Litigation lawyer Arnie Herschorn and Student-at-Law Hivda Ates' article "Paltrow Ski Trial: Differences in Ontario, U.S. Civil Justice Systems" was published in Law360 Canada. This article addresses a high-profile case involving Gwyneth Paltrow and explores how the proceedings may have differed if they took place in Ontario.

The article was originally published on May 25, 2023. To read it in Law360 Canada, part of LexisNexis Canada Inc., visit: https://www.law360.ca/articles/46991/paltrow-ski-trial-differences-in-ontario-u-s-civil-justice-systems?category=analysis (subscription required).

Paltrow Ski Trial: Differences in Ontario, U.S. Civil Justice Systems

March 2023 saw a Utah civil trial jury absolve Gwyneth Paltrow, renowned Academy Award-winning actress, business mogul and wellness advocate, of blame in a 2016 ski collision case that originated at an upscale resort.

The lawsuit was initiated by Terry Sanderson, a retired eye doctor, who accused Paltrow of recklessly colliding into him from behind and causing him serious injuries while skiing at Deer Valley Resort in Utah. Although Sanderson’s initial demand for damages amounted to US$3.1 million, the jury eventually required Sanderson pay to Paltrow the symbolic sum of one dollar, along with costs.

The Paltrow trial, predictably, captured interest beyond regular courtroom dramas, partially thanks to the actress’s judicious use of fashion. Vanessa Friedman of The New York Times characterized Paltrow’s court ensemble, a “symphony of earth tones, conservative yet luxurious and relaxed,” as a compelling tool. Paltrow used her clothing skilfully to mitigate her image, making her appear less privileged and more relatable, while still remaining court appropriate.

The founder of the lifestyle brand goop cleverly incorporated her celebrity persona into her defence strategy, thereby countering her adversary’s attempt to portray her as a privileged celebrity. Moments from Paltrow’s deposition quickly became a viral sensation when Sanderson’s attorney questioned her about her friendship with Taylor Swift, her height, and the expenses of her children’s private ski instructors.

The Canadian perspective: What if proceedings had occurred in Ontario?

Although Ontario and U.S. civil justice systems have many parallels, certain fundamental differences could have influenced the Paltrow case if it were adjudicated in Ontario:

1. Documentary discovery: Divergent standards

• In Ontario, a document must be disclosed if it is relevant to a matter at issue in the pleadings. Parties are obligated to locate and reveal all relevant documents, electronic or otherwise, that are in their possession or within their control.
• Unlike in the U.S., parties in Ontario do not exchange written requests for production for all relevant documents, and they independently determine relevance.
• Relevant documents are revealed in an affidavit of documents, in which the deponent affirms that a thorough search has been conducted and all relevant documents are disclosed.
• In the Paltrow case, this distinction in Ontario might have narrowed the range of documentary discovery, emphasizing more documents directly pertinent to the case and mandating a thorough search for all relevant information.

2. Examinations for discovery/depositions: Boundaries

• • In Ontario, examinations for discovery (U.S. equivalent being depositions) have a confined scope, permitting only questions directly relevant to pleaded matters.
  • In Ontario examinations, the deponent can decline a question based on relevance or privilege, promise to provide an answer subsequently, or take questions under advisement for potential answering at a future date.
  • Further, a party can initiate a refusals motion to force an answer that a party declined to give or can choose instead to rely on the refusal itself.
  • In the Paltrow case, this difference might have been significant, as queries about her association with Swift might not have been permissible in an Ontario court.

3. Civil jury trials: Uncommon in Ontario

• The Utah jury acquitted Paltrow and attributed full liability to Sanderson.
• In Ontario, civil jury trials are uncommon, as they are not a constitutional right. Juries are more common in criminal trials where the accused is charged with an offence.
• Parties to a civil action in Ontario may request a jury, but even when the court allows a claim to be tried before a jury, Ontario courts have broad authority to dismiss the jury and proceed with a judge-only trial.
• Moreover, Ontario civil juries usually award lesser damages than their American counterparts.
• In the Paltrow case, the effect of Paltrow’s carefully chosen attire might have been lessened in the absence of a jury in an Ontario court.

4. Cultural differences: Courtroom decorum

• Ontario courtrooms maintain more formality than their U.S. counterparts. Counsel refer to opposing counsel as “my friend,” and informal exchanges between counsel and the judge are not permitted. In superior and federal courts, lawyers don black robes or gowns, and pleadings are formulated in a more neutral and reserved style.

5. Costs

• In Ontario, provided certain conditions are met, the winner in litigation is granted costs, which include lawyer’s fees, from the defeated side. Generally, the award will cover approximately one-half to two-thirds of the costs incurred by the winning side.
• In Ontario, rejecting a reasonable pretrial settlement offer, followed by a loss at trial, typically increases the size of costs awarded against the unreasonable party, a practice not common in U.S. federal courts.

Conclusion

Paltrow’s widely publicized ski collision trial provides a fascinating lens to examine some of the contrasts between the Ontario and American civil justice systems. From documentary discovery norms to the rarity of civil jury trials in Ontario, these distinctions could have significantly influenced the proceedings of the Paltrow case had the trial been conducted in Ontario.

Please contact the author, Arnie Herschorn at aherschorn@mindengross.com, for more information. 

Re-printed with permission from Law360 Canada (www.law360.ca), part of LexisNexis Canada Inc. originally published on May 25, 2023.

This article is intended to provide general information only and not legal advice. This information should not be acted upon without prior consultation with legal advisers.