University of Regina v Biletski, 2019 SKCA 44

Court of Appeal for Saskatchewan Docket: CACV3155 Citation: University of Regina v Biletski , 2019 SKCA 44 Date: 2019-05-23 Between: University of Regina Appellant (Defendant) And Miranda Biletski Respondent (Plaintiff) And Regina Piranhas Summer Swim Club and Regina Piranha Swim Club Inc. Respondents (Third Parties) Before: Richards C.J.S., Whitmore and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Whitmore On Appeal From: 2017 SKQB 386 , Regina Appeal Heard: December 10, 2018 Counsel: Alan Rudakoff, Q.C. and Neil Tichkowsky for the Appellant Alan McIntyre, Q.C. and Kamara Willett for Miranda Biletski Reg Watson, Q.C. and Brian Lunde for the Regina Piranhas Summer Swim Club and the Regina Piranha Swim Club Inc. Leurer J.A. I. Introduction [ 1 ] On June 6, 2005, Miranda Biletski dove into a pool owned by the appellant, University of Regina. Ms. Biletski, a young competitive swimmer, had no reason to think the outcome of this dive would be different from any she had previously undertaken.

However, on this occasion her head struck the pool bottom, resulting in a rupture to her spine, causing permanent quadriplegia. [ 2 ] Ms. Biletski brought an action against the University, alleging her injuries were caused by its negligence. The University claimed Ms. Biletski’s own negligence caused, or at least contributed to, her injuries. The University also joined Regina Piranhas Summer Swim Club and Regina Piranha Swim Club Inc. [Club] as third parties to Ms. Biletski’s suit, alleging the Club’s negligence caused or contributed to Ms.

Biletski’s injuries. [ 3 ] These matters went to trial before a Court of Queen’s Bench judge and jury. The outcome was a judgment ordering the University to pay Ms. Biletski $9,160,584.00 and dismissing the University’s claim against the Club. The University appeals from this judgment. [ 4 ] The University takes no issue with the admission of any evidence given to the jury. The University also makes no objection to the trial judge’s charge to the jury, or with respect to the questions the jury was invited to answer.

Instead, the University argues that the jury’s verdict on both liability and damages was reached without evidence on certain issues or was otherwise unreasonable. The University also argues that its right to a fair trial was prejudiced by improper comments made by Ms. Biletski’s counsel to the jury. [ 5 ] For the reasons that follow, I would dismiss the University’s appeal. II. Background [ 6 ] In June 2005, Ms. Biletski was 16 years old. The year prior she had moved with her family from rural Saskatchewan to Regina, in part to enhance her opportunities to swim competitively. Ms.

Biletski began training with the Club approximately one month before her accident. [ 7 ] The Club frequently practiced at the University pool, which had been constructed in 1967. At its shallow end, the pool is marked to be 1.22 meters deep. The pool floor slopes gradually so that it is deeper at the other end of its 25 metre length. The deeper end is marked to be 1.30 meters deep. Whether the pool was precisely the depth as marked at either end was a source of controversy at trial. [ 8 ] The pool had starting blocks for use by competitive swimmers.

At the time of the accident, the starting blocks were installed at the shallower end. The use of starting blocks “over” 1.2 meters of water was acceptable according to applicable standards because of the pool’s age. Prior to Ms. Biletski’s accident, standards had changed so that pools built after 2002 were to be constructed to a minimum depth of 1.35 metres in order to be used with starting blocks. The standards continued to allow for the use of diving blocks over 1.2 metres

of water for pools constructed prior to 2002. The evidence at trial was that roughly 90 percent of pools used for competitive swimming in Canada fell under this exception. [ 9 ] At an evening practice held on June 6, 2005, the Club’s coaches introduced swimmers, including Ms. Biletski, to a new diving exercise. The drill involved the use of a tape measure extended on the pool’s apron beside the lanes where the starting blocks were located. The object of the exercise was to encourage the swimmers to propel themselves as far as possible over the water before entering the pool at a shallow angle. Ms.

Biletski executed one practice dive successfully. On her second attempt, Ms. Biletski failed to perform her dive as instructed, and instead entered the water at a steep angle. As a result, she struck her head on the bottom of the pool causing her permanent injuries. [ 10 ] The trial of Ms. Biletski’s claim against the University, and the University’s claim against the Club, took place in 2017 – 12 years after the accident.

After hearing testimony from 12 lay witnesses and seven experts, and receiving other evidence in writing (including the report of an additional expert who did not testify), the jury delivered its verdict. [ 11 ] Respecting liability, the jury held that the University’s negligence caused or contributed to Ms. Biletski’s injuries. The jury dismissed the University’s allegation that Ms. Biletski was contributorily negligent and the University’s claim against the Club.

The result was to impose sole responsibility for the accident on the University. [ 12 ] Although the University and the Club were adverse in interest on issues of liability, they were allied in seeking to diminish Ms. Biletski’s damages. The parties had agreed on several items of damage if liability was found. They also agreed on what aspects of damages were amenable to determination by the jury and which should be left to be assessed by the trial judge. By agreement, the jury was given a “damages

summary worksheet” to assist it in its deliberations. The damages

summary worksheet set out, in a tabular format, Ms. Biletski’s claims for damages and, beside it, the joint position of the University and Club in respect to the same heads of damages. [ 13 ] The jury rendered its verdict on those heads of damages where there was no agreement and which were not left to the trial judge to determine, as follows: (

i) disputed cost of care, $5,710,000.00; (ii) loss of income, $1,512,000.00; (iii) loss of marriage/interdependence benefits, $879,000.00; and (iv) general damages (for pain, suffering and loss of amenities), $295,000.00. [ 14 ] Following the verdict, the University made an application pursuant to Rule 9-29 of The Queen’s Bench Rules , asking the trial judge to set aside the jury’s verdict. This application was dismissed by the trial judge: Biletski v University of Regina , 2017 SKQB 386 [ Rule 9-29 Decision ]. III.

Parties’ Positions [ 15 ] The University describes the jury’s “fundamental error” to be in failing to find the Club “in large part responsible” for Ms. Biletski’s injury. It also asserts that the jury erred in finding that the University failed to meet its duty of care or, alternatively, in failing to find that the negligence of Ms. Biletski contributed to the accident. The University further alleges Ms. Biletski’s counsel’s closing submissions prejudiced its right to a fair trial. Lastly, the University alleges three specific errors with respect to the jury’s findings concerning damages. [ 16 ] Ms.

Biletski submits that the jury verdict sets out reasonable conclusions based on the evidence and charge to the jury. She argues that the damages fall within a range that was open to the jury to award. [ 17 ] The Club agrees with Ms. Biletski. It further asserts that the University’s failure to object to the verdict sheet and charge preclude its appeal and the University’s further agreement on several documents that went to the jury, including the damages

summary worksheet, estops the University from proceeding with its appeal on damages. IV. Issues [ 18 ] The University’s appeal is best considered within the framework created by the following questions: (

a) Does the University’s trial conduct preclude its grounds of appeal? (

b) Was it open to the jury to find that the University was negligent and that its negligence caused or contributed to the accident? (

c) Was it open to the jury to find that Ms. Biletski was not negligent or that her negligence did not cause or contribute to her injuries? (

d) Was it open to the jury to find that the Club was not negligent or that its negligence did not cause or contribute to Ms. Biletski’s injuries? (

e) Did the jury commit a reviewable error in its award of damages in any or all of the following areas: (

i) In respect to the claim for the loss of a chance to enter into an interdependent relationship? (ii) By failing to make a deduction for Ms. Biletski’s pretrial income and by failing to apply a reasonable deduction for future residual income? (iii) In respect to its award for future care costs? (

f) Did counsel’s closing remarks prejudice trial fairness?

V. Analysis A. Does the University’s trial conduct preclude its grounds of appeal? [19] The Club argues that the University’s failure to object to the jury charge, damages

summary worksheet and verdict sheetpreclude it from now appealing the jury’s verdict with respect to either liability or damages.

