Court File and Parties

COURT FILE NO.: 4522/11 DATE: 2018/11/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LOUDIA ISMAIL, Plaintiff AND: MEAGHEN FLEMING and LAURIE FLEMING, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Karl Arvai and Louis Crowley, for the Plaintiff Brian Foster and Catherine A. McIntosh, for the Defendants

HEARD: October 1-5, 9-12, 15-19, 23-26, and 29-31, 2018

Endorsement

Reasons for declaration of mistrial

Introduction

[1] The plaintiff in this personal injury action claims substantial damages from the defendants as the result of a 2009 motor vehicle accident, in respect of which liability has been admitted.

[2] The matter proceeded to a trial by judge and jury, which began with jury selection on October 1, 2018. The trial thereafter continued until October 31, 2018, at which time I felt compelled, albeit with great regret, to declare a mistrial for reasons to follow.

[3] These are those reasons.

Broader context

[4] Before turning to the specifics of this matter, I think it necessary to emphasize important considerations and concerns that provided the broader context for my decision.

[5] In that regard, I start by emphasizing the vital importance of accurate trial duration estimates to the efficient and effective administration of justice in this province.

[6] Certainly, from the immediate perspective of civil litigants, the accuracy of such estimates is or at least should be important. Trials clearly now are very expensive undertakings, from the perspective of all parties to a dispute. The quantum of a party’s own prospective trial costs, and the extent of exposure to adverse cost awards if an opponent is successful, therefore should form an important component in ongoing cost-benefit assessment of whether a matter should proceed to trial.

[7] But litigants are not the only ones with a vested interest in accurate trial duration estimates, and adherence to those estimates. In particular:

a. Trial duration estimates are important to jurors. Prospective jurors understandably rely on such estimates, (confirmed by counsel at the outset of jury selection), when deciding whether to step forward without complaint to assume the burdens and inherent inconvenience of jury duty for that specified duration. In my view, it is neither reasonable nor fair to thereafter press such jurors into more extended and unexpected jury service, when the stated trial duration estimate belatedly turns out to be woefully inaccurate. The inequity of doing so is that much greater in relation to jurors who commendably already agreed, at the outset, to serve as jurors for what already was going to be a lengthy trial. In that regard, it needs to be kept in mind that, in today’s busy world, encouraging proper respect and enthusiasm for jury duty is an ongoing exercise in public relations from the court’s perspective. When jurors have a negative experience in the course of their jury service, (e.g., because indications about the duration of their expected jury service are perceived to be misrepresentations), that understandably fosters resentment. In the short term, that gives rise to serious concern, during a trial, that such resentment may very well impair the ability of jurors to act fairly when a trial runs markedly longer than the original duration estimate. However, the court also needs to be concerned about the long term impact of such resentment. In particular, when such jurors understandably speak negatively of their experience to others, such impressions inevitably work their way into broader public discussion of jury duty, in turn making it harder to find potential jurors who are willing to serve.

b. Accurate trial duration estimates are also of vital importance to many others waiting for access to finite judicial resources. As emphasized on its website, the Superior Court of Justice for Ontario is one of the busiest courts in the world. It has just 336 judges, (101 of whom have supernumerary or “part time” status, and 51 of whom are assigned primarily to the Family Division), available to service the more serious civil, criminal and family law needs of a province with a population in excess of 14 million citizens. Not surprisingly, limited judicial time in our court is therefore allocated very carefully to various locations and matters, extending across all lines of the court’s work, pursuant to regional and local schedules that are set well in advance. It may not be immediately apparent to litigants primarily interested in their own matters, but when a trial exceeds its duration estimate, the parties effectively and unfairly are appropriating precious judicial time that had been allocated to others. A judge unexpectedly tied up in a trial “over-run” self-evidently cannot hear other matters, or complete reserved decisions for other matters in a timely way when scheduled writing time is consumed by the ongoing need to be present in court. In the result, other trials, motions, applications, conferences, pre-trials and summary conviction appeals frequently cannot proceed as planned. They then have to be rescheduled with priority, which in turn delays the progress of other matters further down the court’s docket. In short, those who provide inaccurate trial duration estimates needlessly inflict serious frustration and disappointment on others whom they may not see, but whom the court very much has in mind. Moreover, such concerns and pressures now have reached critical dimensions, in the wake of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. That Supreme Court of Canada decision established a presumptive ceiling of 30 months for the completion of Superior Court criminal proceedings against an accused, failing which a charge may be stayed to remedy a breach of the accused’s right, pursuant to s.11(b) of the Canadian Charter of Rights and Freedoms, to be tried within a reasonable time. When parties provide inaccurate trial duration estimates that frustrate or endanger the timely progress of pending criminal proceedings, they therefore effectively threaten the important Charter rights of others. The court in turn is then put under extraordinary and sometimes very urgent pressures, (which could have been avoided by the provision of accurate trial duration estimates), to address and remedy such threats.

c. Court staff also rely heavily on accurate trial duration estimates. In that regard:

i. Such estimates are essential to maintaining the day to day integrity of the extremely intricate and interlocking court and judicial schedules developed and managed by very hard working regional and local trial co-ordinators. Parties focused exclusively on their particular matter frequently are oblivious to the potentially far-reaching implications of effectively removing a particular judge from the regional schedule, on any given day, due to an inaccurate trial duration estimate. Attempting to cover the resulting schedule gap or gaps with another judge frequently if not invariably creates other gaps elsewhere in the regional schedule, such that one unexpected change necessitates many more. The challenges become even more acute when various judges are seized of particular matters. There is no justification for making already overburdened regional and local trial co-ordinators reconstruct their carefully prepared schedules, again and again, when litigants frequently can prevent the need for such remedial measures through the provision of accurate trial duration estimates in the first place.

ii. Such estimates are also important to court registrars and court service officers, and the Supervisors of Court Operations who plan their schedules. Because particular registrars become quite familiar with the organization of extensive exhibits compiled during a lengthy trial, and jurors understandably come to trust in court service officers who regularly greet, escort and mind jurors, and attend to their needs on a daily basis, maintaining continuity of staff during the course of a jury trial is important. However, that becomes difficult when trials exceed their duration estimates, and extend into periods when staff were scheduled to be elsewhere; e.g., to provide continuity in relation to other scheduled trials, or to take planned absences for vacations and other reasons.

d. Judges too are directly impacted, frequently in adverse ways, by inaccurate trial duration estimates. Our respective schedules are set well in advance. Beyond being permitted certain weeks of vacation, (in respect of which specific date requests must be provided more than 6-12 months ahead of time), judges are scheduled to attend plenary conferences of the court with mandated continuing legal education, as well as regional conferences including statutorily required meetings with the Chief Justice, during certain specified weeks of the year. We also are allocated a limited number of specified and intermittent “non-sitting” weeks to be used for judicial writing, and for necessary personal appointments, (e.g., in relation to health care), that cannot be scheduled on week-ends. When any such scheduled “out of court” time is unexpectedly lost, by a judge having to continue sitting unexpectedly because of an inaccurate trial duration estimate, the demands of the regional schedule may not allow that “out of court” time to be recovered or “paid back” until some point far in the future – and missed conferences are gone forever. Once again, all such unexpected complications and added pressures are entirely capable of being avoided by parties taking care to provide accurate trial duration estimates.

[8] For all these reasons, the importance of such accurate trial duration estimates cannot be overstated.

