On June 18, 2019, The Lawyer’s Daily (LexisNexis Canada) published Paul’s article “Pros and cons of juries in medical malpractice lawsuits” in its civil litigation section under the topic header “Juries and Medical Malpractice.” The Lawyer’s Daily was rebranded as Law360 Canada in 2022, and the article is now hosted at Law360 Canada. The article was written when Paul was a partner at Will Davidson LLP and shortly after a jury verdict in a compromised-baby case he had tried in Kitchener.
The article addresses one of the threshold strategic decisions every plaintiff medical malpractice lawyer faces: whether to take the case to a jury or a judge alone. The piece is a short, practitioner-facing reflection rather than a doctrinal survey. It sets the historical posture of jury trials in Ontario medical malpractice cases, identifies the contemporary doctrinal authority, sets out five observations from trial experience in favour of juries in many medmal claims, identifies a category of cases where juries should not be sought, and closes with a working test for when to seriously consider asking for one.
Historical context: juries were not always available
For much of the twentieth century, medical malpractice cases in Ontario were tried before a judge alone. That was not a formal rule, but a settled practice rooted in the perception that the cases were too technical for a lay jury. The article anchors that history in Soldwisch v Toronto Western Hospital et al., [1983] O.J. No. 3188, a Divisional Court decision that openly characterized the existing practice. Justice Anderson observed at paragraph 5 of that decision that it was a well-known fact that for years in Ontario, medical malpractice cases had been accepted as not triable with a jury.
Soldwisch itself was a step away from that practice. The Divisional Court considered whether the rule, practice, or tradition that absolutely precluded jury trial of medical malpractice cases should be re-examined, and concluded that the existing practice should not be maintained as an automatic bar. In the decades that followed, the trend has continued in the same direction. Juries are now permitted in medical malpractice actions, and the law on when they should be struck is governed by the discretionary framework that applies to civil jury notices generally.
The contemporary doctrinal authority: Cheung v Samra
The article identifies the recent (as of 2019) doctrinal anchor for the contemporary approach: Cheung v Samra, 2018 ONSC 3480, an obstetrical medical malpractice case in which Justice Darla Wilson addressed the question of whether the complexity of a medmal trial was a basis to strike the jury. The defence in that case sought to have the jury notice struck on the basis that the issues of standard of care and causation were too complex for a lay jury to handle responsibly. Justice Wilson rejected that submission.
Two passages from Justice Wilson’s reasons are pulled out in the article. At paragraph 38, Justice Wilson observed that causation is a complex area of the law, that juries regularly deal with cases involving difficult issues of causation, and that it is appropriate that they do so. At paragraph 40, Justice Wilson held that the complexity of a case is a proper consideration in determining whether a jury notice should be struck, but that complexity relates not only to the facts and evidence but also to the legal principles that apply, and that it is reversible error for a trial judge to strike a jury notice on the basis that the law would be too difficult to explain to the jury. Trial judges must know the law and be able to explain it to a jury. That is the doctrinal centre of the article’s case for juries: complexity, even substantial complexity, is not a categorical bar.
Paul’s observations in favour of juries
Drawing on the Kitchener jury trial he had recently completed, Paul advances five observations that, in his view, favour juries in many medical malpractice claims.
The first is engagement. The public has a general fascination with doctors and medicine. The article points to the long lineage of widely popular television programs centred on the personal and professional lives of physicians, and argues that a jury drawn from that pool is likely to be substantively engaged in the subject matter rather than treating the trial as an exercise to be endured. An engaged jury is more attentive, retains the evidence better, and is more likely to follow expert testimony all the way through.
The second is empathy. Jurors can readily put themselves in the position of a patient. They have been patients themselves. Many have had the experience of complaints being dismissed or symptoms being attributed to something other than what they later turned out to be. That lived experience is a counterweight to the cultural authority that physicians carry in the courtroom, and it allows a juror to assess the conduct of a treating physician with a calibration that a judge accustomed to professional negligence cases may not bring as naturally.
The third is the common-sense check. Medical malpractice trials are typically resolved by competing expert evidence. A plaintiff calls one or more experts who say the conduct fell below the standard of care and caused the injury. The defence calls one or more experts who say the opposite. By the end of trial, the trier of fact is confronted with a pile of contradiction. The article argues that the only honest way through that pile is the application of common sense, and that a jury brings that common sense more reliably than a single trier sometimes can. Juries are not asked to write reasons. They are asked to apply their collective judgment to the evidence in front of them and to come to a fair verdict.
The fourth is speed. A jury verdict comes within hours or days of closing argument. A judge-alone trial is typically reserved on judgment, and the wait for written reasons can run from many months to more than a year. That gap matters operationally, for client experience, and for the parties’ settlement posture in the period between trial and judgment.
