STELLA HARDER PLAINTIFF - v. –, 2023 SKKB 282

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 282 Date: 20 23 09 22 Docket: QBG-RG-01454-2014 Judicial Centre: Regina BETWEEN: STELLA HARDER PLAINTIFF - and – DR. MATTHEW BUTLER and DR. ANGELA SCHELLENBERG DEFENDANTS CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released January 3, 2024. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Ron Bohm and Joel Michelucci for the plaintiff David E. Thera, K.C. for the defendants RULING RE: QUESTIONS FOR THE JURY KILBACK J. SEPTEMBER 22, 2023 A.

Introduction [ 1 ] The trial of this action is scheduled to proceed before a civil jury beginning on October 16, 2023. This ruling addresses the form of the questions that will be put to the jury.

[2] A civil jury trial should generally start with a working set of jury questions to guide the court, subject to potential revision as the evidence unfolds: Sacks v Ross, 2017 ONCA 773 at paras 63 and 66, 417 DLR (4th) 387 [Sacks]; Cheesman v Credit Valley Hospital, 2019 ONSC 4996 at paras 25 and 26, 42 CPC (8th) 350. In accordance with this recommended practice, the parties haveeach submitted draft proposed questions which were the subject of oral argument on September 6, 2023. [3] The plaintiff proposes the jury should be asked the following questions in relation to Dr.

Butler, with identicalquestions to be asked in relation to Dr. Schellenberg: 1. Was Dr. Butler negligent in his care of Stella Harder? (Y/N) 2. If yes, did that negligence cause or contribute, in whole or in part, to harm suffered by Stella Harder? (Y/N) [4] The defendants propose the jury should be asked the following questions in relation to Dr. Butler, again with identicalquestions to be asked in relation to Dr. Schellenberg: 1. Was Dr. Butler negligent in his care of Stella Harder? (Y/N) 2.

If the answer to Question 1 is Yes, then fully state the acts or omissions which constituted the failure in the duty of care. 3. If the answer to Question 1 is Yes, has the Plaintiff proven on a balance of probabilities that but for the breach of the standard of careby Dr. Butler, Ms. Harder’s injuries would not have occurred? (Y/N) 4. If the answer to Question 3 is Yes, then fully state the manner in which Dr. Butler’s negligence caused Ms. Harder’s injury. [5] The parties agree the jury should be asked separate questions on the issues of negligence and causation in relation toeach defendant.

They also agree that the word “negligence” may be used in the narrow sense, as shorthand for breach of the standard ofcare. See: Desmond v Hanna, 2023 ONSC 4103 at para 17. [6] The parties disagree on three points, which can be distilled into the following issues: 1. Should the consequences of the alleged negligence be described as “harm” or “injury”? 2. Should the jury be asked to determine whether the negligence “caused or contributed” to the harm or injury, or whether theharm or injury would not have occurred “but-for” the negligence? 3.

Should the jury be asked to provide particulars or an explanation of its findings of negligence and causation, if any? B. Should the consequences of the alleged negligence be described as “harm” or “injury”? [7] The first issue is whether the consequences of the alleged negligence should be described as “harm” or “injury”. [8] The plaintiff argues the term “harm” should be used because it is more general, while the defendants argue the term“injury” should be used because it is more specific.

Neither party provided authorities on the differences between these two terms in thiscontext, or authorities supporting why their preferred wording should be adopted. [9] In paras. 19, 20, and 21 of the statement of claim, the plaintiff pleads she has suffered “injuries” as a result of thedefendants’ negligence.

In the statement of defence, the defendants deny their actions caused or contributed to the plaintiff’s “injuries.” [10] Since both parties have used the word “injuries” in their pleadings, and in the absence of a persuasive reason to departfrom their choice, I conclude the consequences of the alleged negligence will be described as “injury” in the questions put to the jury.This is also the term used by the Supreme Court of Canada in Snell v Farrell, (SCC), [1990] 2 SCR 311. C.