It asserts trial counsel “should not bepermitted to pass over issues with the draft verdict sheet or draft charge sub silentio, and then expect to raise them on appeal”. [20] However, elsewhere in its factum, the Club is less categorical, stating that the failure to object “is a strong indication that therewas no problem” (emphasis added) not only with the jury charge, but also with the options included in the verdict sheet given to the jury.This latter assertion is more in keeping with the case law. [21] In the per curiam judgment in Caton v Devecseri Estate, 2014 ONCA 52 at para 4, 59 MVR (6th) 181, a panel of the OntarioCourt of Appeal consisting of Hoy A.C.J.O, Cronk and Epstein JJ.A. stated: As to the appellant’s third ground of appeal, in our view, read as a whole, the charge was not unbalanced or unfair to the appellant.

Thetrial judge carefully summarized the appellant’s evidence and his position on the question of liability. The appellant’s counsel, like othercounsel, was actively involved in reviewing and commenting upon the trial judge’s draft charge. The appellant’s counsel did not object tothe trail [sic] judge’s instruction on concurrent liability or object on the basis of the overall fairness of the charge. This strongly suggeststhat this experienced counsel saw no overall imbalance or unfairness in the charge on the basis now urged before this court.

At the end ofthe day, we are satisfied that this jury would have understood that it was free to accept or reject any of the liability theories advanced bythe respondents against the appellant. (Emphasis added) [22] Justice Roscoe made much the same point in Jessome v Walsh, 2003 NSCA 35, 213 NSR (2d) 251, as follows: [8] We have carefully reviewed the jury charge. It is thorough and easy to follow. The judge clearly explained the concepts ofcontributory negligence and proximate cause and reviewed the relevant evidence.

He also explained that there might have been negligencethat was not a proximate cause of the accident, for example, the appellant’s failure to wear a helmet. As well, the jury was givenappropriate instruction regarding apportionment of liability. It is significant that counsel were invited on several occasions during the trialto make submissions on the content of the charge, and Justice Edwards read significant portions of it to counsel in the absence of the juryprior to delivering it. As well, counsel consented to the wording of the jury questions.

Also crucial to our consideration of the appeal, isthat appellant’s counsel took no objection to the charge when invited to do so by the trial judge. [9] In Rogers v. Young, [2000] N.S.J. No. 179, at ¶ 16, and again in Morriscey v. Zwicker, supra, at ¶ 40, this court approved of andapplied the following statement from the decision of the Alberta Court of Appeal in Royal Bank of Canada v.

Wilton (1995), (AB CA), 123 D.L.R. (4th) 266 at p. 275: In a civil jury trial, lack of objections with respect to the jury charge and the questions put to the jury are a strong factor against findingthat a jury charge was faulty and that a new trial should be ordered... (Emphasis added) [23] Many other decisions support the position that a failure to object to a jury charge or question put to a jury is important but alsonot fatal to a subsequent appeal.

See, for example: Branco v Ephstein (2006), (ON SCDC), 213 OAC 24 (Ont Sup Ct(Div Ct)) at para 102; Mizzi v Hopkins (2003), (ON CA), 64 OR (3d) 365 (CA) at para 50; Stewart and Stewart vSpeer, (ON CA), [1953] 3 DLR 722 (Ont CA). [24] Given the weight of appellate authority on this point, the appropriate place to consider the University’s alleged agreements andacquiescence is in the context of specific substantive issues otherwise at large in the appeal. B.

Was it open to the jury to find that the University was negligent and thatits negligence caused or contributed to the accident? [25] As I have said, the University’s primary attack is against the jury’s failure to find negligence on the part of the Club. TheUniversity says the Club’s coaches were “in large part responsible” for the accident. However, since the third party claim is premised onthe conclusion that the University was liable to Ms. Biletski, it is appropriate to first address that aspect of the jury’s verdict. 1.

Standard of review applicable to a jury’s factual findings [26] The University’s attack against the jury’s finding of liability against it is based on a challenge to a factual finding made by thejury. Although sometimes stated in different language, the jurisprudence consistently reiterates the deference shown to jury verdicts.

I willmention several milestone decisions, but most of these cases trace back to McCannell v McLean, (SCC), [1937] SCR 341 at343 [McLean], in which the Supreme Court of Canada stated the following with respect to evidence-based challenges to jury verdicts: The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as againstthe weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a wholeand acting judicially could have reached it. ... [27] In Vancouver-Fraser Park District v Olmstead, (SCC), [1975] 2 SCR 831 at 839 [Olmstead], de Grandpré J.,

speaking for the Court, made reference to various authorities, including McLean, and continued: All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded greatweight. This does not mean however that they should be regarded with awe. In the case at bar, the evidence examined as a whole, in myview, did not permit a jury acting judicially to reach the conclusion that the appellant was negligent. There is no doubt that the jury are entitled to believe certain witnesses and disbelieve others.

They also have the right to choose only partof the evidence of any witness. These rights belonging to the jury permit them to discard plaintiff’s own evidence on facts, about whichother relevant evidence is adduced, at variance with his own.

However, these rights do not extend to that area where only [the] plaintiff isin a position to testify, e.g., what he knew of the area where the accident took place and what he expected to find at that location. (Emphasis added) [28] In McKinley v BC Tel, 2001 SCC 38, [2001] 2 SCR 161, Iacobucci J. reiterated the McLean test and confirmed an additionalbasis for an appellate court to interfere with a jury award, stating as follows: [60] … In addition, an appellate court that finds there was “no evidence” supporting a particular verdict has “the right and theduty” to set aside that verdict (see Gray Coach Lines Ltd. v.

Payne, (SCC), [1945] S.C.R. 614, at p. 618). Although thesetwo tests are distinct, in neither case may the appellate court set aside a verdict on “mere doubts [it] may entertain” or on its “reaching onthe reading of the evidence a conclusion different from that the jury reached” (see Scotland v. Canadian Cartridge Co. (1919), (SCC), 59 S.C.R. 471, at p. 477, per Davies C.J.). (Emphasis added) [29] This Court addressed the issue in Quintal v Datta, (SK CA), [1988] 6 WWR 481 (Sask CA) at 510[Quintal].

After referring to Olmstead, a panel consisting of Hall, Tallis and Wakeling JJ.A., in a per curiam judgment, wrote: It follows that an appellate court’s jurisdiction to review a jury award is used reluctantly and with caution. It is not the function of theappellate court to review the jury’s findings of fact.

Its findings are conclusive unless wholly unreasonable, in which case the jury cannotbe said to be acting judicially. … If there is no evidence to support the verdict or finding, the appellate court may intervene and dismiss aclaim that is so wholly unsupported that it cannot prevail. [30] In Leuschen v Loeffelholz, (SK CA), [1993] 3 WWR 7 (Sask CA) at paras 2–3, this Court stated thestandard of review with respect to a jury verdict places a “heavy onus” on the appellant, and endorsed the following approach taken by atrial judge sitting in review of a jury verdict: Even though I suspect the jury either misunderstood or disregarded the charge, nevertheless, it is for them to find the facts as they see theevidence.

I am not able to say conclusively that the findings of the jury are entirely wrong, it depends upon the evidence which theyaccepted as being true. In addition, I am not able to say that any jury reviewing the evidence as a whole and acting judicially could nothave reached that verdict. In my view I must grant judgment based upon the answers given by the jury. [31] Recently, in Saskatchewan v Racette, 2018 SKCA 17 at para 34, 423 DLR (4th) 532, in the context of a lift of stay application,Caldwell J.A. held: ...

In terms of the jury’s verdict, it is well-settled that an appellate court will not interfere with a jury verdict unless the court has beenpersuaded that the verdict is so plainly unreasonable that no jury, properly instructed and acting judicially, could have arrived at it[authorities omitted]. … See also: Schepp v Ozirny, (SK CA), [1992] 5 WWR 64 (Sask CA) at para 31; Carriere v Agyeman (1999), (SK CA), 177 Sask R 207 (CA) at para 8; Baert v Graham, 2011 SKCA 21 at para 12, 371 Sask R 1. [32] I take from this review that if there is no evidence to support a jury’s finding, an appellate court must intervene and set asidethat finding.

