    negligence. She instructed that scientific precision was not required to find
    causation and that they were entitled to consider all the facts and
    circumstances established by the evidence. Direct evidence of causation was not
    necessary, and they were entitled to draw an inference of causation through the
    application of reason and common sense. It was not sufficient for the plaintiffs
    to prove that adherence to the standard of care would have given Rhonda a
    chance to avoid the injury. To establish causation the plaintiffs had to
    establish that it was more likely than not that Rhonda would not have sustained
    brain damage, but for the substandard medical care. The trial judge pointed out
    that the experts had different opinions about what caused Rhondas condition. The
    plaintiffs experts related the brain damage to events around the time of
    birth, while the defendants experts disagreed and attributed her condition to
    genetics perhaps, or a metabolic disorder.

[23]

The
    trial judge gave the jury questions to answer. If they found that a doctors
    care caused the brain damage, she instructed them to explain how the breach of
    care caused the injuries, with clear and specific answers.

[24]

The
    jury returned with answers indicating that they were satisfied on the balance
    of probabilities that but for the breach of the standard of care, Rhonda would
    not have sustained brain damage.

[25]

On
    the request for particulars of causation for Dr. Samra, the treating
    obstetrician, the jury replied:

2(b) If your answer to question 2(a) is yes, how did Dr.
    Samras breach of the standard of care cause Rhondas brain damage? Please
    provide clear and specific answers:


Dr. Samras failure to move the C-section to April 18, 2006
    put Rhonda at higher risk which more likely than not caused Rhondas brain
    damage.

For Dr. Ma, the emergency obstetrician who saw the
    mother on April 21, 2006 and delivered Rhonda on April 22, 2006, they answered,

4(b) If your answer to question 4(a) is yes, how did Dr. Mas
    breach of the standard of care cause Rhondas brain damage? Please provide
    clear and specific answers:


Dr. Mas failure to deliver Rhonda
    on April 21, 2006 due to her being IUGR, her medical history and NST results
    more likely than not caused her brain damage.

[26]

After
    the jury was discharged, the defendants moved for two alternative remedies: an
    outright dismissal of the action on the ground that the plaintiffs had failed
    to lead evidence that an earlier delivery would have led to a different
    outcome, or alternatively that the trial judge refuse to enter judgment and order
    a new trial on the ground that the jurys answers as to how causation was
    established were insufficient.

[27]

The
    trial judge refused to dismiss the action, holding at para. 62 of her reasons:

It was open to the jury to accept
    the evidence of Dr. Oppenheimer and Dr. Perlman in particular and find that
    Rhonda should have been delivered earlier than 7:07 on April 22 and had she
    been, she would not have suffered the brain damage. The jury could have
    accepted the expert evidence on cord compression or cord occlusion or placental
    insufficiency, even though it was lacking in detail. It is possible that
    inferences could have been drawn from the evidence, including the exhibits,
    using a robust, liberal approach to the evidence. Whether there was sufficient
    evidence to establish causation on a balance of probabilities is not for me to
    decide. I am not persuaded the verdict is devoid of any evidentiary support,
    which is what must be demonstrated on this motion.

[28]

However,
    the trial judge found that the jurys answers to the questions asking for
    particulars of causation were insufficient because they fail[ed] to identify
    the mechanism of injury. She indicated that the answers of the jury made no reference
    to the expert evidence, including evidence that favoured the defendants. She
    held that [c]onclusory statements do not explain how the negligence led to the
    damage. A theory of causation must be rooted in hard evidence from experts. We
    are left with answers that do not explain the causal link between the
    negligence and the harm. She held that the causation answers were contrary to
    the law, do not explain the causal link between the negligence and the result,
    and cannot form a foundation for judgment. At best, the jury was confused and
    conflated the issues of standard of care with causation.

Appeal to the Divisional Court

[29]

The
    plaintiffs obtained leave to appeal to the Divisional Court from the decision
    of the trial judge refusing to grant judgment. The defendants cross-appealed
    the refusal to dismiss the action.

[30]

The
    Divisional Court was unanimous in dismissing the defendants cross-appeal, concluding
    that there was more than sufficient evidence to allow a jury, acting
    reasonably, to find that causation had been established.

[31]

The
    Divisional Court was divided on the issue of insufficient jury answers on
    causation. The majority upheld the trial judges decision to order a new trial.

