Abdallah et al. v. Snopek et al. [Indexed as: Abdallah v. Snopek]

89 O.R. (3d) 771

Ontario Superior Court of Justice,

Divisional Court,

Lane, Molloy and Gans JJ.

February 27, 2008

Civil procedure -- Trial -- Jury trial -- Closing addresses -- Defence counsel in personal injury action making comments in his closing jury address about plaintiff's immigrant status, accusing plaintiff of taking unfair advantage of Canada's welfare system and suggesting that he was malingering in attempt to collect award that he would use to start business outside Canada -- Comments improper, irrelevant, offensive and inflammatory -- Failure of counsel for plaintiff to object at trial not fatal to plaintiff's appeal -- Trial judge's instruction on defence counsel's comments inadequate to correct serious injustice caused by jury address -- Plaintiff's appeal allowed and new trial ordered.

The plaintiff in a personal injury action was born in the West Bank and came to Canada in 2000. He claimed that as a result of a motor vehicle accident he suffered chronic pain, depression and a sleep disorder. His credibility was the pivotal issue at trial. In his closing address to the jury, defence counsel referred to the fact that the plaintiff was an immigrant, accused him of taking unfair advantage of Canada's welfare system, and suggested that he was seizing on the car accident to collect an award that he would use as a retirement fund, or [page772] to buy a home, or to start his own business, perhaps not even in Canada. Defence counsel urged the jury to give the plaintiff nothing. Counsel for the plaintiff did not object to the address. While the jury was out, the trial judge heard and ruled on the defence motion to dismiss the action for failing to meet the Insurance Act, R.S.O. 1990, c. I.8 threshold. The trial judge found that the plaintiff's evidence was credible and reliable and that his injuries met the threshold. The jury returned a verdict finding that the plaintiff had not sustained any injury in the accident and assessed his damages at zero. The action was dismissed. The plaintiff appealed.

Held, the appeal should be allowed.

Per Molloy J. (Lane J. concurring): The comments by defence counsel were inflammatory, offensive, irrelevant and improper. The plaintiff's immigration status was wholly irrelevant to any issue the jury had to decide. Dwelling on his immigration status as defence counsel did could only be seen as an attempt to sway the jury to decide the case emotionally, based on improper considerations. Considering the extent of the impropriety and the overarching requirement to see that justice is administered fairly, the failure of counsel for the plaintiff to object to the improper jury address did not constitute a reason for refusing a remedy on appeal. While not asked to do so by counsel for the plaintiff, the trial judge referred in his jury charge to defence counsel's speculation that the plaintiff would take the money out of Canada, and warned the jury that this was an irrelevant consideration. That instruction was not adequate to correct the serious injustice caused by counsel's jury address. First, the correcting instruction addressed only one aspect of the offensive part of the jury address. Second, the jury was not told defence counsel's statements were wrong in law, nor were they told they were inappropriate and should be completely disregarded. Third, by focusing on only one problem with the jury address, the trial judge may have given the jury the impression that he must therefore have been satisfied as to the appropriateness of the other things that were said. It was incumbent upon the trial judge to raise the issue of the improper aspects of the jury address with counsel. Had he done so, there was a good chance plaintiff's counsel would have sought to have the case taken from the jury and a good chance that the trial judge would have acceded to that request. In that case, the trial judge would have awarded substantial damages to the plaintiff, as reflected by his findings on the threshold issue. There was real doubt as to the validity of the jury verdict. Irrelevant considerations were left to the jury and may well have improperly poisoned their minds against the plaintiff. To allow the appeal and order a new trial was the only way to achieve justice for the plaintiff.

Per Gans J. (dissenting): The impugned part of defence counsel's closing address, while seemingly inflammatory in the abstract, did not, when considered in context, go beyond permissible limits. No objections were made at the time by counsel for the plaintiff. The trial judge was in the best position to assess the impact of the comments in absolute terms and in their context. His response was appropriate. There was no substantial wrong or miscarriage of justice.

APPEAL from a judgment dismissing a personal injury action.

Cases referred to Dale v. Toronto R.W. Co. (1915), 1915 535 (ON CA), 34 O.L.R. 104, [1915] O.J. No. 49, 24 D.L.R. 413 (C.A.); Landolfi v. Fargione (2006), 2006 9692 (ON CA), 79 O.R. (3d) 767, [2006] O.J. No. 1226, 265 D.L.R. (4th) 426, 209 O.A.C. 89, 25 C.P.C. (6th) 9, 147 A.C.W.S. (3d) 400 (C.A.); Stewart and Stewart v. Speer, 1953 153 (ON CA), [1953] O.R. 502, [1953] O.J. No. 669, [1953] 3 D.L.R. 722 (C.A.), consd [page773] Other cases referred to Abbott v. Sharpe, [2007] N.S.J. No. 21, 2007 NSCA 6, 276 D.L.R. (4th) 80, 250 N.S.R. (2d) 228, 154 A.C.W.S. (3d) 866 (C.A.); Abdallah v. Snopek, [2006] O.J. No. 2778 (S.C.J.); Abou-Marie v. Baskey (2001), 2001 28013 (ON SC), 56 O.R. (3d) 360, [2001] O.J. No. 4898 (S.C.J.); Amana Imports Canada v. Guardian Insurance Co. of Canada (2002), 2002 49403 (ON SC), 57 O.R. (3d) 587, [2002] O.J. No. 5663 (S.C.J.); Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722, [2002] O.J. No. 4882, 166 O.A.C. 353, 119 A.C.W.S. (3d) 239 (C.A.); Burlie v. Chesson, 2001 24095 (ON CA), [2001] O.J. No. 1960, 146 O.A.C. 106, 12 M.V.R. (4th) 210, 105 A.C.W.S. (3d) 839 (C.A.); Gage v. Reid (1917), 1917 515 (ON CA), 38 O.L.R. 514, [1917] O.J. No. 153, 34 D.L.R. 46 (C.A.); Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719, 144 O.A.C. 369, 28 C.C.L.I. (3d) 18, 12 M.V.R. (4th) 1, 105 A.C.W.S. (3d) 146 (C.A.); Kayhan v. Greve (8 January 2007), Hamilton 00/597 (Ont. S.C.J.); Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 57 O.R. (3d) 813, [2002] O.J. No. 84 (C.A.); R. v. Daley, [1992] O.J. No. 1504, 57 O.A.C. 70, 16 W.C.B. (2d) 622 (C.A.); R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 235 D.L.R. (4th) 131, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20 (C.A.); Rogacki v. Belz, 2004 21439 (ON CA), [2004] O.J. No. 3592, 243 D.L.R. (4th) 585, 190 O.A.C. 94, 133 A.C.W.S. (3d) 448 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 475] Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6) [as am.] Insurance Act, R.S.O. 1990, c. I.8 Authorities referred to Olah, John, The Art and Science of Advocacy, vol. 2 (Scarborough, Ont.: Carswell, 1990)

Adam Little, for appellant. Alan Rachlin, for respondents.

MOLLOY J. (LANE J. concurring): -- A. Introduction

[1] "A jury trial is a fight and not an afternoon tea." That observation by Riddell J. in Dale v. Toronto R.W. Co. (1915), 1915 535 (ON CA), 34 O.L.R. 104, [1915] O.J. No. 49 (C.A.), at para 15, is as true today as it was in 1915 when it was written. However, a jury trial is a "fight" that must be conducted within rules designed to ensure fair play, including rules restricting counsel from resorting to inflammatory and irrelevant statements in their addresses to the jury. The central issue in this appeal is whether the closing address to the jury by defence counsel at trial went beyond those rules of fair play to such an extent that there may have been a substantial miscarriage of justice.

[2] The plaintiff Nezam Abdallah was involved in a collision on August 11, 2001 when his car was rear-ended by a car driven by the defendant Bozena Snopek. Mr. Abdallah sued for damages [page774] for the injuries he sustained. He alleged that as a result of the accident he suffered from chronic pain in his back, neck and shoulders, depression and a sleep disorder. The defendants admitted liability, but denied that Mr. Abdallah sustained any injuries whatsoever.

[3] The trial proceeded before a jury in May 2006. The plaintiff's credibility was the pivotal issue at trial. In his closing address to the jury, defence counsel referred to the fact that Mr. Abdallah is an immigrant to Canada, accused him of taking unfair advantage of Canada's social welfare system, and suggested that he was seizing on the car accident to collect an award that he would use to start his own business, perhaps not even in this country. Defence counsel then urged the jury to give Mr. Abdallah nothing. Plaintiff's counsel did not object to defence counsel's address. (I should note that neither of the counsel on the appeal before us were counsel at trial.)