[9] It also cannot be emphasized enough that the court necessarily relies primarily on counsel to ensure that time duration estimates are accurate. In that regard:

• Counsel know, or at least should know, the intricacies of any particular case, including the evidence that reasonably must be presented at trial, and the additional allowances that reasonably should be made, as a matter of prudence, for anticipated objections, argument and other developments likely to slow the progress of a trial towards a verdict.
• Counsel also know, or at least should know, that judges and court staff have little or no meaningful ability to second-guess the trial duration estimates of counsel. In particular:
  • Judges dealing with a matter before trial obviously cannot hope to know individual matters as well as counsel, especially when called upon to deal with a court file, (inherently not containing all information available to counsel), in a passing manner, for a relatively brief period of time, as one of very many files the judge may have to address during any given day, week or month.
  • The very nature of assignment courts, (which deal with a multitude of pending matters on the court’s docket, and invariably are attended by large numbers of counsel waiting for their opportunity to speak), also precludes any opportunity for a presiding judge to review court files in detail, and “push back” on trial duration estimates provided by counsel.
  • While judges conducting pre-trials are provided with more opportunity to learn and discuss the nature of particular matters, the necessarily limited information set forth in pre-trial memoranda, and the need to devote a reasonable portion of available pre-trial time to discussion of possible settlement, once again limits the ability and time a presiding judge has to question, in any sustained way while focusing on overall trial management, the feasibility and accuracy of trial duration estimates provided by counsel. The inadequacy of some estimates may be more obvious than others, based on the number of issues and number of anticipated witnesses involved, and the individual experience of the judge in dealing with such matters. In such cases, pre-trial judges can “push back” appropriately, and indicate in their pre-trial reports that they think more time should be added to the existing trial duration estimate. However, allocating excessive time for trial completion, by routinely “padding” trial duration estimates inappropriately, also would wreak havoc with scheduling, in a world of limited judicial resources. Where counsel attending pre-trials are adamant that they have considered the matter and feel the trial duration estimates to be accurate, there accordingly is a natural and understandable judicial inclination to accept such estimates.
• Counsel know, or at least should know, that judges and court staff also reasonably place even greater reliance on trial duration estimates provided by very senior and experienced counsel.
• Counsel know, or at least should know, that judges and court staff also reasonably assume that “trial duration estimates” are understood to include all aspects of a trial, (including jury selection, opening instructions to the jury, opening submissions, the time needed to argue and resolve objections and other mid-trial issues, pre-charge conferences, closing submissions, charging of the jury, and a reasonable allowance of time for jury deliberations), and not simply the amount of time it will take for the parties to present their respective evidence.

[10] And yet, despite all of the above considerations, the provision of woefully inadequate trial duration estimates is an ongoing and growing problem that repeatedly disrupts efficient and effective court operations in the Southwest region.

[11] The seriousness of that problem in London recently was emphasized by Justice Grace, (the Local Administrative Judge here in London), in an endorsement released just six days ago, (i.e., the day before I declared a mistrial in this matter), in Ismail v. Ismail, 2018 ONSC 6489. (Despite the overlap in surnames, there apparently is no connection between the parties in that case and the parties to this matter.) While Justice Grace was focused in that instance primarily on inaccurate trial duration estimates caused by failure to ensure proper compliance with Rule 53.03 of the Rules of Civil Procedure, his general description of the hardships currently being experienced in London, as the result of inaccurate trial duration estimates, is no less apt:

The already high costs incurred by the parties increases. In cases involving juries, jurors’ lives are no longer simply disrupted; they are turned upside down. Judicial schedules must be rearranged. Other cases move further down the line. The hopes of the parties involved in them are dashed. Their cases are not reached when scheduled. An already creaky, if not cracking, system sags even more. [1]

[12] I also think it noteworthy to add, (based on my own experience, discussions with the regional trial co-ordinator, and the reports of other judicial colleagues), that the region’s growing problem with inaccurate trial duration estimates appears to stem almost exclusively from:

a. civil trials in London and Windsor, (i.e., the two judicial centres in the Southwest Region where trials are heard constantly, as opposed to the remaining judicial centres located in smaller communities, which are only allocated trial sittings of limited duration on an intermittent basis); and

b. civil trials conducted in those smaller judicial centres of the region that nevertheless involve counsel from London or Windsor, or from other judicial centres outside the region were trials also are held constantly, (such as Toronto).

[13] The precise reasons for that demonstrated connection remain unclear.

[14] However, it seems to me that one rational explanation may be that counsel from centres where trial judges sit constantly may have formed a very mistaken impression that a trial judge will remain available to complete a trial, however long that may take, once the trial is underway, whereas counsel practising in centres restricted to intermittent trial sittings, (usually lasting no more than 2-3 weeks), know all too well that they will have a judge available to them only for a limited period of time.

[15] The latter certainly has been my experience presiding over trial sittings in smaller judicial centres such as Stratford, (where I also serve as the Local Administrative Judge), Woodstock, Goderich and St Thomas, each of which receive only limited weeks of trial time on an intermittent basis. Almost invariably, local counsel in those centres have given very careful thought to their trial duration estimates, and the need to present cases as efficiently as possible. In the result, trial duration estimates in those smaller judicial centres are rarely exceeded. Moreover, on the rare occasion when that does happen, the excess is usually for no more than a day, and usually is caused by a complication, (e.g., the unexpected illness or detention of a juror, witness or accused), that could not have been readily foreseen by the parties.

[16] For the sake of all the many stakeholders in our justice system, described above, all counsel need to be disabused of any notion that their trials will be allowed to proceed for as long as they may take, once they are underway, regardless of confirmed trial duration estimates.

[17] More generally, as noted above, all counsel need to be reminded forcefully of the importance of accurate trial duration estimates, for all the reasons I have outlined.

[18] Unfortunately, repeated judicial admonitions to that effect, (especially in assignment courts), apparently have not worked to bring those points home to counsel.

[19] Nor has the occasional denial of costs in relation to portions of a trial markedly exceeding what counsel themselves indicated would be a reasonable period of time to present their case. [2] Indeed, to a party with an expectation of substantial recovery at trial, or ample resources in any event, the denial of costs for exceeding trial duration estimates without reasonable explanation may be regarded as little more than a licensing fee.

[20] Given all the realities outlined above, it may be that courts increasingly will have little or no choice but to declare mistrials in situations where it regrettably becomes clear that a trial cannot be completed within its repeatedly confirmed trial duration estimate, especially in cases where the inaccurate and inadequate trial duration estimates cannot reasonably be attributed to developments counsel could not have foreseen.

[21] In saying that, I fully recognize that declarations of mistrial must never be made lightly, and should always be regarded as an option of last resort.

[22] Such mistrials delay final justice for the parties involved.

[23] Mistrials also are extraordinarily wasteful, in terms of time, money and effort – not only for the parties to a dispute, but also for the jurors, court staff and judges involved, as well as for many other waiting and anxious litigants who undoubtedly could have used the wasted court time much more productively.

[24] At the same time, however, parties and their counsel need to understand and appreciate, for the reasons outlined above, why courts may very well be forced into declaring mistrials as the result of inaccurate trial duration estimates.

[25] Such declarations of mistrial unfortunately may have to happen repeatedly in the short term, in order to drive that message home to counsel involved in such cases, and to those who are made aware of what happened.

[26] Over the long term, however, all counsel hopefully then will take far more care in forming and conveying trial duration estimates, (especially when attending assignment court), and then take similar care in the efficient presentation of cases to ensure that trials will be completed within those estimates.

Specific context

[27] With that broader context in mind, I turn next to the specific considerations and developments which culminated in my declaring a mistrial in this particular case.

TRIAL DURATION ESTIMATES

[28] I start with the trial duration estimates repeatedly provided to the court by the very senior and experienced counsel involved in this case. In that regard:

