In Brown v. Goodacre, the Plaintiff was injured in a motor vehicle accident, and consequently initiated legal proceedings. The case was heard before a judge and jury, with the jury awarding damages of $847,000.00.

 

ICBC’S lawyer appealed the jury award, arguing that counsel for the Plaintiff acted inappropriately during his opening statement and closing submissions to the jury, thus rendering the trial unfair. In particular, it was argued that counsel for the Plaintiff had expressed personal opinions to the jury. ICBC’S lawyer acknowledged that he had made only limited objections, and that the trial judge did instruct the jury by cautioning them about counsel for the Plaintiff personalizing the case. Regardless, ICBC’S lawyer submitted that there were exceptional circumstances that warranted a new trial.

 

Despite the fact that the Court of Appeal agreed that the previous submissions at trial of counsel for Plaintiff were inappropriate, it ruled that the trial judge’s instructions to the jury, when considered in light of the failure of ICBC’S lawyer to object to most of the comments or to request a mistrial, was enough to overcome the possible prejudicial effect of the submissions of counsel for the Plaintiff. In dismissing the appeal, the Court commented,

 

[40] I agree with the appellant that many of the comments of plaintiff’s counsel improperly personalized the case or expressed a personal opinion inappropriate for a jury address. I would not, however, give effect to the appeal on that ground for two reasons. First, the trial judge instructed the jury appropriately concerning personal opinions of counsel on two separate occasions, once in the middle of closing submissions of plaintiff’s counsel and once in his charge to the jury, to caution them not to be influenced by such comments.

 

[44] The second reason I would not give effect to this ground of appeal is that defence counsel (who is not counsel on the appeal) did not object to plaintiff’s counsel’s personalizing of the case, or ask the judge to take any of the stronger steps the appellant now asks this Court to take. I say this without being in any way critical of defence counsel’s decisions. He may well have considered that any unfair aspect of the plaintiff’s jury address was adequately addressed by the judge’s instructions to the jury. He may not have considered the comments of plaintiff’s counsel to be very serious at all. He may have considered that plaintiff’s counsel was doing more harm than good to his own client’s cause. In any event, the failure to object weighs heavily against appellate intervention.

 

[50] Having in mind the cautionary instructions given by the trial judge to the jury, it is my opinion that there are no exceptional circumstances in this appeal sufficient to overcome the absence of objection by defence counsel to the conduct about which the appellant now complains. I would dismiss the appeal.

In Walker v. John Doe and I.C.B.C., the Plaintiff was riding a motorcycle when he was injured by a flying tire from a truck. The identities of the truck driver and owner were never ascertained. The Plaintiff subsequently brought an ICBC hit and run claim for damages for pain and suffering, as well as various other forms of damages. On the 14th day of trial, the trial judge declared a mistrial after hearing closing submissions from counsel for the Plaintiff. ICBC’S lawyer then sought costs orders against counsel for the Plaintiff and/or the Plaintiff himself. Counsel for each argued that the trial judge hearing the new trial should ultimately decide the issues of costs, however ICBC’S lawyer argued otherwise, namely that the trial judge of the original trial should be the one to decide. The trial judge of the original eventually ruled that he would be in a better position to address costs.

[12] The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.

[13] The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed.

[31] I have also considered whether, having arrived at the foregoing conclusion, I should defer dealing with the substance of the application until after the appeal of the Mistrial Ruling. This would have the benefit of avoiding the costs that would be incurred in hearing the application and that would be wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or, indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I expect, having regard to the history of the matter, that any cost order I make will likely be appealed in any event. On balance I consider it better and more efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual reasons from the cost application available before the hearing before the Court of Appeal takes place.

Statements made by counsel in a jury trial during opening and closing arguments can, if improper and prejudicial, lead to a mistrial. If the application for a mistrial is not made at the time of the original objection, it can be very difficult to succeed on an appeal for a new trial.

 

In Vander Maeden v. Condon, the Plaintiff was injured in two motor vehicle accidents, and brought ICBC claims for damages for pain and suffering, as well as other forms of damages. By consent, the matters were heard together in one trial by judge and jury. At the conclusion of Plaintiff counsel’s submissions, ICBC’S lawyer made an application for a mistrial, as well as a remedial order that, instead of a new trial, that the trial would continue by judge alone. Plaintiff‘s counsel argued that there was no need to discharge the jury, and that proper instructions from the judge could cure any defects. The Court acknowledged that while some of the misstatements and transgressions of Plaintiff‘s counsel could have been dealt with by proper instructions, their cumulative effect could not be cured. The Court granted both applications, commenting that:

 

[13] In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct.

 

[35] Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.

 

In Demello v. Chaput, the Plaintiff was injured in multiple collisions, and brought ICBC claims for damages. In the opening statement to the jury, counsel for the Plaintiff made reference to the Plaintiff by his first name, and also made reference to a miscarriage suffered by the Plaintiff’s wife. The Court ruled that this was improper, and discharged the jury.

