A civil jury trial in Ontario is the product of a deliberate election. The plaintiff or defendant who serves a jury notice is invoking a presumptive statutory right that the courts treat as fundamental, even though it is statutory rather than constitutional. The right is grounded in section 108 of the Courts of Justice Act and has been consistently described in the Court of Appeal jurisprudence as a substantive right that should not be lightly displaced.
Penate v Martoglio, 2024 ONCA 166, is the Court of Appeal for Ontario’s recent reminder that the right is not vulnerable to mid-trial elimination on inadequate reasons. A trial judge discharged a civil jury at the close of a 25-day birth injury trial, neither party having asked her to do so. Her five-paragraph reasons for the discharge attached a list of defence objections but did not explain which of the alleged improprieties were prejudicial or why a corrective instruction would have been insufficient. She then dismissed the action with substantive reasons that the Court of Appeal found were more than 90% copied verbatim or substantially verbatim from the respondents’ submissions. The Court of Appeal set aside the dismissal and ordered a new trial.
The case is doctrinally important because it applies three foundational frameworks together: the right to civil jury trial under Cowles v Balac; the adequacy of reasons doctrine from R v Sheppard and FH v McDougall; and the Cojocaru problem of judicial reasons that adopt one party’s submissions wholesale.
The substantive case
In 2014, the plaintiffs commenced an action against St. Michael’s Hospital and various physicians and other health care professionals for medical malpractice arising from the birth of their son. The substantive allegation was that the attending obstetrician had performed an artificial rupture of membranes (ARM) when she either knew or should have known that the baby’s head was not sitting low in the maternal pelvis, and that this had caused a brain injury to the child.
The substantive claim engages several familiar threads of obstetric malpractice doctrine — the standard of care for performing ARM, the relevant clinical findings that contraindicate ARM, the causal link between ARM and intrapartum brain injury, and the role of the various members of the obstetric team. None of these substantive issues were resolved on the appeal, because the appeal turned on procedural defects rather than on the underlying merits.
The family elected a civil jury trial. The trial proceeded over 25 days. The evidence included 8 fact witnesses and 9 expert witnesses on standard of care and causation. The substantive question put to the jury was whether the respondents had caused the child’s brain injury by breaching the standard of care.
The procedural breakdown
The breakdown occurred at the close of trial. After the parties had delivered their closing addresses to the jury, the respondents alleged that plaintiffs’ counsel had improperly appealed to the jury’s sympathies and had referred to the opening address as evidence (rather than as a summary of anticipated evidence). These are the standard objections to improper closing argument in civil trials.
The trial judge initially indicated that she could remedy any improprieties through corrective directions to the jury about how to handle their emotional response and about the proper role of opening addresses. She nonetheless invited the respondents to submit any additional objections in writing.
The respondents took up the invitation expansively. They submitted 39 objections to the plaintiffs’ closing, alleging various forms of impropriety including assertions without evidentiary foundation and misstatements of evidence. The plaintiffs argued, in response, that the comments were not prejudicial.
At this point a critical observation is necessary: neither party asked the trial judge to discharge the jury. The respondents had not moved for discharge; they had filed objections. The plaintiffs had not, of course, moved for discharge. The remedy the parties were arguing about was the appropriate corrective direction.
The trial judge nevertheless discharged the jury on her own initiative. She then released five-paragraph reasons for the discharge the following week (2021 ONSC 7381). The reasons attached the respondents’ list of objections but did not explain:
- Which specific comments were prejudicial
- Why the prejudice could not be cured through corrective direction
- Why the cumulative effect was sufficient to require the exceptional remedy of discharge
The trial judge then proceeded to decide the case herself. Her substantive reasons for judgment dismissed the action: she found that the respondents had not caused the child’s brain injury and had not breached the standard of care (apart from a documentation failure by the obstetrician that did not affect outcome).
The Court of Appeal subsequently found that more than 90% of those substantive reasons were copied verbatim or substantially verbatim from the respondents’ submissions.
