Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470, released online today, sets out the general principle that a judge charging a civil jury should outline the evidence heard. The Court holds:
[12] Ordinarily, a trial judge should provide the jury with an outline of the evidence with a view to assisting it on the factual issues to be determined, and nothing in these reasons should be read as being intended to discourage that practice or to support some other practice. That said, we are not persuaded that, in the circumstances of this case, the trial judge erred in approaching his instructions in the manner that he did or that his failure to review the evidence resulted in a miscarriage of justice.
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[14] We know of no authority laying down the rule that, in a civil jury trial, the judge is inevitably required to review the facts. Nor were we given any authority for the proposition that the failure of the trial judge to review the facts necessarily requires this court to order a new trial. Rather, the jurisprudence lends support to the position of the respondent that no new trial should be ordered in this case.
[15] We take the functional approach as the applicable analytical framework for the assessment of the adequacy of a jury instruction, as set out in the following terms by this court in R. v. Pomeroy (2008), 91 O.R. (3d) 261, at paras. 116-117:
Appellate courts must adopt a functional approach to reviewing jury charges. The purpose of such review is to ensure that juries are properly -- not perfectly -- instructed. In conducting an appellate review, the Supreme Court emphasizes in Daley, [[2007] 3 S.C.R. 523] at para. 57:
The extent to which the evidence must be reviewed “will depend on each particular case. The test is one of fairness. The accused is entitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”. [Citations omitted.]
The functional approach also requires the appellate court not to divorce the jury charge from the greater context of the trial. The comments of counsel during their addresses, including comments on legal issues should also be considered in assessing whether the charge is adequate: see Daley, at para. 58. Here, despite its facial imbalance, the trial judge’s charge to the jury, when considered together with the closing addresses of counsel, provided the jury with an appreciation of the factual issues to be resolved, the evidence relating to the issues, the proper law to be applied and the positions of the parties.
[16] Applying that functional approach, when reading this record as a whole, we are satisfied that the jury was provided with adequate explanation of the factual issues it was to resolve, the evidence that related to those issues, the proper law to be applied, and the positions of the parties
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