The majority decision in the Divisional Court

[32]

The
    majority held that the plaintiffs assent to the form of the question put to
    the jury signified that they had agreed that the jury was to provide reasons
    for its decision, and that they were not content to rely on the presumption
    that the jury understood and properly applied the instructions given to it. The
    court accordingly was charged with assessing the sufficiency of those reasons. The
    majority acknowledged that jurors were laypeople without legal training, and
    that the answers had to be considered in that context. Drawing from
Stilwell v. World Kitchen Inc.
, 2014 ONCA 770, 327 O.A.C. 146,
it noted
    a jurys answers should be given the fullest possible effect and supported, if
    possible, by any reasonable construction. The majority noted that the purpose
    of asking a jury to provide reasons was to ensure that they have understood
    the instructions given to them, that they have correctly applied those
    instructions, and that they have not missed an essential issue. The majority held
    that a trial judge will only be justified in rejecting the verdicts and
    ordering a new trial where the reasons provided undermine the integrity of the
    verdict.

[33]

The
    majority held that the reasons given were so conclusory as to be non-responsive
    and did not provide the necessary reassurance that the verdicts were based on
    solid footing.

The dissent in the Divisional Court

[34]

Corbett
    J. dissented on the issue of causation. In his view the answers to the
question
were conclusory but
    were not inconsistent with the verdict. The answers showed that the jury
    accepted the plaintiffs theory of causation and rejected the defendants theory.
    The path to their reasoning was not based on impermissible reasoning nor was it
    contrary to any principle of justice. He concluded that the defendants were not
    entitled to reasons for decision from the jury and suffered no injustice in not
    receiving them. The conclusory nature of the answers did not mean that they
    were non-responsive or wrong or that they applied a wrong principle.

[35]

Corbett
    J. referred to s. 108(6) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43

which provides that 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. He observed that while all six jurors found that the
    plaintiffs had established causation on a balance of probabilities, each could
    have arrived at that conclusion by different paths or reasoning, and posited
    possible paths each could have taken at para. 200 of his reasons:

a. Juror 1: accepts the opinion of Dr.
    Oppenheimer.

b. Juror 2: accepts the opinion of Drs.
    Perlman and Hill.

c. Juror 3: accepts the opinions of Drs.
    Oppenheimer, Perlman and Hill, and finds that they lead to the same conclusion
    on liability.

d. Juror 4: prefers the evidence of Dr.
    Naidich to the evidence of Dr. Vezina, and the evidence of Dr. Cohn to the
    evidence of Dr. Tarnopolsky, and concludes that, between the two theories of
    causation from the experts, the plaintiffs expert opinions are more probably
    correct.

e. Juror 5: finds the defence radiological
    evidence to be compelling and troubling, but is persuaded by the absence of any
    documented genetic cause and Rhondas well-documented perinatal condition that
    it is more likely than not that the plaintiffs theory of causation is correct.

f. Juror 6: did
    not believe the defence experts and thought that they were being less than
    candid in their opinions in order to help out other doctors. The injury had to
    be caused by something, and there is strong documentation for Rhondas acute
    perinatal condition and it is only logical that this must have caused the
    injury.

[36]

Thus, each of the jurors could have reasoned
    differently, but arrived at the same conclusion. The jury was instructed that
    they need not be unanimous, but if they could arrive at an answer to a question
    on which five of them agreed, that would be sufficient to enable the foreperson
    to record that answer.

[37]

Corbett J. observed that if the members of the
    jury reached findings of causation by different paths of reasoning they would
    have to find the common basis for the decision upon which they agreed. He
    concluded that it would be reasonable to infer that the jury did exactly what
    it was asked to do and that the answers were the common account of causation
    upon which they could all agree: the conclusion.

[38]

He went further and noted that the trial judge
    had instructed the jury that their deliberations were secret, so that they
    could have full and frank discussions with each other in complete privacy. To
    ask a jury for reasons for its conclusion on causation would impinge on the
    secrecy of jury deliberations.

[39]

Corbett J. concluded that the trial judge erred
    in refusing to grant judgment in accordance with the verdict of the jury.

Leave to appeal

[40]

A panel of this court granted leave to appeal to
    this court from the decision of the Divisional Court.

(3)

Arguments on appeal to this court

[41]

The appellants argue that the trial judge erred
    in law in refusing to grant judgment in accordance with the verdict. They say
    that the answers provided a legal foundation for judgment and the trial judge
    had a duty to enter that judgment. Sufficiency of reasons was not a basis to
    refuse to do so. It was reasonable to infer that the answer given was the
    common outcome to which they all agreed.