The civil jury framework
Section 108(1) of the Courts of Justice Act provides that, in an action commenced in the Superior Court of Justice, a party may, in an action where a right to a jury trial exists, require that the issues of fact be tried or the damages assessed by a jury. The provision creates a statutory entitlement to civil jury trial that operates as the default in actions where the right exists (medical malpractice actions for damages are among them, with limited exceptions).
The Court of Appeal has consistently described the right as fundamental. The cases distinguish between the existence of the right (created by the statute) and the exercise of judicial discretion to displace the right (governed by jurisprudence on motions to strike or discharge). The discretion exists but is exercised sparingly because the right itself is substantive, not merely procedural.
The leading authorities on the exercise of the discretion are Cowles v Balac, 2006 CanLII 34916 (ONCA), and Kempf v Nguyen, 2015 ONCA 114. The framework can be stated as follows:
- The right to civil jury trial is fundamental
- A party seeking to displace the right (whether by motion to strike or motion to discharge) bears the burden of justifying displacement
- Displacement should be ordered only where the case cannot fairly be tried before a jury, or where mid-trial circumstances make continued jury trial fundamentally unfair
- Where alleged prejudice can be addressed through corrective direction to the jury, the corrective direction is the proper remedy and the jury should not be discharged
- The trial judge must explain, with sufficient detail to permit appellate review, why corrective measures would be inadequate
The framework operates at both pre-trial (motion to strike jury notice) and mid-trial (motion to discharge) stages. The substantive principles are the same.
The adequacy of reasons doctrine
The framework requires the trial judge to provide reasons that explain the discharge decision sufficiently to permit appellate review. This requirement engages the broader doctrine on the adequacy of judicial reasons.
The leading authorities are R v Sheppard, 2002 SCC 26, and FH v McDougall, 2008 SCC 53. The principles:
- Reasons must be sufficient to permit meaningful appellate review
- They must explain why the trial judge reached the conclusions reached, not merely state the conclusions
- They must address the key issues in dispute
- They must engage with the parties’ submissions, not simply restate or adopt them
Reasons that fail this standard are inadequate as a matter of law. The remedy for inadequate reasons varies by context, but in civil cases involving fundamental procedural rights, new trial is often the appropriate remedy.
In Penate, the trial judge’s reasons for discharging the jury did not meet this standard. The five paragraphs attached the 39 defence objections but did not analyze them individually or collectively. The reasons did not explain which comments were prejudicial. They did not explain why corrective directions would be insufficient. They concluded that the impropriety was cumulatively impossible to correct without supplying the analytical foundation for that conclusion.
The Court of Appeal held that the inadequate reasons prevented meaningful appellate review. Without an analysis from the trial judge of why corrective direction would be insufficient, the appellate court could not assess whether the discharge was a proper exercise of the discretion under the Cowles v Balac framework.
The Cojocaru problem: reasons copied from submissions
A separate but related doctrinal issue emerged on the appeal: the substantive reasons for judgment (dismissing the action) were more than 90% copied verbatim or substantially verbatim from the respondents’ submissions.
The leading authority on this problem is Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30. The Supreme Court of Canada held in Cojocaru that extensive copying from one party’s submissions does not automatically invalidate judicial reasons. There is a presumption of judicial integrity — that the trial judge engaged with the materials and exercised independent judicial reasoning despite the verbatim adoption. The presumption can be rebutted by evidence that the trial judge did not in fact engage independently.
Cojocaru leaves a substantial doctrinal space. Some verbatim adoption is acceptable — judicial reasons in complex cases often draw on the framing or organization of party submissions, and the presumption protects the practice within reasonable limits. Extensive verbatim adoption raises a serious question about whether the trial judge engaged independently. Reviewing courts will look for indicators of independent reasoning (selective adoption, integration with the trial judge’s own analysis, departures from party submissions where the evidence supported a different conclusion) and indicators of mere adoption (wholesale incorporation, absence of any independent analytical work).
The 90%+ figure in Penate placed the case at the extreme end of the Cojocaru spectrum. Combined with the inadequate reasons for the discharge decision, the verbatim copying contributed to the Court of Appeal’s conclusion that the procedural defects required new trial.