Should the jury be asked to determine whether the negligence “caused or contributed” to the harm or injury, or whether theharm or injury would not have occurred “but-for” the negligence? [11] The second issue is whether the jury should be asked to determine whether the negligence “caused or contributed” tothe injury, or whether the injury would not have occurred “but-for” the negligence. [12] The parties agree the “but-for” test applies, and that the “material contribution to risk” test set out in Clements vClements, 2012 SCC 32 at para 46(2), [2012] 2 SCR 181 [Clements] does not apply in this case.

However, they disagree on the wordingthat should be used to express the “but-for” test. [13] The defendants argue the traditional expression of the “but-for” test should be used, to communicate that the plaintiffcannot succeed unless she shows as a matter of fact that she would not have suffered her injuries but for the negligent act or acts of thedefendants: Clements at para 46(1). [14] The plaintiff argues the question should be phrased more simply – whether the negligence caused or contributed to theinjuries.

She says the traditional “but-for” wording should not be used, because the question is phrased as a double negative and wouldbe confusing for the jury. [15] The legal test for causation in medical negligence claims was recently summarized by the Court of Appeal in Hander v Kumar, 2022 SKCA 33 at para 40, 467 DLR (4th) 726 [Hander]. The plaintiff bears the burden of showing that, but for the negligent actor omission of the defendant, the injury would not have occurred:

40 The legal test for causation applicable to claims of medical negligence is the "but-for" test (Benhaim v St. Germain, 2016 SCC 48at para 45, [2016] 2 SCR 352; see also St. Jean v Mercier, 2002 SCC 15, [2002] 1 SCR 491, and Snell v Farrell, (SCC),[1990] 2 SCR 311). Under this test, the plaintiff bears the burden of showing that, but for the negligent act or omission of the defendant,the injury would not have occurred.

This test recognizes that compensation for negligent conduct should only be made where there is asubstantial connection between the injury and the defendant's conduct (Resurfice Corp. v Hanke, 2007 SCC 7 at paras 20-23, [2007] 1SCR 333; Clements v Clements, 2012 SCC 32 at para 46, [2012] 2 SCR 181; Ediger [2013 SCC 18, [2013] 2 SCR 98] at para 28). Thisdoes not mean that the defendant's negligence need be the sole cause of the plaintiff's injury in order for a claim to succeed.

Causationwill be made out under the but-for test if the defendant's negligence caused the whole of the injury, or if it contributed in some notinsubstantial or immaterial way to the injury the plaintiff sustained (Stacey Estate v Lukenchuk, 2020 SKCA 55 at para 78, [2020] 8WWR 668; Donleavy v Ultramar, 2019 ONCA 687 at para 72, 60 CCLT (4th) 99). [Emphasis added] [16] I recognize there is authority for translating the but-for test into plain jury-accessible language: Sacks at para 87.However, there is also authority supporting the use of the traditional expression of the test in questions to a jury: Surujdeo v Melady, 2017 ONCA 41 at paras 90 to 100, 410 DLR (4th) 538 [Surujdeo]. [17] If plainer language is used, the parties also disagree on whether the question should ask whether the negligence“caused or contributed” to the injury (as proposed by the plaintiff), or only “caused” the injury (as proposed by the defendants).

In thesecircumstances, it is preferable not to embark on a detailed examination of these differences and exploration of whether “caused” or“caused or contributed” is appropriate in a case such as this where there is no claim for contribution among tortfeasors. [18] Instead, I conclude it is entirely appropriate to use the traditional expression of the “but-for” test in this case, assummarized in Hander. The causation question to be put to the jury will therefore be framed as follows: If the answer to Question 1 is yes, is it more likely than not that but for Dr.