[42]

The defendants argue that the trial judges
    decision to require a new trial was a discretionary decision to which deference
    is owed. They submit that the answers given were not responsive, and that the trial
    judges instructions to provide specific particulars were not answered. They
    argue that the absence of responsive answers means that there was not a
    foundation for judgment within the meaning of Rule 52.08 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194. Failure to provide reasons
    undermines the integrity of the verdict and requires a new trial.

(4)

Analysis

[43]

The
Courts of Justice Act

provides that a judge may require a jury
    to either give a general verdict or to answer specific questions.

[44]

Subsections 108(4), (5) and (6) of the
Courts
    of Justice Act
provide as follows:

(4) Where a proceeding is tried with
    a jury, the jury shall be composed of six persons []

(5) Where a proceeding is tried with
    a jury,

(a) the judge may require the
    jury to give a general verdict or to answer specific questions []

(b) judgment may be entered in
    accordance with the verdict or the answers to the questions.

(6) 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.

[45]

The grounds upon which a trial judge may refuse
    to grant judgment in accordance with a jury verdict are limited both by the
Rules
    of Civil Procedure
and by the jurisprudence of this court.

[46]

Rule 52.08 provides,

52.08 (1) Where the jury,

(a) disagrees;

(b)
makes no finding on which
    judgment can be granted
; or

(c)
answers some but not all of
    the questions directed to it or gives conflicting answers, so that judgment
    cannot be granted on its findings
,

the trial judge may direct that the
    action be retried with another jury at the same or any subsequent sitting, but
    where there is no evidence on which a judgment for the plaintiff could be based
    or where for any other reason the plaintiff is not entitled to judgment, the
    judge shall dismiss the action. [Emphasis added.]

[47]

Here the essential questions are whether the
    jury made no finding on which judgment can be granted or whether it answered
    some but not all of the questions directed to it [] so that judgment cannot
    be granted on its findings.

[48]

A trial judge can disregard the answers which
    form the jury verdict only if:

1.

There is no evidence to support the jury finding;
    or

2.

The jury gives an answer to a question which cannot
    in law provide a foundation for a judgment:
McLean v. Knox
, 2013 ONCA
    357, 36 C.P.C. (7th) 1, at para. 20.

[49]

The analysis must begin with the presumption
    that juries understand and properly apply the instructions provided by trial
    judges and that the jurys answers are the result of a proper consideration of
    the evidence and the issues and an adherence to the legal instructions provided
    in the trial judges charge:
R. v. Corbett
, [1988] 1 S.C.R. 670;
R.
    v. Suzack
(2000)
, 30 C.R.
    (5th) 346 (Ont. C.A.). It would be wrong to assume that juries might disregard
    the law and instructions; this line of thinking could seriously undermine the
    entire jury system:
Corbett
, at para. 39.

[50]

In
Stilwell
, this court described the
    stringent test for appellate review of jury verdicts:

1.

[T]he standard of review of civil jury verdicts is exceptionally
    high. A civil jurys verdict should be set aside only where it is so plainly
    unreasonable and unjust that no jury reviewing the evidence as a whole and
    acting judicially could have arrived at the verdict: at para. 33.

2.

Appeal Courts do not fine-comb jury answers but accord them the
    respect of a common sense interpretation even where there may be some ambiguity
    in the answers [] It is always timely to be reminded that juries do not write
    reasons for judgment, and their answers must be taken against the background of
    the evidence from which they are entitled to select, without manifesting their
    selection, what is credible, what is significant, what is persuasive to them: at
    para. 36, citing
Wade v. C.N.R
., [1978] 1 S.C.R. 1064, at p. 1069,
per
Laskin C.J.C. (dissenting).

3.

[A] jurys verdict is entitled to a fair and liberal interpretation
    in light of the evidence and of the circumstances [] Answers by a jury should
    be given the fullest possible effect and supported, if possible, by any
    reasonable construction: at para. 34.

[51]

Where a jury is asked to provide particulars of
    a finding of causation, it is sufficient if five of the six jurors agree to the
    bottom line:
Surujdeo v. Melady
,
2017 ONCA 41, at paras. 114-118.

The trial judge erred in refusing judgment in
    accordance with the verdict

[52]

There were two essential findings that the jury
    had to make for the defendant physicians to be liable in negligence: first, that
    they did not live up to the standard of care, and second, that that failure
    caused the injuries, on the balance of probabilities. The jury made those
    findings. That they gave a conclusory answer to the particulars the trial judge
    asked them to provide does not mean that they did not make a finding about an
    essential matter.