 

[30]         I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage.  To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.

 

[31]         I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials.  I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury.  As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.

 

[32]         The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged.  While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so.  I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.

 

[33]         In all of the circumstances, I order that the jury in this matter be discharged.

 

[34]         I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone.  In the circumstances, I am going to order that the matter carry on as a judge alone trial.

 

In Knauf v. Chao, the Plaintiff was awarded over $200,000 at trial for pain and suffering. ICBC’S lawyer appealed, arguing that the opening and closing submissions of Plaintiff’s counsel to the jury were improper. The British Columbia Court of Appeal agreed, and reduced the pain and suffering amount by $100,000, however did not order a new trial.

 

[41]         I have referred to Brophy v. Hutchinson in connection to the test to be applied to consider whether irregular or improper proceedings at trial should result in the ordering of a new trial when no objection was taken by the appellant at trial.  One of the improprieties in that case was improper comments made by counsel in the opening statement to the jury.  Chief Justice Finch said the following about opening statements:

 

[41]  In an opening statement, counsel may not give his own personal opinion of the case.  Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination.  He may not mention matters that are irrelevant to the case.  He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason.  It is improper to comment directly on the credibility of witnesses.  The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible …

 

Many of these comments also apply to closing addresses to juries.

 

[42]         Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

 

[43]         The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong. 

 

[53]         In my opinion, the interests of justice do not require a new trial in this case.  While the lack of objection by the defendants’ counsel does not act as a bar to the allowance of the appeal because the improper comments by the plaintiff’s counsel did result in a substantial wrong, it is my view that the lack of objection remains a factor to be taken into account when deciding whether to order a new trial or to make a substituted award.  A more forceful argument for a new trial would exist if the defendants had requested a mistrial because, if a mistrial had then been declared by the trial judge, a new trial would have been required.

 

[55]         Here, counsel for the defendants was apparently content with the way in which the case was left with the jury, and the defendants now seek relief from this Court in view of the magnitude of the jury’s award.  It is apparent the jury was favourably impressed by the plaintiff, and the defendants should not be given another opportunity to attempt to cast the plaintiff in a less favourable light.  I believe relief can be adequately given to the defendants by substituting an award in place of the jury’s award.

 

[59]      I would allow the appeal on two bases.  First, the plaintiff’s counsel made improper comments during his opening statement and closing address to the jury and, despite the lack of any objection from the defendants’ counsel, this Court should intervene because a substantial wrong was occasioned by the comments.  Secondly, the jury’s award for non-pecuniary damages was wholly disproportionate.

 

[60]     In the circumstances of this case, I would not order a new trial.  I would substitute an award of $135,000 for non-pecuniary damages in place of the jury’s award of $235,000.

In Ramcharitar v Gill, counsel for the Plaintiff appealed the dismissal of the Plaintiff’s case, claiming that improper and prejudicial comments were made by ICBC’S lawyer in the closing statements to the jury. Counsel for the Plaintiff did not ask for a mistrial at the time of the original objection. The British Columbia Court of Appeal dismissed the Plaintiff’s appeal, thereby not ordering a new trial.

 

[17]            Mr. Ramcharitar contends that, during the course of his closing address to the jury, defence counsel (who is not counsel on this appeal) misstated the evidence, referred to issues to which the evidence did not give rise and to statements made that were not in evidence, urged the jury to draw improper inferences, and challenged the integrity of expert witnesses with no sound basis on which to do so.  More than a dozen statements are cited as being improper and prejudicial.

 

[18]            Defence counsel’s address to the jury was far from conventional.  Indeed, it was not really a submission.  He began by telling the jury his address was the “scariest” part of his job because, until he had heard the plaintiff’s case argued, he did not know where to start.  The theory of the defence was Mr. Ramcharitar had not injured his head in the accident such that the troubled course his life had taken in the intervening six years was not caused by the accident.  But counsel made little attempt to develop the defence case with an organized argument in support; rather he was content to do little more than raise questions he suggested the jury should ask themselves about the presentation of the plaintiff’s case.

 

[22]           I consider there to be little purpose to be served in setting out verbatim all of the impugned statements defence counsel made because, while some may have been cause for concern, Mr. Ramcharitar’s counsel took no exception and did not ask the judge to provide any direction to the jury in respect of any aspect of the defence address.  Indeed, although he took the opportunity to make submissions about the contents of the charge the morning after the addresses had been completed, he said absolutely nothing to the judge about any concern he had as to whether defence counsel’s statements were even improper, let alone prejudicial.  That may be because he believed that, in his address to the jury in reply, he largely ameliorated what might be said to be the more troubling aspects of the statements made by defence counsel.  It may also be because he regarded what are now said to be improper statements to have been largely inconsequential in the context of the five-week trial.