The Court of Appeal’s analysis
The Court of Appeal’s analysis was carefully limited. The court did not hold that:
- The jury would have produced a different result
- The substantive dismissal was wrong on the merits
- The trial judge was wrong about whether the closing address contained improper comments
- The trial judge had acted in bad faith
The court held that:
- The reasons for discharging the jury were inadequate to permit appellate review
- The fundamental right to civil jury trial had been displaced without sufficient justification
- The verbatim copying contributed to the inadequacy of the substantive reasons
- The combination of these defects required new trial as a remedy
The court noted explicitly that it was not convinced that the jury would have inevitably rejected the family’s medical malpractice case as the trial judge did. This is doctrinally important: the remedy was procedural cure through new trial rather than substantive determination. The merits remain to be decided at the new trial.
Why the verbatim copying matters
The 90% verbatim copying issue is the most striking feature of the case. It raises questions that extend beyond Penate itself.
Judicial reasons in malpractice cases serve multiple functions:
- They explain to the parties why they won or lost
- They explain to the public why the dispute was resolved as it was
- They provide a record for appellate review
- They contribute to the doctrinal development of the law
- They demonstrate the independence of the judicial decision-maker from the parties
Reasons that are 90% copied from one party’s submissions impair each of these functions to some degree. The parties cannot see the trial judge’s independent analytical engagement with the evidence. The public is reading the defence’s account, not the court’s. Appellate review is hampered because the court of appeal cannot distinguish the trial judge’s views from the defence’s submissions. The doctrinal record is contaminated. And the appearance of independent decision-making is compromised.
Cojocaru recognizes that judicial reasons drawing on party submissions are not inherently improper. The Cojocaru presumption protects normal practice. But the presumption operates within boundaries, and Penate illustrates one of the points at which the practice exceeds those boundaries.
The doctrinal lessons
The case stands for several propositions.
The right to civil jury trial is fundamental. Section 108 of the Courts of Justice Act creates a substantive right that operates as the default in actions where the right exists. The right is not lightly displaced. Trial judges considering mid-trial discharge must engage with the Cowles v Balac framework directly and must explain their reasoning sufficiently to permit appellate review.
Corrective directions are the default remedy for closing address impropriety. Where one party alleges improper argument in the other party’s closing, the default remedy is a corrective direction from the trial judge to the jury. Discharge is reserved for cases where corrective direction cannot cure the prejudice — and the trial judge must explain why.
Reasons must support the decisions they justify. The adequacy of reasons doctrine from Sheppard and FH v McDougall applies to all judicial decisions, including procedural decisions like jury discharge. Five paragraphs that attach a 39-item objection list without analyzing the objections will not survive appellate scrutiny.
Verbatim copying from submissions has limits. Cojocaru permits some reliance on party submissions but does not permit wholesale adoption. Reasons that are 90% verbatim from one party’s submissions raise serious questions about independent judicial reasoning. The presumption of judicial integrity may not be sufficient to overcome the resulting concerns.
Sua sponte action requires careful justification. Where a trial judge takes action that neither party has requested (here, discharge of the jury without any motion from either side), the justification for the action must be explained with particular care. The court is departing from the framework the parties have established for the dispute; the reasons must explain why.
New trial is the procedural cure. Where procedural defects prevent meaningful appellate review of the merits, new trial is often the appropriate remedy. The Court of Appeal does not need to find that the substantive result would have been different — only that the procedural defects require redoing the proceeding under proper conditions.