[4] While the jury was out, the trial judge (Whitten J.) heard and ruled on the defence motion to dismiss the action for failing to meet the threshold under the Insurance Act, R.S.O. 1990, c. I.8. Whitten J. found the plaintiff's evidence at trial to be reliable and credible and ruled that he had sustained "a permanent and serious impairment of an important bodily function", thereby meeting the threshold.

[5] The jury deliberated for over seven hours and then returned a verdict finding Mr. Abdallah had not sustained any injury in the car accident and assessing his damages at zero. His action was therefore dismissed. The plaintiff now appeals from that dismissal, arguing that defence counsel's address to the jury was so improper and inflammatory that to allow the verdict to stand could result in a substantial miscarriage of justice.

[6] I find that defence counsel's closing words to the jury were indeed offensive. Many of the comments made were irrelevant to any issue properly before the jury and appear to have been designed to inflame their emotions rather than appeal to their rationality. The trial judge's discussion of some aspects of defence counsel's address in his instructions to the jury did not go far enough to correct the situation. There is good reason to believe that the jury may have been adversely affected by these comments or have taken irrelevant factors into account in reaching its verdict. Given the nature of defence counsel's address and the opposite conclusion as to credibility reached by the trial judge, there is a real concern that the jury was improperly swayed and that a substantial miscarriage of justice has occurred. Accordingly, I would order a new trial. My reasons for reaching this conclusion are set out in more detail below. [page775]

B. Factual Background (i) The evidence at trial

[7] Nezam Abdallah was born in the West Bank. As a youth, he studied for a time to become a Catholic priest, but did not complete that training. He then studied tailoring at a technical school in Bethlehem, worked as a tailor upon graduating in 1976 and opened his own tailoring business in 1979. Mr. Abdallah was married in the West Bank in 1987 and he and his wife have four children, all of whom were born in Jerusalem between 1988 and 1996.

[8] For periods of time during the 1990s, Mr. Abdallah had difficulty with his tailoring business because of political unrest and the Intifada. He closed his business in 2000 and applied to immigrate to Canada, arriving in Toronto with his family in June 2000. He found work with Levi's in August 2000, sewing waistbands on blue jeans, but left that job after about five months. He testified that his ultimate plan was to open his own tailoring business here, but that he needed to improve his facility in the English language before he could do that. After Levi's he worked for some period of time as a pizza delivery person and as a clerk in a variety store. There was conflicting evidence at trial as to whether he was employed in that capacity at the time of the car accident in August 2001, or if he was unemployed at the time of the accident.

[9] Mr. Abdallah testified that following the accident he had ongoing pain in his back, neck and shoulders and considerable difficulty sleeping. He was unable to work. He became irritable with those around him. His testimony at trial was supported by his family doctor, who treated him for these symptoms on an ongoing basis and prescribed medication and physiotherapy for him. There was also supportive testimony from two other doctors and a physiotherapist who had treated Mr. Abdallah.

[10] Mr. Abdallah also testified at trial that for a period of time after the accident, he returned to the West Bank for 16 months, as he still had a house there, but he did not work while he was there. He also confirmed that as of the date of trial his wife and children were still living there, and had been there for eight months.

[11] The defence presented medical evidence from a defence medical conducted by an orthopedic surgeon who expressed the opinion that Mr. Abdallah was a malingerer and could return to work at any time and also evidence from a physiotherapist who believed that Mr. Abdallah was exaggerating his pain symptoms.

[12] The jury was also shown surveillance videotapes from five different dates when defence investigators filmed Mr. Abdallah [page776] going about routine daily activities such as grocery shopping and walking with his children. At several points in these videos, Mr. Abdallah was seen to be holding his back and grimacing in apparent pain.

(ii) Jury addresses and trial judge's charge

[13] At the end of the trial, defence counsel addressed the jury first. He started by urging the jury to find that Mr. Abdallah was not credible. He pointed out that there was very little damage to Mr. Abdallah's car and suggested that references in two medical records of Mr. Abdallah describing the car as turning 180 degrees upon impact were misrepresentations by him. Defence counsel pointed to conflicting information as to whether Mr. Abdallah experienced any pain at the scene of the accident and whether he struck the interior of the vehicle during the accident. He noted that these were soft tissue injuries and that there was no corroborating scientific evidence from X-rays or an MRI. He urged the jury to discount the evidence of Mr. Abdallah's family physician on the basis that he was young and naïve, sympathetic to Mr. Abdallah and not a specialist. He contrasted that with the defence expert who had 30 years' experience as an orthopedic surgeon and who testified that there were clear signs of pain magnification. He pointed out that the defence physiotherapist also found pain magnification and exaggeration. He discounted the evidence of the psychologist who diagnosed Mr. Abdallah as suffering from depression on the basis that he was not told the truth by Mr. Abdallah. He then stated, "In conclusion, Mr. Abdallah is not a credible person." He said that Mr. Abdallah had tried to make a small accident look like a big one and that his evidence "does not pass the smell test".

[14] The appellant/plaintiff takes no exception to the defence address up to this point. However, the appellant does object to the following, which are the concluding words of defence counsel:

Mr. Abdallah also talked about how much he loves Canada. Let's just review what he's done since he's been in Canada.

He came to Canada, he got a job that he worked for five months and then quit. Then he made an EI claim. Six months later he was in an accident and made an accident benefits claim. He then goes on to work a total of three weeks over the next almost five years.

He goes back to the Middle East twice for a total of 20 months and he moves his entire family back there. And now he's here asking for money from my client. Sure, he loves Canada. Why not? What's not to love? We're all immigrants or our forefathers are immigrants, but Canada wasn't built that way. It was built by hard working people who don't drop out of the workforce for [page777] five years because of a fender bender. Canada wasn't built by people who try to take advantage of a car accident to write their ticket. . . . . .

Ask yourself what you think will happen if you order my client to pay him money. Do you think he will take that money and sit around the house for the next five years and use it for medical treatment, or do you suspect he may find the energy and back strength to start his own business, perhaps not even in this country? Which do you think is more likely to happen?

Ladies and gentlemen, this car accident should not be an opportunity for Mr. Abdallah to get a leg up on everyone else who comes to this country trying to start a new life. This accident should not be a down payment for a house, it shouldn't be an early retirement fund or seed capital for a new business anywhere. And I ask you, do not let that happen.

It's a serious matter to drag someone through a lawsuit and use this court's time. Does Ms. Snopek look happy to be here? The courts of Ontario are not an ATM machine. Please exercise common sense. This accident didn't happen the way he said. He's not injured. He hasn't proven his case. He should get nothing. That's all, thank you.

[15] Defence counsel's address to the jury covers approximately 14 1/2 of the transcript, double-spaced with generous margins. The portion now alleged to be offensive is about 2 1/2 pages of that total. Plaintiff's counsel did not object to the address by defence counsel at the time. He immediately proceeded with his address to the jury. Plaintiff's counsel's jury address covers approximately 11 pages of the transcript. He started by reminding the jurors of their duty to be impartial and challenged the contention of the defence that Mr. Abdallah was a complete fraud and that he had not been injured at all. He summarized the evidence of the treating doctors, discounted the evidence of the defence experts and provided the jury with ranges for the assessment of general damages and loss of earnings. He made no reference to the comments now said to be offensive, except that he concluded his address to the jury by stating:

I'm going to leave you just with this thought. Nezam Abdallah came to this great country with a dream and that dream's been taken away from him. I would be pretty angry if I was in that jury box and I was told by the defence that he should not be entitled to compensation because he just wasn't injured.

[16] In his charge to the jury, the trial judge summarized the position of the parties and told the jury that they were being presented with two polarized points of view. He provided a fair overview of all of the evidence at trial. He instructed the jurors that if they accepted the evidence of the plaintiff and the experts who testified on his behalf, the range of general damages [page778] could reasonably be fixed at between $65,000 and $80,000 and the loss of future income could range from $91,407.94 to $625,792.83, depending on what factual findings they made about his likely future income, but for the accident, and his ability to work in the future. On the other hand, the trial judge advised the jury that if they accepted the evidence of the defence experts, it was open to them to award nothing to Mr. Abdallah. He instructed the jury that the focal point was therefore the plaintiff himself and their findings as to his credibility.