[53]

Contrary to what the trial judge found, the
    answers did not indicate that the jurys reasoning was clearly erroneous
    because their answers failed to indicate the physiological mechanism of injury.
    As indicated in the careful analysis by Corbett J. of the possible reasoning
    paths a juror might have taken, it was not necessary that each juror come to a
    firm or the same conclusion about the mechanism of injury. Keeping in mind the
    presumption that the jurys answers are the result of a proper consideration of
    the evidence and adherence to the trial judges charge there is no basis to
    doubt the integrity of the verdict.

[54]

Whether a jury verdict is perverse or
    unreasonable is a matter for appellate courts, not for the trial judge:
Lang
    v. McKenna
(2000), 135 O.A.C. 304, at
    para. 24;
Jarbeau v. McLean
, 2017 ONCA 115, 410 D.L.R. (4th) 246, at para. 81
.

[55]

The trial judge could have refused to give
    judgment if she concluded that there was no evidence to support the finding of
    the jury, or if the jury gave an answer which cannot in law provide a
    foundation for judgment:
Teskey v. TTC
(2003)
, 3 C.P.C. (6th) 181, at para. 6.

[56]

In closing submissions, plaintiffs trial
    counsel suggested to the jury that to provide particulars on causation in response
    to questions 2(b) and 4(b), they could insert the same answers as they did for
    particulars of negligence. In her jury address, the trial judge instructed the
    jury that was not correct and that in answering questions 2(b) and 4(b) they
    must state how the negligence of either doctor caused Rhondas current
    condition.

[57]

In her reasons for refusing to enter judgment in
    accordance with the jurys verdict, the trial judge said the jurys answers
    indicated they ignored her instructions. However, as Corbett J.s reasons
    demonstrate, that conclusion is speculative.

[58]

The jurys answers to the questions may well
    have reflected a bottom line consensus achieved through various paths, which
    they expressed succinctly.

[59]

The jury must have understood that they were to
    be brief. The verdict sheet had seven lines for handwritten notes to explain the
    jurys finding on causation. The jury was not instructed that if they concluded
    causation had been proven by following different reasoning paths, they were to
    list all of those reasons. Rather, they were told that when they answered the
    questions, they need not be unanimous. It would be sufficient to enable the
    foreperson to put an answer on the jury sheet if they arrived at an answer on
    which five of them agreed.

[60]

Here the trial judge did not have a discretion
    to refuse to give judgment in accordance with the verdict given by the jury.

[61]

As noted in
Salter v. Hirst
, 2010 ONSC
    3440, 97 C.P.C. (6th) 353, at para. 15, affd 2011 ONCA 609, 107 O.R. (3d) 236,
    [N]othing could jangle more profoundly against the accustomed role of a trial
    judge sitting with a jury than to replace their finding with ones own view of
    the facts or set aside their verdict where there was some evidence to support
    it.

There is no basis for this court to set aside
    the verdict of the jury

[62]

It cannot be said that the verdict is so
    plainly unreasonable and unjust that no jury reviewing the evidence as a whole
    and acting judicially could have arrived at the verdict:
Stilwell
, at
    para. 33. Here the trial judge and the Divisional Court concluded that there
    was an evidentiary basis for the verdict.

[63]

For ease of reference, I refer again to the
    answers given as to the particulars of causation:

2(a) If your
    answer to question 1(a) is yes, have the plaintiffs satisfied you on the
    balance of probabilities that, but for the breach of the standard of care,
    Rhonda would not have sustained brain damage?

Answer: YES

(b) If your answer
    to question 2(a) is yes, how did Dr. Samras breach of the standard of care
    cause Rhondas brain damage? Please provide clear and specific answers:

Dr. Samras
    failure to move the C-section to April 18, 2006 put Rhonda at higher risk which
    more likely than not caused Rhondas brain damage.

4(a) if your
    answer to question 3(a) is yes, have the plaintiffs satisfied you on the
    balance of probabilities that, but for the breach of the standard of care
    Rhonda would not have sustained brain damage?

Answer: YES

(b) If your answer
    to question 4(a) is yes, how did Dr. Mas breach of the standard of care cause
    Rhondas brain damage? Please provide clear and specific answers:

Dr. Mas failure
    to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history
    and NST results more likely than not caused her brain damage.

