Jury Can Hear Cases Involving Waivers & Volenti

The Court of Appeal has confirmed that juries can hear cases involving waivers.

In Kempf v. Nguyen, 2015 ONCA 114 (C.A.), the plaintiff suffered injuries when the defendant's back wheel clipped his front wheel during a charity bike ride.  The defendant pled volenti and that the plaintiff was contributory negligence, and relied on a waiver signed by the plaintiff.

The trial judge granted the plaintiff's motion to strike the jury notice on the basis that the jury would be confused by the contents of the waiver or misuse it in their deliberations.  She was concerned that the plea of volenti involved a claim for declaratory relief, which is precluded from being determined by a jury.  She also rejected the defendant's suggestion to take a "wait and see" approach.  She struck the jury and found in favour of the plaintiff.

The Court of Appeal allowed the defendant's appeal, holding that it was a reversible error to discharge the jury on the basis that it would be too difficult to explain the law.  Volenti is not a claim for declaratory relief; it is a full defence to a finding of negligence.  Justice Epstein held that "To determine liability, the jury would have to sift through the often conflicting evidence, and make findings of fact and apply the law as explained to them by the trial judge.  This is what juries do every day" (para. 59).

Kempf is helpful in confirming that the right to a jury is an important one, and that juries are capable of hearing a wide variety of cases, including those involving contracts or waivers.

Court of Appeal Upholds $1.1 Million Jury Award

The Court of Appeal has upheld a $1.1 million damages award in a product liability case heard by a jury.

In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it.  The jury found the defendant 75% at fault and the plaintiff 25%.  Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.

The Court of Appeal upheld the award except for the aggravated damages.  It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.  Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances.  In the circumstances, there was an evidentiary basis for the jury's conclusion.

The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.

This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.