[17] The trial judge's charge to the jury covers approximately 52 pages of the transcript. Early in the charge (at p. 310 of the transcript), the trial judge gave the standard instruction as to impartiality, as follows:

In dealing with the case, I would ask that you deal with it in the same manner as you would expect an honest and impartial judge to decide it. You must set aside all feelings of sympathy, prejudice or passion. The law is no respecter of persons. Justice must be administered fairly and impartially.

[18] Later in his charge, in the course of summarizing the evidence, the trial judge referred to the address of defence counsel as follows (at pp. 341-42 of the transcript):

Now, there was some suggestion, or speculation as I would describe it, as to the fact that if you awarded Mr. Abdallah any money, that he may not stick around; he wouldn't spend it here; he would take off, or whatever; he would leave this country. Now this, I want to emphasize to you, is simply speculation. There is no evidence to suggest that he is going to leave the country for good, whatever you award him, and he is entitled to it in any event. But that is an irrelevancy. As it is, he says he likes the political stability here and obviously he was attracted to the country in the first place. He did not have to become a Canadian citizen, he could have remained a landed immigrant.

[19] There was no other reference in the trial judge's charge to the elements of the defence counsel's address that are now said to be offensive. The trial judge was not asked to deal with this issue in his charge, and although there were some minor objections to other aspects of the charge, no objection was made by either counsel as to what the charge did contain on this point.

(iii) Threshold motion ruling

[20] While the jury was deliberating, the trial judge heard counsel's submissions on the threshold motion and delivered his ruling. He applied the test under Bill 59 as to whether the plaintiff had "sustained permanent serious impairment of an important physical, mental or psychological function" and found that the threshold had been met. The trial judge's conclusion was based to a large extent on his finding that the plaintiff was a credible witness. He noted there were some inconsistencies in the [page779] plaintiff's evidence, but felt these were explained by his difficulty in the English language, the fact that the events were traumatic for him and the simple passage of time causing fading memory. He relied on the evidence of the treating physicians, whom he found to be conscientious and reliable. He considered the evidence of pain magnification and exaggeration, but determined this did not mean that the injuries had not happened at all, or that they weren't serious. Finally, the trial judge was not persuaded by the testimony of the defence expert whom he found to be "perfunctory", "superficial", "unimpressive" and unable "to recognize the limits of his own expertise". The trial judge also concluded that Mr. Abdallah was significantly affected by his injuries in that he was unable to work as a tailor, was financially destitute, and was separated from his family because it was cheaper for them to live in the West Bank. He therefore dismissed the defence threshold motion.

(iv) Jury verdict and motion to set aside the jury verdict

[21] The jury deliberated for 7 1/2 hours. The jury then returned a verdict which indicated that Mr. Abdallah had not sustained any injury in the collision and assessed his damages at zero.

[22] The plaintiff moved to set aside the verdict as unreasonable, which motion was dismissed by the trial judge. No issue is taken with that ruling. It was clearly open to the jury to take a different view of Mr. Abdallah's credibility.

C. Analysis

[23] I will begin my analysis with a consideration of what, if anything, is wrong with the address by defence counsel. In this regard, it is helpful to consider what the appropriate action by the trial judge might have been if plaintiff's counsel had objected to defence counsel's address prior to the judge charging the jury. Next, I will consider whether the failure of plaintiff's counsel to object at the time is fatal to this appeal and the role of the trial judge when no objection is taken. Finally, I will address whether in all of the circumstances, including in light of the instructions the trial judge did give to the jury on this point, there may have been a miscarriage of justice warranting a new trial.

(i) Defence counsel's jury address was inflammatory

[24] In my view, there can be little doubt that the concluding portion of defence counsel's jury address was irrelevant, inappropriate and offensive. [page780]

[25] There is considerable room for skillful advocacy in trial counsel's closing address to a jury. The advocate's purpose in addressing the jury is to summarize his or her client's case in a persuasive fashion and, in doing so, to convince the jury to return a favourable verdict. Counsel's address to the jury must be rooted in the evidence, rather than irrelevant considerations. There is nothing wrong with counsel being passionate in support of his client. However, jury addresses that are designed to influence jurors towards making decisions based on their emotional reactions to irrelevant issues, rather than on a rational and logical analysis of the evidence, are improper.

[26] These limits on counsel have long been part of the rules by which jury trials are conducted in this country. In Dale v. Toronto R.W. Co., supra, Riddell J.A. accepted the right, and perhaps even the duty, of counsel to make an "impassioned address", noting (at para. 14) that "mere earnestness, fervour or even passion, is not in itself objectionable -- so long as counsel does not transgress the decorum which should be observed in His Majesty's Court and does not offend in other respects". In that case, the plaintiff had been injured while alighting from a streetcar in Toronto and sued the Toronto Railway, asserting that the reason for her fall was the negligence of the streetcar operator. The jury returned what was, for its day, a sizeable award for the plaintiff -- $925. The defendant sought a new trial based on remarks made by plaintiff's counsel in his closing jury address, in which he made an allegorical reference to a giant named "Stranglehold" who had a castle on the hill, with his tentacles all over the city, and to whom his subjects had to pay a silver toll for being carried through the city. The Court of Appeal held that these remarks were clearly referable to the defendants and described them as "wholly objectionable from any point of view, taste . . . ethics, law": para. 16.

[27] These same principles have been consistently applied over the years by the courts of this province: see e.g., Stewart and Stewart v. Speer, 1953 153 (ON CA), [1953] O.R. 502, [1953] O.J. No. 669 (C.A.); Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722, [2002] O.J. No. 4882 (C.A.); Landolfi v. Fargione (2006), 2006 9692 (ON CA), 79 O.R. (3d) 767, [2006] O.J. No. 1226 (C.A.); Olah, John, The Art and Science of Advocacy, vol. 2 (Scarborough, Ont.: Carswell, 1990) at pp. 18-22.1 to 18-23.

[28] A jury address that invites the jury to consider entirely irrelevant matters is improper. That was the basis upon which the Court of Appeal determined a new trial should be ordered in Gage v. Reid (1917), 1917 515 (ON CA), 38 O.L.R. 514, [1917] O.J. No. 153 (C.A.). Defence counsel in that case referred repeatedly in his jury address to the fact that the plaintiff was an Austrian, of [page781] the Serbian race, and suggested that he was likely to use any damages received in the case to assist the enemy in the First World War, which was then underway in Europe. Although that suggestion is more extreme than the comments made by defence counsel in this case, there is a common theme: national origin and how the damage award would be spent. In the case at bar, it was improper of counsel to dwell on the plaintiff's national origin and to invite the jury to speculate about what the plaintiff would do with any award he received. These are simply irrelevant issues.

[29] Further, many of the comments made by defence counsel went beyond irrelevant and were just plain offensive. For example, to make the statement "Sure, he loves Canada. Why not? What's not to love?" immediately after a recitation of facts insinuating that Mr. Abdallah is an immigrant ripping off Canada's social welfare system is offensive in the extreme. Likewise, the statement "The courts of Ontario are not an ATM machine." Such comments go far beyond the bounds of decorum. They are inflammatory. They are irrelevant to any legitimate issue before the jury and can only have been intended to appeal to the emotions of the jury in an attempt to influence them to find against Mr. Abdallah because he is an immigrant taking advantage of our health care and justice systems.

[30] Defence counsel then developed the theme that Mr. Abdallah, if successful at trial, would use any award he obtained in an inappropriate manner. This was a completely improper suggestion. It is not relevant for the jury to speculate on the consequences of their verdict, much less to allow disapproval of the likely use of an award to influence whether to make an award at all. Defence counsel asked the jury to consider what would happen if they ordered the defendant to give money to Mr. Abdallah. He suggested that Mr. Abdallah would not sit around the house for the next five years and use the money for medical treatment, thus incorrectly implying that this was the only purpose for which a damages award could be used. He then suggested a number of possible ways Mr. Abdallah might use the money, which he suggested the jury should not permit. These included an "early retirement fund", "a down- payment for a house" or "seed capital for a new business". He even went one step further and invited the jury to speculate that Mr. Abdallah might take the money out of the country and start a new business elsewhere. First of all, these suggestions are not rooted in the evidence. There was no evidence at trial as to what Mr. Abdallah intended to do with any award he received, nor would such evidence have been relevant. Second, these suggestions are incorrect in law. There is no [page782] restriction on how a successful plaintiff may choose to use an award of damages. It is improper to even raise this as an issue with the jury. Third, there is nothing wrong with many of the examples insinuated by counsel to be abusive. Starting a new business might well be a constructive and sensible use of the money. For a person who has become permanently unable to work, it would be logical to use it as a retirement fund. Investing in a home would be sound financial planning for a person who would be unlikely to have a regular income flow because of an inability to work. Fourth, the clear implication from the jury address was that this type of impugned conduct was particularly repugnant if engaged in by an immigrant to this country, e.g., the comment "Canada wasn't built by people who try to take advantage of a car accident to write their ticket." That is an inflammatory suggestion and has no place in a jury trial.