On the other hand, if there is some evidence to support a jury’s verdict, an appellate court is entitled to intervene only if theverdict is plainly unreasonable, which is tested by asking if a jury, properly instructed and acting judicially, could have arrived at theverdict. I hasten to add that all of this assumes the existence of no other reviewable error that may have led to an unsafe verdict, such as theimproper admission of evidence or an error in the charge to a jury that is material to the jury’s verdict. 2.

The routes to liability [33] Because the University invites this Court to overturn the jury’s verdict, it is important to understand what facts the jury found,or may have found, in responding to the questions put to it by the trial judge. [34] The University agrees that in his charge the trial judge properly described the relevant duties the University owed to Ms.Biletski, as follows: (i) “to take due care that the pool and diving platforms where they were located should be reasonably safe for personsusing them in the customary manner and with reasonable care”; and (ii) “to keep the pool and diving blocks as safe as reasonable care andskill on the part of the University could make them”. [35] In respect to the claim that the University was liable in negligence to Ms.

Biletski, the jury was given a choice of answering“Yes” or “No” to the following question: “Was The [sic] University negligent and did that negligence cause or contribute, in whole or inpart, to Miranda Biletski’s accident on June 6, 2005 (“accident”)?” [36] The question embeds within it both routes to liability given to the jury. In other words, the jury’s “Yes” answer means itconcluded that the University breached a duty of care, but does not allow for an understanding of which of the two (if not both) duties ofcare were found to have been breached.

All that can be said is that the jury found at least one of these duties had been breached.

[37] The question is also compound. The jury could answer “Yes” to the question, as it did, only if it concluded both that theUniversity was negligent and the University’s negligence caused or contributed to the accident. Of course, these are discrete parts of thenegligence inquiry. It is possible for a person to be negligent, in the sense of breaching an applicable duty of care, without that negligencebeing the cause of the plaintiff’s injury. It is also possible for a person to cause injury without that person’s actions being classified asnegligent.

Because of the general nature of the question, combining both parts of the negligence inquiry, it is possible (for example) thatthe jury found the University had breached its duty of care in both respects, but that the breach of only one of the duties caused Ms.Biletski’s injuries. Only one thing is certain. The jury must have concluded there was a breach by the University of a duty of care and thisbreach caused or contributed to Ms. Biletski’s injuries. 3.

Alleged negligence relating to use of the diving blocks at the pool’s shallow end [38] The jury was invited to consider the allegation that the University breached the first duty by permitting the use of startingblocks at the shallower end of the pool, where the water was 1.22 meters deep. There were two wings to this argument. Ms. Biletskiargued it was negligent to allow diving into this depth of water in any pool, notwithstanding that the standards allowed this for olderpools. Ms.

Biletski also asserted that there was an alternative readily available to the University, namely, to move the starting blocks to thedeeper end. [39] The University does not suggest there is “no evidence” that could have supported a conclusion by the jury that the Universitywas negligent by permitting the use of starting blocks in the pool’s shallow end.

Rather, the University argues that the jury “was notreasonably justified in holding the University negligent with respect to permitting use of starting blocks (by competitive swimmers underthe instruction and supervision of their coaches) over a pool with a depth of 1.22 meters” (emphasis added).

I take the University to bearguing that the jury could not, if it was acting judicially, have grounded liability on the basis of a breach of the first duty of care describedby the trial judge in his charge to the jury. [40] The University points out that the use of starting blocks over 1.22 meters was compliant with applicable standards for poolsbuilt prior to 2002. It relies on the absence of incidents involving, or expressed concern about, the use of the blocks over this depth ofwater prior to Ms. Biletski’s accident.

Finally, although the University called no expert evidence of its own, it relies on the opinion of Dr.John Fletemeyer, an expert witness called by the Club. Dr. Fletemeyer was qualified to give expert opinion evidence in the field ofaquatics and aquatic safety, including national Canadian and international standards for swimming pool safety, generally and specificallyapplying to competitive swimming training exercises, the responsibilities, duties and adequacy of coaching related to competitiveswimming training exercises, the principles of aquatic facility and risk management and the mechanism of aquatic injury.

The Universitypoints out that Dr. Fletemeyer opined that using the starting blocks at a 1.22 meter depth is permissible and testified he “did not disagreewith the position that the university pool met activities standards”. [41] However, the jury had before it far more evidence than this relating to the allegation that it was negligent for the University toallow the use of the diving blocks at the pool’s shallow end.

The University’s arguments in effect ignore this evidence and also fail toengage, in any meaningful way, with the standard of review applicable when a challenge is made to a jury’s finding of fact in light of theevidence. [42] Ms. Biletski called Dr. Alison Osinski, who was qualified to give expert opinion evidence in the field of aquatics, themechanism of injury, water safety, competitive swimming, aquatic risk management and aquatic facility management, as well as industrystandards and best practices. Dr.

Osinski was heavily critical of the standard that allowed the use of starting blocks over 1.2 meters ofwater, describing it as being “under a lot of controversy” and that it is “certainly not a best practice”. She also gave evidence about theevolution in the standards, linking them to changes in diving techniques and an attempt to mitigate risk to divers. [43] Dr. Fletemeyer’s evidence also went beyond the short passages quoted by the University. Much of what Dr. Fletemeyer saidsupported the conclusions stated by Dr. Osinski. Dr.

Fletemeyer said that if he had audited the pool’s safety in June 2005, he would haverecommended one of two options. The first, which he described as the “best option”, was to remove the blocks. The second, if poolmanagement insisted on having the blocks, was to move them to the deeper end of the pool. Dr. Fletemeyer stated it made no difference tohim that the standards had grandfathered the use of the starting blocks at the depth of 1.2 meters. [44] As I have already noted, the University called no expert evidence to contradict that which came from Dr. Osinski and Dr.Fletemeyer.

Instead, it rested its opposition on this ground of alleged negligence on the efforts of its counsel to undermine the testimony ofthese two witnesses in cross-examination. It was open to the jury to accept or reject the evidence of Dr. Osinski and Dr. Fletemeyer, inwhole or in part. [45] Respecting the issue of compliance with regulations, Ms.

Biletski argued at trial, and maintains in this Court, that whileindustry practice and statutory and regulatory standards are external indicators to which one can look in assessing whether there has been abreach of the standard of care, they are not determinative of the issue. Reference is made to Ryan v Victoria (City), (SCC), [1999] 1 SCR 201, Garratt v Orillia Power Distribution Corporation, 2008 ONCA 422, 90 OR (3d) 161, and Scraba v Sharpe’sSoil Services Ltd., 2011 SKCA 59, 371 Sask R 275.

This proposition was put to the jury when the trial judge charged them as follows: You’ve heard the evidence from expert witnesses about the practices followed by those who, like the University, own, operate andmaintain swimming pools. Depending on the evidence that you accept you may conclude that the University was following well acceptedstandards and practices, and you should take that into account in assessing whether the University met the standard of care required in thecircumstances. However, you are not bound to conclude that because the University followed standard practices, it was not negligent.

Youmay conclude on the basis of the evidence that the practice itself did not meet the standard of care required in the circumstances. [46] The University takes no issue with this aspect of the charge to the jury or the admissibility of this evidence. Given the totalityof the evidence, it was open to the jury to conclude that under any circumstance it was negligent to allow the use of the starting blocksover 1.22 meters of water. [47] Additionally, it was open to the jury to conclude that the University was negligent because there was an alternate, safer placeto mount the starting blocks. Although Dr.

Osinski said diving blocks should not be used at all in the pool, she testified that the cost of

moving them to the deeper end of the pool would be “approximately $100 plus labour charges per block”. Dr. Fletemeyer also agreed thatthe cost of removing the blocks would be “small”. The University did not contest that it would be very inexpensive for it to move thestarting blocks to the deeper end of the pool.