The appellate cases cluster
Penate v Martoglio is the fourth appellate decision in the rewritten case-comment cluster on this site, and the second to result in a new trial:
- Willick v Willard (Court of Appeal for Ontario): affirmance with deferential review; reasons doctrine applied; SOC met by both defendants in splenic rupture case
- Hanson-Tasker v Ewart (Court of Appeal for British Columbia): affirmance; competing experts displaced Snell v Farrell adverse inference in kernicterus brain injury case
- Dumesnil v Jacob (Manitoba Court of Appeal): new trial ordered; trial judge’s SOC analysis was wrong as a matter of law + extrinsic evidence error
- Penate v Martoglio (Court of Appeal for Ontario): new trial ordered; inadequate reasons for jury discharge + Cojocaru verbatim copying
The four cases now cover the full spectrum of appellate outcomes in malpractice practice:
- Affirmance on deferential review with adequate reasons (Willick)
- Affirmance despite plaintiff Snell argument (Hanson-Tasker)
- Intervention on substantive error of law (Dumesnil)
- Intervention on procedural defects (Penate)
The birth injury cluster
Penate is the eighth case in the birth injury sub-cluster on this site:
The jury-related sub-grouping
Two cases in the rewritten library now address the jury framework directly:
- Lal v Anderson (BC, applying the same general framework with appropriate provincial adaptations): jury notice motion; defendants’ attempt to strike jury notice in a complex birth injury case denied
- Penate v Martoglio (Ontario): mid-trial discharge of jury without party motion; new trial ordered for inadequate reasons
The two cases illustrate the framework operating at both ends of the trial (pre-trial striking and mid-trial discharge) with the same fundamental principles applying: the right to civil jury trial is fundamental and is not lightly displaced.
Why this case matters
For plaintiff counsel in jury trials. Penate is a useful precedent on the limits of permissible mid-trial intervention. Where opposing counsel files extensive post-closing objections, the default remedy remains corrective direction; discharge should be reserved for cases where corrective direction cannot cure the alleged prejudice. If a trial judge moves toward discharge without proper analysis, the inadequate-reasons argument is preserved for appeal.
For defence counsel. The case is also a reminder of the limits of post-closing objection practice. Filing 39 objections to a closing address is a substantial tactical investment. Where the result is discharge, the discharge must be supported by reasons that survive appellate review. A discharge that is reversed on appeal undoes the substantive result the defence achieved.
For trial judges. The case is a direct reminder that mid-trial decisions to displace fundamental rights require fully reasoned justification. Five paragraphs that attach an objections list will not suffice. The trial judge must analyze the impropriety, explain why corrective direction would be insufficient, and place the analysis in the framework of the Cowles v Balac / Kempf v Nguyen discharge jurisprudence.
For prospective clients. The case is a useful illustration of the protection that appellate courts provide. A trial that produced a dismissive substantive result and that was conducted in a way that displaced fundamental procedural rights is not necessarily the final word. The appellate framework exists to ensure that procedural rights are respected and that substantive results are subject to meaningful review.
For the bar more broadly. The 90% verbatim copying issue is a noteworthy reminder of the limits of the Cojocaru presumption. The presumption operates within bounds, and reasons that are functionally a republication of one party’s submissions may not survive appellate review.
For more on the broader framework of malpractice claims and the procedural pathway, see Suing for Medical Malpractice in Ontario: What You Need to Know. For more on birth injury malpractice specifically, see Birth Injury Lawyer in Toronto.
Decision Date: March 1, 2024
Jurisdiction: Court of Appeal for Ontario
Citation: Penate v Martoglio, 2024 ONCA 166 (CanLII)
Trial reasons under review: 2021 ONSC 7381 (CanLII)
Key authorities: Courts of Justice Act, RSO 1990, c C.43, s 108 (civil jury notice); Cowles v Balac, 2006 CanLII 34916 (ONCA); Kempf v Nguyen, 2015 ONCA 114; R v Sheppard, 2002 SCC 26 (adequacy of reasons); FH v McDougall, 2008 SCC 53 (adequacy of reasons in civil cases); Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (verbatim copying in judicial reasons)
Penate v Martoglio: A Discharged Jury, Inadequate Reasons, and a New Trial
The Court of Appeal ordered a new trial after a trial judge discharged the jury on her own motion and dismissed the malpractice claim with reasons 90% copied from the defence.
A civil jury trial in Ontario is the product of a deliberate election. The plaintiff or defendant who serves a jury notice is invoking a presumptive statutory right that the courts treat as fundamental, even though it is statutory rather than constitutional. The right is grounded in section 108 of the Courts of Justice Act and has been consistently described in the Court of Appeal jurisprudence as a substantive right that should not be lightly displaced.