[31] Counsel for Mr. Abdallah on this appeal submits that in assessing the impact of the comments made by defence counsel at trial, this court should take into account the existence of a bias in the community against persons of Middle-Eastern descent, particularly in the wake of the 9/11 terrorist attacks in the United States. Reference was made to a number of decisions where judicial notice was taken of this potential bias: Amana Imports Canada v. Guardian Insurance Co. of Canada (2002), 2002 49403 (ON SC), 57 O.R. (3d) 587, [2002] O.J. No. 5663 (S.C.J.); Abou-Marie v. Baskey (2001), 2001 28013 (ON SC), 56 O.R. (3d) 360, [2001] O.J. No. 4898 (S.C.J.); Kayhan v. Greve (8 January 2007), Hamilton 00/ 597, Borkovich J., (Ont. S.C.J.). Respondent's counsel submits that these cases are distinguishable because they relate to decisions about striking jury notices in circumstances where there are concerns that a jury might not be impartial because one of the parties was Muslim. He points to the fact that Mr. Abdallah is not Muslim; he is a Christian who had actually studied for a time to become a Catholic priest. Finally, he notes that neither race nor religion were actually mentioned by defence counsel in his closing address.

[32] I agree that the cases cited by counsel for the appellant are not directly applicable to this case. I also recognize that there was evidence before the jury that Mr. Abdallah is a Christian and that no direct reference was made to his nationality or religion in counsel's jury address. I do not find that to be determinative. The actual nationality or religion of the plaintiff is not the issue. What the offensive portions of the jury charge appealed to was an anti-immigrant sentiment that is unfortunately known to exist in some segments of our society, a sentiment that depicts immigrants as no more than a drain on Canada's social service network. By drawing a distinction between the kind of immigrants [page783] who built this country and the kind of immigrants who take advantage of a car accident to "write their ticket", defence counsel was playing on a negative stereotype of the immigrant as a leech on our system and seeking to have the jury place the plaintiff within that stereotype. That is the very essence of an inflammatory and improper jury address. Mr. Abdallah's immigrant status was wholly irrelevant to any issue the jury had to decide. Dwelling on this point as extensively as defence counsel did can only be seen as attempting to sway the jury to decide the case based on improper considerations.

[33] Counsel for the respondent on this appeal argued that it was plaintiff's counsel who introduced the immigrant issue in his opening address at trial and who called extensive evidence about the plaintiff's origins and status in Canada. Accordingly, he reasoned, it was open to defence counsel to address the immigrant issue in the manner he had. I disagree. Plaintiff's counsel began his opening address to the jury with the statement "Members of the jury, yesterday I was accorded the privilege of attending the swearing in of 54 new Canadians and it made me think a great deal of Mr. Abdallah and his plight." This was an irrelevant statement by plaintiff's counsel, but it was in no way offensive. It was merely an introductory sentence in a very brief opening statement that did nothing more than provide a general overview of the plaintiff's case. Counsel's opening address did not seek to play on any sympathy for the plaintiff because he is an immigrant to this country; nor did it open the door to attack his credibility on the basis of his being an immigrant to this country.

[34] There was considerable evidence lead at trial as to Mr. Abdallah's education and early work experience in the West Bank. This was directly relevant to his claim for loss of income and his future employability. Counsel for the respondent argues that it was also relevant for defence counsel to refer to the plaintiff's immigrant status in his closing address because if the plaintiff had never intended to stay in Canada, this would affect the calculation of his lost earnings claim. It is not necessary to consider whether such a statement would have been appropriate in the jury address, because such a statement was never made. Defence counsel never sought to quarrel with any basis for the calculation of damages. The entire pitch to the jury by the defence was that the plaintiff had sustained no injury whatsoever and should receive nothing at all. For the defence, everything hinged on credibility and no alternative positions were put to the jury. Immigrant status is wholly irrelevant to credibility, and it was improper to imply anything to the contrary in the closing address. [page784]

[35] Prior to reaching his concluding remarks that are the subject of this appeal, defence counsel had already made a forceful, impassioned address to the jury pointing out inconsistencies in Mr. Abdallah's evidence, reviewing the evidence suggesting he was a malingerer and urging the jury to find that he had sustained no injuries whatsoever in the accident. There would have been nothing wrong with the address if he had stopped there. However, his final remarks took a different turn. Those remarks were not directed towards evidence and rationality, but towards prejudice and emotion. Further, there is a definite theme to these comments. They are not simple slips, or unfortunate stray comments made by counsel caught up in the heat of the moment. This was a prepared and calculated strategy. In Landolfi v. Fargione, the Court of Appeal considered this to be an aggravating factor, holding as follows, at paras. 90-91:

Nor do I accept that the challenged comments concerning defence counsel were inadvertent minor lapses uttered during the 'heat' of an enthusiastic and forceful closing address. In developing the theme in his closing address that defence counsel made speculative statements to the jury that were not supported by the evidence, plaintiffs' counsel, a very experienced personal injuries lawyer, stated that defence counsel "made up" evidence concerning Landolfi's injuries to which no medical expert had testified. In so doing, plaintiffs' counsel referred to defence counsel, on six separate occasions, as "Dr." McCartney.

In the context of the theme of plaintiffs' counsel's closing address, these sarcastic and repeated references cannot be viewed as accidental or trivial. They can have had no purpose other than to further denigrate defence counsel in the eyes of the jury and to prejudice the jury against defence counsel and, through him, his client. This was improper. As observed by this court in R. v. Giesecke (1993), 1993 8600 (ON CA), 13 O.R. (3d) 553, [1993] O.J. No. 1398, 82 C.C.C. (3d) 331 (C.A.), at p. 556 O.R., p. 334 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 412, 86 C.C.C. (3d) vii, in the context of a criminal case:

While counsel is not held to a standard of perfection in his or her address to the jury, there is a significant difference between remarks or observations one can characterize as inappropriate but contextually acceptable, and those made by counsel... which, by their hyperbole, mischaracterization or insinuation, impair the possibility of a fair trial.

These comments are apposite here.

[36] Accordingly, I find that the impugned portion of defence counsel's address to the jury were clearly improper. The offending comments were prejudicial to the plaintiff and inflammatory. They invited the jury to decide the case based on extraneous considerations, rather than on the relevant evidence. This seriously risked diverting the jury away from its true task of considering the evidence impartially: Landolfi v. Fargione, at para. 89; Brochu v. Pond, at para. 16. As stated by [page785] the Court of Appeal in Brochu v. Pond (at para. 16), "Such comments are 'inflammatory' in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness."

(ii) The failure of plaintiff's counsel to object was not fatal

[37] The failure of opposing counsel to object in a timely way to an improper jury address is often cited as a reason for refusing a remedy on appeal, particularly in civil cases. There are sound policy reasons underlying that general rule. If counsel makes an objection at trial, the trial judge still has an opportunity to deal with the issue, either by a correcting instruction to the jury or by taking the case away from the jury altogether. This is certainly by far the preferable course of action and counsel must be encouraged to take it. Most times, a timely objection will avoid a mistrial, with all of its attendant problems of cost and delay for the parties as well as for the justice system. If there is no penalty for a failure to object, counsel might be tempted to "hide in the weeds" upon hearing an objectionable address, hoping that the jury will find in favour of his or her client anyway, but nevertheless thinking that if the verdict is not a good one, it can be reversed upon appeal. There is therefore an onus on trial counsel to speak up if opposing counsel crosses the line, so that the trial judge can deal with the issue right then and there.

