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Juries (Civil) - Standard of Review (SOR). Henry v. Zaitlen [civil jury verdicts]
In Henry v. Zaitlen (Ont CA, 2024) the Ontario Court of Appeal considered a medical malpractice appeal, here from a civil jury trial.
Here the court considers the appellate standard of review (SOR) for civil jury trials:(1) The standard of review of civil jury verdicts
[29] The standard of review of civil jury verdicts is well-established. Assuming a jury was properly instructed, its verdict should not be set aside “unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”: McLean v. McCannell, 1937 CanLII 1 (SCC), [1937] S.C.R. 341, at p. 343; Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146; Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, 305 O.A.C. 245; Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, and Cheung v. Samra, 2022 ONCA 195. The standard of review of civil jury verdicts is “exceptionally high”: Cheung, at para. 50, citing Stilwell, at para. 33. So long as there is some evidence to support it, a civil jury’s verdict will be accorded a high degree of deference: Sacks, at para. 133; Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, 287 O.A.C. 223, at para. 5.
[30] This high degree of deference does not strip the appellate court of the ability to set aside a civil jury verdict if it is plainly unreasonable and unjust. Civil juries are not infallible, and their verdicts should not be regarded with awe: El Dali v. Panjalingam, 2013 ONCA 24, 113 O.R. (3d) 721, at para. 16; Vancouver-Fraser Park District v. Olmstead, 1974 CanLII 196 (SCC), [1975] 2 S.C.R. 831, at p. 839. Civil jury verdicts have been set aside in cases such as Vancouver-Fraser Park District; Graham v. Hodgkinson (1983), 1983 CanLII 1775 (ON CA), 40 O.R. (2d) 697 (C.A.); Adam v. Campbell (1950), 1950 CanLII 326 (SCC), 3 D.L.R. 449 (S.C.C.); Hackman v. Vecchio (1969), 1969 CanLII 796 (BC CA), 4 D.L.R. (3d) 444 (B.C.C.A.). These are exceptional cases, however. Given the latitude that civil juries have in deciding to accept or reject evidence, an appellate court will not interfere with a civil jury verdict unless it lacks any evidentiary foundation or is clearly incompatible with any reasonable assessment of the evidence.[1]
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[42] In a civil appeal of a jury verdict, an appellate court’s role is not to reweigh the evidence or consider whether most judges would have reached the same conclusion as the jury. There was an evidentiary basis, recognized by the trial judge in his instructions, to conclude that Dr. Zaitlen breached the standard of care. The jury’s verdict is entitled to great deference. I would accordingly reject this ground of appeal. . Baker v. Blue Cross Life Insurance Company of Canada
In Baker v. Blue Cross Life Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers the appellate SOR applying to an award of punitive damages, here in the context of long-term disability insurance litigation before a jury:B. ANALYSIS
(1) Punitive Damages Award
(a) Standard of Review
[14] During his oral submissions, counsel for Blue Cross submitted that the appropriate standard of review when considering a jury’s award of punitive damages on appeal is correctness. This submission was not in Blue Cross’ factum, and counsel conceded that it finds no support in Canadian jurisprudence. It is unpersuasive. However, it is essential to consider the standard of review before examining the evidence in the instant case.
[15] As in many cases where the defendants are insurance companies, or they insure named defendants, Blue Cross served a jury notice. Insurance companies often seek to have cases tried by juries. The thinking behind this strategy is that a jury may be more inclined than a judge to decline to award damages or, at least, will likely award less damages than a judge. A plaintiff who chooses a jury is making an opposite assessment. At its essence, then, the choice of a civil jury is a strategy that aims to improve a party’s odds of achieving a favourable outcome. In making that choice, a party is also taking certain calculated risks. The first and most obvious risk is that the jury might render a verdict more generous to the other side than a judge would. A second risk – one that arises if the jury’s verdict is unfavourable – is that an appellate court has less scope to interfere than it would with a judge’s reasons. It is this second risk that I will discuss next.
[16] Because juries do not provide reasons, an appellate court generally has a more limited basis to interfere with their verdicts. We are not in a position where we can carefully scrutinize the jury’s chain of reasoning. That is why, generally, appellate courts take a deferential approach to reviewing jury verdicts. In explaining the rationale underlying this approach, I can do no better than to cite the comments of Chief Justice Laskin in his dissent in Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at pp. 1069-1070:Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers. ... It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them. It is very often easy for an appellate Court, in the leisurely scrutiny of the transcript, to find significance in pieces of evidence to contradict jury findings, and in so doing to usurp the jury’s function. What an appellate Court may believe from a reading of the transcript may be the very things which a jury disbelieved or believed in part only. It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone. [17] Despite the foregoing, the role of an appellate court is different when it comes to reviewing an award of punitive damages. These damages are not at large, and consequently, it has been held that courts have greater scope to interfere with such awards. The leading cases on this point are Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 and Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, which provide guidance regarding the appropriate standard of review.
[18] In discussing appellate review of punitive damages awards, Cory J. in Hill, at para. 197, stated:[C]ourts have a much greater scope and discretion on appeal. The appellate review should be based on the court’s estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence? [19] This rationality test applies to whether an award of punitive damages should be made and to the issue of its quantum: Whiten, at para. 101. The focus is on whether the award is the product of reason and rationality, and the question is “whether the court’s sense of reason is offended rather than on whether its conscience is shocked”: Whiten, at para. 108.
[20] Regarding the quantum of a punitive damages award, in Whiten, Binnie, J. built on the dicta from Hill, stating, at para. 107:In Hill ... Cory J., while emphasizing the overriding obligation of rationality, also recognized that the jury must be given some leeway to do its job. The issue of punitive damages, after all, is a matter that has been confided in the first instance to their discretion. Thus, to be reversed, their award of punitive damages must be “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate” (para. 159). Putting these two notions together, the test is whether a reasonable jury, properly instructed, could have concluded that an award in that amount, and no less, was rationally required to punish the defendant’s misconduct. [21] Although the standard of review is different when it comes to a punitive damages award compared to other jury damages awards, in considering whether the jury’s decision is the product of reason and rationality, this court is faced with the same realities described by Chief Justice Laskin. We must consider the evidence before the jury without knowing with precision what weight it gave to it, what it found to be credible, what it thought was most relevant, and what it drew from the failure of a party to provide evidence. Thus, by necessity, we cannot conduct the type of detailed review that we undertake when reviewing a judge’s reasons for decision. Instead, we must consider whether there was an evidentiary basis that would rationally lead to a punitive damages award and, if so, whether the quantum awarded was also rationally connected to the evidence and the purposes of punitive damages. It is this review of the evidence that I will turn to next.
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