• The highly contentious nature of this action was reflected in its having been the subject of no less than three judicial pre-trials, (conducted by three different judges), all of which proved incapable of resolving the matter, and by the matter failing to settle notwithstanding several abortive attempts to commence a trial, (following repeated completion of jury selection), on approximately 3-5 earlier occasions. In the course of those developments, counsel necessarily provided trial duration estimates to the court from time to time.
• At the time of the first judicial pre-trial in June of 2015, (conducted by Justice Hockin), counsel for both parties had provided, in assignment court, a trial duration estimate of four weeks. At the pre-trial:
  • Plaintiff counsel listed no less than 27 anticipated witnesses, and provided a specific duration estimate for each. It was indicated that the total time needed for those plaintiff witnesses would be 15-17 days. It was not made clear whether the duration estimates provided in relation to each plaintiff witness were for contemplated examination-in-chief, or for the entire testimony to be provided by that witness. However, a total of “15-17 days” was provided at the end of the list.
  • Defence counsel listed seven witnesses or types of witnesses; e.g., insofar as certain contemplated responding experts had yet to be identified, and it was not clear whether more than one investigator would be needed to present the defendant’s surveillance evidence. In relation to each indicated defence witness, defence counsel provided specific duration estimates of each one’s “anticipated time in direct examination”, totaling “4.75 days”.
  • From the outset, there accordingly were signs that counsel were not taking sufficient care in relation to the global trial duration estimate being provided to the court. In particular, even if the specific witness duration estimates provided by plaintiff counsel related to examination-in-chief alone, the total estimated time of plaintiff and defence examinations-in-chief came to 19.75 to 21.75 days; i.e., already four weeks of trial, even with no allowances being made for cross-examination or all the other steps and procedures, (e.g., jury selection, opening instructions, opening submissions, closing submissions, charging the jury and deliberations), required in a civil jury trial. The global trial estimate of four weeks accordingly was a gross underestimate.
  • That underestimate may have been one reason why Justice Hockin indicated, in his report on the pre-trial, that a trial duration of estimate of “4-6 weeks” would be more appropriate.
• Notwithstanding such concerns, at the time of the second judicial pre-trial in May of 2016, (conducted by Justice Garson), counsel for both parties once again had provided, in assignment court, a trial duration estimate of four weeks. At the pre-trial:
  • Plaintiff counsel replicated the same list of 27 witnesses, with the same specific witness duration estimates, with the same total of “15-17 days”, which had been tendered by plaintiff counsel in relation to the first judicial pre-trial. Once again, there was no indication of whether the specific duration estimates for each witness were confined to anticipated examination-in-chief, or included the total estimated time any particular plaintiff witness was expected to be in the witness box.
  • Defence counsel produced a modified list of anticipated witnesses; i.e., by including identification of its contemplated responding neurological expert, and by reducing the total number of anticipated witnesses or types of witnesses from seven to six through elimination of any contemplated expert to present a responding economic report. A specific time estimate for the anticipated examination-in-chief of each defence witness was provided, with the total of such estimates coming to approximately four days. Having said that, defence counsel also apparently added to the list of contemplated defence witnesses, during the second pre-trial, by reserving the right to also call 1-3 physicians who had assessed the plaintiff in relation to accident benefits. No time duration estimates were provided in relation to any of those possible additional defence witnesses.
  • In the result, the minimum total time estimated by counsel for the presentation of testimony was 19-21 days, without making any allowance whatsoever for cross-examination of defence witnesses, or the calling of further defence witnesses added to the list during the pre-trial. If the plaintiff witness duration estimates did not include cross-examination, the total witness duration estimates were understated even further. Together, all of that information indicated that witness testimony certainly would be more than four weeks, (i.e., 20 days), and perhaps more than five weeks, even before necessary further allowances were made for additional steps required in a jury trial. In other words, the global trial duration estimate provided by counsel once again was grossly understated.
  • In his report on the pre-trial, Justice Garson addressed that apparent deficiency to some extent by formally increasing the trial duration estimate from four weeks to at least five weeks.
• At the time of the third judicial pre-trial in December of 2017, (conducted by Justice George), counsel for both parties provided, in assignment court, a trial duration estimate of five weeks. At the pre-trial:
  • Plaintiff counsel produced a modified list of anticipated witnesses, deleting some included on earlier lists while substituting others, but also reducing the total number of anticipated plaintiff witnesses from 27 to 20. Once again, specific duration estimates were given for each indicated plaintiff witness, without clarifying whether the estimates were restricted to anticipated examinations-in-chief or the total estimated time such witnesses would be in the witness box. The list nevertheless ended with a total of “12-15 days” being indicated.
  • Defence counsel also produced a further modified list of anticipated defence witnesses, increasing the total number of specified or generically identified witnesses to at least nine, (nevertheless apparently then reduced to eight during the course of the pre-trial), with a specified estimate of anticipated examination-in-chief for each. The total estimated duration of all defence evidence-in-chief was said to be “4.5 to 6” days.
  • In the result, the minimum total time estimated by counsel for the presentation of testimony was 16.5 to 21 days, without any allowance whatsoever for cross-examination of defence witnesses. Once again, if the plaintiff witness duration estimates did not include cross-examination, the total witness duration estimates had been understated even further. Making further allowance for additional trial steps beyond witness testimony, it seems clear that the trial duration estimate of five weeks, (i.e., 25 days in total), was once again significantly understated.
  • In his report on the pre-trial, Justice George nevertheless maintained the five week trial duration estimate. Indeed, that originally typed estimate was circled, suggesting that it once again had been confirmed by counsel during the pre-trial.
• As noted above, the matter was called for trial several times before I was asked to deal with the matter, and it seems the five week trial duration estimate given during later assignment courts was confirmed by counsel on each occasion.
• When the matter was called for trial on September 10, 2018, (i.e., the last such occasion before the matter came before me on October 1, 2018), Justice Grace presided over jury selection. In that regard, and as confirmed by the relevant DRD recording:
  • Counsel were specifically asked on the record to provide and confirm an updated trial duration estimate before the jury was selected;
  • Plaintiff counsel indicated without hesitation that the trial, including now contemplated preliminary motions, would be completed in five weeks; and
  • Defence counsel generally agreed with the five week trial duration estimate, but thought the now contemplated preliminary motions might extend the total length of trial beyond five weeks by 1-2 days.

[29] When the trial of this matter could not be reached in September, the London trial co-ordinator began exploring arrangements to see if the matter could be called for trial in October, understandably relying upon the formal five week trial duration estimate provided by counsel. In that regard, the London trial co-ordinator faced the challenge of finding a London judge, not disqualified by having conducted any of the three pre-trials described above, who might be available to conduct a five week trial starting October 1, 2018.

[30] In the result, I was contacted shortly before October 1, 2018, with a request for confirmation as to whether or not my existing commitments and schedule could accommodate a five week trial. After reviewing my schedule and situation, (including my obligation to complete and release reserved decisions in a timely way), I indicated that I was available to complete a five week trial. However, a trial extending beyond that duration would begin to create significant pressures and complications. In that regard:

• I was scheduled and committed to preside over the next three-week trial sitting in Stratford, starting on November 27, 2018, given that I was seized of numerous criminal matters on that trial list.
• I also had, in particular, a number of reserved pre-trial Charter application decisions that had to be completed and released in advance of that Stratford trial sitting, in order to ensure that parties in those criminal matters could be offered timely trial dates that would avoid possible “Jordan” concerns.
• Timely completion of those particular reserved decisions in advance of the Stratford trial sittings had not presented any concerns pursuant to my existing schedule, as the period leading up to the Stratford trial sitting included a scheduled “non-sit” or writing week during the week of October 22-26, an administrative “non-sit” week during the week of November 5-9, (during which I would have several days and evenings of writing time in addition to attending the conference), and a holiday week, (including certain commitments scheduled more than a year in advance), during the week of November 19-23, 2018. In other words, my schedule prior to assuming the 5-week trial obligation as requested had provided ample writing time to complete and release the relevant reserved pre-trial Charter decisions in a timely way.
• Taking on the five week trial obligation, starting October 1, 2018, nevertheless would entail, at a minimum, a sacrifice of my writing week scheduled for October 22-26, 2018. If the trial ran into a sixth week for any reason, some or all of my administrative non-sit week also would be lost. If more than both those weeks were consumed by the civil jury trial in this matter, it would become extraordinarily difficult and likely impossible, (even if I cancelled my vacation commitments during the week of November 19-23, and worked through the entirety of that week), to properly complete all of the reserved decisions that needed to be released in advance of the Stratford trial sittings commencing November 26, 2018.

[31] In the circumstances, my ability to preside over the trial in this matter, as requested, was extraordinarily dependent on the accuracy of the trial duration estimate provided by counsel.

[32] When the matter was called for trial on October 1, 2018, I met with counsel in the jury room prior to all of us entering the courtroom to embark on jury selection. Having regard to the constraints outlined above, I asked counsel to once again confirm the trial duration estimate. In that regard:

• Plaintiff counsel once again indicated the entire trial, including argument of the preliminary motions and objections, would take five weeks. In other words, plaintiff counsel were indicating that the entire trial would be completed by Friday, November 2, 2018.
• Defence counsel once again indicated general agreement with the 5 week trial duration estimate provided by plaintiff counsel, but felt the preliminary motions might take the matter 1-2 days into a sixth week. In other words, defence counsel were indicating that the entire trial would be completed by Tuesday, November 6, 2018.
• I should note that the trial duration estimate received from defence counsel, immediately before trial and jury selection, was the first indication I had received that the trial might possibly extend beyond five weeks, and into a sixth week.

[33] In the result, I indicated that I would proceed with the trial, but err on the side of caution and advise the jury panel the trial would take 5-6 weeks.