Penate v Martoglio, 2024 ONCA 166, is the Court of Appeal for Ontario’s recent reminder that the right is not vulnerable to mid-trial elimination on inadequate reasons. A trial judge discharged a civil jury at the close of a 25-day birth injury trial, neither party having asked her to do so. Her five-paragraph reasons for the discharge attached a list of defence objections but did not explain which of the alleged improprieties were prejudicial or why a corrective instruction would have been insufficient. She then dismissed the action with substantive reasons that the Court of Appeal found were more than 90% copied verbatim or substantially verbatim from the respondents’ submissions. The Court of Appeal set aside the dismissal and ordered a new trial.
The case is doctrinally important because it applies three foundational frameworks together: the right to civil jury trial under Cowles v Balac; the adequacy of reasons doctrine from R v Sheppard and FH v McDougall; and the Cojocaru problem of judicial reasons that adopt one party’s submissions wholesale.
The substantive case
In 2014, the plaintiffs commenced an action against St. Michael’s Hospital and various physicians and other health care professionals for medical malpractice arising from the birth of their son. The substantive allegation was that the attending obstetrician had performed an artificial rupture of membranes (ARM) when she either knew or should have known that the baby’s head was not sitting low in the maternal pelvis, and that this had caused a brain injury to the child.
The substantive claim engages several familiar threads of obstetric malpractice doctrine — the standard of care for performing ARM, the relevant clinical findings that contraindicate ARM, the causal link between ARM and intrapartum brain injury, and the role of the various members of the obstetric team. None of these substantive issues were resolved on the appeal, because the appeal turned on procedural defects rather than on the underlying merits.
The family elected a civil jury trial. The trial proceeded over 25 days. The evidence included 8 fact witnesses and 9 expert witnesses on standard of care and causation. The substantive question put to the jury was whether the respondents had caused the child’s brain injury by breaching the standard of care.
The procedural breakdown
The breakdown occurred at the close of trial. After the parties had delivered their closing addresses to the jury, the respondents alleged that plaintiffs’ counsel had improperly appealed to the jury’s sympathies and had referred to the opening address as evidence (rather than as a summary of anticipated evidence). These are the standard objections to improper closing argument in civil trials.
The trial judge initially indicated that she could remedy any improprieties through corrective directions to the jury about how to handle their emotional response and about the proper role of opening addresses. She nonetheless invited the respondents to submit any additional objections in writing.
The respondents took up the invitation expansively. They submitted 39 objections to the plaintiffs’ closing, alleging various forms of impropriety including assertions without evidentiary foundation and misstatements of evidence. The plaintiffs argued, in response, that the comments were not prejudicial.
At this point a critical observation is necessary: neither party asked the trial judge to discharge the jury. The respondents had not moved for discharge; they had filed objections. The plaintiffs had not, of course, moved for discharge. The remedy the parties were arguing about was the appropriate corrective direction.
The trial judge nevertheless discharged the jury on her own initiative. She then released five-paragraph reasons for the discharge the following week (2021 ONSC 7381). The reasons attached the respondents’ list of objections but did not explain:
The trial judge then proceeded to decide the case herself. Her substantive reasons for judgment dismissed the action: she found that the respondents had not caused the child’s brain injury and had not breached the standard of care (apart from a documentation failure by the obstetrician that did not affect outcome).
The Court of Appeal subsequently found that more than 90% of those substantive reasons were copied verbatim or substantially verbatim from the respondents’ submissions.
The civil jury framework
Section 108(1) of the Courts of Justice Act provides that, in an action commenced in the Superior Court of Justice, a party may, in an action where a right to a jury trial exists, require that the issues of fact be tried or the damages assessed by a jury. The provision creates a statutory entitlement to civil jury trial that operates as the default in actions where the right exists (medical malpractice actions for damages are among them, with limited exceptions).
The Court of Appeal has consistently described the right as fundamental. The cases distinguish between the existence of the right (created by the statute) and the exercise of judicial discretion to displace the right (governed by jurisprudence on motions to strike or discharge). The discretion exists but is exercised sparingly because the right itself is substantive, not merely procedural.
The leading authorities on the exercise of the discretion are Cowles v Balac, 2006 CanLII 34916 (ONCA), and Kempf v Nguyen, 2015 ONCA 114. The framework can be stated as follows:
The framework operates at both pre-trial (motion to strike jury notice) and mid-trial (motion to discharge) stages. The substantive principles are the same.
