Jury providing particulars of findings in med mal cases remains controversial

Mahsa Dabirian

This article was created in partnership with Bogoroch & Associates

By Julius Melnitzer | December 30, 2023

For some time now, it has been standard practice for judges to instruct Ontario juries to provide particulars or an explanation of their findings on standard of care and causation in medical malpractice and other professional negligence cases.

But the issue remains mired in controversy.

“Asking for particulars puts plaintiffs at a disadvantage because it signals that the reasoning of all the jurors has to be the same, but that’s not the case as long as each juror’s reasoning leads to a finding of negligence on a balance of probabilities,” says Mahsa Dabirian, a partner at Toronto-based Bogoroch & Associates LLP, a civil litigation boutique whose focus includes medical malpractice and personal injury cases. Moreover, “requiring juries to particularize the reasoning for their decision broadens the defence’s avenues on appeal.”

The controversy originates in the varying interpretations of the Supreme Court of Canada’s 1995 decision in ter Neuzen v. Korn. MORE . . .

Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.


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