 

[23]            This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial.  In Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, the Chief Justice explained:

 

[52]  In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions.  Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice.

 

[53]  It is, however, recognized that there may be exceptional circumstances which merit a new trial, despite a failure on the part of counsel to object to an address: Dale v. Toronto Railway (1915), 24 D.L.R. 413 (Ont. C.A.).  In R. v. Jacquard, [1997] 1 S.C.R. 314 (S.C.C.), the court declined to adopt a strict rule that the failure to object to a jury charge invariably waives the right of appeal.  Lamer, C.J.C. noted: “Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials”.  [Emphasis of Finch C.J.B.C.]

 

[54]  In Basra v. Gill (1994), 99 B.C.L.R. (2d) 9 (B.C.C.A.) the court recognized that where there is a “substantial wrong or miscarriage of justice” a new trial may be required, even in the absence of an objection.

 

[55]  In my opinion, failure of counsel to make a timely objection to irregular or improper proceedings at trial is and must remain, an important consideration in determining whether there has been a miscarriage of justice.  That consideration, however, is to be weighed against the nature and character of the irregularity or impropriety complained of.

 

[24]            The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial.  The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all.  Mr. Ramcharitar’s counsel said nothing other than what he said in reply.  If he had sought it, some instruction might have been given.  It was apparently thought to be unnecessary.

In Moskaleva v. Laurie, the Plaintiff was awarded close to $2 million dollars for many injuries, including a mild traumatic brain injury. ICBC’S lawyer, who did not seek a mistrial at the time the original objection was made, appealed on many grounds, including the ground that the lawyer for the Plaintiff made improper and prejudicial comments in the opening statement to the jury. The British Columbia Court of Appeal dismissed the appeal on all grounds, and addressed the issue of the opening statement as follows.

 

[23] In my view, none of the arguments put forward under the first ground of appeal can succeed.

 

[24] The appellant’s characterization of what was said in the respondent’s opening is overstated and, in some instances, inaccurate.  Prior to counsel for the respondent beginning his opening statement, appellant’s counsel informed the trial judge that he did not dispute that the appellant was negligent but said he was not in a position to admit liability.  As a result of the position taken, liability was obviously in issue.  In the circumstances, for respondent’s counsel to refer to the respondent’s recollection of the accident in his opening statement is unremarkable.  At trial, appellant’s counsel did not object to the description given by respondent’s counsel as to how the accident had occurred and did not complain that respondent’s counsel had “demonized” the appellant.

 

[25] The suggestion that a miscarriage of justice occurred as a result of what was said by respondent’s counsel in his opening about the circumstances of the accident is further undermined when considered along with the submissions on liability made later in the trial.  Before making his final submission to the jury, respondent’s counsel advised the trial judge and appellant’s counsel that he intended to submit that “one of the reasons why we’re here is because Ms. Laurie [the appellant] says she’s not at fault”.  Appellant’s counsel stated he did not have a problem with that submission and later agreed it was appropriate for the trial judge to instruct the jury to find the appellant negligent.  I further note that during the course of his closing submissions, appellant’s counsel told the jury:

 

Now, you’ve heard that Ms. Laurie ran her vehicle into the plaintiff.  There’s no doubt.  There’s no doubt that Ms. Moskaleva was in the intersection.  There’s no doubt that Ms. Moskaleva had the right-of-way.  There is nothing that I could say to suggest that Ms. Moskaleva did anything wrong, or that my client demonstrated all the care that she should have.  She didn’t.  She didn’t.  As a result you may find that my client was negligent.  I don’t have anything to say on that.  Nothing I can say.  I think it’s fairly obvious.

 

[26] In view of the foregoing, there is no substance to the submission that the remarks in the respondent’s opening about the appellant’s manner of driving at the time of the accident resulted in the kind of prejudice that would require a new trial.

 

[31] Of considerable significance in regard to this ground of appeal is the fact that appellant’s counsel told the trial judge he was not seeking a mistrial as a result of anything said during the opening.  This is a case in which appellant’s counsel specifically put his mind to the effect of the opening and elected not to seek an order discharging the jury. A deliberate election, such as occurred in this case, is a powerful circumstance militating against the appellant’s submission that a new trial is required to rectify an unfair trial.  While the facts of the case differ from the case at bar, the observation of Hall J.A. in R. v. Doyle, 2007 BCCA 587 at para. 28, 248 B.C.A.C. 307, is apposite:

 

In my opinion, having made a reasoned decision not to seek a mistrial, I do not consider it is open now to counsel for the appellant to advance an argument that the discovery and use by the judge of the evidence resulted in an unfair trial proceeding.  A rational choice was made at trial by experienced and competent counsel and it wouldnot be appropriate to now allow this point to be the foundation of a contrary position in this Court.