Butler’s negligence, Stella Harder’s injuries would not haveoccurred? D. Should the jury be asked to provide particulars or an explanation of its findings of negligence and causation, if any? [19] The third issue is whether the jury should be asked to provide particulars or an explanation of its findings of negligenceand causation, if any. For the reasons that follow, I conclude the jury will not be asked to do so in this case. [20] The defendants argue the jury should be asked to explain its verdict by specifying particulars of any negligence foundand manner of causation established.

The defendants say this will facilitate more meaningful appellate review because the decision willbe less inscrutable. If particulars are provided, it will be easier to determine whether the verdict is based on a misunderstanding ormisapplication of the law or misapprehension of the evidence. [21] The plaintiff strenuously opposes this request.

The plaintiff says requiring the jury to provide particulars would beunfair, treads perilously close to asking the jury to provide reasons for its verdict, and violates the secrecy of jury deliberations. [22] Before explaining my reasons for concluding the jury will not be asked to specify particulars of negligence or causationin this case, I will briefly examine the traditional view that jurors should not be asked to provide reasons as well as recent developmentson this issue in the context of medical negligence actions.

The Traditional View [23] As a starting point, jurors have traditionally not been asked to provide reasons. A helpful

summary of the law on thispoint is found in Justice Jennifer Power, Justice Ronald Skolrood & Justice Lisa Warren, Civil Jury Instructions, loose-leaf (2023) 2d ed(Vancouver: Continuing Legal Education Society of British Columbia, 2009) Appendix C, footnote (2). [24] In Civil Jury Instructions, the authors explain that asking a jury to specify the reason for finding a defendant negligentis inappropriate because each juror is entitled to reach a verdict based upon their own findings of fact.

Provided the jury is unanimous inits finding on a particular issue, it does not matter how each juror came to that conclusion (at pages G-24, G-25): Until recent times, it was usual to insert a question concerning the liability of the defendant on the issue of negligence. For example: “Ifyou find the defendant was negligent, of what did the negligence consist?” In reply to this question, the jury was supposed to give thereason or reasons for finding the defendant negligent, preferably in a few brief sentences.

Many appeals were taken and many new trialswere ordered by various Courts of Appeal because these reasons were inarticulate or because they appeared inconsistent with theultimate finding of negligence or no negligence: e.g., see the cases collected in The Canadian Abridgment, 2nd ed. (Carswell, 1999Reissue), vol. 29 (Negligence) at 710–11. Persuasive authority for such a question is hard to find. It may come from the remarks of Nesbitt J. in Jamieson v. Harris, supra, [(1905), (SCC), 35 SCR 625] note (1).

A new trial was ordered as a consequence of the ambi​guity arising from a series of 25questions left with the jury by the trial judge. In a closing paragraph, His Lordship said at 636: We would suggest that, upon a new trial, the jury be simply asked: “Was the defendant guilty of negligence causing the death ofdeceased, and if so, in what did such negligence consist?”

Unfortunately, the court was not referred to a considerable body of law deciding that a question of this nature, which is designed to elicita reason, is inappropriate, or, if asked, that the answer should be ignored. The main reason it is irrelevant arises from the nature of thejury process itself. A jury is supposed to return a verdict and not give reasons, since it is not legally trained to do so. As well, each juroris entitled to reach a verdict based upon their own findings of fact, which ultimately go into a decision on the final issue.

As long as thejury is unanimous in its finding with respect to a particular issue, it does not matter how each juror came to that conclusion: Bushell’sCase (1682), Vaughan 135, as mentioned in Balfour v. Toronto Railway Company (1901), (SCC), 5 O.L.R. 735 at 737(C.A.) (affirmed (1902), 32 S.C.R. 239). The legal verdict of the jury to be recorded is finding for the plaintiff or the defendant.