It would have been open for the jury to conclude that, even if it would not be negligent in allcircumstances to allow diving over 1.22 meters of water, it was negligent for the University to allow diving at this pool’s shallow end. [48] As a result, I respectfully reject the University’s first challenge to the finding of liability against it.

There was a basis in theevidence for the jury to find the University liable for placing the blocks at the shallower end of the pool. [49] The University did not suggest that if it was open to the jury to ground liability on the basis of its decision to allow startingblocks in the shallow end, it was not also open to the jury to find that such a breach caused or contributed to Ms. Biletski’s injuries.

I will,however, say something about the evidence on causation because the question intersects with other issues. [50] The jury was left with the following instructions respecting causation: The fourth element I mentioned to you is causation. For the University to be liable in damages to Miranda Biletski it is necessary forMiranda Biletski to prove that the University’s breach of its standard of care caused or contributed to her injuries. The test you shouldapply is called the “but for” test.

But for the University’s conduct in allowing Miranda Biletski and other users of the pool to use its poolas it was and diving blocks located where they were, would Miranda Biletski have been injured? If the answer is yes and you concludeMiranda Biletski would have been injured anyway, then the University’s conduct in permitting use of its swimming pool and divingblocks did not cause Miranda Biletski’s injury. Her claim of negligence must be dismissed.

But if on the evidence Miranda Biletski wouldnot have suffered the accident and injury she did but for the University’s conduct, then you must find the University caused the damagesand it is liable for them. You need not be satisfied that there was causation on the basis of scientific precision or proof. Causation isessentially a practical question of fact that can best be answered by ordinary common sense on the balance of probabilities. [51] The evidence was that Ms. Biletski’s injuries were caused when her head came in contact with the bottom of the pool.

JenniferRobinson, one of the Club’s coaches, witnessed Ms. Biletski’s dive and its immediate aftermath. She described Ms. Biletski as havingswelling on her forehead as she came up out of the water, strongly supporting the conclusion the injuries occurred when her head struckthe bottom of the pool. As a result, the substantive factual question relating to causation the jury would have had to face into was whetherit would have made a difference to Ms.

Biletski’s outcome if she had been diving into an additional three to five inches of water. [52] No witness gave definitive evidence that the addition of “X” inches of water would have prevented the injuries. However, thisalone did not preclude the jury from finding causation. In Snell v Farrell, (SCC), [1990] 2 SCR 311 at 328 [Snell],Sopinka J. observed that “[c]ausation need not be determined by scientific precision”.

He expanded on this, at page 330, as follows: The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, aninference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to thecontrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept [that “all evidence is tobe weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to havecontradicted”].

This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the ...facts” (at p. 569). [53] More recently, in Clements v Clements, 2012 SCC 32 at para 9, [2012] 2 SCR 181, McLachlin C.J.C. emphasized that theexistence of “but for” causation is a factual inquiry, which “must be applied in a robust common sense fashion. There is no need forscientific evidence of the precise contribution the defendant’s negligence made to the injury”.

With reference to Snell and other authority,she then continued by noting that “[e]vidence connecting the breach of duty to the injury suffered may permit the judge, depending on thecircumstances, to infer that the defendant’s negligence probably caused the loss” (at para 10). [54] Here, the scope of qualifications of both Dr. Osinski and Dr. Fletemeyer allowed them to give opinion evidence on issuesrelating not only to aquatic safety, but mechanism of injury.

There was evidence that standards requiring deeper water when diving hadbeen changed because swimmers were less likely to be injured diving into deeper water. The premise of the change in standards was thatthe addition of five inches or so of water depth would result in a material increase in safety. [55] From all of this, in my view, there was a sufficient foundation for the jury, acting judicially, to conclude not only that it wasnegligent for the University to allow the use of the diving blocks at the pool’s shallow end but, also, that if the dive had occurred at thepool’s deeper end, Ms.

Biletski would not have suffered her injuries. [56] I would address one last argument made by the University relating to alleged policy consequences if the jury verdict is allowedto stand.

There was evidence that approximately 90 percent of swimming pools in Canada used starting blocks over 1.2 meters of water.The University submits the result of the jury verdict renders the standards allowing this “effectively void” and that “the operators of thesepools will be forced to ban all swimming activities using starting blocks in the face of the complete liability risks” that are created becauseof the “precedent” the jury verdict creates. [57] The consequences the University points to in this Court were squarely placed before the jury in the University’s closingsubmissions.

The University invites this Court to review an issue that was already properly left to the jury to consider as part of itsdetermination of liability on the basis of the whole of the evidence. It may be that the jury felt the evidence as to the impact of an adversedecision was fleeting and lacked detail (which is my assessment) or simply was not compelling. For example, there is no evidence as tohow many other pools could be reconfigured to reposition the starting blocks to deeper water.

If the jury grounded liability based on theplacement of the starting blocks in the pool’s shallow end, it may have found liability simply because of the availability of a saferalternative 25 meters away.

Finally, the University’s argument is also muted by the fact that it is impossible to know if the jury rested itsfinding of liability on the decision of the University to allow diving in its shallow end, or if it was premised on a breach of its maintenanceobligations. [58] In the result, I conclude it was open to the jury to find that the University was negligent by allowing the use of the divingblocks at the pool’s shallow end.

4. Alleged negligence in maintenance [ 59 ] To understate the matter, Ms. Biletski did not undertake the dive she was instructed or intended to make. Ms. Biletski was not able to explain what went wrong. There was no suggestion that she deliberately failed to follow her coaches’ instructions on her second attempt. All parties were therefore left to build their case as to the causes for the accident based on circumstance and inference. [ 60 ] Ms. Biletski argued to the jury that: (

i) the University failed to properly clean the starting blocks; (ii) unclean starting blocks are slippery; and (iii) it was a reasonable inference that because the blocks were unclean she slipped, causing or contributing to the accident. The University focuses its attack of the jury verdict on the first of these steps towards liability. Ms. Biletski also argued to the jury that the University could be found liable on the basis the pool was not completely full. [ 61 ] In this Court, the University argues there was “no evidence that on [June 6, 2005] the maintenance of the Pool was lacking”.

In respect to cleaning, the University summarizes the evidence to be that the “starting blocks had been regularly cleaned”. The University concludes that “there being no evidence to the contrary, the Jury made an error on the correctness standard and should (and could) not have found the University deficient in its ‘duty to keep the pool and diving blocks as safe as reasonable care and skill could make them’” (emphasis added).

Similarly, in respect to the suggestion that the pool was not completely full, the University argues “the clear and uncontroverted evidence was that the water levels in the Pool were adequate and appropriate”. I will deal with these two arguments separately. [ 62 ] At trial, the University relied on the evidence of Gabor Jerkovits, the University employee responsible for managing the pool. In his examination-in-chief, Mr. Jerkovits stated that the starting blocks were checked on a daily basis by himself or a staff member. Mr.

Jerkovits also testified that the starting blocks were “washed once every week and a half, approximately”. However, Mr. Jerkovits was cross-examined extensively on both of these assertions, and grounds existed for the jury to doubt the reliability and veracity of his testimony on these two points. [ 63 ] Mr. Jerkovits confirmed under cross-examination that he could not say if the starting blocks had been checked for slipperiness after Ms. Biletski’s accident.

This evidence might have been viewed by the jury as undercutting his contention that the starting blocks were checked daily or, if they were, as undermining the quality of the scrutiny. The records corroborating Mr. Jerkovits’ testimony were spotty at best, a fact the jury could have considered when examining his testimony that the starting blocks were checked daily. As a backdrop to this observation, Ms. Biletski tendered risk management reports prepared in 2000 and 2005.

The reports looked at a broad range of risk management issues, including facilities and equipment, and benchmarked the University against other universities. Among other issues, the 2000 report identified the importance of documenting inspections and maintenance and the importance of developing and implementing “simple and effective checklists”. The 2005 review was completed in May of that year and was in the University’s possession prior to Ms. Biletski’s accident.

