Setting aside a civil jury verdict

Ouderkirk v. Clarry, 2010 ONCA 388, released today, sets out the test for setting aside a civil jury verdict:


[17]         The test for setting aside a jury's verdict was succinctly articulated by Chief Justice Duff some 73 years ago in McCannell v. McLean, [1937] S.C.R. 341 at 343:

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.

[18]         In defining the test, Chief Justice Duff also referred to the cautionary language of Lord Wright in Mechanical and General Inventions Co. Ltd. and Lehwess v. Austin [1935] A.C. 346 (H.L.) at 375:

Lord Halsbury in these valuable observations is, I think, going back to the test applied in Wood v. Gunston (1655) Style, 466), which was whether there was a miscarriage of the jury.  Thus the question in truth is not whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty.  An appellate Court must always be on guard against the tendency to set aside a verdict because the Court feels it would have come to a different conclusion.

[19]. More recently, my colleague, Feldman J.A., cited Chief Justice Duff's test in McCannell and observed: "Consequently, it is relatively rare for a jury verdict in a civil case to be overturned on appeal".  See Bovingdon v. Hergott (2008), 88 O.R. (3d) 641 at 649.