What they answer, if asked, to questionsconcerning some particular fact, is not of their verdict essentially, nor are they bound to agree in such particulars; if they all agree to findtheir issue for the plaintiff or defendant, they may differ in the motives therefore, as well as Judges in giving judgment for the plaintiff ordefendant may differ in the reasons wherefore they give that judgment, which is very ordinary. … [Emphasis added] [25] The authors also cite authority from the Supreme Court of Canada for the proposition that jurors should not be asked tostate the acts or omissions which constituted negligence on the part of a defendant, because each of the jurors may rely on differentgrounds and it may be impossible for a jury to specify the negligence (at page G-26): Supreme Court of Canada authority for this contention can be found in Beach v.

Healey, (SCC), [1943] S.C.R. 272 at 274,approving Newell v. Acme Farmers Dairy Ltd., (ON CA), [1939] O.R. 36 (C.A.), where part of the headnote reads: The trial judge should not put to the jury a further question or direction that, if their answer to the aforesaid is “No,” they should statefully what acts or omissions constituted negligence on the part of the defendant. The court in Newell v. Acme Farmers Dairy Ltd. stated at 43: The importance of this is that the jury may find itself quite satisfied that the defendant has failed to meet the statutory onus cast uponhim.

But each of the jurors may have a different ground for so thinking, and it may be impossible for a jury who rightly believe that theaccident was caused by negligence to specify exactly in what negligence consisted. [Emphasis added] [26] The authors of Civil Jury Instructions explain that the same reasoning also applies to the verdict of a jury in a criminalcase. A criminal jury should similarly not be asked why it found an accused guilty or not guilty, since each of the 12 jurors may reach thefinal verdict by different means.

The authors state “it would be confusing and impractical if each juror recorded their own reasons forreaching that verdict” (at page G-25).

Among other authorities, the authors cite R v Tuckey, (1985), (ON CA), 46 CR(3d) 97 (Ont CA) for the proposition that requiring a criminal jury to provide particulars is a practice “fraught with potential danger andcontrary to traditional practice” (at page G-25). [27] The authors posit that the confusion about asking a civil jury to give reasons may have developed because of amisunderstanding of the precise difference between a general verdict (a verdict on a legal issue) and a special verdict (a verdict on aquestion of fact) (at page G-26).

Regardless, the traditional view is that civil juries should not be asked to state the acts or omissionswhich constituted negligence on the part of a defendant. Exception in Medical Negligence Actions [28] An exception to this traditional view has developed in the context of medical negligence actions.

In ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 (WL) [ter Neuzen], the Supreme Court of Canada held that in medical negligence cases, juriesshould be asked to specify in what respects a defendant was negligent – in certain circumstances, and for a specific purpose. [29] Sopinka J. found that, as a general rule, it was not open to a jury to find that a standard medical practice was negligentwhere the procedure involves difficult or uncertain questions of medical treatment or complex, scientific, or highly technical matters thatare beyond ordinary experience.

In those circumstances, the jury had to accept the standard medical practice, and measure the conduct ofthe defendant against that standard (at para. 51). [30] However, as an exception to this general rule, a standard medical practice could be found negligent where the practicefails to adopt obvious and reasonable precautions readily apparent to an ordinary finder of fact.

In those circumstances, a practitionercould not escape liability by claiming he or she conformed to the negligent standard practice (at para. 51). [31] The issue before the Supreme Court was whether the negligence found by the jury arose from the failure of thedefendant to comply with the standard medical practice which the jury accepted (the general rule), or whether the jury found negligencebecause they decided the standard medical practice was itself deficient (exception to the general rule).

The jury verdict was inscrutable,in the sense that it did not reveal whether the jury used an unavailable legal route to find a breach of the standard of care. [32] To address this, Sopinka J. held that on the re-trial of the action, the jury should be asked to specify in what respects thedefendant was negligent.

If the general rule applied and it was not open to the jury to find the standard medical practice negligent, theanswer would reveal whether the jury understood and applied the judge's instruction that it must accept the standard practice as the legalstandard against which the defendant's conduct must be measured.