Among other things, the 2005 risk management review reported that the University’s aquatics facilities scored lower than the average among other universities. Craig Chamberlin, the University’s Dean of Kinesiology and Health Studies, agreed that in the area of documentation the University’s aquatics department rated so poorly that it “didn’t even get a score”. Dr. Chamberlin also agreed that the purpose of checklists was to make certain things were not missed and to reinforce the need to do things correctly through repetition. Dr.

Chamberlin acknowledged that “checklists, or lack of checklists in this case, was a problem that pre-existed this accident”. [ 64 ] The jury might also have looked at the records that did exist as undermining Mr. Jerkovits’ testimony that the starting blocks were “washed once every week and a half, approximately”. According to a maintenance log, the pool deck had been washed on May 22, 2005, and then again on June 16, 2005. This evidence might have been viewed by the jury as being significant for two reasons. First, the interval between the two entries is inconsistent with Mr.

Jerkovits’ testimony as to the frequency of cleanings. Second, the jury might have looked to the maintenance logs as evidencing that the starting blocks had been last cleaned two weeks prior to Ms. Biletski’s accident. All of these points were made, in one way or the other, to the jury. [ 65 ] A facilities report referred to the general cleanliness of the pool as being “questionable” and shower pool entrances as having mold and fungus growing on the walls. The document bore no date, but Dr. Chamberlin accepted its factual accuracy.

In the circumstances of this case it might have been considered by the jury as indicative of the level of care taken in the maintenance of the pool. [ 66 ] The jury also had evidence from which it could have concluded that infrequent cleaning would, or could, lead the starting blocks to be slippery. Mr. Jerkovits agreed that “possibly” the starting blocks could become slippery if they were not washed. Dr. Fletemeyer testified that washing should occur daily and the failure to do so can result in algae growth and the surface becoming slippery. Dr.

Osinski testified that starting blocks should be cleaned and disinfected as frequently as they are used to prevent them from becoming slippery. Brandyn Blackhurst, one of the Club’s coaches, testified that generally the top of the diving blocks were “almost like coarse sandpaper”, but sometimes they were a bit more slippery – which he attributed to the condition of his feet. [ 67 ] The jury might also have taken into account the circumstances of Ms. Biletski’s dive as supporting the inference the starting blocks were slippery, which itself could support a finding that there was a failure in maintenance practices.

In this regard, the jury had before it evidence that Ms. Biletski was an experienced swimmer. Brian Schmuland, one of her coaches, described Ms. Biletski as having good technique on her starts. He did not see the dive, but in cross-examination he refused to agree Ms. Biletski did not execute the dive intended, but agreed that the result was not what was intended. Not only had Ms.

Biletski undertaken many dives over water of a similar depth, but she had dived into the University pool many times previously, including once just prior to her accident when she successfully executed the same drill, which the University now points to as the proximate cause of the accident. [ 68 ] Ms. Robinson was watching Ms. Biletski’s lane, measuring each diver’s point of entry. She described how on the second dive Ms. Biletski “didn’t have the trajectory -- the forward motion [she] expected to see. So she pitched down -- she pitched out and downward into the pool”. She agreed it was a “bad dive”. Ms.

Robinson said she “thought [Ms. Biletski] had hit her hands first, and that’s what I had hoped actually happened”. In cross-examination, Ms. Robinson described seeing Ms. Biletski going “very much downward as opposed to out”. [ 69 ] Mr. Blackhurst was some distance away from Ms. Biletski at the time of her fateful dive. His description of the dive is somewhat hard to follow from the transcript, in part because it included a demonstration that does not translate well into text. He referred

to Ms. Biletski’s arms as being in an “L” shape and behind her head and in the overall context it is not clear if he was describing the dive or events when she was in the water. [ 70 ] Since Ms. Biletski did not perform the dive she was instructed to carry out, one of the principal questions that was left to the jury by all parties was “why” this was the case. In my view, there was a basis in the evidence for the jury to conclude that Ms. Biletski slipped and that the reason for the slip was the failure by the University to clean the diving blocks. [ 71 ] I do not intend to be understood as saying that Mr.

Jerkovits was not being truthful in his testimony. That determination lies squarely within the province of the jury. I also do not intend to suggest that this evidence, alone or in combination, would necessarily have led the jury to conclude that the University was negligent in respect to its maintenance practices. I also acknowledge that there was other evidence beyond that referred to by the University to support its contention that it followed good maintenance practices.

However, the fundamental point is that there was a robust evidentiary basis for the jury, acting judicially, to conclude that the University’s cleaning practices were negligent and that this breach of duty caused Ms. Biletski to slip, leading directly to her injury. [ 72 ] The evidence respecting the allegation of a breakdown in maintenance allowing the pool to be less than full was, to say the least, far less compelling. In this Court, Ms. Biletski argued, in effect, that the University’s argument on this front is a red herring. Ms.

Biletski asserts that she has “consistently argued that permitting the use of the Starting Blocks at the shallowest end of the Pool did not discharge the University’s duty [to] ensure its swimming facilities were as safe as they could reasonably be made”. I accept this statement, but not the suggestion that by adopting this position Ms. Biletski did not also assert to the jury that the University should be held liable because the pool was not completely full. I will elaborate briefly on this point. [ 73 ] Ms.

Biletski’s statement of claim specifically alleges that the University was negligent by “[h]aving insufficient water in the pool to allow safe entry”. This passage was read to the jury by the trial judge at the opening of the trial as part of his

summary of Ms. Biletski’s case. During the course of the trial, questions were asked of numerous witnesses to elicit evidence directed to make two points, namely, that there was doubt as to the actual depth of the pool and, even if the pool was as deep as indicated on its markings, it was not completely full. This evidence became the subject of comment by Ms. Biletski’s counsel during his closing submissions. Finally, in his charge to the jury, the trial judge outlined the position of Ms. Biletski only in the most general way.

He stated in this regard: Let me turn to the position of the parties as I very briefly understand it. Counsel for each of Miranda Biletski and the University and the Piranhas each addressed the position of their clients in this lawsuit during their summation speeches to you. Those speeches and therefore positions should be fresh in your minds, they were just delivered yesterday. In law their positions are as reflected in their claims and defences which I have reviewed with you by quoting portions of them at the beginning of this trial. To summarize. ...

Miranda Biletski claims that although the University’s pool was grandfathered and met if full to level , minimum competitive swimming national and provincial standards, namely a depth of four feet or 1.2 meters, nevertheless the facility was not safe and that it presented a risk or danger to competitive swimmers using the diving blocks and not executing a dive correctly. That is how the injury to Miranda Biletski occurred. Miranda Biletski claims that the state of the pool and diving blocks located where they were were unsafe and this was the cause of her accident and injuries.

Therefore, the University is responsible for the financial damages she claims. (Emphasis added) [ 74 ] By drawing the jury’s attention back to the pleadings, to the

summary he had given to the jury at the opening of the trial, and to counsel’s closing submissions, the trial judge confirmed that one alleged particular of negligence was the University’s failure to keep the pool full. From all of this, it would be fair for the jury to have understood that Ms. Biletski was alleging that the University breached its duty of care by failing to keep the pool full and that this alleged breach caused or contributed to Ms. Biletski’s injuries.

In connection with this theory of liability, the University argues that “Plaintiff’s counsel had no evidence to suggest that the Pool was not in fact full”. [ 75 ] There was no positive evidence that the pool was not completely full. However, there was a basis to raise doubts as to the matter, which might form a foundation to draw an inference that the pool was not at its maximum level. [ 76 ] The evidence was that the pool would lose water through evaporation and by the actions of swimmers. Maintenance records did not reflect that pool levels were consistently checked or that water was regularly added.

As I have reviewed, there were bases for the jury to doubt generally Mr. Jerkovits’ testimony about the University’s maintenance practices. Additionally, Dr. Chamberlin acknowledged in cross-examination that the water height varied “within a range”. [ 77 ] On the other hand, Mr. Jerkovits testified that the pool was maintained at a full level. In part, this was necessary in order for water to properly circulate.

