The Court of Appeal has dismissed the defendant’s appeal in Cowles v. Balac, the case in which Justice Jean MacFarland of the Ontario Superior Court found The African Lion Safari & Game Farm Ltd. liable to a couple mauled by Bengal tigers while driving through the park. The two plaintiffs were awarded damages totalling $2.5 million.
The appeal was on the issue of liability only. The defendant argued that the trial judge had erred in striking its jury notice, in refusing to admit the evidence of its private investigator and in failing to hold that the defence of contributory negligence applies in cases involving strict liability.
The Court of Appeal made some interesting findings on all three issues. All three justices (Associate Chief Justice Dennis O’Connor, Justices Stephen Borins and Paul Rouleau) agreed that the trial judge had made some mistakes. However, Justices O’Connor and Rouleau felt that the errors did not warrant a new trial. Justice Borins thought that a new trial was called for.
The tigers had gained access to the plaintiffs’ car through the driver’s and passenger’s windows. A key issue at trial had been how the windows had come to be lowered. The trial judge accepted the plaintiffs’ evidence, that they had not opened the windows themselves. Justice MacFarland concluded that male plaintiff had accidentally pressed the buttons that opened the windows when the tigers leapt at the car. She rejected evidence tendered by the defence, that the female passenger had lowered her window intentionally, in order to take a photograph. Presumably, counsel for the defence thought that a jury would have come to a different conclusion.
Jury Notice
The main ground on which trial judge struck the jury notice was the complexity of the case. Whether or not the doctrine of strict liability applied was, she felt, an important legal issue that would be a difficult one for a jury. She also mentioned the actuarial and medical evidence and the fact that the trial was scheduled for six weeks as factors weighing in favour of striking the jury notice.
In the Court of Appeal, the majority (Justices O’Connor and Rouleau) ruled that the defence had failed to establish that in striking the jury notice, the trial judge had acted capriciously or arbitrarily or had proceeded on a wrong or inapplicable principle of law. The majority noted that “the complexity of a case is by far the most common reason why courts dispense with juries in civil cases, the rationale being that a judge, because of his or her legal training and experience, may be better able to render justice in a case that is complex”.
Although the majority was satisfied that MacFarland J. had not erred in striking the jury notice, Associate Chief Justice O’Connor said, “I must say that I find this case to fall at the low end of the complexity scale that would permit a judge to dispense with a jury. It is likely that some judges confronted with the same factors would exercise their discretion differently. That said, I do not think that it can be said that there was no reasonable basis for the trial judge’s conclusion that the complexity of the cases warranted striking the jury notice.”
Regrettably, the reasons of the majority, in relation to striking the jury, focus on the issue of whether the trial judge committed reviewable error. There is little in the decision to guide the practising bar as to when a case is sufficiently “complex” to warrant the striking of the jury.
Justice Borins came to the opposite conclusion: the jury notice should not have been struck. His reasons contain a much more detailed review of jurisprudence both in Canada and in other countries with respect to when a case is “too complex” to be tried by a jury. He felt that there had been no proper basis for striking the jury in this case: “[A]t the time the plaintiffs’ motion was argued the essential character of their claims was damages for injuries sustained as a result of the defendant’s negligence, with only one factual issue to be decided, and general damages and past and future income loss to be assessed. For decades, if not centuries, juries have decided these issues. Indeed, as the factual issue concerning the car windows engaged credibility considerations, it was eminently suited to be decided by the jury.”
Justice Borins went on to make observations of a more general nature, about the approach that the courts have taken to striking juries notices on the basis of complexity:
In reviewing the cases in which the court has considered whether to strike a jury on the ground of complexity, I was struck by the absence of any attempt to define what constitutes a case that is too complex to be trusted to a jury. In addition, I was struck by the absence of any analysis as to why some cases should not be tried by a jury and others should be, and by a similar absence of any analysis as to why a judge is presumed to be able to do a better job than a jury. Although juries have rendered fair and rational verdicts for centuries in very complicated criminal trials (see, for example, R. v. McNamara, No. 1 (1981), 566 C.C.C. (2d) 193 (Ont. C.A.) which was a fifteen month trial followed by an eleven day jury charge), why is it assumed that they are not capable of doing so when the same circumstances become the subject of a civil action? In reading the judicial opinions, it is difficult to escape the conclusion that decisions about the right to a jury trial in particular cases are informed more by intuition and assumptions about the relative abilities of juries and judges than by empirical knowledge. Stated somewhat differently, without the benefit of supporting empirical data, the hypothesis used to support striking a jury is that jurors, but not judges, are incompetent to deal rationally with complex civil cases. To this I would add, as it is accepted that a jury trial presents more management issues for a trial judge than a bench trial and requires the trial judge to prepare and deliver instructions to the jury, in my view judges must be careful to avoid subconscious bias in favour of a bench trial when confronted by a motion to strike the jury.”
