COURT FILE NO.: 76/02
DATE: 20030527
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: delce dean ivanovski, elicia ivanovski, and the minor, BLAGOJA IVANOVSKI, by his Litigation Guardian, the said Elicia Ivanovski (Plaintiffs) v. MOOTIRAM GOBIN and LEONARD HENDERSON (Defendants)
BEFORE: Justice Then
COUNSEL: Michael Ellis, for the Plaintiffs
Donald Cormack, for the Defendants
HEARD: May 14, 2003
E N D O R S E M E N T
THEN J.:
[1] The applicant/plaintiff seeks leave to appeal the decision of Pepall J. declaring a mistrial in this action and the consequent costs order to the Divisional Court.
[2] Pepall J. held that the opening address was inflammatory and prejudicial in the following specific areas:
i. it was inappropriate to suggest in an opening that defendant’s counsel is quite skilled and may attempt to use smoke and mirrors;
ii. it was inappropriate to refer to the Plaintiffs’ first party (accident benefit) insurers, as the inescapable inference from such submissions to the jury was that the Defendants’ insurers were in the wrong;
iii. it was inappropriate to suggest an appropriate quantum of general damages to the jury in opening without having addressed this issue beforehand with the trial judge in the presence of opposing counsel;
iv. it was inappropriate to state that the Defendants have refused to accept any responsibility or refused to pay any compensation to the Plaintiffs.
[3] The trial judge, more generally, adverted to numerous other problems including argumentation, statements of opinion, and attributing conclusions to Dr. McCamas not encompassed in his report.
[4] The trial judge concluded:
In my view plaintiffs’ counsel went beyond the limits of an opening statement and I do not believe that justice may be done by further instructions to the members of the jury. I believe it would be impossible to reverse the prejudice to the defendant. There is also a significant risk that the jury might form a negative opinion of plaintiffs’ counsel or of the plaintiffs themselves. Accordingly I am declaring a mistrial.
[5] The plaintiff in seeking leave to appeal to this court relies on both branches of Rule 62.02(4) which states:
Leave to appeal from an interlocutory order of a judge shall not be granted unless,
a) there is a conflicting decision by another judge of court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[6] On the first branch of the test, the plaintiff submits that the decision at issue conflicts with the decision of the Court of Appeal in Creasor v. Cadillac Fairview Corp., [2000] O.J. No. 4207 (C.A.); Khazzaka v. Commercial Union Assurance Co. of Canada (2002), 2002 45018 (ON CA), 115 A.C.W.S. (3d) 984 (Ont. C.A.) and Stewart & Stewart v. Spear, 1953 153 (ON CA), [1953] O.R. 502 (C.A.). I agree with the respondent that these decisions are distinguishable on a number of levels. First, while there is arguably some similarity in these decisions with respect to the impugned material contained in the opening before this court, none of the decisions are similar in terms of cumulative impact. Secondly, these decisions have been rendered after verdict in circumstances where either no objection was taken by the defendant or where the defendant’s counsel or the trial judge was able to obviate the prejudice to the plaintiff. That is not the situation here.
[7] The plaintiff also relies on the decisions of this court (Roy v. Watson, [1993] O.J. No. 4335 (Gen. Div.); Baurose v. Hart, [1990] O.J. No. 3121 (Gen. Div.); Yachuck v. Oliver Blais Co., 1994 10577 (ON SC), [1994] O.J. No. 173 (H.C.); Burlie v. Chesson, [1999] O.J. No. 3328 (S.C.J.)). Once again, I agree that these decisions are distinguishable. None of these decisions mirror the cumulative impact of all of the matters said to constitute prejudice in the instant case.
[8] Finally, while the trial judge was referred to Hall v. Schmidt (2001), 2001 28008 (ON SC), 56 O.R. (3d) 257 (S.C.J.). I do not discern that Pepall J. exercised her discretion to declare a mistrial on principles different from those espoused by the authorities referred to by the respondent. I agree with the respondent that an exercise of discretion which has led to a different result because of different circumstances does not meet the requirement for a conflicting decision in Rule 62.04(a).
[9] In my view, the plaintiff has not met the requirements of Rule 62.04(a).
[10] As for Rule 62.04(b), I see no good reason to doubt the correctness of the decision in question. While there were some common elements with the instant case in the excesses identified by the plaintiff in other decisions, this case is unique in terms of its cumulative impact nor do I discern that the trial judge proceeded to exercise her discretion on a wrong principle. Under these circumstances there is no reason to doubt the correctness of her decision in the exercise of her discretion. In my view, the requirements of Rule 62.04(b) have not been met.
[11] Accordingly, the application for leave to appeal must be dismissed with costs to the respondent. If counsel cannot agree the parties may make short written submissions within 15 days of this decision.
THEN J.
DATE: May 2003