Although some water flowed through a drain at the pool’s bottom, most circulated by flowing over the pool’s top edges and into gutters that surround the pool deck. [ 78 ] The evidence was that the Club and its employees were attuned to checking water levels before members were allowed entry into the water. The Club’s president, Susan Hadubiak, was asked about whether the Club had any issue with using starting blocks over 1.2 metres of water prior to 2005. Her reply was that “it was a problem if the water level was low. That was when it was an issue for us”. Ms.

Hadubiak’s testimony sits comfortably with the evidence more generally, which displays a consistent concern by the Club for the safety of its members and the known relationship between water depth and safety. [ 79 ] Cindi Finch, the Club’s head coach, testified that the coaches would visually check the pool before it was used.

Because the Club was holding a competitive meet on the days following the practice, the coaches gave more specific attention to water levels on June 6, 2005: A … in general we always we’re looking to make sure there wasn’t anything unusual, you know, but specifically where it was, I said I’ve never noticed anything unusual with the water levels.

Q Okay. A And with our swim meet coming up there and adding extra blocks, we just wanted to ensure that safety was taken into account. So onthat particular day leading up to our meet we were making sure that all aspects were covered. Q And the level of the water was one of the aspects of safety? A Correct, and we were wanting to make sure that everything was good for the swim meet. [80] Mr. Schmuland and Ms. Robinson agreed they had no concerns with the use of the starting blocks that evening, nor did thesenior group express any concern with the condition of the facility. [81] Finally, Ms.

Biletski’s evidence is consistent with the evidence of her coaches. She stated that she had no concerns with thestate of the pool, indicating, at least implicitly, she did not notice the water level to be low. [82] From all of this, in my view, the University overstates the matter when it argues there was “no evidence” (emphasis added) thepool was not full. Rather, there was some basis in the evidence for Ms. Biletski’s counsel to invite the jury to draw an inference that thepool was not at its maximum level due to a breakdown in the University’s maintenance practices.

However, overall, the evidence wasunequivocal that if the pool was not at its absolute maximum height on June 6, 2005, the amount by which it would have been below thatlevel was negligible. [83] This latter observation might beg the question whether a jury, acting judicially, could have imposed liability on this basis.However, this question is very much beside the point on this appeal. I say this for two reasons.

First, the absence of any challenge, notonly at trial but now also in this Court, to the charge to the jury precludes this Court from being concerned that this possible route toliability was left with the jury. [84] Second, because of the general nature of the question the jury was invited to answer it cannot be said that the jury did not rejectthe suggestion that the pool was not adequately full.

In this regard, there was an evidentiary basis for the jury, acting judicially, to havefound the University to be in breach of the first duty described by the trial judge by reason of the placement of the diving blocks, and alsoin breach of the second duty described by the trial judge based on a failure of the University to adequately clean the starting blocks. Therewas also an evidentiary basis for the jury to find that a breach of either, or both, duties caused the harm that Ms.

Biletski suffered. [85] For these reasons, I respectfully reject the University’s argument that it was not open to the jury to have grounded liability onthe basis of a breach of the second duty of care described by the trial judge in his charge to the jury. 5. Conclusion respecting the University’s liability to Ms. Biletski [86] In

summary, the simple “Yes” answer provided by the jury to the first question allows this Court to conclude that it found, asfact, the University was negligent and its negligence caused or contributed to Ms. Biletski’s accident and resulting injuries. Morespecifically, the jury must have found, as fact, one or both of the following: (

a) the University was negligent by allowing the use of the diving blocks at the pool’s shallow end, and this negligence caused orcontributed to Ms. Biletski’s accident; and (

b) the University was negligent in its maintenance practices, and this negligence caused or contributed to Ms. Biletski’s accident. [87] Appeal courts strive to uphold jury awards. In part, this is a product of the role of the jury as the sole finder of fact. However,there are broader principles at stake. There are few more impactful societal contributions a citizen can make than sitting as a juror in acivil or criminal trial.

If appeal courts move too quickly to set aside jury verdicts it will tend to undermine public confidence in the jurysystem and, through this, our system of justice more generally. [88] Of course, jurors work with the tools they are given. They are told the law to apply to the facts as they find them. When itcomes to finding facts, they are given instruction on what evidence they can consider. They are also told what range of verdicts is open tothem and are given specific questions to answer. However, in this case, the jury was given a charge by the trial judge that standsunimpeached by the University.

The jury was also asked to answer a specific question agreed to by the University, which also standswithout challenge in this Court. The jury then answered that specific question and concluded that the University was negligent and itsnegligence caused or contributed to Ms. Biletski’s injuries. At various junctures in this appeal, Ms. Biletski and the Club made the pointthat it was impermissible to make assumptions about what reasoning lies behind the jury’s answers to questions it was asked. I agree.

Irespectfully conclude that it is improper to make any assumption as to which route the jury as a whole, or any particular juror, followed inthis case.

It seems to me, were I to approach my analysis in any other way, I would commit the same error as attracted criticism by RitchieJ. in McKay v Board of Govan School Unit No. 29, (SCC), [1968] SCR 589 at 598 [McKay], when he said that anappellate court had “entered upon the dangerous field of attempting to delve into the minds of the jury and to interpret their verdict interms of his own mental processes”. [89] In this case, it was open to the jury to have found the University liable on the basis of a breach of either of the duties describedby the trial judge and accepted by the University.

I would therefore dismiss the University’s appeal insofar as it challenges the jury’sverdict on the first question it was asked. C. Was it open to the jury to find that Ms. Biletski was not negligent or thather negligence did not cause or contribute to her injuries? [90] The jury answered “No” to the second question it was asked: “Was Miranda Biletski negligent and did that negligence cause orcontribute, in whole or in part, to her accident”? The “No” answer allows for the possibility that the jury concluded either that Ms. Biletski

was not negligent, or that her negligence did not cause or contribute to her accident. This noted, all parties proceeded on the basis that thereliability of the jury’s answer to the second question depended on the existence of evidence to support the conclusion that Ms. Biletskitook proper care for her own safety. In other words, it was assumed that if Ms. Biletski failed to take reasonable and proper care for herown safety, then causation would follow. I proceed in my analysis accordingly. [91] Once again, the University accepts that the jury received proper instructions respecting the duty Ms.

Biletski owed to herself,“to take reasonable care and proper precautions for her own safety while using the University pool and the starting blocks as she did”.However, it submits the “uncontroverted evidence before the Jury was that the Plaintiff failed to follow her coaches’ instructions anderred in executing her dive”. It points to Ms. Biletski’s admission that she did not make the dive she “intended to do”. From this, theUniversity argues that it was unreasonable for the jury not to find contributory negligence on her part.

This challenge raises the questionwhether a properly instructed jury, acting judicially, could have found that Ms. Biletski was not negligent. [92] The University’s argument that the only verdict reasonably open to the jury was that Ms. Biletski was contributorily negligentrequires this Court to make a host of assumptions as to the sequence of events that gave rise to the accident itself. The findings of the factsrelating to these events were appropriately left to the jury, and remain inscrutable in light of the general questions that the jury was invitedto answer.

In my respectful view, the University fails to identify, in its factum or otherwise, what facts the jury was compelled to find suchthat no jury acting judicially could avoid a finding of contributory negligence. [93] The University says, for example, that Ms. Biletski “ought to have reasonably foreseen that if she failed to follow her coaches’instruction” she could seriously injure herself. However, as I have already said, there is also no suggestion that Ms. Biletski intentionallyfailed to follow her coaches’ instructions. [94] The University further argues that Ms.

Biletski ought to have reasonably foreseen that if she “erred in diving into the Pool offthe starting blocks, and otherwise had a bad dive, that she could seriously injure herself”. Elsewhere, the University argues Ms. Biletskiought to have foreseen injury “if she made the dive wholly wrong” and she “failed to dive as instructed”. The premise behind each of thesepoints is the same, and it is false. It does not follow that simply because Ms. Biletski did not execute the dive she was instructed to take,and expected to make, that this was a consequence of a failure on her part to take care for her own safety.