[64]

I would not read the reference to higher risk
    in the answer to question 2(b) as an indication that the jury ignored the trial
    judges instructions that loss of the chance to avoid brain damage was not
    sufficient to establish causation. First, the jury made an unambiguous finding
    that, but for the breach of the standard of care, Rhonda would not have
    sustained brain damage. Second, the presumption that juries follow judicial
    instructions continues to have force whether or not a jury is asked to give
    reasons or particulars for its findings.

[65]

Applying a fair and liberal interpretation to
    the answer, I would interpret the answer as a finding that Dr. Samras breach
    of the duty of care  his failure to move the C-section to April 18, 2006  more
    likely than not caused Rhondas brain damage and that the reference to higher
    risk was an incidental comment. As noted by Corbett J., the answer can
    properly be read as meaning the breach of the duty of care caused Rhonda to be
    at greater risk, the higher risk at which Rhonda was placed came to pass, and
    but for the breach of the duty of care by Dr. Samra, that risk would not have
    come to pass.

[66]

Similarly, the answer to question 4(b) states a
    finding that Dr. Mas breach of the duty of care  her failure to deliver Rhonda
    on April 21, 2006  more likely than not caused Rhondas brain damage.

[67]

Jurors are lay persons who cannot be expected to
    craft reasons with the detail expected of the judiciary. The trial judge did
    not ask the jury to identify the mechanism of injury or the sequence of
    events and injuries that led to Rhondas brain damage. The trial judge instructed
    the jury to explain how the breach led to the outcome and informed them that
    they could draw an inference of causation through the application of reason
    and common sense.

[68]

I agree with the observations about the jurys
    answers by Corbett J. at paras. 170 and 173 of his dissenting reasons:

They are not inconsistent with the verdict. They
    show that the jury accepted the plaintiffs theory of causation and rejected
    the defence theory of causation. The parties causation theories were binary
    choices. Therefore, even though the jurys impugned reasons are conclusory, the
    path to their conclusion is evident. That path is not based on impermissible
    reasoning nor is it contrary to any principle of justice.

[]

Where, as here,
    the reasons are consistent with the verdict and are not premised on
    impermissible reasoning or a principle inconsistent with justice, the court
    should enter judgment in accordance with the jurys verdict.

[69]

There is no basis to conclude that the jury
    proceeded on any erroneous premise or was confused or mistaken as to the
    instructions given to it. The answers given are not tainted by doubt or
    ambiguity:
Stilwell
,

at paras. 33-34.

The interveners

[70]

The interveners take opposing positions on
    whether it is appropriate to continue to ask a jury to provide particulars of
    its findings. The practice of asking for particulars began with the
    observations made in
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674
. In that case, the jury verdict was
    inscrutable, in the sense that the answer did not reveal whether the jury used
    an unavailable legal route to find a breach of the standard of care. Sopinka J.
    suggested that to avoid this problem juries could specify in what respects the
    defendant was negligent in order to reveal whether the jury has understood
    and applied the judges instruction that it must accept the standard practice
    as the legal standard against which the defendants conduct can be measured:
    at para. 66.

[71]

The
Courts of Justice Act
does permit a
    trial judge to put specific questions to a jury. That is a matter for the
    exercise of discretion of the trial judge in each case, and I would decline to
    adopt a general rule. Jury deliberations are not transparent, and there is an
    element of inscrutability to every jury verdict. Where there are, as here,
    multiple reasoning paths that could lead to a finding of causation, asking for
    particulars may undermine the integrity of the jurys verdict more by infelicities
    of expression than any real concern for the merits of the jurys decision or
    reasoning and may stretch the limits of what a jury can reasonably be expected
    to give by way of reasons.

(5)

Disposition

[72]

I would allow the appeal and grant judgment to the
    appellants in
the agreed sum of $14.9 million, as set out in the minutes
    of settlement reflecting the agreement as to the amount of the damages,
    approved by the order of Archibald J. of March 15, 2018. I would also award the
    appellants costs of the appeal and the motion for appeal fixed in the agreed
    sum of $35,000 inclusive of disbursements and taxes. The issue of the amount of
    costs of the trial in favour of the appellants is remitted to the trial judge
    for determination.

Released: March 9, 2022
J.S.

G. Pardu J.A.

I agree Janet Simmons J.A.

I agree David Brown J.A.





[1]

Mr. Elmaleh did not make oral submissions at the hearing