The fifth is the appellate posture. Successful plaintiffs in medical malpractice cases can expect the defence to appeal. The article’s argument is that the appellate posture of a jury verdict is substantially stronger than the appellate posture of trial judge reasons. That argument rests on the doctrine of appellate deference to jury verdicts.
The appellate deference framework: Stilwell v World Kitchen
For the appellate deference point, the article relies on Stilwell v World Kitchen Inc., 2014 ONCA 770, a product liability case in which a civil jury awarded the plaintiffs approximately $1.15 million for negligence and breach of warranty. The Court of Appeal affirmed the award. The two passages drawn into the article articulate the standard.
At paragraph 33 of Stilwell, the Court of Appeal observed that the standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict. At paragraph 34, the Court of Appeal observed that a jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances, that answers by a jury should be given the fullest possible effect and supported by any reasonable construction, and that a new trial should be ordered only where the jury appears to have confused the issues, where it is doubtful whether the jury paid attention to the real point at issue, or where the questions answered or unanswered leave the real issue in doubt and ambiguity.
The article identifies this approach as entirely justified on policy grounds. Civil juries are composed of laypeople. Their answers to jury questions are not to be elevated to the same level as the written reasons of a trial judge. The implication for a plaintiff is direct: a jury verdict in your favour is harder to dislodge on appeal than trial judge reasons in your favour, because there is no written reasoning to attack, and because the standard of review is structurally more deferential.
When not to take a jury
The article is not a brief for juries in every case. Paul identifies a category of cases in which juries should be avoided. Highly complicated cases that involve intricate theories of liability, multiple defendants, and multiple sets of counsel carry a much higher probability that the jury will become overwhelmed and confused. Long trials work a hardship on jurors and can lead to disengagement. In those cases, the trial process is better served by a judge alone, with the capacity to absorb a large evidentiary record, hold the legal architecture in mind across many trial days, and produce reasoned judgment.
The working test
The article closes with a working test. A jury should be seriously considered, in Paul’s view, where the plaintiff is sympathetic, where the theory of liability is a common-sense theory, and where the case can be explained to a lay person in simple language. Cases that meet those three criteria are well-suited to juries: the jury will be engaged, will be able to follow the case, will reach a verdict quickly, and, if the verdict is favourable, will have placed the plaintiff in a strong appellate position.
Postscript: how things have developed
Two postscripts are worth noting for the contemporary reader of this 2019 article.
The compromised-baby jury trial in Kitchener referenced in the article was Woods v Jackiewicz Estate, the obstetrical medmal action in which a Niagara family secured an $11.5 million jury verdict against the treating obstetrician in April 2019. The defendant physician’s appeal was dismissed by the Court of Appeal for Ontario in Woods v Jackiewicz Estate, 2020 ONCA 458, with the appellate court applying the same deferential standard of review that the Stilwell passages in the article describe. The jury verdict that occasioned the article’s reflections held up on appeal.
Cheung v Samra also produced a notable contemporary postscript. After the jury found the obstetricians negligent and that the negligence caused the infant plaintiff’s brain injury, the trial judge declined to enter judgment on the verdict, concluding that the jury’s answers on causation were insufficiently detailed, and ordered a new trial. The Court of Appeal for Ontario in Cheung v Samra, 2022 ONCA 195 reversed and entered judgment on the jury’s verdict in favour of the plaintiffs. The appellate court re-emphasized that juries are not required to provide detailed written reasons of the kind expected of a trial judge, that the presumption of integrity attaches to general verdicts, and that the supervising trial judge should not require a jury to articulate a particular physiological mechanism of injury where the evidence supports multiple reasoning paths to a finding of causation. The case ultimately produced a $14.9 million award to the plaintiffs and stands as a contemporary illustration of the deference principle the article relies on.
The post-2019 trajectory of both cases is consistent with the article’s central argument. Two prominent recent Ontario jury verdicts in medical malpractice cases against community physicians were sustained on appeal under the deferential framework the article relies on.
Where to read
The article is available at Law360 Canada: Pros and cons of juries in medical malpractice lawsuits. A Law360 Canada subscription may be required for full access.
Context
The article was published when Paul was a partner at Will Davidson LLP. Paul is now a partner at Davidson Cahill Morrison LLP. The article is one of several pieces Paul has contributed to the Lawyer’s Daily and Law360 Canada and to the Ontario Trial Lawyers Association’s journal The Litigator over the years, on topics including expert evidence at trial, waivers, and technology in litigation. The other publications are listed on the Media page and addressed individually on this site.