The most obvious example ofthis would be if the jury determined that the bad dive occurred because the blocks were unexpectedly slippery by reason of a breakdownin the University’s maintenance practices. Overall, the evidence falls well short of leaving the jury in the position where it had to concludethat the failure by Ms. Biletski to execute the dive she expected was as a consequence of error on her part. [95] The University is, in substance, left to rely on Ms. Biletski’s acknowledgement that she did not execute the dive as sheintended.

However, that does not mean she failed to take reasonable care for her own safety. The University cites no law to support theproposition, and it is contrary to first principles, to suggest that the mere fact of an accident means that negligence has occurred. Preciselythis point was made by the University’s counsel to the jury in the course of submissions as to why the fact of the accident should not leadto the conclusion that at least one of the parties must have been negligent.

Indeed, University counsel’s final statement to the jury was tonote that sometimes “Accidents happen”. [96] More generally, the University overlooks that negligence occurs when a person acts unreasonably in the context of all relevantcircumstances. In Ms. Biletski’s case, the broader circumstances include her age and experience and the supervision she was under at themoment of her attempted dive. [97] This point is illustrated by Thornton v School District No. 57 (Prince George) (1975), (BC SC), 57 DLR(3d) 438 (BCSC), var’d (BC CA), [1976] 5 WWR 240 (BCCA), appeal to SCC allowed (SCC), [1978]2 SCR 267 [Thornton].

In Thornton, a 15 year old suffered a severe spinal injury, which rendered him quadriplegic, while taking

part in agymnastics class. His gymnastics instructor and school were found to be negligent, but a claim by the defendants that the plaintiff wascontributorily negligent was dismissed at trial, with Andrews J. stating as follows (at 450): In my opinion the defendants have failed to establish such a prima facie case. I find that he was only trying a single somersault. I cannotthen say that he was attempting an exercise he was not capable of and, indeed, the whole of the defence evidence was to the effect thatsuch an exercise should have been well within his competence.

Should he be taken to possess the same familiarity and knowledge of theequipment as his instructor? The answer is clearly no. He had neither the experience nor the qualifications. In view of his lack offamiliarity and knowledge he ought not to be taken to know that what he was attempting to perform involved any threat or harm. Itnecessarily follows that there was no need for him to go to Edamura for guidance or assistance. In the circumstances I find the defendantshave failed to establish contributory negligence.

This aspect of the trial judgment was upheld by the British Columbia Court of Appeal, and the decision of the Supreme Court deals withissues of damages only. [98] There are cases where plaintiffs, in circumstances akin to this case, have been found to be contributorily negligent; see, forexample: Myers v Peel County Board of Education, (SCC), [1981] 2 SCR 21; MacCabe v Westlock Roman CatholicSeparate School, 2001 ABCA 257, [2002] 1 WWR 610; and Cheung v Board of Education of City of Toronto, 1982 CarswellOnt 2733(CA) (WL).

However, each case turns on its own facts. [99] The inability to know the facts found by the jury (as opposed to conclusions it reached) renders it impossible to conclude thatno jury acting judicially could have rejected the arguments that Ms. Biletski should be found to be contributorily negligent. Here, it wouldhave been open to the jury to have found that Ms. Biletski was contributorily negligent, but it must be said that the opposite is also true. [100] My conclusion is therefore that there is no basis to interfere with the jury’s answer to the second question it was asked. D.

Was it open to the jury to find that the Club was not negligent or that itsnegligence did not cause or contribute to Ms. Biletski’s injuries?

[ 101 ] The jury was given a choice of “Yes” or “No” to the following question: “Were The [ sic ] Piranhas negligent and did that negligence cause or contribute, in whole or in part, to Miranda Biletski’s accident?” It answered “No”. As with the question involving contributory negligence, this answer could mean that the jury rejected the third party claim because it was unconvinced that the Club was negligent, or because it was of the view that its negligence did not cause or contribute to the accident.

However, since the focus of all parties’ arguments was on the question of whether the evidence allowed the jury to find the Club’s duty of care was not breached, I will restrict my analysis to that question. [ 102 ] The Club conceded at trial that it and its coaches owed a duty of care, which if breached could form the foundation of a claim against it by the University. It said, however, it had not breached this duty of care. [ 103 ] In broad terms, before the jury, the University argued that it was a passive provider of a facility that was in compliance with all applicable standards.

It contrasted its role to that of the Club. The University said that if there was fault associated with allowing Ms. Biletski to dive over 1.22 meters of water, the negligence was that of the Club. The University focused on the fact that the Club chose to practice at the University pool. Indeed, in the days prior to Ms. Biletski’s accident, the Club had taken younger swimmers to practice at a different pool where the starting blocks were located over deeper water.

The University also pointed to the design, introduction and implementation of the training exercise and the evidence given respecting the entirety of the circumstances surrounding the accident. The University did not call an expert to give opinion evidence relating to the alleged breach by the Club but it elicited answers in cross- examination from Dr. Osinski and Dr. Fletemeyer which, it argued to the jury, supported its contention that the Club was responsible for the accident.

It also relied on evidence, some of which was outlined earlier, that the Club was actively concerned with the safety of the pool environment. [ 104 ] In this Court, the University’s principal argument is that the jury’s finding of liability against it cannot be reconciled with the absolution of the Club. It says, for example, that “if permitting use of the starting blocks in the Pool at a depth of 1.22 meters fell below the standard of care then the Swim Club also breached its duty of care to the Plaintiff by allowing her to use the starting blocks”.

The University further submits that “[t]he coaches knew or ought to have known that there was a risk of using the starting blocks in a 1.22 meter pool ... Notwithstanding this, [they] permitted and sanctioned the Plaintiff’s use of the starting blocks despite this risk”.

The University points to the facts that the Club never expressed concern with the location of the blocks, it was aware of the entire configuration of the pool, and “on the day of the incident the coaches reviewed the pool area before the practice started and satisfied themselves that all things were in order”. [ 105 ] The Club meets all of this by pointing out that its duty of care is not perfectly coincidental with that owed by the University, nor are the alleged bases upon which a breach of those duties might be found the same. The Club also relies on the inscrutability of the jury verdict.

It argues that it is impossible to say whether the jury found the University was negligent because it allowed diving into 1.22 meters of water. The Club argues “there was certainly evidence led at trial which indicated the Piranhas did not breach their duty of care owed to Ms. Biletski”. It goes on and submits that even assuming the jury found the Club breached its duty of care, “there is no indication whether or not the Jury found this breach caused or contributed, in whole or in part, to Ms. Biletski’s accident”.

The point is that it is impossible to know if the Club was absolved of liability because it did not breach its duty of care, or because the jury found that a breach may have occurred, but that breach did not cause or contribute to Ms. Biletski’s injuries. [ 106 ] I agree with the fundamental points the Club makes. The premise of the University’s argument is that the jury found liability against it on the basis of the location of the blocks. However, the jury’s answer to the question it was given does not allow for the assumption that the jury imposed liability on the basis that the blocks were improperly located.

In this regard, accepting for the sake of argument that a jury, acting judicially, could not impose liability on the University based on the location of the starting blocks while absolving the Club from any responsibility, there was a different path by which the jury might have found the University to be liable while also reasonably absolving the Club from any responsibility. [ 107 ] One possible set of facts the jury might have found was that the accident occurred because the University failed to adequately clean the starting blocks, causing Ms. Biletski to slip.

If the jury followed this route to imposing liability against the University, it is easy to understand how the jury might have absolved the Club from liability. There was evidence that the Club’s coaches conducted a survey of the pool surroundings and otherwise assumed some responsibilities for the safety of the pool environment.

However, the Club’s role in this, on the evidence, was manifestly different than the role of the facility provider. [ 108 ] Based on all of this, I respectfully reject the University’s contention that it was not open to the jury, acting judicially, to find liability against it while simultaneously rejecting the claim that the Club’s negligence contributed to the accident. [ 109 ] Before leaving this issue, I would say something about the questions that the jury was invited to answer in this case – questions which, I repeat, were agreed to by all parties, and also not the subject of challenge in this Court.