[34] In doing so, I willingly committed, in advance, to continue sitting into the week of November 5-9, 2018, if that proved necessary and appropriate, to complete the trial. I arguably was not obliged to do so. Again, according to the regional and indeed provincial schedule of the Superior Court, that particular week had been reserved as an administrative non-sit week, specifically set aside, (without any regularly scheduled Superior Court sittings), for the purpose of allowing all judges of the Superior Court to attend the court’s annual fall conference and continuing legal education program. Continuing the trial into that week accordingly would call for special staffing arrangements, and the expenditure of additional resources, not contemplated by the existing regional or local London schedules. Moreover, continuing to sit throughout that week would make the task of completing all necessary reserved decisions before the Stratford trial sittings that much harder.

[35] I nevertheless was inclined to do what I could to help the parties finally have their repeatedly delayed trial, and remove this longstanding matter from the court’s docket.

[36] After counsel then confirmed the modified 5-6 week trial duration estimate in the presence of the jury panel, the matter proceeded to jury selection.

PROGRESS OF TRIAL

[37] Following the completion of jury selection by noon on October 1, 2018, the matter was adjourned until the next morning to allow for my hearing of a criminal matter; a matter that had been unalterably scheduled prior to my being asked to preside over the 5 week (now 5-6 week) civil jury trial. The jury nevertheless was excused – in the first instance at least - until October 3, 2018, to allow for argument of numerous preliminary motions and objections.

[38] At that early stage of the proceedings, my faith in the accuracy of the trial duration estimates provided by counsel was buttressed by counsel having prepared, (in response to a request I made in advance of trial, through the trial co-ordinator), draft calendars mapping out their contemplation of how the trial would proceed on a day to day basis; e.g., indicating the tentative scheduling of witnesses. In particular:

• Plaintiff counsel provided me with a draft calendar indicating that the number of contemplated plaintiff witnesses had been reduced to 18, and that presentation of the plaintiff’s case was expected to conclude on October 25, 2018; i.e., just over 3 ½ weeks into the trial. That draft calendar took into account the statutory holiday for Thanksgiving that would occur on Monday, October 8, 2018.
• Defence counsel took no issue with the draft calendar provided by plaintiff counsel. Although they did not provide a calendar that supplemented the draft calendar prepared by plaintiff counsel, (i.e., picking up where it left off), defence counsel did provide a calendar essentially indicating that the defence now intended to call only four witnesses, (two participating experts and two litigation experts), and noting the dates on which those witnesses could be made available over the next five weeks.

[39] It was noteworthy that neither calendar provided any indication of when necessary further steps would be taken, after the presentation of evidence, to complete the additional procedures always required in a civil jury trial; e.g., pre-charge conferences, finalization of questions to be put to the jury, closing arguments of counsel, charging of the jury by the trial judge, and jury deliberations.

[40] However, it seemed to me that, so long as matters generally adhered to the draft calendar provided by plaintiff counsel, and testimony of the defence witnesses lasted approximately four days, (i.e., allowing at least one day for the testimony of each defence witness), the trial could be completed within the stated trial duration estimates.

[41] In retrospect, hopes of keeping to such a schedule began to fade almost from the outset, and dimmed with each passing day.

[42] Before making more detailed comments about my mounting concerns in that regard, and attempts to address those concerns, I think it helpful to provide the following general calendar and overview of the trial’s actual progress during the 4½ weeks leading up to my declaration of a mistrial:

