Torts – Negligence – Practice and procedure
Sufficiency of correcting charge. Plaintiff PA was hit by defendant’s car while he was standing on road next to his truck. PA, together with his wife and daughter, claimed over $4 million against defendant in respect of his injuries. One of key issues at trial was apportionment of liability for accident. During deliberations, jury asked court question that revealed that it may have accessed inappropriate extrinsic information, namely, provision of Fault Determination Rules, that was irrelevant and inapplicable to this case, but which, if applied, could impact apportionment of liability. Plaintiffs brought motion to strike jury and to proceed with remainder of trial by judge alone on basis that extraneous material had been introduced into jury room. Trial judge questioned jury foreperson, who revealed that he had found provision on Ontario government website at beginning of deliberations, and shared it with other jurors. Foreperson also revealed that this was full extent of extrinsic information and that no other juror had accessed internet in relation to case. Based on these answers, trial judge dismissed motion being satisfied that he did not need to question other jurors and issue could be addressed through responses to jury’s questions and appropriate correcting charge, accompanied by warning to jurors not to conduct any further extrinsic research. Jury found PA 73 per cent contributorily negligent in collision and defendant 27 per cent at fault. As result of jury’s verdict and assessment of damages, trial judge awarded judgment to plaintiffs in amount of $309,032.34. Following verdict, plaintiffs brought motion for mistrial, relying principally on jury foreperson’s inappropriate internet research. Trial judge dismissed motion. Plaintiffs appealed. Trial judge did not fail to conduct proper inquiry in determining nature and scope of extrinsic information jury obtained. Trial judge was entitled to believe juror’s answers and to reach conclusions he did. Mere possibility that these exchanges may be susceptible to different inference posited by plaintiffs did not rise to threshold required for appellate intervention based on misapprehension of evidence. Therefore, it was concluded that trial judge conducted proper inquiry and did not misapprehend evidence as to nature and scope of extrinsic information reviewed by jury. Trial judge did not fail to appropriately analyze prejudicial nature of extrinsic information – that was reasons why he gave jury correcting charge. Trial judge noted that jury specified violation of s. 170(12) of Highway Traffic Act and while s. 170(12) does not contain word ‘illegal’, illegal is term of general usage connoting contravention or violation of law and is not concept specific to Fault Determination Rules. Moreover, trial judge noted that had jury applied Fault Determination Rules, it would have found plaintiff at 100 per cent at fault. There was no basis to intervene in trial judge’s finding as to efficacy of correcting charge as trial judge was very well positioned to make finding, having presided over trial that included eight weeks of evidence and having seen jury’s engagement and diligence first hand.
Patterson v. Peladeau (2020), 2020 CarswellOnt 2082, 2020 ONCA 137, J.C. MacPherson J.A., Robert J. Sharpe J.A., and M. Jamal J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 7600, 2018 ONSC 2625, Charles T. Hackland J. (Ont. S.C.J.).
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