A frequent criticism of juries is that their decisions are inscrutable because they do not give reasons for their decisions. This does not mean that there are not tools available to trial courts to obtain more particularized findings by juries. [ 110 ] With the benefit of hindsight, it may have been preferable if the jury had been asked separate questions inquiring, first, if the University had been negligent and, second, if it was found to have been negligent, if its negligence caused or contributed to the accident.

A draft verdict sheet, which broke out the questions in this way, was presented by counsel to the trial judge as a joint submission. The trial judge combined these two inquiries when he delivered his draft version of the verdict sheet to counsel for comment.

At that point, the focus of both counsel and the trial judge turned to other issues and no party made submissions to the trial judge suggesting it might be better if the issues were untangled. [ 111 ] In addition, if it had been so inclined, the University could also have invited the trial judge to employ other tools to obtain more information from the jury, which would have allowed it to assess if there was merit to the concerns it expresses in the various facets of its appeal.

In this province, the combined effect of ss. 22 and 23 of The Jury Act, 1998 , SS 1998, c J-4.2 , is to allow a judge to require a jury to answer specific questions as a form of special verdict. While the form of questions asked of the jury in this case has been commonly used in this province, there are also instances where juries have been invited to answer “Yes/No” to questions inquiring as to whether the plaintiff has made out each particular of negligence alleged. There are other instances where juries have been asked to provide brief reasons or to particularize negligence if it is found to exist.

I will expand on the latter notion.

[112] An example of a case where a jury was invited to provide brief reasons is McKay, where the jury was asked three questions.The first question inquired into the existence of negligence. The second asked “If answer number 1 is ‘Yes’ then please state fully the actsor omissions which constituted the failure in duty of care” (at 593).

These questions are quoted in the judgment of the Supreme Courtwithout comment, indicating acquiescence in, if not agreement with, a jury being asked to provide brief reasons to support its finding.There are other examples in cases arising out of a variety of different fact situations and causes of action where juries have been asked toprovide particulars or an explanation for their findings. [113] Quintal involved a claim of medical negligence against several doctors.

The jury was asked separate questions inquiring as towhether the doctors were individually negligent, and “if the answer to [the question] is ‘yes’ of what did such negligence consist? Answerfully”.

The juries in Vigoren v Nystuen (17 June 2004) Regina, QBG No. 1223/1998 (Sask QB), Harach v Schulbert (16 April 1999)Saskatoon, QB 973/1996 (Sask QB), New v Dusomme (30 April 2004) Regina, QBG No. 3367/1991 (Sask QB), and Fischer v Halyk,2003 SKCA 71 at para 10, leave to appeal to SCC refused [2004] 1 SCR viii, were all asked similar questions in circumstances where thejury was given different routes or theories of liability.

It appears from such cases as Bovington (Litigation Guardian of) v Hergott, 2008ONCA 2, 290 DLR (4th) 126, and Stilwell v World Kitchen Inc., 2014 ONCA 770, 327 OAC 146 [Stilwell], that there is at least somepractice in Ontario for juries to be invited to provide particulars of any finding of negligence or contributory negligence. It was partlythrough an analysis of the answers given by the jury in Stilwell that the Ontario Court of Appeal was able to satisfy itself that the juryaward should be sustained.

Another alternative is, of course, to ask “Yes/No” questions of the jury with respect to each theory of liability. [114] In Lush v Connell, 2012 BCCA 203, 34 BCLR (5th) 244, Hinkson J.A. said he was not prepared to conclude that jurors in allcases involving claims of negligence should be directed to particularize any negligence that may be found.

At least part of Hinkson J.A.’sconcern over inviting a jury to provide a particularization for its findings in all cases was routed in the problem that arose on the factsbefore him where, according to applicable British Columbia law, the jury was required to be unanimous in its verdict unless it reached animpasse and was excused from that obligation. The question arose whether, by asking the jury to particularize any negligence it mightfind, the possibility arose that the jury had concluded it needed also to be unanimous in its reasons to find liability.

For this reason,Hinkson J.A. held that in a case where a jury was asked to provide any form of reasons, jurors must also be told that they do not need toagree on the route to liability: [89] In my view, in a civil case before a jury, where negligence is alleged on different grounds and there is evidence to support at leasttwo of those grounds, the jury should be instructed that the plaintiff does not have to prove each ground of negligence alleged, and thatproof of one is enough.

If the jury is asked to specify in what respect or respects the defendant was negligent it should be instructed thatnot all of its members have to agree on the same ground of negligence and that it can reach a decision to find the defendant negligent aslong as each juror is persuaded that one of the possible grounds has been proven on the balance of probabilities. [115] A similar caution is appropriate in this province.

Given that, here, five of six jurors can deliver a verdict or answer a question, itwould also seem appropriate for the judge to advise jurors that they do not have to agree on the same ground of negligence as long as therequisite number of jurors is persuaded that one of the possible grounds has been proven on the balance of probabilities. [116] Past practice has left trial judges with considerable discretion to formulate questions that fit the circumstances of the specificcase before the court.

In Quintal, this Court ordered a new trial and directed that at the future trial separate questions be asked with respectto the portion of damages caused by two parties. Beyond providing this direction, the Court said it would “leave it to the sound discretionof the trial judge to formulate the required questions after hearing the evidence and submissions of counsel” (at 516). [117] Here, there was, and remains, no objection taken by the University to the questions the jury was asked to answer.

Given thattrial judges must be left with considerable discretion to fashion questions that best meet the circumstances of the issues the jury mustdecide, 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 thequestion of breach of duty of care from the question of causation; and (ii) where a jury is presented with several different routes or theoriesof 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. E. Did the jury commit a reviewable error in its award of damages? [118] The University challenges the award of damages in three specific areas only: (

i) the award of any amount for the loss of achance to enter into an interdependent relationship; (ii) the amount of the award for pretrial and post-trial income or earning capacity; and(iii) the amount of the award for future care costs. 1.

Standard of review [119] This Court has consistently followed the direction given in Nance v British Columbia Electric Railway Company, (UK JCPC), [1951] 3 DLR 705 (PC), which was succinctly summarized by Vancise J.A. in Ede v Junek and Hart (1990), (SK CA), 87 Sask R 126 (CA), in the following terms: [32] … An appellate court is not justified in substituting its own figure for that of a judge or jury simply because it would haveassessed a different sum had it tried the case.

An appellate court can only interfere with an award of damages if it can say that in assessingdamages there was no evidence on which a judge could have reached the conclusion, or that a judge applied a wrong principle of law —by taking into account some irrelevant factor or leaving out some relevant factor — or the award was so inordinately low or so inordinatelyhigh as to be a wholly erroneous estimate of damages; and if by a jury, to be wholly out of all proportion. … See also: Rieger v Burgess (1988), (SK CA), 66 Sask R 1 (CA) at para 22; Christensen v Kocay (1999), (SK CA), 189 Sask R 164 (CA) at para 9; Athabasca Airways Ltd. v Sabaliauskas, 2010 SKCA 130 at para 2, 362 Sask R 270. 2.

Loss of marriage/interdependency benefits

[120] The jury awarded Ms. Biletski $879,000.00 for “Loss of marriage/interdependence benefits”. A claim under this head isgrounded in the notion that significant personal injury may reduce the chances of entering into an economically-advantaged personalrelationship. This point was explained by Lambert J.A. in Reekie v Messervey (1989), (BC CA), 59 DLR (4th) 481(BCCA) at 494, leave to appeal to SCC refused [1989] 2 SCR x: This aspect of the damage award was called “Loss of opportunity to marry” by counsel and by the trial judge. But marriage itself is not thesignificant point.

The significance lies in the loss of an opportunity to form a permanent interdependency relationship which may beexpected to produce financial benefits in the form of shared family income. Such an interdependency m

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