Borins J. compared Canadian and American approaches to the use of juries in personal injury actions. He noted that, “among the very few American cases where a court has been asked to strike a jury in a personal injury case, the court has never done so.”
In Justice Borins’ opinion, to be too complex to be tried by a jury, a case would be “one that is so lengthy that it encompasses volumes of oral and documentary evidence, a multitude of issues, numerous parties, technical evidence, and, perhaps, difficult questions of law”.
Justice Borins concluded by suggesting some practical steps that could be taken, in future cases, to preserve a litigant’s right to trial by jury (such as much more extensive use of pre-trial conferences).
Despite the fact that the opinion of Borins J., on the issue of striking the jury notice, was a dissenting one, we think that it will be an influential one in future cases.
Report of Investigator
On this issue, the three judges unanimously agreed that the trial judge had erred.
Justice MacFarland had refused to admit the evidence of an investigator retained by the defence to conduct surveillance of the female plaintiff because that investigator had made direct contact with that plaintiff at a time when she was represented by counsel. The Court of Appeal felt that Her Honour had mistakenly conflated a possible issue of professional misconduct by defence counsel (if it were to be shown, for example, that the investigator had contacted the plaintiff on instructions from counsel) with an issue of evidentiary admissibility. However, the majority of the Court did not think that the mistaken exclusion of the investigator’s evidence (which would have gone to the issue of the credibility of one of the plaintiffs) warranted a new trial.
Again, Justice Borins was of a different view: he thought that the mistaken exclusion of the evidence was potentially of sufficient importance to justify a new trial.
Contributory Negligence and Strict Liability
At trial, Justice MacFarland had found that the defendant was strictly liable to the plaintiffs. Because the defendant was “the keeper of wild and vicious animals”, it was liable for the damage caused by those animals, regardless of fault. However, the defence argued that even if the principle of strict liability applied, it should be possible to argue for a reduction or negation of the plaintiffs’ damages, based on their contributory negligence. The trial judge considered this submission, but ultimately felt that she did not have to decide whether, as a matter of law, contributory negligence could be invoked in a case of strict liability. She expressed doubt that it could be, but felt that she did not have to determine the issue because, on the facts of this case, there was no contributory negligence by the plaintiffs.
In the Court of Appeal, the majority agreed with the trial judge’s approach. As a result, Justices O’Connor and Rouleau also did not express an opinion about whether contributory negligence applies in strict liability cases.
Once again, Justice Borins’ dissenting opinion is considerably more detailed. He concluded that contributory negligence can be applied to strict liability torts. Because the majority did not express an opinion and because of the paucity of authority on this issue, we expect that Justice Borins’ comprehensive and thoughtful analysis will be very influential in future cases in which this issue arises.
Borins J. observed that “While strict liability removes the burden of having to prove breach of a standard of care, it does not relieve the plaintiff from having to prove causation.” He reviewed the literature in some detail, noting that various authors have come to different conclusions about whether contributory negligence can be a defence to a strict liability tort.
In the end, focusing on the “wild animal” instance of strict liability, Justice Borins was satisfied that “a plaintiff’s conduct in respect to the cause of his or her damages will not escape unexamined” and that “there can be no doubt that in the presence of a wild animal, such as a tiger, a person is required to take reasonable care for her own safety….As to that share or portion of his or her damages that flow from his or her fault, there is no policy reason why it should be borne by others. Where a plaintiff’s own act is the sole cause of his injury, this will completely bar any recovery notwithstanding the defendant’s strict liability. With respect, the trial judge’s insistence on a fixed and precise doctrinal approach to legal concepts led her to doubt the application of principles of contributory negligence in cases of strict liability.”
Given the size of the award of damages in this case and what we find to be the persuasive reasons of Borins J., we would not be surprised to see the defendant seek leave to appeal to the Supreme Court of Canada.