• Monday, October 1, 2018: Jury selection was completed in the morning. An afternoon of trial time for this matter was then effectively lost due to a previously scheduled criminal hearing I was obliged to complete.
• Tuesday, October 2, 2018: Argument of preliminary motions and objections began. (Submissions relating to the order of plaintiff witnesses, the relevance of collateral benefit receipt to the plaintiff’s work motivation, and the admissibility of vehicle damage evidence, were received that day.) As a further day of argument proved necessary, the jurors were advised to return to court on the morning of October 4, 2018.
• Wednesday, October 3, 2018: Argument of preliminary motions and objections was completed. (Submissions relating to the plaintiff’s motion to strike the defendants’ jury notice, and the plaintiff’s objection to the defendants tendering surveillance video as substantive evidence, were received that day.)
• Thursday, October 4, 2018: Substantive rulings on the various preliminary motions and objections were released early in the morning, with reasons to follow. [3] Further objections and submissions then were made regarding the scope of the witness exclusion order, (e.g., as to whether it should apply to witnesses being called as both participating and litigation experts), followed by my ruling in that regard. My subsequent preliminary instructions to the jury were followed by the opening submissions of plaintiff and defence counsel. Examination-in-chief of Gloria Gilbert, (the plaintiff’s physiotherapist and case manager), began at approximately 4:00pm.
• Friday, October 5, 2018: Examination-in-chief of Ms Gilbert continued.
• Monday, October 8, 2018: A full day of trial time was lost, as anticipated, because of the Thanksgiving holiday.
• Tuesday, October 9, 2018: Examination-in-chief of Ms Gilbert continued.
• Wednesday, October 10, 2018: Examination-in-chief of Ms Gilbert was completed. Cross-examination of Ms Gilbert also was completed. Commencement of extended re-examination of Ms Gilbert then began. Objections of the day included disputes about assertions of litigation privilege by plaintiff counsel and the proper scope of corresponding record redactions made by plaintiff counsel, as well as disputes about the permissible scope of cross-examination.
• Thursday, October 11, 2018: Re-examination of Ms Gilbert was completed. Examination-in-chief of the plaintiff began. Objections of the day included disputes about the permissible scope of re-examination, as well as extended disputes about the admissibility of various clinical notes and records, and various briefs of documents, which plaintiff counsel wished to tender as exhibits.
• Friday, October 12, 2018: Examination-in-chief of the plaintiff continued. Objections of the day included disputes regarding the production and disclosure of further records from the plaintiff’s employer.
• Monday, October 15, 2018: On arriving at the courthouse that morning, I received a note from one of the jurors asking if court might rise early that afternoon, permitting the juror in question to attend the funeral of a family member who had died unexpectedly over the preceding week-end. I indicated to counsel that I intended to grant that request. Examination-in-chief of the plaintiff thereafter continued in the morning. Objections of the day included initial disputes about defence counsel’s proposed use of surveillance video during cross-examination of the plaintiff. Trial time that afternoon was then lost because of recess I directed, as noted above, to permit the affected juror’s attendance at her family funeral.
• Tuesday, October 16, 2018: Examination-in-chief of the plaintiff continued.
• Wednesday, October 17, 2018: Examination-in-chief of the plaintiff continued until approximately 12:15pm. Cross-examination of the plaintiff then began. Objections of the day included further disputes about the admissibility of vehicle damage evidence, and whether certain hospital records were complete.
• Thursday, October 18, 2018: Cross-examination of the plaintiff continued, including extended defence counsel use of surveillance video after further objections, submissions and rulings in that regard.
• Friday, October 19, 2018: Cross-examination of the plaintiff continued, including further extended defence counsel use of surveillance video.
• Monday, October 22, 2018: A full day of trial time was lost because it was given over to a court directed “mid-trial pre-trial” of this matter, conducted by Justice Heeney. The mid-trial pre-trial apparently terminated after several hours of discussion, when settlement proved impossible.
• Tuesday, October 23, 2018: Arrangements were made at the outset of the day for a shorter lunch break of 45 minutes, (with an arranged lunch provided to the jurors in the jury room), and an extended sitting to 5pm, in an attempt to facilitate anticipated testimony from Dr Darrell Ogilvie-Harris, (an orthopedic surgeon and plaintiff litigation expert attending with difficulty from Toronto), following expected completion of the plaintiff’s testimony. However, the day then began with a further unexpected complication, as juror number 3 sent a note indicating that she was experiencing unexpected financial hardship and health concerns caused by her extended jury service. After receiving submissions from counsel, (who agreed with my contemplated course of action), I discharged the juror in question and made a direction, pursuant to s.108(8) of the Courts of Justice Act, R.S.O. 1990, c.C.43, that the trial would continue with five jurors, such that the verdict or answers to questions by the remaining jurors would need to be unanimous. Cross-examination of the plaintiff, (including continued use of surveillance video), then was completed, without re-examination. Dr Ogilvie-Harris then was qualified as a Rule 53 litigation expert, and his examination-in-chief began but was not completed. Progress during the day had been hampered intermittently by a succession of building fire alarms, and very loud noises emanating from the courtroom’s HVAC system. However, the associated loss of trial time from such interruptions, (totalling approximately one hour), was offset by the “extra” hour of time gained from the shorter lunch and later sitting that already had been planned. In other words, the special sitting arrangements made for that particular day did not result in “extra” trial time as planned, but at least prevented scheduled trial time from being lost.
• Wednesday, October 24, 2018: As the schedule of Dr Ogilvie-Harris required him to be elsewhere for a time, Dr Sidney Freedman (the plaintiff’s London-based psychologist) was interposed as the plaintiff’s next witness. In that regard:
  • There was an extended dispute about whether Dr Freedman could properly be qualified as both a participating expert and a Rule 53 litigation expert. That dispute ended with my ruling, having regard to our Court of Appeal’s decision in Westerhof v. Gee Estate, 2015 ONCA 206, [2015] O.J. No. 1472 (C.A.), that such a qualification was possible so long as the mandated additional qualifying steps required by Rule 53 in that regard had been taken, as they had been in this case; e.g., insofar as Dr Freedman and his litigation reports commissioned and served by plaintiff counsel were concerned.
  • That was followed by an extended voir dire as to Dr Freedman’s qualifications as an expert, (including extended cross-examination of Dr Freedman by defence counsel and re-examination by plaintiff counsel), during which defence counsel suggested and argued the existence of a disqualifying perception of bias on the part of Dr Freedman. In the result, I nevertheless found, shortly before the lunch break, that Dr Freedman was properly qualified to give opinion evidence in relation to psychology, both as a participating expert and as a litigation expert.
  • Following the lunch break, commencement of Dr Freedman’s substantive testimony was delayed for a time by discussion of a further potential issue. In particular, as defence counsel proactively brought to the attention of plaintiff counsel and the court, defence counsel inadvertently and unknowingly had interacted in the courthouse lobby with a relative of one of the five remaining jurors, who was thought to have seen the interaction. That in turn revealed, (without indication of whether or not the juror in question was aware of the additional fact), that the son of the person with whom defence counsel had interacted in the courthouse lobby - and therefore another relative of the juror in question - was working as an associate lawyer at defence counsel’s law firm. In the result, all parties indicated through counsel that they nevertheless were content to proceed with the trial, without any further inquiries being made of the juror in question.
  • Examination-in-chief of Dr Freedman then began, but was not completed during the remainder of the afternoon.
• Thursday, October 25, 2018: Examination-in-chief of Dr Freedman resumed and continued until the morning break, after which his cross-examination began and continued to the lunch break – albeit without completion. Following the lunch break, however, the parties consented to interruption of defence counsel’s cross-examination of Dr Freedman to permit the resumed examination-in-chief of Dr Ogilvie-Harris, whose schedule had permitted his return to London. That resumed examination-in-chief of Dr Ogilvie-Harris then continued to the end of the day, albeit without completion. Objections of the day included disputes about whether Dr Ogilvie-Harris should be permitted to testify about new and unpublished research developments, relating to chronic pain, which had not been mentioned or addressed in his Rule 53 report.
• Friday, October 26, 2018: Approximately 90 minutes of trial time for this matter unfortunately were lost that morning. In particular, my ability to continue with the trial starting at 10am was delayed until approximately 11:45am, (i.e., after the scheduled 15 minute morning break that would have started at 11:30am), by a previously scheduled criminal hearing that began later than its scheduled start time that morning, due to court staffing issues, and then continued longer than expected. When trial of this matter resumed late that morning, Dr Ogilvie-Harris and Dr Freedman apparently were both unavailable to continue with their testimony. Kelly Farrell, (an occupational therapist and life care planner), was then further interposed, on consent of the parties, as the plaintiff’s next litigation expert. Ms Farrell’s examination-in-chief continued into the afternoon and was completed. However, by the end of the day, her cross-examination had begun but had not yet been completed. The day ended with my being informed that the parties anticipated further interposition of another plaintiff litigation expert the following Monday. In particular, I was informed that the plaintiff would be calling Dr Michel Rathbone, (a neurologist from Hamilton), and that the parties anticipated a voir dire and argument, in the middle of Dr Rathbone’s testimony, to determine whether I should permit certain evidence which defence counsel viewed as impermissible “novel science” or theory relating to “Post Inflammatory Brain Syndrome”. To assist with my week-end preparations for that voir dire, I was provided with a substantial volume of authorities by defence counsel, and later received, via email, a copy of the lengthy published “abstract” in which Dr Rathbone had published the relevant theory that would be the subject of the anticipated voir dire.
• Monday, October 29, 2018: The day began with plaintiff counsel informing me that the contemplated voir dire for which I had prepared would no longer be necessary, as plaintiff counsel had decided that the anticipated testimony of Dr Rathbone, (who was present in court and waiting to testify), would no longer include the disputed science or theory in question. Additional discussion regarding further witnesses and scheduling, including the timing of evidence from another anticipated plaintiff litigation expert, (i.e., Karen Dalton, a chartered accountant who was expected to provide testimony about the present value of the plaintiff’s claimed future income loss and future care costs), who was about to leave on a scheduled vacation, extended to the morning break. When I returned from that morning break, I was advised that the plaintiff would no longer be calling Dr Rathbone as a witness. The plaintiff instead next called Ms Dalton, whose testimony, (including all examination-in-chief and cross-examination, with no re-examination), was completed by the lunch break. Following the lunch break, Ms Farrell attended again for the completion of her cross-examination and re-examination, (which included a number of objections and rulings as to the permissible scope of re-examination). The day concluded with plaintiff counsel reading in portions of the transcript from the defendant driver’s oral discovery examination, pursuant to Rule 31.11 of the Rules of Civil Procedure.
• Tuesday, October 30, 2018: The plaintiff’s family doctor here in London, (Dr Maria Tetelbaum), was called as the plaintiff’s next further interposed witness. Her examination-in-chief continued into the afternoon. When she was presented for cross-examination, (which defence counsel estimated would take at least half a day and probably longer), a further dispute emerged relating to production and disclosure of Dr Tetelbaum’s original file, with defence counsel objecting to an extended list of further record redactions that had been made by plaintiff counsel, with plaintiff counsel once again asserting litigation privilege. That dispute in turn led to another extended interruption, (in the jury’s absence), during which I reviewed the relevant redacted material, (produced for my inspection), and then, with the consent of plaintiff counsel, provided generic descriptions, in open court, of the type of matters addressed by the redactions. Further submissions raised issues about whether litigation privilege could be asserted in relation to participating experts, with plaintiff counsel submitting and referring to authorities not previously supplied to defence counsel or the court. In the result, court was adjourned at 4:00pm that day, with the jury and witness being excused until 10am the following morning, in contemplation of counsel appearing before me at 9:30am to complete argument and resolution of the privilege and disclosure issue without further loss of trial time. Later that evening, I nevertheless was advised by email, sent by defence counsel with the consent of all concerned, that the defendants would no longer be pursuing the relevant objection. In the circumstances, I indicated that court would reconvene at 10am the following day; i.e., the time at which Dr Tetelbaum and the jury had been asked to return to court.
• Wednesday, October 31, 2018: When court reconvened, I advised counsel that, having given further consideration to my previously and repeatedly expressed concerns about the progress of the trial and possibility of a mistrial, and the numerous earlier submissions received from counsel in that regard, I regrettably had come to the conclusion that it was necessary to declare a mistrial and discharge the jury.

DECISION TO DECLARE MISTRIAL

[43] As indicated in that last preceding sub-paragraph, my decision to declare a mistrial was not made suddenly and without warning, or without substantial and repeated input from counsel. To the contrary, as matters progressed, I repeatedly had expressed mounting concerns regarding:

a. the apparently slow progress of the trial; b. the repeatedly demonstrated inaccuracy of time duration estimates provided by counsel; c. the diminishing prospects for completing this matter within the repeatedly confirmed trial duration estimate provided by counsel; and d. the looming prospect of a mistrial.

[44] In that regard, it unfortunately became clear, from a relatively early point in the trial, that the original schedule of witnesses provided to the court effectively had been entirely discarded by counsel. In particular:

• On October 9, 2018, I spent time after the lunch break emphasizing to counsel that, despite the very extended list of contemplated plaintiff and defence witnesses, matters had not progressed beyond the ongoing examination-in-chief of Ms Gilbert, the first witness, whose testimony was to have been completed four days earlier according to the draft calendar provided by counsel at the outset of trial. (The material filed by plaintiff counsel in relation to the three earlier pre-trials repeatedly had indicated that Ms Gilbert’s testimony – or at least her examination-in-chief – would be completed in half a day to one day.)
• In response, plaintiff counsel indicated that plaintiff counsel had decided to spend more extended time with the plaintiff’s earlier witnesses, (e.g., Ms Gilbert and the plaintiff herself), as their testimony was viewed as a sensitive and important part of establishing a solid basis for the plaintiff’s claim, and the further evidence to follow. I was assured that plaintiff counsel intended to compensate for any resulting lag behind the originally contemplated witness schedule by intended abbreviation of the testimony to be provided by the plaintiff’s remaining witnesses.
• As I noted at the time to plaintiff counsel, (and thereafter at later points during the trial, by way of lament), that decision and approach taken by plaintiff counsel nevertheless effectively deprived me of any benchmarks by which to assess whether the trial was progressing in a manner that would ensure its completion with the trial duration estimate provided to the jury.