If the exception to the general rule applied and the jury could fix thestandard of care without expert evidence, the answer would ensure that the standard adopted by the jury is not unreasonable or unknownin law (at para. 53): 53 To avoid the problem encountered in this case due to the inscrutability of the jury's response to the question relating to negligence,and as a precaution to test the jury's understanding of the instruction, the question to the jury with respect to negligence should require

that the jury specify in what respects the defendant was negligent. In a case in which the general rule applies, the answer will reveal whether the jury has understood and applied the judge's instruction that it must accept the standard practice as the legal standard against which the defendant's conduct must be measured.

Additionally, in a case which falls within the exception to the general rule and where the jury can fix the standard irrespective of the expert evidence, the answer to the question will ensure that the standard which the jury has adopted is not unreasonable or unknown in law . [Emphasis added] [ 33 ] These statements have been interpreted differently by courts in Ontario and British Columbia. [ 34 ] In Lush v Connell , 2012 BCCA 203 , 349 DLR (4 th ) 257 [ Lush ] , the British Columbia Court of Appeal held that ter Neuzen did not change the general practice that civil juries are not required to provide particulars of negligence.

Rather, it held that ter Neuzen adapted that general practice for cases “where it is deemed advisable to ask such a question in order to reveal whether the jury has understood and applied the judge's instruction that it must accept the standard practice as the legal standard against which the defendant's conduct must be measured” (at para. 84).

The court held that ter Neuzen “…should be accepted as authoritative in cases where a trial judge considers that the jury's understanding of its instructions may need to be tested” (at para. 92). [ 35 ] In contrast, the Ontario Court of Appeal has expressed a broader view of the effect of ter Neuzen , stating that “It has become standard practice in professional negligence cases for the jury to be asked to provide their reasons for any finding of negligence”: Sacks at para 64 . See also: Cole Parliament v D.W. Conley and V. Park , 2019 ONSC 3996 at para 36 ; Sean Omar Henry v Dr.

Marshall Zaitlen , 2022 ONSC 318 at para 43 . [ 36 ] The Saskatchewan Court of Appeal has not yet directly considered the effect of ter Neuzen on whether civil juries should be asked to provide particulars of negligence in medical negligence cases, either: 1. as a standard practice (as in Ontario); or 2. only where the issue of whether a standard medical practice itself is negligent arises and cannot be determined without expert evidence, and particulars are necessary to reveal whether the jury has understood and applied the judge's instruction that it must accept the standard practice as the legal standard against which the defendant's conduct must be measured (as in British Columbia). [ 37 ] The general issue of whether civil juries should be required to provide particulars of negligence was most recently discussed by the Saskatchewan Court of Appeal in University of Regina v Biletski , 2019 SKCA 44 , [2019] 11 WWR 569 [ Biletski ] .

However, ter Neuzen was not considered in that case. [ 38 ] After reviewing several decisions from other jurisdictions, the Court of Appeal in Biletski observed that where a jury is presented with different theories of liability, it could be asked to provide particulars of any negligence proven. However, the court also stated that formulating the questions to be put to the jury is discretionary, and that there is no required form of jury questions in all civil cases (at para. 117): 117 Here, there was, and remains, no objection taken by the University to the questions the jury was asked to answer.

Given that trial judges must be left with considerable discretion to fashion questions that best meet the circumstances of the issues the jury must decide, it would be unwise to purport to lay down a universal rule with respect to a required form of jury questions in all civil cases . However, the facts of this case, as well as several of the others I have mentioned, illustrate: (

i) there is often good reason to separate the question of breach of duty of care from the question of causation; and (ii) where a jury is presented with several different routes or theories of liability, the risk of future difficulties may be diminished if the jury is given separate questions asking for its "Yes/No" findings (negligence and causation) relating to each alleged particular of alleged negligence, or is invited to provide a brief statement, or particulars, of any negligence it finds to be proven . [Emphasis added] [ 39 ] While in some cases there may be good reasons for asking a jury to specify the particulars of any negligence found, the Court of Appeal carefully stated that this is not always required – even in cases where a jury is presented with different theories of liability.