[38] In Dale v. Toronto Railway, the Court of Appeal noted the "duty" of opposing counsel to "object openly and at once" to an offensive jury charge and held that if counsel does not object, "he should prima facie be considered as waiving all objection and taking his chances of a favourable verdict -- so that it will be too late to raise the objection as a ground of a motion for a new trial": para. 16. This principle has also carried forward to the present day. In Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 57 O.R. (3d) 813, [2002] O.J. No. 84 (C.A.), Laskin J.A. summarized the general principles as follows, at para. 15:

Even apart from the question whether a new trial should be ordered, however, a party in a civil case generally should not bring an appeal on the basis of some aspect of the trial proceeding to which it did not object. For example, if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 2nd. Ed. (Toronto: Butterworths, 1999), at p. 47. Similarly, an objection to the charge to the jury in a civil case will generally be unsuccessful if raised for the first time on appeal. Thus, this court has held that where a party on appeal argues non-direction of the jury "in civil cases, failure to object . . . is usually fatal", G.K. v. D.K. (1999), 1999 935 (ON CA), 122 O.A.C. 36 at p. 42. A failure to object at trial to an incomplete jury [page786] instruction weighs heavily against a litigant bringing an appeal because "it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted", Tsalamatas v. Wawanesa Mutual Insurance Co. et al. (No. 2) (1982), 1982 3305 (ON CA), 141 D.L.R. (3d) 322 at p. 326, 31 C.P.C. 257 (Ont. C.A.). This court will relieve against the failure to object only if the interests of justice require it.

[39] The same principles apply to a failure to object to a jury address. In Rogacki v. Belz, 2004 21439 (ON CA), [2004] O.J. No. 3592, 243 D.L.R. (4th) 585, 190 O.A.C. 94 (C.A.), leave to appeal denied [2004] S.C.C.A. No. 475, the Court of Appeal held at para. 22:

There will seldom be a closing address by counsel that is not open to some criticism. Where an objection to a closing argument is taken for the first time on appeal, however, counsel must demonstrate that any shortcomings or improprieties in counsel's address were sufficiently serious to undermine the fairness of the trial or put the validity of the verdicts into real doubt. None of the objections brought by the appellants on this appeal come close to clearing that standard.

[40] It will be seen from the foregoing that although the failure to object at trial is a considerable hurdle to be faced when seeking a new trial, it is not an insurmountable one. The courts have always recognized exceptions to the general rule, depending on the extent of the impropriety and the overarching requirement to see that justice is administered fairly. Thus, in Dale v. Toronto Railway, Riddell J. held, at para. 17:

I do not say that cases may not arise in which, notwithstanding the omission of counsel to object, an appellate Court will grant a new trial -- but these cases must be exceptional, and some injustice must be either apparent or strongly suspected.

[41] In Stewart and Stewart v. Speer, supra, counsel for a plaintiff who had been injured in a car accident suggested in his closing address to the all-male jury that they should measure the quantum of damages for his client by considering how they would feel if their own wives had changed from being cheerful persons to the kind of person Mrs. Stewart had become following the accident. Plaintiff's counsel then suggested that no money could compensate for that, but that his own view was that the jury should award something between $10,000 and $15,000. Defence counsel did not object to these comments. The jury came back with an award of $13,000 for Mrs. Stewart. The defendant appealed, citing the inflammatory nature of the jury address as one of the grounds. The Court of Appeal found (at pp. 509-10 O.R.) that this was an address that "went beyond the ordinary and legitimate use of rhetoric" and that invited the jury to make a decision "governed by emotion and not by reason based on the evidence". The court then considered the case law dealing with the failure of [page787] opposing counsel to make a timely objection and concluded that the failure to object was not fatal to the appeal and that it was open to an appellate court to order a new trial where injustice had resulted, even though there had been no objection at trial.

[42] Similarly, in more modern times, the Court of Appeal in Landolfi v. Fargione ordered a new trial based on improper comments made by plaintiff's counsel in his closing jury address, even though defence counsel had not objected to that portion of the closing address the Court of Appeal held to be inflammatory, and had objected to other portions. Cronk J.A. held (at para. 104) that the offending comments raised the real prospect that the jury "may have taken into account irrelevant, prejudicial and distracting matters that it ought not to have been permitted to consider" and for that reason ordered a new trial notwithstanding the failure of counsel to object at trial.

(iii) The role of the trial judge

[43] There is also an important role to be played by the trial judge when counsel step beyond the bounds of acceptable conduct in the course of the trial. Again, this is a role that has been recognized for many, many years, although I believe it is fair to say that in more recent times there has been a heightened awareness of the need for it.

[44] Once again, I begin the analysis with Dale v. Toronto Railway. That case is cited repeatedly in case law dealing with inflammatory jury addresses, usually referring to the well- known quote about a jury trial not being an afternoon tea. What is seldom referred to, however, is the whole sentence from which this quote is taken. What the court said in reference to trial counsel playing on the sympathies of the jury rather than the evidence was "The trial judge should stop this sort of thing when carried too far; but a jury trial is a fight and not an afternoon tea." The court in Dale v. Toronto Railway was cautious not to be critical of the trial judge who, in the absence of any objection from counsel, did not intervene, stating that the trial judge was no doubt of the view that the rhetoric of counsel did not have an "evil influence" on the jury. Riddell J. did note, however, that given the nature of the closing address by counsel, the trial judge would have been justified, if he chose to do so even on his own motion, "in stopping counsel and administering a stern rebuke": para. 16. Having determined there was no injustice caused and in light of the failure of opposing counsel to intervene, the court declined to order a new trial. However, Riddell J. took the unusual step of offering a word of advice for trial judges, in the hopes of curbing offensive conduct by counsel in the future. He stated, at para. 19: [page788]

I should add a general observation: the mischievous practice of some counsel -- a few in number as I hope and believe they are -- of employing inflammatory language in addressing juries, should be checked -- it is an abuse of the privileges of counsel, and, if persisted in, a contempt of Court. More than one Judge has, in such cases, discharged the jury and dealt with the case alone. This course is in many cases eminently advisable: and, if it were unflinchingly and pitilessly followed, it would be effective in putting an end, in most cases, to the impropriety -- if counsel knew that an unfair presentation to the jury would prevent the jury being allowed to pass upon his case, he would be careful not to transgress -- unless he were a fool: there is no known cure for that.

[45] In Dale v. Toronto Railway and in many cases since, courts have recognized that permitting counsel to engage in offensive conduct or make offensive statements in a trial is not simply a matter affecting the parties; it also reflects poorly on the courts and on the public perception of the fair administration of justice. Further, where conduct of this nature occurs, depending on its magnitude, there is a responsibility on the trial judge to step in. The Court of Appeal considered such a situation in R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 235 D.L.R. (4th) 131, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20, 180 O.A.C. 288 (C.A.), involving a prosecution under the Securities Act that was proceeding in the provincial court. Part way through the trial, the prosecution brought a motion before a superior court judge for an order of prohibition, seeking to halt the trial on the basis that the process had become so unfair that the trial judge had lost jurisdiction. One of the main difficulties cited was the conduct of defence counsel who proceeded throughout the trial to vilify the prosecuting counsel in a manner described as "sarcasm", "unrestrained invective", and "excessive rhetoric". The trial judge did intervene a number of times, but not every time it happened, and failed to curb the improper outbursts of defence counsel. The superior court judge hearing the application found that the trial judge's failure to intervene did not result in an unfair trial, as the prosecuting counsel were able to continue effectively notwithstanding these inappropriate attacks. He commented at one point that trials are not tea parties and that prosecutors need to develop thick skins. The Court of Appeal upheld the application judge's determination that the fairness of the trial had not been so compromised that the trial judge had lost jurisdiction, but commented on the issue of civility as follows [at paras. 94-96]:

In Marchand, supra, at para. 148, this court has commented upon the problems caused by incivility in the courtroom. In that case, the court noted that civility in the courtroom is not only the responsibility of counsel but also "very much the responsibility of the trial judge." The failure of counsel and the trial judge in that case to discharge their responsibilities "tarnished the reputation of the administration of justice". Crown counsel have special [page789] responsibilities as "ministers of justice". But, as officers of the court and as barristers and solicitors, defence counsel also have responsibilities to the court and to other counsel and they have a duty to uphold the standards of the profession. As I have said, defence counsel's obligation to his or her client to fearlessly raise every legitimate issue is not incompatible with these duties to the court, to fellow counsel and to the profession. See Arthur Maloney, Q.C., "The Role of the Independent Bar", 1979 Law Society of Upper Canada Special Lectures 49 at 63, and G. Arthur Martin, Q.C., "The Role and Responsibility of the Defence Advocate" (1970), 12 C.L.Q. 376 at 385.

