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October 17, 2011

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Billions of dollars invested, not a penny lost. ntitled-2 1 $4.00 • Vol. 22, No. 32 7/7/11 9:10:05 AM Covering Ontario's Legal Scene ntitled-3 1 Ruling overturning jury verdict upheld Rare case deals with judges' powers under Rule 52.08 BY KENDYL SEBESTA Law Times verdict last year in a decision that marks the first time it has considered a case deal- ing with Rule 52.08 of the Rules of Civil Procedure in 11 years. The rule allowing that to happen arises T very rarely at the Court of Appeal, a fact that Eberhard hinted at in her June 2010 judgment. "Indeed nothing could jangle more profoundly against the accustomed role of a trial judge sitting with a jury than to replace their findings with one's own view of the facts or set aside their verdict where there was some evidence to support it," she wrote in Salter v. Hirst. "This is so deeply ingrained in the administration of justice as we value it and the jury system as we respect it that a trial judge's disagreement with jury findings, however often or seldom it may occur, is never known." The central question raised in the Court of Appeal decision late last month focused on whether or not there was evidence to support the jury's findings and therefore sufficient grounds for the judge to overturn it. The case called into question whether there was proper evidence for the jury's findings that Dr. Jason Hirst was legally re- sponsible for causing George Salter's paraly- sis and that his actions contributed directly to it. It also raised the issue of whether Eber- hard was correct in using Rule 52.08 to issue 'While the robust and pragmatic approach may be taken to evidence of causation in certain cir- cumstances, as the courts have repeatedly con- firmed, it is not a substitute for evidence,' says Christopher Hubbard. a new verdict overturning the jury's findings against Hirst. "The authorities interpreting this rule con- firm that the trial judge is required to dismiss the action pursuant to Rule 52.08, despite the jury's verdict, where there is no evidence on an he Court of Appeal has reaffirmed Superior Court Justice Margaret Eberhard's move to overrule a jury essential element of the plaintiff's claim," says lawyer Christopher Hubbard of McCarthy Tétrault LLP. "As a result, this rule may be invoked in any jury case in which there is no evidence on an essential element of the plain- tiff's claim. However, the nature and effect of the rule is only considered by the Court of Appeal if it is invoked at the trial stage and the issue is appealed." Hubbard, who represented Hirst, notes he expects the rule often arises at the tri- al stage but says this is the first time the Court of Appeal has considered a case dealing with it in 11 years. In Salter, the Court of Appeal found that while the reports of two experts dur- ing the trial had established that one of the doctors could have conducted surgery within the six-hour window of opportu- nity to prevent Salter's later paralysis, "the appellants led no evidence to show that the correct diagnosis likely would have been made and successful treatment likely would have been completed before the close of the window of opportunity had Mr. Salter been transferred earlier." The case raises important questions, ac- cording to Salter's lawyer. "The case is signifi- cant in that it begs the question: how far does a plaintiff have to go to prove causation?" says personal injury lawyer Adam Little. "The Court of Appeal, like the trial judge below, focused on the distinction between what would have happened had the patient been transferred earlier and what could have happened. The problem with that is it is impossible to prove See Ruling, page 5 he Superior Court of Jus- tice has put yet another Thunder Bay, Ont., jury trial on hold until this week over an issue that could potentially open the province up to a slew of appeals from criminal lawyers challenging the racial makeup of juries. "A person has a right to a trial Aboriginal jury issue shaking up courts T BY KENDYL SEBESTA Law Times In his view, a jury that isn't re- flective of the community is con- trary to a client's rights. "Many northern districts, including Thunder Bay, have very large First Nations populations that are not adequately represented within Ontario juries," says Watkins. As a result, Watkins believes by a jury of peers who are repre- sentative of the region in which they are tried," says Thunder Bay lawyer Christopher Watkins, who argues that right can apply to all jury members whether the issue at hand involves First Na- tions representation or another community that makes up a sig- nificant population in a region. other jury trials across the prov- ince could face delays until the courts decide whether or not there's enough First Nations rep- resentation. If that's the case, it could become an important is- sue that could force the province to change the way it selects jury members. Superior Court Justice John McCartney reopened the issue following a motion by Watkins in September. McCartney ruled in favour of Watkins' motion, causing a delay in the fraud trial of Krystyna Iwona Dolasinski until the court could examine the jury's makeup. The court will de- termine a trial date for the issue following a pretrial on Oct. 17. McCartney's ruling marks the latest in a series of cases involving such matters since March 2011. In the first case, the Ontario Court of Appeal ordered an in- quiry into the representation of people in the Thunder Bay re- gion, specifically First Nations, on juries there. That decision fol- lowed requests by the families of Reggie Bushie, who drowned in Thunder Bay's McIntyre River in 2002, and Jacy Pierre, who died of a drug overdose in a Thunder See Aboriginal, page 5 'I believe this is a significant human rights issue,' says Chris- topher Watkins. ADR Connect: Find an ADR Professional 416-487-4447 • Untitled-2 1 Mediators Arbitrators Gold Standard 5/20/11 1:11:30 PM October 17, 2011 5/4/10 2:49:21 PM Inside This Issue 4 Access Denied 6 Costs Award 8 Focus On Insurance Law Quote of the week "Litigation loans are more like credit card loans. I mostly discourage their use, but that is not to say that clients can't find these services on their own, so a lawyer should give them some advice." — Charles Gluckstein, Gluckstein & Associates LLP, See Court, page 13

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