Analysis in this Case [ 40 ] Against this background, for the reasons that follow I conclude the jury will not be asked to specify particulars of any negligence found or manner of causation established in this case. [ 41 ] The defendants rely on Biletski as authority for asking the jury to provide particulars. Although they do not rely on ter Neuzen , I conclude ter Neuzen does not apply in the circumstances of this case. [ 42 ] I agree with the

interpretation of the effect of Sopinka J.’s comments articulated by the British Columbia Court of Appeal in Lush .

In my view, ter Neuzen requires a jury to be asked to provide particulars of negligence only in cases where the issue of whether a standard medical practice itself is negligent arises and cannot be determined without expert evidence, and particulars are necessary to reveal whether the jury has understood and applied the judge's instruction that it must accept the standard practice as the legal standard against which the defendant's conduct must be measured. [ 43 ] Since the issue of whether a standard medical practice could be negligent is not pleaded and does not arise in this case, I find that the exception in ter Neuzen does not apply and that the jury is not required to provide particulars of negligence based on that authority. [ 44 ] In light of this conclusion, whether to ask the jury to provide particulars is a matter of discretion: Biletski at para 117 .

In

my view, the disadvantages of asking the jury to specify particulars of any negligence found and manner of causation established in this case outweigh the advantages of doing so. See: Poonwasee v Plaza, 2018 ONSC 3797 at para 25, 27 CPC (8th) 330. [45] The defendants argue the jury should be required to provide particulars because that will facilitate more meaningfulappellate review. They say that if particulars are provided, it will be easier to determine whether the verdict is based on amisunderstanding or misapplication of the law or misapprehension of the evidence.

I am not persuaded this is so. [46] It is clear that members of a civil jury do not have to agree on the same ground of negligence, and that a verdict may berendered as long as the requisite number of jurors are persuaded that one of the possible grounds have been proven on the balance ofprobabilities. See: Biletski at paras 114-115; Lush at para 89; and the cases cited in Civil Jury Instructions at pages G-24 - G-25,reviewed above. [47] If the jury is asked to provide particulars of negligence, it is therefore possible that more than one ground of negligencemay be identified.

It is also equally possible that not all jury members may agree that any particular ground of negligence has beenproven. [48] To illustrate the point, assume that the jury makes a finding of negligence. In response to the question asking the jury toidentify particulars of that negligence, assume the jury lists three grounds: A, B, and C. [49] Under s. 16(

b) of The Jury Act, 1998, SS 1998, c J-4.2, “any five jurors may return a verdict or answer a question put tothe jury by the judge.” (emphasis added).

This means that any ground of negligence listed by the jury in response to the question askingit to provide particulars can only be the answer of the jury if five out of six jurors agree that the ground of negligence listed has beenproven on a balance of probabilities. [50] In our hypothetical example where the jury lists grounds A, B, and C, those three grounds will therefore only be theanswer of the jury in accordance with s. 16 of The Jury Act, 1998 where five out of six jurors agree that A, B, and C have all beenproven.

The problem is that there is simply no way to ensure this is the case without instructing the jury that five out of six jurors mustagree on all the grounds listed in answer to the question. [51] If this instruction is not provided, there would be no way to know whether any of grounds A, B, or C was found to beproven by one, two, or more of the jurors. Two jurors could have relied on ground A, one juror could have relied on ground B, and threecould have relied on ground C.

In such a situation, none of the listed grounds would be the answer of the jury under s. 16 of The Jury Act,1998, but the verdict of the jury finding negligence would still be lawful. [52] In these circumstances, it is difficult to see how having a jury specify particulars of the negligence found wouldfacilitate meaningful appellate review without the certainty of knowing that the particulars specified represent the lawful answer of thejury to the question asked.