Mr. Maloney and Mr. Martin both referred to the well-known passage from Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), at pp. 227-28 where Lord Reid said, in part that, "[c]ounsel must not mislead the court, [and] he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession". As the application judge noted, in this case the core problem was that Mr. Groia did not seem to understand the role of the prosecutor. This led him to make his improper allegations against the prosecutor when the prosecutor simply objected to a question or an attempt to introduce a document. I assume Mr. Groia believed in the merit of these submissions and was not deliberately misleading the court and casting aspersions on counsel and the "government" for which there was no foundation; nevertheless, he was bound by the standards of the profession to keep his rhetoric within reasonable bounds. If he was unable to do so, the trial judge had the responsibility referred to in Marchand.

This has nothing to do with trials not being "tea parties". Every counsel and litigant has the right to expect that counsel will conduct themselves in accordance with The Law Society of Upper Canada, Rules of Professional Conduct. Those rules are crystal clear. Counsel are to treat witnesses, counsel and the court with fairness, courtesy and respect. . . . (Emphasis added)

[46] The Court of Appeal applied this reasoning from Felderhof in Landolfi v. Fargione when considering the role of the trial judge faced with an inflammatory jury address by counsel. In Landolfi v. Fargione there were two objections raised on appeal with respect to the plaintiff's counsel's address to the jury at trial. The first related to suggestions made by counsel as to the real defendant being an insurance company and alluding to the wealth and resources available to the insurance company to defend the action. The second involved disparaging remarks made by plaintiff's counsel about defence counsel, including accusing defence counsel of misrepresenting evidence to the jury in his closing address. Defence counsel objected at trial to the references to the insurance company, but did not raise any objection to the remarks made about him personally. The only remedy sought by the defence before the trial judge was a mistrial. The Court of Appeal held that the trial judge ought to have considered the alternative remedies of striking the jury or giving a strong correcting instruction. [page790]

[47] Cronk J.A. recognized, at para. 99, that the trial judge has considerable discretion as to when it is appropriate to declare a mistrial, but held there were situations in which the trial judge is required to intervene to protect the integrity of the process. She held, at paras. 99-101:

As I have said, the decision whether to declare a mistrial is squarely within a trial judge's discretionary domain. Consequently, a trial judge's decision on this issue attracts considerable deference from this court: see Hamstra, supra, at para. 26; and R. v. Emkeit, 1972 169 (SCC), [1974] S.C.R. 133, [1972] S.C.J. No. 114, at p. 139 S.C.R. Nonetheless, there may be situations where the nature of the offending remarks by counsel to a jury gives rise to a danger of substantial prejudice to the opposing litigant. In these circumstances, in my view, it is incumbent on the trial judge to intervene.

In this case, the trial judge declined to order a mistrial on the ground that the references by plaintiffs' counsel to the involvement of a defence insurer would not prevent the jury from properly exercising its duty. However, the trial judge did not consider the prejudice arising from the entirety of plaintiffs' counsel's address, including from his remarks regarding defence counsel and the alleged tactics and resources of the defence insurance company.

I recognize that defence counsel did not object at trial to the personal attack made on him in the offending closing address. This, however, did not diminish the trial judge's responsibility to maintain civility in the courtroom and to intervene to avoid the risk of prejudice: see Felderhof, at paras. 57, 83, 94 and 95; and de Araujo v. Read, 2004 BCCA 267, [2004] B.C.J. No. 963, [2004] 8 W.W.R. 473 (C.A.), at paras. 4 and 53, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 346. (Emphasis added)

[48] The Court of Appeal was clear in Landolfi (at para. 104) that improper comments could not be left unaddressed where there was a real prospect that the jury might take into account irrelevant, prejudicial and distracting matters that it ought not to have been permitted to consider. The court held that what was required was a "clear and blunt correcting instruction" that would leave the jury "in no uncertainty about the improprieties in the closing jury address and as to the proper way in which it was to approach its task: Landolfi, at paras. 105-07.

[49] If plaintiff's counsel had made a timely objection to the defence closing jury address, the trial judge would have had the following options: (i) take no action; (ii) provide a correcting instruction to the jury; (iii) strike the jury and decide the case himself; or, (iv) declare a mistrial. In my opinion, taking no action at all would not have been appropriate. Further, I doubt that the trial judge in this case would have taken that position if the issue had been raised. On his own initiative, without any submission by plaintiff's counsel that this would be appropriate or advisable, [page791] the trial judge did refer to the defence counsel's closing address and provided some degree of correction (a point to which I will return in more detail below).

[50] In the case at bar, the trial judge was placed in a difficult position when there was no objection to defence counsel's inappropriate rhetoric and improper remarks. However, in my view, the statements made by defence counsel were sufficiently egregious to call for some intervention by the trial judge, even without an objection by plaintiff's counsel. That does not me an the trial judge was required to immediately and unilaterally take action. A first step would have been to inquire of counsel, in the absence of the jury, whether there were any concerns arising from the jury address. This is a routine question often asked by trial judges and is completely innocuous. If that routine question had resulted in an objection from plaintiff's counsel, then the trial judge could have proceeded in the normal course to hear argument and rule on the matter. If there was still no objection, given the circumstances, in my opinion, the trial judge ought to have taken the further step of specifically raising the problems with the jury address and inviting submissions from both counsel. If at that stage, plaintiff's counsel objected and requested some action by the trial judge, he again could proceed in the normal course. If plaintiff's counsel, once made aware of the trial judge's concerns, still did not wish to have any intervention, the trial judge would have a discretion to exercise. Much would depend on what was said by counsel at the time. The trial judge might declare a mistrial, strike the jury, give a strong correcting instruction, or leave things alone. The actual result might not be different. However, the reviewing court would be much less inclined to order a new trial on appeal if the issues had been thoroughly canvassed at trial and counsel still elected to do nothing.

Substantial miscarriage of justice

[51] A new trial will only be ordered after a civil jury trial if the appellant has satisfied the court that this is necessary in order to avoid an injustice to one of the parties. As I have already stated above, this is particularly the case where counsel did not object at trial to the wrong which is the subject matter of the appeal. In this case, the question is whether the problems with the inflammatory jury address are "sufficiently serious to undermine the fairness of the trial or put the validity of the verdicts into real doubt": Rogacki v. Belz, at para. 22. In my opinion, that test is met. The nature of the statements made raise issues of prejudice and discrimination based on citizenship and/or nationality and/or [page792] racial origin. This is a source of concern for the proper administration of justice as well as for the fair protection of the equality rights of the plaintiff. In this context, the fairness of the trial is called into question.

[52] Further, there is real doubt as to the validity of the jury verdict. Irrelevant considerations were left to the jury and may well have improperly poisoned their minds against the plaintiff. Because jury deliberations are conducted in secret, we cannot know for certain if the jury's deliberations or findings were tainted by these improper considerations. What we do know is that the trial judge reached a radically different conclusion based on the same evidence. Obviously, in a credibility case, it is always possible for different triers of fact to arrive at diametrically opposed conclusions on credibility. However, it is worth noting that the trial judge accepted not only that Mr. Abdallah was injured in the accident, but that his injuries were serious and permanent. Had the jury returned a verdict of a small amount of damages, indicating they accepted some injury had occurred, but believed Mr. Abdallah was exaggerating his symptoms, the disparity between the two conclusions would be less worrisome. However, the jury did exactly as they were asked by defence counsel; they found that even though the accident had occurred and Mr. Abdallah was not at fault in any way, he had sustained no injury whatsoever. That is an unusual verdict in all of the circumstances. Together with the other matters already discussed, there is real room for a reasoned fear that the jurors were deflected from a proper consideration of the evidence in an impartial manner as a result of the inflammatory jury address.

[53] There is another consideration. There was a jury in this case because the defence served a jury notice. I have found that it was incumbent upon the trial judge to raise the issue of the improper aspects of the jury address with counsel. Had the trial judge raised the matter with counsel, there is a good chance plaintiff's counsel would have sought to have the case taken from the jury and a good chance that the trial judge would have acceded to that request. There would have been ample authority for him to exercise his discretion in that manner. If that had been done, we do know what would have happened. The trial judge would have awarded substantial damages to the plaintiff, as reflected by his findings on the threshold issue.