The adequacy of reasons doctrine
The framework requires the trial judge to provide reasons that explain the discharge decision sufficiently to permit appellate review. This requirement engages the broader doctrine on the adequacy of judicial reasons.
The leading authorities are R v Sheppard, 2002 SCC 26, and FH v McDougall, 2008 SCC 53. The principles:
Reasons that fail this standard are inadequate as a matter of law. The remedy for inadequate reasons varies by context, but in civil cases involving fundamental procedural rights, new trial is often the appropriate remedy.
In Penate, the trial judge’s reasons for discharging the jury did not meet this standard. The five paragraphs attached the 39 defence objections but did not analyze them individually or collectively. The reasons did not explain which comments were prejudicial. They did not explain why corrective directions would be insufficient. They concluded that the impropriety was cumulatively impossible to correct without supplying the analytical foundation for that conclusion.
The Court of Appeal held that the inadequate reasons prevented meaningful appellate review. Without an analysis from the trial judge of why corrective direction would be insufficient, the appellate court could not assess whether the discharge was a proper exercise of the discretion under the Cowles v Balac framework.
The Cojocaru problem: reasons copied from submissions
A separate but related doctrinal issue emerged on the appeal: the substantive reasons for judgment (dismissing the action) were more than 90% copied verbatim or substantially verbatim from the respondents’ submissions.
The leading authority on this problem is Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30. The Supreme Court of Canada held in Cojocaru that extensive copying from one party’s submissions does not automatically invalidate judicial reasons. There is a presumption of judicial integrity — that the trial judge engaged with the materials and exercised independent judicial reasoning despite the verbatim adoption. The presumption can be rebutted by evidence that the trial judge did not in fact engage independently.
Cojocaru leaves a substantial doctrinal space. Some verbatim adoption is acceptable — judicial reasons in complex cases often draw on the framing or organization of party submissions, and the presumption protects the practice within reasonable limits. Extensive verbatim adoption raises a serious question about whether the trial judge engaged independently. Reviewing courts will look for indicators of independent reasoning (selective adoption, integration with the trial judge’s own analysis, departures from party submissions where the evidence supported a different conclusion) and indicators of mere adoption (wholesale incorporation, absence of any independent analytical work).
The 90%+ figure in Penate placed the case at the extreme end of the Cojocaru spectrum. Combined with the inadequate reasons for the discharge decision, the verbatim copying contributed to the Court of Appeal’s conclusion that the procedural defects required new trial.
The Court of Appeal’s analysis
The Court of Appeal’s analysis was carefully limited. The court did not hold that:
The court held that:
The court noted explicitly that it was not convinced that the jury would have inevitably rejected the family’s medical malpractice case as the trial judge did. This is doctrinally important: the remedy was procedural cure through new trial rather than substantive determination. The merits remain to be decided at the new trial.
Why the verbatim copying matters
The 90% verbatim copying issue is the most striking feature of the case. It raises questions that extend beyond Penate itself.
Judicial reasons in malpractice cases serve multiple functions:
Reasons that are 90% copied from one party’s submissions impair each of these functions to some degree. The parties cannot see the trial judge’s independent analytical engagement with the evidence. The public is reading the defence’s account, not the court’s. Appellate review is hampered because the court of appeal cannot distinguish the trial judge’s views from the defence’s submissions. The doctrinal record is contaminated. And the appearance of independent decision-making is compromised.
Cojocaru recognizes that judicial reasons drawing on party submissions are not inherently improper. The Cojocaru presumption protects normal practice. But the presumption operates within boundaries, and Penate illustrates one of the points at which the practice exceeds those boundaries.
The doctrinal lessons
The case stands for several propositions.
The right to civil jury trial is fundamental. Section 108 of the Courts of Justice Act creates a substantive right that operates as the default in actions where the right exists. The right is not lightly displaced. Trial judges considering mid-trial discharge must engage with the Cowles v Balac framework directly and must explain their reasoning sufficiently to permit appellate review.
Corrective directions are the default remedy for closing address impropriety. Where one party alleges improper argument in the other party’s closing, the default remedy is a corrective direction from the trial judge to the jury. Discharge is reserved for cases where corrective direction cannot cure the prejudice — and the trial judge must explain why.
