Faraghi v. Bayview Summit Development Ltd., 2008 ONCA 439

1The appellant challenges the verdict of the jury following a nine-day trial presided over by Pitt J., which dismissed the appellant’s claim in a slip and fall case. The appellant slipped and fell as she was crossing the respondents’ plaza parking lot. She alleged that the respondents were responsible for the injuries she sustained as a result of the fall because they did not take reasonable care to keep their parking lot reasonably safe for pedestrians.

2The appellant argues that the trial judge erred by failing to discharge the jury following certain potentially prejudicial comments that counsel for the respondents made in his closing address and the appellant’s objections to these comments.

3These objections concerned comments by counsel that impugned the credibility of the appellant’s three independent witnesses on issues that the appellant says were irrelevant and unfairly prejudiced the jury against her case. The comments suggested that two of the witnesses had a motive not to meet with the respondents’ counsel before the trial and that all three would have been expected to report any snowy conditions, had they existed, at the time of the accident.

4Following counsel’s objection to the closing, the trial judge dismissed the appellant’s motion for an order discharging the jury. He decided instead to deal with the potential prejudice by a correcting instruction to the jury.

5In our view, the trial judge made no error in his decision to retain the jury. In Hamstra v. British Columbia Rugby Union 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, the Supreme Court stated: “The decision whether to discharge the jury should be a matter within the discretion of the trial judge…The jury should only be discharged if the trial judge considers that the prejudice cannot be cured…It has long been established that, absent an error of law, an appellate court should not interfere with the exercise by a trial judge of his or her discretion in the conduct of a trial. This applies with equal force to a decision to retain or discharge the jury. It cannot be overstated that the trial judge is in the best position to determine how to exercise this discretion.”

6Immediately following the remarks in issue, the trial judge instructed the jury in clear terms that the witnesses had no obligation to speak with defence counsel. In our view, the trial judge appropriately dealt with the objection.

7He also told the jury there was no legal obligation on the witnesses to report the conditions. He did add that the absence of any reports left the defendants in a difficult position regarding their defence. While in our view, the latter part of this instruction was unnecessary and could have distracted the jury from its central task, the jury’s verdict would inevitably have been the same.

8The appellant's evidence regarding the amount of snow on the day of the accident was substantially challenged at trial as was the evidence of her witnesses. Indeed, the meteorological reports filed at trial directly contradicted that evidence. In addition, there was ample evidence to support the respondents' position that they took all reasonable steps to ensure the safety of the parking area. On the basis of all the evidence, the jury verdict would have been the same irrespective of the trial judge’s challenged reference. We would therefore dismiss the appeal with costs to the respondents fixed in the amount of $10,000, inclusive of disbursements and Goods and Services Tax.

Signed: “K. Feldman J.A.”