[54] The respondent submits that even if the defence jury address went too far, any problem with it was corrected by the trial judge in his instructions to the jury and there cannot, therefore, be said to be a miscarriage of justice. I do not agree. [page793]

[55] The full extent of the trial judge's instruction on this point is set out at para. 18 above. It is useful to compare that instruction with the guidance given by the Court of Appeal in Landolfi v. Fargione as to the appropriate content of such a corrective instruction, as follows, at paras. 105-07:

In all the circumstances, in my view, the appropriate response by the trial judge to the challenged closing jury address was to provide a clear and blunt correcting instruction to the jury, either immediately upon the close of counsels' closing jury addresses (when counsels' remarks were fresh in the minds of the jurors) or early in the course of the trial judge's charge to the jury: see for example, Brochu, supra; and Marrelli v. Death, [2005] O.J. No. 125, 136 A.C.W.S. (3d) 641 (C.A.).

In that instruction, the jury's attention should have been drawn specifically to the offending comments by plaintiffs' counsel concerning defence counsel and regarding the improper suggestions that the 'real' defendant in the case was a wealthy and unscrupulous insurance company. The jury should have been told that these comments were wrong and inappropriate because they were irrelevant and distracting and, as I have said, because they had nothing to do with the jury's true task, namely, the objective evaluation of the relevant issues, the positions of the parties in relation to those issues, and the evidence pertaining to the issues. The jury should also have been directed, in unambiguous language, to disregard the improper comments by plaintiffs' counsel and to base its findings strictly on the evidence at trial, not on the comments of counsel in argument.

A correcting instruction of this kind, in my opinion, would have left the jury in no uncertainty about the improprieties in the closing jury address and as to the proper way in which it was to approach its task. In this way, a thorough and properly framed correcting instruction to the jury could have remedied the serious prejudice that I conclude arose from the impugned address. (Emphasis added)

[56] In my opinion, the instruction by the trial judge was not adequate to correct the serious injustice caused by counsel's jury address. First, the correcting instruction addressed only one aspect of the offensive part of the jury address. Other objectionable aspects were not corrected at all. Second, the jury was not told defence counsel's statements were wrong in law, nor were they told they were inappropriate and irrelevant and should be completely disregarded. Third, by focusing on only one problem with the jury address, the trial judge may have given the jury the impression that he must therefore have been satisfied as to the appropriateness of the other things that were said. Indeed, as was argued by counsel for the appellant, the trial judge's comments about whether Mr. Abdallah still in fact intended to remain in Canada may have inadvertently reinforced for the jury that this was a relevant consideration, which it clearly was not. [page794]

D. Conclusion

[57] In relation to the jury address, there were three mistakes made at trial. The first mistake was made by defence counsel, when he included in his address comments that were inflammatory, irrelevant and improper. The second mistake was by plaintiff's counsel, when he failed to immediately object to opposing counsel's address. The third mistake was by the trial judge, when he failed to intervene to prevent an injustice. This court ought not to compound those mistakes by denying a new trial because of the failure of counsel to object (compounding the second mistake) or by deferring to the discretion of the trial judge (compounding the third mistake). The appellant now asks this court to correct these mistakes made at the first by ordering a new trial. In my opinion, such a disposition is the only way to achieve justice for the appellant.

[58] In the result, the appeal is allowed and a new trial is ordered. This matter is remitted back to the Superior Court of Justice for a new trial before a judge and jury.

[59] The plaintiff is entitled to his costs of this appeal, and the costs of the first trial. However, in light of the failure of plaintiff's counsel to object to the jury address at the time of trial, I do not consider it appropriate to award any of those costs on a substantial indemnity basis. If counsel are not able to agree upon the quantum of costs by February 27, 2008, written submissions made [should] be addressed to this court. Counsel shall agree on a timetable for the exchange of such submissions and counsel for the appellant shall deliver a bound copy of all submissions to the court by no later than March 14, 2008.

GANS J. (dissenting): -- Introduction

[60] The appellant appeals from the judgment of Justice A. Whitten, sitting with a jury, after a six-day trial in which his action was dismissed. The litigation arose out of a motor vehicle collision which occurred in August 2001. Liability for the collision was not in issue at trial. The only issues at trial were whether the appellant had sustained any injury as a result of the collision and if so to what extent. In addition, the trial judge was called upon to decide whether the appellant's injuries constituted a permanent serious impairment of an important physical, mental or psychological function, in order to surpass the "threshold" pursuant to the Bill 59 version of the Insurance Act, R.S.O. 1990, c. I.8 in effect at the time of the collision. [page795]

[61] While the jury was deliberating, Justice Whitten ruled on the threshold issue in favour of the appellant in which he concluded that the appellant's evidence at trial was both reliable and credible. He found the appellant had sustained a permanent and serious impairment of an important bodily function, and noted [at paras. 7, 18]:

Mr. Abdallah has testified as to his ongoing back problems, which have been compounded by his depression. His evidence, although at time inconsistent with what he has previously stated with respect to one, the dynamics of the accident, two the timing of the onslaught of his pain, and three, whether or not he was employed at the time of the accident, is found by this court to be reliable and credible. . . . . .

The court must decide on occasion in the face of conflicting view points as to the veracity of Mr. Abdallah. His burden is to satisfy the court on the balance of probabilities. By finding him reliable he has achieved that. This finding of reliability is based not just on his evidence alone but those of his treating physicians. [See Note 1 below]

[62] The jury, however, returned a verdict in favour of the respondent and assessed the appellant's damages at zero. Explicit in the jury's verdict was its finding that the appellant had not sustained any injuries as a result of the collision. Put otherwise, and not withstanding the prior ruling of Whitten J. on the threshold issue, the jury rejected the appellant's evidence.

[63] The appellant takes the position on this appeal that the only way to reconcile the ruling of Whitten J. with the jury verdict is to find that the portion of defence counsel's address, reproduced in the judgement of Molloy J. above, was so inflammatory, if not inappropriate, as to amount to a substantial wrong or miscarriage of justice so as to mandate the ordering of a new trial. Implicit in this position is the notion that the trial judge had committed an overriding and palpable error in not remedying the situation engendered by the address in his charge by some form of limiting charge or, presumably, by not dressing down counsel for the defence when the words were first uttered.

[64] Respectfully to the decision of my colleagues, I do not think the charge as delivered and the actions of Whitten J. before and after the charge and immediately before and after the jury's verdict are suggestive, in the least, or give voice to the notion of his having committed an overriding and palpable error. Nor, in [page796] my view, does the jury verdict, which may be inconsistent with Whitten J.'s ruling on the threshold issue, gives rise to a substantial wrong or miscarriage of justice to warrant a new trial.

Issues on appeal

[65] In the reasons that follow, I intend to, but briefly, review the address, the response of counsel, the limiting instructions given by Whitten J., the motion to set aside the jury verdict and whether in all the circumstances the verdict amounted to a substantial wrong or a miscarriage of justice.

Address

[66] The excerpt that has been reproduced above, while seemingly inflammatory in the abstract, is not something when considered in context, went beyond permissible limits. In the first place, the comments with which exception is now taken came at the end of an address, the thrust of which was in respect of the credibility and reliability of the appellant's testimony in terms of not only the manner in which the injuries were said to have occurred, but also their extent. Credibility in all respects was at the heart of the complaint and the impugned excerpt was simply designed to underscore the frailties of the appellant's case by analyzing a piece of the evidence that was first put in issue by the appellant and his counsel on several occasions. Put otherwise, the comments about whether the appellant would or would not remain in Canada, having regard to his testimony about his life before moving to Canada and his trips and visits to the West Bank since the collision were open for comment during the course of the closing. [See Note 2 below]

[67] In my opinion, appellant's counsel overstates the situation when he says that the impugned comments were only intended to inflame passions and play on whatever Arab phobia might exist in the minds of the jurors, which if true, as I will address later in these reasons, was somehow missed by both an experienced trial judge and not one, but two trial counsel for the appellant.

