CITATION: Joseph Rosati and Linda Rosati v. Laura Reggimenti, 2015 ONSC 1335
DIVISIONAL COURT FILE NO.: DC-14-613
DATE: 2015-03-25
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: Joseph Rosati and Linda Rosati, Applicants (Appellants in Appeal)
A N D:
Laura Reggimenti, Respondent (Respondent in Appeal)
BEFORE: Justices Marrocco, Kent and Edwards
COUNSEL: Stanley Jaskot, Solicitor for the Applicants/Appellants
Ryan Kniznik, Solicitor for the Respondent/Respondent in Appeal
HEARD: February 26, 2015
E N D O R S E M E N T
[1] This is an appeal of a mistrial ordered by Carpenter-Gunn, J. in relation to a civil fraud proceeding in the context of a matrimonial proceeding. In the midst of the proceeding, both parties brought motions. The respondents sought a recusal, reconsideration of an evidentiary ruling and a declaration of a mistrial. Carpenter-Gunn, J. declared a mistrial. The appellants appeal her decision on the basis that there were no grounds for a mistrial and that the trial judge, therefore, overstepped her role in awarding the mistrial.
[2] At the time of the mistrial ruling, thirteen days of evidence had been heard and the trial was going to have to continue on an “installment” basis for many more days.
[3] We are all of the view that Carpenter-Gunn, J. properly exercised her discretion in declaring a mistrial. She considered the impact and the effect of an extensive delay of the trial. She was fully aware of and considered all of the circumstances of the situation with which she was presented. She identified the risk and danger of prejudice and a miscarriage of justice for the parties.
[4] The decision of Carpenter-Gunn J. is entitled to great deference and we are unable to find it to have been clearly wrong.
[5] The appropriate case law to be considered was before Carpenter-Gunn, J.
[6] In her ruling, she referred to the relevant case of R. v. Burke, 2002 SCC 55, 2002 CarswellOnt 1970 (S.C.C.). Her ruling is also consistent with the decision of the Supreme Court of Canada in R. v. Kahn, 2001 SCC 86, 2001 CarswellMan 578.
[7] The ruling is also a ruling “entitled to great deference” which should not be interfered with by an appellate court unless it is “clearly wrong”. See R. v. Jeanvenne, 2010 CarswellOnt 7994 (C.A.).
[8] What is of more importance at this stage then allowing or dismissing the appeal is to determine how and when this matter will proceed and ultimately conclude, following the decision of this court. We have, therefore, considered how we may be able to provide directions that will reduce the risk of unnecessary further delay for the litigants.
[9] We are of the view that the following directions will accomplish that. We hereby direct that this case shall be placed on the list for long trials on the next available list for long trials in the Central South Region. We direct further that the case shall be case-managed by the Regional Senior Justice or his designate. We further direct that unless the Regional Senior Justice or the assigned trial judge orders otherwise:
a) all evidence taken at trial until the date of the order for the mistrial shall be transcribed and shall constitute evidence in the new trial;
b) all exhibits entered at trial until the date of the mistrial order shall be trial exhibits in the new trial;
c) all evidentiary and other rulings made by Carpenter-Gunn, J. to the date of the mistrial order shall apply in the new trial.
Costs
Given the directions made by this court, it may be concluded that success was divided and that no order for costs or that costs be left to the trial judge should be made. If counsel do not agree they may make written submissions as to costs. The respondent’s submissions are due 21 days from the date of release of this decision, the appellants within 10 days thereafter and any reply within 7 days following. Submissions are limited to 4 pages and may address both the costs of the motion for leave to appeal and this appeal.
Marrocco A.C.J.S.C.
Kent J.
Edwards J.
DATE: March 25, 2015
CITATION: Rosati et al v. Reggimenti, 2015 ONSC 1335
DIVISIONAL COURT FILE NO.: DC-14-613
DATE: 2015-03-25
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Joseph Rosati and Linda Rosati, Applicants (Appellants in Appeal)
A N D:
Laura Reggimenti, Respondent (Respondent in Appeal)
BEFORE: Justices Marrocco, Kent and Edwards
COUNSEL: Stanley Jaskot, for the Applicant (Appellants on Appeal)
Ryan Kniznik, for the Respondent (Respondent on Appeal)
ENDORSEMENT
MARROCCO, KENT, EDWARDS J.J.