Reasons must support the decisions they justify. The adequacy of reasons doctrine from Sheppard and FH v McDougall applies to all judicial decisions, including procedural decisions like jury discharge. Five paragraphs that attach a 39-item objection list without analyzing the objections will not survive appellate scrutiny.
Verbatim copying from submissions has limits. Cojocaru permits some reliance on party submissions but does not permit wholesale adoption. Reasons that are 90% verbatim from one party’s submissions raise serious questions about independent judicial reasoning. The presumption of judicial integrity may not be sufficient to overcome the resulting concerns.
Sua sponte action requires careful justification. Where a trial judge takes action that neither party has requested (here, discharge of the jury without any motion from either side), the justification for the action must be explained with particular care. The court is departing from the framework the parties have established for the dispute; the reasons must explain why.
New trial is the procedural cure. Where procedural defects prevent meaningful appellate review of the merits, new trial is often the appropriate remedy. The Court of Appeal does not need to find that the substantive result would have been different — only that the procedural defects require redoing the proceeding under proper conditions.
The appellate cases cluster
Penate v Martoglio is the fourth appellate decision in the rewritten case-comment cluster on this site, and the second to result in a new trial:
The four cases now cover the full spectrum of appellate outcomes in malpractice practice:
The birth injury cluster
Penate is the eighth case in the birth injury sub-cluster on this site:
The jury-related sub-grouping
Two cases in the rewritten library now address the jury framework directly:
The two cases illustrate the framework operating at both ends of the trial (pre-trial striking and mid-trial discharge) with the same fundamental principles applying: the right to civil jury trial is fundamental and is not lightly displaced.
Why this case matters
For plaintiff counsel in jury trials. Penate is a useful precedent on the limits of permissible mid-trial intervention. Where opposing counsel files extensive post-closing objections, the default remedy remains corrective direction; discharge should be reserved for cases where corrective direction cannot cure the alleged prejudice. If a trial judge moves toward discharge without proper analysis, the inadequate-reasons argument is preserved for appeal.
For defence counsel. The case is also a reminder of the limits of post-closing objection practice. Filing 39 objections to a closing address is a substantial tactical investment. Where the result is discharge, the discharge must be supported by reasons that survive appellate review. A discharge that is reversed on appeal undoes the substantive result the defence achieved.
For trial judges. The case is a direct reminder that mid-trial decisions to displace fundamental rights require fully reasoned justification. Five paragraphs that attach an objections list will not suffice. The trial judge must analyze the impropriety, explain why corrective direction would be insufficient, and place the analysis in the framework of the Cowles v Balac / Kempf v Nguyen discharge jurisprudence.
For prospective clients. The case is a useful illustration of the protection that appellate courts provide. A trial that produced a dismissive substantive result and that was conducted in a way that displaced fundamental procedural rights is not necessarily the final word. The appellate framework exists to ensure that procedural rights are respected and that substantive results are subject to meaningful review.
For the bar more broadly. The 90% verbatim copying issue is a noteworthy reminder of the limits of the Cojocaru presumption. The presumption operates within bounds, and reasons that are functionally a republication of one party’s submissions may not survive appellate review.
For more on the broader framework of malpractice claims and the procedural pathway, see Suing for Medical Malpractice in Ontario: What You Need to Know. For more on birth injury malpractice specifically, see Birth Injury Lawyer in Toronto.
Decision Date: March 1, 2024
Jurisdiction: Court of Appeal for Ontario
Citation: Penate v Martoglio, 2024 ONCA 166 (CanLII)
Trial reasons under review: 2021 ONSC 7381 (CanLII)
Key authorities: Courts of Justice Act, RSO 1990, c C.43, s 108 (civil jury notice); Cowles v Balac, 2006 CanLII 34916 (ONCA); Kempf v Nguyen, 2015 ONCA 114; R v Sheppard, 2002 SCC 26 (adequacy of reasons); FH v McDougall, 2008 SCC 53 (adequacy of reasons in civil cases); Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (verbatim copying in judicial reasons)
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
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