[68] In any event, I believe that the comments in question must be viewed through the lens of the prevailing jurisprudence, recently expressed by the Court of Appeal in Landolfi v. Fargione (2006), 2006 9692 (ON CA), 79 O.R. (3d) 767, [2006] O.J. 1226 (C.A.), at paras. 76 and 77: [page797]

It is well-established that considerable latitude is afforded counsel concerning the permissible scope of a closing jury address in a civil trial. This court observed in Stewart v. Speer, 1953 153 (ON CA), [1953] O.R. 502, [1953] 3 D.L.R. 722 (C.A.), at p. 508 O.R., quoting from Dale v. Toronto R.W. Co., 1915 535 (ON CA), [1915] O.J. No. 49, 34 O.L.R. 104 (C.A.), at pp. 107-08 O.L.R., that counsel has the right to make an impassioned address on behalf of his or her client and, in some cases, the duty to so do, so long as it "does not offend in other respects," and "courts do and must give considerable latitude, even to extravagant declaration." See also J. Sopinka, D.B. Houston and M. Sopinka, The Trial of an Action, 2nd ed. (Toronto and Vancouver: Butterworths, 1998) at 130ff.

This principle lies at the core of the advocate's duty to his or her client and the independence of the bar. Counsel are required to advance their client's cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel's obligations as an advocate and officer of the court." [See Note 3 below]

Response of Counsel

[69] Neither of the appellant's two trial lawyers expressed any concern over the comments at the time that they were made, before or after their respective addresses to the jury and even before or after the charge by Whitten J. Furthermore, the now- suggested inflammatory nature of the address was not raised at the time that the motion was made before the trial judge in the sober light of day some three weeks after the jury verdict when a challenge was mounted in respect of the suggested inconsistent verdict.

[70] This absence of "outrage", which is the emotion that appellant's counsel is now seeking to elicit on this appeal, is more consonant with the "temperature" of the room at the time the address was made than we, sitting on appeal, can now gauge and assess many months later and while removed from the fray. In my opinion, this provides part of the rationale for why courts of appeal should be reluctant to dissect a jury address or charge when no contemporaneous objection is made at first instance. In this respect, the judgments of Justices Doherty and Moldaver in Rogacki v. Belz, 2004 21439 (ON CA), [2004] O.J. No. 3592, 243 D.L.R. (4th) 585 (C.A.), at para. 22, leave to appeal on other grounds to Supreme Court of Canada refused [2004] S.C.C.A. 475 are most instructive:

There will seldom be a closing address by counsel that is not open to some criticism. Where an objection to a closing argument is taken for the first time on appeal, however, counsel must demonstrate that any shortcomings or improprieties in the counsel's address were sufficiently serious to undermine the fairness of the trial or put the validity of verdicts in real doubt. (Emphasis added) [page798]

Charge of Whitten J.

[71] In the absence of any objection to the words in context used by the defence in his closing, which was not addressed by appellant's trial counsel in his subsequent closing, Whitten J. dealt with what he thought was the "harm" that was created by the comments, in and of themselves, namely that to give credence to the notion that the appellant would return to his place of birth would amount to mere speculation.

[72] Interestingly enough, the charge taken as a whole was more plaintiff than it was defence oriented. Indeed, Whitten J. provided the jury with more than a fair recitation of the evidence in support of the appellant's claim and ended with a range of damages that was, as well, more than favourable to the appellant having regard to the ultimate finding. In the final analysis, the objections taken to the charge were limited, at best, and did not address the issue now under appeal.

[73] While no doubt, some of the comments of defence counsel bumped up against or even crossed the line of propriety, both in the abstract or in context, particularly those remarks contained in the penultimate paragraph reproduced above, Whitten J. was in the best position to assess the impact of the comments made by defence counsel in absolute terms and in context. To suggest that he did not have his finger on the pulse of the proceedings ignores, as a minimum, the limiting instruction he did give. To suggest that his limiting instruction somehow added insult to injury ignores, as well, the width and breadth of the evidence elicited by the appellant about his life in the West Bank, if not the prose used by his counsel in his opening and closing about the "benefits" of emigrating to Canada.

[74] Finally, in the absence of an objection from the appellant's trial counsel to the address, I am not sure what Whitten J. could have done, on his own motion, which would not have unduly highlighted the arguably offensive comment. But for dressing down counsel, in the absence of the jury, and perhaps throwing the matter into the lap of the trial counsel, I am not persuaded that his response in attempting to provide a limiting instruction in the midst of a more-than-fair charge was not appropriate in the circumstances.

Motion To Set Aside the Jury Verdict

[75] The sole ground in support of the motion, made three weeks after the jury verdict, was that the award of the jury in (a) not finding that the appellant was injured in the collision and (b) in not awarding any damages was inconsistent with the [page799] "threshold ruling" of Whitten J. made during the trial and while the jury was deliberating. Appellant's trial counsel argued that the award was therefore, implicitly, unreasonable.

[76] As alluded to aforesaid, there was no attempt to characterize the verdict as unreasonable for any reason rooted in the impugned address, even if only to suggest a theory for the now suggested inconsistent results. Since the decision of Whitten J. on this motion does not form part of the appeal, I need not weigh in on the subject. I would observe, however, that the appellate jurisprudence supports the conclusions arrived at by the trial judge. [See Note 4 below]

[77] That said, the analysis of Whitten J. in describing the tasks of the jury in contrast to his own in deciding the "threshold issue" is correct, namely that the jury, and not Whitten J., had to first determine whether the injuries complained of [were] caused or contributed to by the subject collision and not whether they amounted to a serious permanent impairment. In that respect, the jury was entitled and did come to its own conclusion on the credibility of the appellant different to what was implicit in the threshold ruling. Again, this result does not give rise to the suggestion that the only rationale for the different assessments of the two decisions was the impugned portion of the defence counsel's address. There was evidence adduced at the trial which was more than supportive of the jury's decision, a fact which was not lost on Whitten J. and which he addressed in his reasons delivered on the motion:

Credibility was particularly key in this matter as there was little or no objective pathological evidence to suggest the injuries or corroborate the injuries. It was a case in which the subjective evidence of the Plaintiff was key. He had to be believed by the jury. . . . . .

One must keep in mind the different functions or roles. It was entirely possible on the facts of this case that a jury would not believe the Plaintiff as to the source of his injuries. It was the kind of case, there were discrepancies in his actions and statements. The jury had to be advised as to the possible use vis-à-vis credibility that such phenomena could be put to; namely the assessment of credibility.

The jury verdict was not per se unreasonable. At the highest, it is a difference of opinion between the court and the jury in the area in which they are the ultimate Judge. There verdict could have gone one way or the other. An unfavourable verdict cannot be characterized as unreasonable as it was within the range of choices available to the jury on the evidence. Nor could it [page800] be characterized as unjust. The fact that it was unfavourable to the Plaintiff does not make it an unjust verdict. Finally, nor can this verdict be described as perverse in the sense of being a decision without connection to the evidence adduced.

Substantial Wrong or Miscarriage of Justice

[78] The principles governing appellate review of a jury verdict are well established. The verdict of a jury will not be set aside unless it is so plainly unreasonable and unjust as to satisfy the court that no other jury reviewing the evidence as a whole and acting judicially could have reached the same conclusion as the jury of first instance. Put otherwise, and as Charron J.A., as she then was, said in Burlie v. Chaesson, supra, at para. 7, "[t]he test, rather, is based on an examination of whether the evidence so preponderates against the verdict as to show it was unreasonable and unjust."

[79] In the final analysis, I am not persuaded that the test described in s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 has been met. In that respect, I do not share the conclusion of my colleagues that the validity of the verdict is in real doubt. As Whitten J. himself concluded, there was more than sufficient evidence upon which the jury could have arrived at [its] conclusion in disbelieving the evidence of the plaintiff in terms of the root cause of the injuries about which he was heard to complain.

[80] In the result, I would dismiss the appeal.

Appeal allowed.

Notes ----------------

Note 1: Threshold Ruling, dated May 2, 2006, [2006] O.J. No. 2778 (S.C.J.), Appeal Book and Compendium, Tab 3, pp. 10-11 and p. 13, lines 22-29.

Note 2: See Abbott v. Sharpe, 2007 NSCA 6, [2007] N.S.J. No. 21, 276 D.L.R. (4th) 80 (C.A.), at paras. 34-39.

Note 3: See also the decision in R. v. Daly, [1992] O.J. No. 1504, 57 O.A.C. 70 (C.A.), at p. 6 (QL).

Note 4: See Burlie v. Chesson, 2001 24095 (ON CA), [2001] O.J. No. 1960, 146 O.A.C. 106 (C.A.) and Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719, 144 O.A.C. 369 (C.A.).