[45] My concern about the rate of progress being made during the first 1-2 weeks of the trial had evolved into openly expressed alarm by the time it became abundantly clear that, by the end of a the third week of a trial that was to last no more than six weeks, we would not have fully completed even two of the twenty-two anticipated plaintiff and defence witnesses to be called at trial. (In the draft calendar provided by plaintiff counsel at the outset of trial, it was indicated that the entire testimony of the plaintiff would take no more than 3-4 days. By the end of the third week of trial, the plaintiff had been in the witness box for 6 days, with her testimony set to continue into the fourth week of trial.)

[46] In that regard, I indicated to counsel that I had serious mounting concerns about the distinct possibility of a mistrial if the matter could not be completed within the maximum trial duration estimate, and about the horrendous waste of time and expense that would entail.

[47] In an attempt to avoid such waste, I also indicated to counsel, during the latter part of the third week of trial, that in consultation with the regional trial co-ordinator and the generous support of Justice Heeney, I was directing the parties to engage in a full day “mid-trial pre-trial” on Monday, October 22, 2018, to see if that might resolve the matter.

[48] In that regard, I was hopeful, notwithstanding the multiple unsuccessful pre-trials conducted in relation to this matter, that the litigation landscape might have changed by the time of the directed mid-trial pre-trial; e.g., insofar as the parties, by that time, would have the benefit of my various trial rulings to date, as well as most of the plaintiff’s anticipated testimony. In my experience, the latter consideration usually has been of great significance in the assessment of “chronic pain” cases of this nature; i.e., where the lack of objective injuries and the subjective nature of a plaintiff’s complaints make credibility of the plaintiff a key concern.

[49] When trial resumed after failure of the midtrial pre-trial, I once again spent time, on the morning of October 23, 2018, emphasizing:

• the importance of accurate trial duration estimates, for all the reasons outlined above;
• the trial estimates that had been provided in this matter;
• the reasons and explanations, noted above, why this matter could not proceed beyond six weeks; and
• why I therefore necessarily would feel obliged to declare a mistrial if it became clear that the matter could not be completed within those six weeks.

[50] In that regard, I noted and confirmed my recognition that, in fairness, there had been approximately three days of trial time lost through no fault of the parties. Again, that lost trial time included: a half day immediately following jury selection because of a previously scheduled criminal matter; a full day because of the Thanksgiving holiday; [4] a half day to allow for a juror’s attendance at a family funeral; and a full day devoted to the mid-trial pre-trial directed by the court.

[51] However, adding those three days to the parties’ respective trial duration estimates would mean that:

• according to the trial duration estimate provided by plaintiff counsel, the trial would end by Wednesday, November 7, 2018; and
• according to the trial duration estimate provided by defence counsel, the trial would end by Friday, November 9, 2018.

[52] In other words, notwithstanding the loss of time for which the parties were not responsible, holding the parties to the trial duration estimates provided to the court would still result in the trial being expected to finish within the maximum 5-6 week trial duration estimate provided to the jury – failing which it seemed that a declaration of a mistrial might be necessary.

[53] Notwithstanding that clear warning, it seemed to me that the pace of the trial did not improve markedly during the fourth week of the trial – although matters increasingly were proceeding in a somewhat haphazard manner; e.g., with more witnesses being interposed into the testimony of already interposed witnesses.

[54] By the end of the fourth week of trial, on Friday, October 26, 2018, we still had not fully completed more than two witnesses; i.e., Ms Gilbert and the plaintiff herself. In particular, we had merely started but not yet finished a further three witnesses; i.e., Dr Ogilvie-Harris, Dr Freedman and Ms Farrell.

[55] In the result, I had an extended and very frank discussion with counsel late that afternoon, (i.e., late in the afternoon on October 26, 2018), after the jury had been excused for the day. I indicated that, as matters stood, and based on how the trial had been conducted so far, I frankly saw little or no realistic prospect of the trial coming close to completion before the end of six weeks. In that regard, I specifically reminded counsel that it was not a matter of simply completing the presentation of evidence within six weeks. To the contrary, I indicated that, notionally moving backwards from the end of the trial, it seemed to me that:

• The jury realistically would require at least two days of deliberations, having regard to the length of the trial, the amount of evidence to be considered, the number of issues to be decided, and the fact that all decisions of the jury now had to be unanimous;
• In a trial of this length, I realistically would require at least 1-1 ½ days to properly charge the jury;
• Having regard to the length of opening submissions by counsel, closing submissions lasting at least half a day to a day seemed likely if not inevitable; and
• Having regard to the highly contentious nature of the trial to date, at least half a day should or would be devoted to the necessary pre-charge conference, as well as discussion and resolution of the questions to be put to the jury.

[56] In other words, it seemed to me that most if not all of the sixth and final week of time within the maximum trial duration estimate provided to the jury would be consumed by such steps, meaning that the presentation of all evidence realistically would have to be completed by Friday, November 2, 2018; i.e., the end of the fifth week of trial.

[57] Again, I did not see how that realistically could be accomplished in the five days of trial time remaining between October 26, 2018, and November 2, 2018, and I therefore could not see the sense of the jurors, parties, court staff and I devoting more time, expense and effort to a figuratively sinking ship.

[58] I also was increasingly concerned about the manner in which the trial was proceeding, insofar as various claims and arguments, obviously pursued and thought to be meritorious only a short time before, apparently were being “thrown overboard”, (along with the witnesses necessary to support them), in an effort to help that figuratively sinking ship reach safe harbour before it went under.

[59] In saying that, I very much appreciate that strategic decisions and correspondingly altered plans frequently are made by counsel, during the course of trial, to emphasize certain claims and arguments rather than others. In this case, however, it seemed from my objective standpoint that decisions in this case were being influenced more by desperation than careful deliberation.

[60] At the time of that frank and candid discussion with counsel, (i.e., late in the day on Friday, October 26, 2018), neither side supported declaration of a mistrial. Plaintiff counsel in particular urged me to refrain from taking such a step, asking me to trust in their having a realistic plan to complete the trial on time.

[61] Although I was loathe to permit any greater waste of time and money than that which already had been incurred, I also was extremely reluctant to declare a mistrial if there was any realistic hope of the trial being completed in a timely and just way. Instead of declaring a mistrial that evening, I accordingly adjourned the matter to the following Monday for continuation.

[62] However, when court reconvened that Monday morning, a sense of haphazard scramble was palpable. In particular:

• Plaintiff counsel informed me for the first time, and despite the indications received when court rose the Friday before, that the anticipated voir dire about Dr Rathbone’s contemplated testimony relating to Post Inflammatory Brain Syndrome would not be necessary, as plaintiff counsel would no longer be asking for that topic to be addressed in Dr Rathbone’s evidence.
• Plaintiff counsel also advised that there now was an intention to curtail examination-in-chief in relation to further plaintiff witness testimony, and no longer call many of the previously identified and contemplated plaintiff witnesses; i.e., reducing the number of plaintiff witnesses from the 18 indicated at the outset of trial to just six in total. That apparently had been announced to the great surprise and consternation of defence counsel, who indicated that much of what plaintiff counsel apparently was attempting to “off-load” from the plaintiff’s case necessarily then would have to be “uploaded” to the case defence counsel would have to present; e.g., through more extended cross-examination of remaining plaintiff witnesses, and the unexpected but now necessary defence calling of additional relevant witnesses, (such as the plaintiff’s occupational therapist Allan Mills, and the plaintiff’s former work supervisor Gail Sinclair), whom the plaintiff now was refusing to call. Moreover, defence counsel not unexpectedly indicated the probability of a request to call such formerly intended and prepared plaintiff witnesses as “adverse” witnesses, so as to permit the asking of leading questions. That stated intention in turn prompted an indication from plaintiff counsel that such a request would be strongly opposed, thereby immediately raising the spectre of all concerned having to devote more trial time to further legal debate and argument, rather than the contemplated presentation of further remaining evidence.
• Finally, plaintiff counsel mentioned in the course of submissions that their plans to complete the trial now involved the possibility of calling Ms Dalton to deliver her contemplated expert testimony the following week, following her return from vacation. I expressed surprise at that suggestion; e.g., questioning how that could possibly happen, as I was not inclined to permit “splitting” of the plaintiff’s case, and uninterrupted continued presentation of the plaintiff’s case into the sixth week of trial seemed an obvious implicit if not explicit concession that the trial could and would not be completed in time.