Without this certainty, the jury’s verdict could be liable to be set aside based on particulars of negligencerelied upon by a single juror. [53] To avoid these problems, the jury would therefore have to be instructed that five out of six jurors must agree on allgrounds listed in answer to the question asking them to provide particulars of negligence.

However, such an instruction would becontrary to the longstanding rule, recently reiterated in Biletski, that jurors do not have to agree on the same ground of negligence,provided they are persuaded that one of the possible grounds has been proven on a balance of probabilities. [54] I have considered the response to this problem identified in Surujdeo at paras 114-117. In that case, the Ontario Court ofAppeal held that the question of negligence is typically broken down into two parts, where part (

a) asks the jury to state their conclusion,or “bottom line” on the issue, and part (

b) asks the jury to explain how they reached their “bottom line” by providing particulars. TheCourt of Appeal reasoned that since the Courts of Justice Act, RSO 1990, c C.43 does not speak in terms of a first or second part of a juryquestion, it only requires five of six jurors to agree on the “bottom line”, or part (

a) of the question, and it is unnecessary for them toagree on the particulars provided in part (

b) of the question (at paras. 114-117): 114 In Ontario, the standard practice in negligence cases is to require the jury to answer specific questions, not deliver a generalverdict: Courts of Justice Act, s. 108(5). As in this case, each question on the breach of the standard of care and causation typically isbroken 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 defendant's conduct that led them to their conclusion ofliability 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: "Itis sufficient if five of the jurors agree on . . . the answer to a question, and where more than one question is submitted, it is not necessarythat 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 aquestion — to list in the "particulars" — Part (

b) of the question — all of the reasons that led those five to reach that conclusion. Heinstructed 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 notrely on the same facts: R. v. Morin, (SCC), [1988] 2 S.C.R. 345, at p. 360; R. v. Robinson (2004), (ON CA), 190 O.A.C. 271, 189 C.C.C. (3d) 152, at paras. 71-72; Balfour v. Toronto Railway (1901), (SCC), 5 O.L.R.735, [1903] O.J. No. 331, at para. 13; R. v. M. (G.L.), 1999 BCCA 467, 138 C.C.C. (3d) 383, at paras. 24 and 31. The trial judge'sdirection was consistent with that principle. [55] Respectfully, I do not find this reasoning to be persuasive here.

In this case, a request for a jury to provide particulars ofany negligence or manner of causation found is still a “question put to the jury by the judge” under s. 16(

b) of The Jury Act, 1998. It is aformal request to the jury to answer something that is asked by the judge. A request to provide particulars or reasons for a finding does

not become something other than a “question” simply because it is presented to the jury as part two of a two-part question. [ 56 ] In addition, the fact that the authorizing legislation - here The Jury Act, 1998 – does not speak in terms of a first or second part of a jury question is also not a persuasive answer to the problem. Under s. 16, a jury may only answer a question where five of six jurors agree. The Jury Act, 1998 does not authorize members of the jury to provide answers which are not shared by five of six jurors.

Nor is there any authority in The Jury Act, 1998 to put a question to jury members individually, or to require jury members to answer a question individually. [ 57 ] The problem therefore remains. The jury would have to be instructed that five of six jurors must agree on all particulars of negligence provided, but that instruction would be contrary to the rule that jurors do not have to agree on the same ground of negligence. [ 58 ] For these reasons, I am not persuaded the advantages of asking the jury to provide particulars outweighs the disadvantages of doing so.

I therefore exercise my discretion to decline to ask the jury to specify particulars of any negligence that may be found. [ 59 ] For the same reasons, I am also not persuaded the jury in this case should be asked to specify particulars of any manner of causation established.

I agree with and adopt the following articulation of those reasons in Doobay v Fu , 2020 ONSC 1774 at para 31 , 150 OR (3d) 616 [ Doobay ] : 31 In order to return a verdict, it is only necessary that five members of the jury agree on the answer to each question, and the same five jurors do not have to agree to the answers to all the questions. In addition, the required five jurors on each question may each take a separate path to their answers. Each may take a different view of the evidence and make different findings of fact.