[63] Having regard to all the circumstances, I still did not see how presentation of the remainder of plaintiff’s evidence and presentation of all contemplated defence evidence realistically could be completed by the end of that fifth week of trial, so as to enable the trial to conclude by the end of the following week; i.e., within six weeks. I also continued to be troubled by the questionable quality of justice which desperation to complete the trial now seemed to be producing.

[64] Moreover, by that point defence counsel was expressing the view, albeit grudgingly and for the first time, that it now seemed clear there really was no point in continuing further with the present trial. That indication weighed heavily with me, primarily because – as I indicated to counsel – it seemed to me that such an indication from the defendants might very well justify a later finding, (i.e., in relation to determining who should bear the costs of any abortive trial proceedings), that the plaintiff alone should bear the expense of any further waste from that point forward.

[65] My strong inclination to declare a mistrial accordingly had returned, despite the renewed and fervent pleas of plaintiff counsel to trust in the feasibility of their planned course of action, and permit the trial to continue.

[66] At the request of plaintiff counsel, who then asked for one further opportunity to speak with defence counsel in my absence, I nevertheless agreed to take the morning break before rendering my contemplated decision to declare a mistrial and discharge the jury.

[67] When I returned to the courtroom, however, it seemed that counsel somehow had arrived at some form of mutually acceptable plan, over the morning break, which hopefully would conclude the presentation of all necessary evidence by the end of the week as required. In particular, Dr Rathbone had departed, Ms Dalton had appeared in the courtroom, and defence counsel confirmed an intention to have two defence litigation experts, (i.e., Dr Michael Devlin, a physiatrist, and Dr Stanley Debow, a psychiatrist), attend in London on the Thursday and Friday of that week.

[68] Some of those developments reinforced my disquiet that decisions were being made through desperation rather than deliberation. For example, I frankly could not otherwise understand why plaintiff counsel obviously had incurred the expense of bringing a Hamilton neurologist to a London courtroom, prepared and ready to enter the witness box immediately, only to have the neurologist disappear shortly thereafter, never to return, without offering a word of testimony.

[69] To permit one final “wait and see” opportunity, I nevertheless decided to hold off on declaring a mistrial, and permitted the trial to continue.

[70] However, by the evening of Tuesday, October 30, 2018, my reservoir of hope effectively had been exhausted, and I frankly no longer had faith in the assertions of counsel as to how the trial would proceed. In particular:

• Although we had managed to complete the testimony of Ms Dalton and Ms Farrell on Monday, October 29, 2018, the examination-in-chief of the plaintiff’s family doctor, (Dr Tetelbaum), was more extensive that I thought it would be, and consumed most of that Tuesday; i.e., October 30, 2018.
• Moreover, Dr Tetelbaum’s cross-examination had then been delayed by further legal sparring, (consistent with the highly contentious manner in which the trial had been conducted to date), and that cross-examination, once it began, was expected to take “at least” half a day in the estimation of defence counsel. Based on my experience to date with the trial, and defence counsel’s indication the previous morning that his cross-examinations of remaining plaintiff witnesses might necessarily have to expand to cover matters not pursued in intentionally curtailed examination-in-chief of remaining plaintiff witnesses, it seemed to me that defence counsel’s estimate of “at least” half a day to complete the cross-examination of Dr Tetelbaum almost certainly was conservative.
• We also had yet to complete the examination-in-chief of Dr Ogilvie-Harris, (let alone his cross-examination), or the cross-examination of Dr Freedman. Once again, based on the conduct of the trial up until that point, I had no faith that the remaining testimony of those expert witnesses would be completed quickly.
• More generally, based on all of my experience with how counsel had conducted themselves to date in the trial, I no longer had any expectation or hope that presentation of all the plaintiff’s remaining evidence realistically would be completed before Friday, November 2, 2018.
• Of course, whenever plaintiff counsel finally completed presentation of the plaintiff’s evidence, the defendants then would have to be given a fair opportunity to present their case, to the extent they had not already done so in part through cross-examination, including presentation of all their surveillance video during cross-examination of the plaintiff. In that regard:
  • We would have to complete the entire testimony of at least two defence litigation experts; i.e., Dr Devlin and Dr Debow. Once again, based on my experience of the manner in which counsel had approached such matters during the course of the trial, I had no faith that would be an abbreviated exercise. At the very least, it seemed to me that would require at least two days, and probably three days.
  • We also would have to complete the testimony of Allan Mills, (i.e., the plaintiff’s occupational therapist), and either Gail Sinclair, (i.e., the plaintiff’s former work supervisor), or another representative of the plaintiff’s former employer. Leaving aside the probability of further sparring between counsel about whether defence counsel should be permitted to treat such witnesses as adverse in interest, (so as to permit their cross-examination despite being called by the defence), defence counsel’s inherent inability to prepare such witnesses undoubtedly would extend the length of their questioning. Of course, plaintiff counsel then would have an opportunity to question such witnesses as well; e.g., to elicit whatever further evidence plaintiff counsel originally may have contemplated leading from such witnesses. In that regard, I think it noteworthy that, in their material filed for the three pre-trials, plaintiff counsel consistently estimated that questioning of Mr Mills would take at least half a day to a day, and that the questioning of Ms Sinclair would take at least two hours. In the circumstances, I thought it reasonable to expect that unprepared questioning of both witnesses, and legal wrangling about the manner in which they should be questioned, conservatively would add at least two more days to the trial.
  • Bearing in mind such considerations, it seemed clear to me that presentation of defence evidence would continue well into the sixth week of trial, or perhaps even into a seventh week, with final completion of the trial thereafter unlikely to take place, at the earliest, until well into a seventh week of trial, and perhaps even into an eighth week of trial.
• In short, I felt there was clearly no longer any realistic possibility of the trial being completed within the trial duration estimate. Had the trial continued, counsel inevitably would have been asking for the matter to push well into a seventh or even an eighth week, and that simply was not possible for the reasons outlined above. In the circumstances, a mistrial was inevitable, and I felt strongly that there was no merit in adding to the time and expense already wasted.
• The advisability of declaring a mistrial also was reinforced and compounded, I felt, by the quality of justice concerns outlined above. Beyond the concerns already outlined in that regard, I found it very troubling that plaintiff and defence counsel were both starting to indicate openly on the record, in various ways, that they were making decisions under duress. For example, plaintiff counsel indicated that assertions of privilege reluctantly might have to be waived if that was required to move the trial forward, while defence counsel indicated a frustrated desire to call a third expert witness because that seemed to be precluded by the time constraints. In my view, a fair and just trial is not characterized by counsel suggesting they are having to make decisions with figurative guns to their heads.

[71] Again, I was and am more than mindful that declarations of mistrial should not be made lightly. Indeed, I can safely say that this was one of the most trying and difficult decisions I have had to make since my time on the bench.

[72] For all the reasons outlined above, I nevertheless felt it was the right and necessary decision.

[73] With the benefit of perfect hindsight, it was a decision that arguably should have been made sooner, to curtail the amount of waste involved. Again, however, the timing of my progressively postponed decision in that regard was constantly being balanced against the countervailing hope and goal of completing a proper trial on the merits, within the maximum trial duration estimates.