To ask the jury to give reasons for finding that a particular defendant's breach caused a plaintiff's injuries may suggest that they must agree on those reasons.

To ask each member of the jury to give their own reasons, in the event that they find a particular defendant to have caused the plaintiff's injuries, would be unworkable and risk a violation of the jury's duty of secrecy . [Emphasis added] [ 60 ] In Cheung v Samra , 2022 ONCA 195 at para 71 [ Cheung ] , the Ontario Court of Appeal recognized that where there are multiple reasoning paths that could lead to a finding of causation, asking for particulars “may undermine the integrity of the jury's verdict more by infelicities of expression than any real concern for the merits of the jury's decision or reasoning and may stretch the limits of what a jury can reasonably be expected to give by way of reasons”.

The same concern was expressed in Doobay at para 32 , where the court stated that “Requiring jurors to give reasons and then parsing those reasons may lead to unnecessary challenges to jury verdicts where the real problem lies in an inability to properly articulate those reasons.” [ 61 ] These concerns are equally applicable here, where there are several paths to find negligence and causation, the grounds of negligence relied upon by a particular juror may impact that juror’s assessment of causation, and all jurors may not agree on either the same grounds of negligence or manner of causation. [ 62 ] For these reasons, I exercise my discretion to decline to ask the jury to specify particulars of any manner of causation established. [ 63 ] I conclude with a final observation.

Jury deliberations are not transparent, and there is an element of inscrutability to every jury verdict: Cheung at para 70 . A material disadvantage to either party does not automatically exist simply because particulars of any negligence or manner of causation found are not specified by a jury.

The analysis must begin with the presumption that juries understand and properly apply the instructions provided by trial judges and that the jury's 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 judge's charge: Cheung at para 49 . E.

Summary and Orders Made [ 64 ] For the reasons set out above, unless otherwise ordered, the questions to the jury will be as follows: 1. Was Dr. Butler negligent in his care of Stella Harder? Yes____ No ____ 2. If the answer to Question 1 is yes, is it more likely than not that but for Dr. Butler’s negligence, Stella Harder’s injuries would not have occurred? Yes____ No ____ 3. Was Dr. Schellenberg negligent in her care of Stella Harder? Yes____ No ____ 4. If the answer to Question 3 is yes, is it more likely than not that but for Dr. Schellenberg’s negligence, Stella Harder’s injuries would not have occurred? Yes____ No ____ J. K.D. KILBACK

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 282 Date: 2023 09 22 Docket: QBG-RG-01454-2014 Judicial Centre: Regina BETWEEN: STELLA HARDER PLAINTIFF - and – DR. MATTHEW BUTLER and DR. ANGELA SCHELLENBERG DEFENDANTS Counsel: Ron Bohm and Joel Michelucci for the plaintiff David E. Thera, K.C. for the defendants CORRIGENDUM TO THE RULING RE: QUESTIONS FOR THE JURY DATED SEPTEMBER 22, 2023 KILBACK J. JANUARY 3, 2024 [65] My ruling re Questions for the Jury dated September 22, 2023 is amended as follows: (

a) In paragraph 12, the print citation of Clements v Clements is amended to read “2012 SCC 32 , [2012] 2 SCR 181”; (

b) In paragraph 41, “Bilitski” is deleted and replaced with “Biletski”; (

c) In paragraph 47, the word “is” is inserted after the word “It” in the second sentence;

(

d) In paragraph 51, the word “of” is inserted before “ The Jury Act, 1998 ” in the last sentence; (

e) In paragraph 55, the word “Saskatchewan” is deleted and replaced with “this case”; and (

f) In paragraph 61, the word “not” after the words “that juror’s assessment of causation, and” is deleted. J. K.D. KILBACK