[74] I should also note and emphasize that, in my view, “saving” the trial by striking the jury notice, in order to continue the trial as a judge alone proceeding, (which might then have allowed adjournment of the trial for continuation and completion at some later date), was not a viable or just solution in this case for a number of reasons. In particular:

• At the outset of trial, plaintiff counsel had argued strenuously for the defendants’ jury notice to be struck out, but I had dismissed the plaintiff’s motion in that regard. For reasons to be released shortly, (in my final substantive endorsement relating to this trial), I thought and still think that the proper principles and test to be applied to the determination of such issues indicated no sufficient reason why the nature of this particular case justified denying the defendants’ their important substantive right to trial by jury. In my view, parties unable to strike a jury notice through application of the proper considerations and test cannot be permitted, through presentation of an inaccurate trial duration estimate, and/or through presentation of their case without suitable organization and efficiency to ensure completion of a case within that estimate, to “bootstrap” their way into striking of the jury notice by indirect means; i.e., by effectively creating and relying upon an entirely avoidable situation of urgency that would see a jury notice being struck through application of a fundamentally different test, based on artificial necessity.
• Moreover, striking the jury notice and proceeding by way of a judge alone trial might “save” the trial from the perspective of the parties, but aside from reducing the unfairness already inflicted on jurors by the significantly inaccurate trial duration estimate, striking the jury notice would do nothing to address the many other fundamental concerns, outlined above, underlying the need for accurate trial duration estimates. Such estimates are vitally important in relation to judge alone trials as well.

[75] Of course, the further delays and waste occasioned by this mistrial are tragic.

[76] In that regard, I nevertheless return to the broader offsetting considerations already noted above.

[77] In particular, if nothing else, the outcome in this case hopefully will have the salutary effect of encouraging counsel in this and other matters to take more care in ensuring accurate trial duration estimates, and presenting their cases at trial in a more organized and efficient way.

[78] In saying that, I am mindful of the reality, (which often comes to the fore in our court when rules are not enforced with sufficient regularity), that we effectively “promote what we permit”.

[79] In this case, I regrettably could not permit the trial to continue when it became absolutely clear that there was no hope of it being completed within the trial duration estimates provided by counsel.

[80] To preserve the integrity of court scheduling from a wider perspective, and properly safeguard the interests of all those with a stake in the administration of justice, perhaps parties and their counsel need to hear that more often.

Further proceedings

[81] In order to move this matter forward, I have endorsed the trial record to not only confirm the declaration of mistrial, but also to direct that the matter be spoken to in the next London civil assignment court, on November 23, 2018, for the scheduling of new trial dates.

[82] In that regard, (and as I already have indicated to the London trial co-ordinator), I do not believe I am seized of the matter. On the other hand, nor do I think there is any outright prohibition on a judge who presided over a civil mistrial being assigned to preside over a new trial.

[83] However, while I certainly am more than content to do future trials involving these particular lawyers, I frankly do not know that it would be advisable to have trial of this particular matter placed before me again, for a number of reasons:

• First, this trial proceeded by way of trial by judge and jury. Because of that, I may have been made privy to certain information, (after refusing to strike the jury notice), that arguably should not be made known to a judge in a potential judge alone trial – especially if plaintiff counsel intend to bring a further motion to strike the jury notice in relation to the next trial.
  • Second, in this particular case, I was presented with a very large volume of evidence that may or may not be replicated exactly during the course of a second trial. It is easier to keep track of such distinctions in relation to successive short trials, but the task inherently becomes much harder in relation to very long trials. That almost certainly will risk confusion, (in the minds of counsel, witnesses and myself), as to precisely what evidence was led in one trial but perhaps not the other. One or both sides also might then have concerns, or suggest on appeal, that I somehow was influenced by evidence presented during the earlier trial that was not presented during the subsequent trial. The inevitable risks of such things happening, or such concerns being raised, can be avoided or reduced significantly by having all concerned know that another trial judge will be approaching the matter with fresh ears and eyes.
  • Third, in outlining my reasons for the mistrial and the costs of the abortive proceedings, I necessarily have been critical, to some extent, of the conduct of counsel in relation to the manner in which this particular trial was handled. I do not think I have any resulting bias. However, possible perception of bias is an equally legitimate concern.
  • Fourth, when the matter is up for trial again, I think it should be given a more generous time estimate, for obvious reasons. As a practical matter, if the London trial co-ordinator is looking for a period when I may have 6-8 weeks of uninterrupted sitting time here in London, (assuming, as the London trial co-ordinators must do at least for scheduling purposes, that the matter once again will be proceeding as a trial by judge and jury, as requested by the defendants), I expect such a period of uninterrupted London sittings by me will be very difficult to find, given the regional schedule and the need for my periodic attendance in Stratford to preside over trial sittings there.
  • Fifth, notwithstanding my comments outlined above, relating to possible perceptions of bias, I think such concerns may be less in the context of a judicial pre-trial, where I obviously would not have the ability to make any binding substantive decisions in this matter. In that regard, it also seems to me that I now am uniquely placed to conduct any further pre-trial that may be required or advisable in relation to this matter; i.e., to see if the parties’ dispute can be settled in light of what now has happened. In saying that, I know Justice Heeney and three separate judges before him, with varying degrees of intensity, tried and failed to resolve the matter. However, I now have the benefit of having seen numerous witnesses – and the plaintiff in particular – testifying at length. I also now have elevated insight as to how certain issues appeared to play out in front of a jury. In the circumstances, I may be far more useful from that perspective, in terms of possibly helping to resolve the matter, and removing it from the court’s docket by means other than a further lengthy trial.

[84] In short, while I remain committed and willing to assist with resolution of this particular dispute, doing so by presiding over a second trial may not be the best option.

Costs

[85] For various reasons, my preliminary view is that the costs of this abortive trial should remain where they fell; i.e., with each side bearing their own costs of the exercise, through the making of no formal order awarding costs of the trial to either side.

[86] In saying that, I am mindful that plaintiff counsel obviously bear a strong measure of responsibility for the manner in which presentation of the plaintiff’s case unfolded, which in turn consumed the vast majority of the inadequate trial duration estimate. However:

• Duration of the plaintiff’s case inevitably was driven in part by the cross-examination choices of defence counsel. In this case, that included the extended presentation of surveillance video, (during cross-examination of the plaintiff), which otherwise would have been presented as substantive evidence during presentation of the defendants’ case.
• Duration of the trial was extended in part by the need to address numerous motions, arguments and objections, many of which were raised by defence counsel, and not always successfully.
• Because the mistrial occurred before presentation of the defendants’ case, the precise extent (if any) to which presentation of their own case also may have contributed to the matter extending beyond the trial duration estimates remains unclear.
• Plaintiff and defence counsel both “bought into” the very similar trial duration estimates provided in this case, notwithstanding the very large number of contemplated witnesses identified in the multiple pre-trial filings, the issues raised, (some of a novel nature), and the highly contentious nature of the case. In such circumstances, it seems to me that awarding the costs of a mistrial caused by an inaccurate trial duration estimate to one side or the other, after the fact, effectively reduces the incentive for each party to engage in an ongoing critical assessment of the trial duration estimate, and proactively alert the court to possible inadequacies in that regard as soon as possible.
• I am mindful of the reality that a mistrial occurring during presentation of the plaintiff’s case, and before presentation of the defendant’s case, inherently inflicts a greater degree of hardship on the plaintiff. In particular, the plaintiff is the party likely to have incurred greater disbursements, (especially those associated with attendance of plaintiff litigation experts), at that point in the proceedings.
• I also am mindful of the reality that individuals inherently have less ability to weather the costs of a mistrial than insurers. [5] In saying that, I wish to make it absolutely clear - as I did in open court - that from my objective perspective, I saw absolutely nothing to indicate or even suggest that the defendants in this case were somehow intent on engineering a mistrial. From beginning to end, cross-examinations by defence counsel were conducted in the same manner, and objections – even when not successful – were always advanced in the same principled and proper manner. Until shortly before my declaration of mistrial, defence counsel also were hoping and pressing for completion of the trial, and a litigated end to the parties’ dispute, just as much as plaintiff counsel. From an access to justice perspective, however, the reality remains that a mistrial is likely to have a disproportionate impact on the plaintiff’s ability to continue pursuit of her positions advanced in the litigation, especially if all the associated costs were born by the plaintiff.

[87] However, if the parties disagree with my preliminary view, written cost submissions, not exceeding 10 pages in length, may be submitted by each side within 30 days of the release of this endorsement. If no written submissions are delivered by then, an order is to go indicating that no costs of the abortive trial are awarded to the plaintiff or to the defendants.

[88] That endorsement also has been noted on the trial record.

Justice I.F. Leach Date: November 5, 2018

Footnotes

[1] See Ismail v. Ismail, 2018 ONSC 6489, at paragraph 8.

[2] See, for example, Mayer v. 1474479 Ontario Inc., 2014 ONSC 1985, at paragraphs 71-90.

[3] Throughout the trial, I thereafter continued to divide my time outside of court between intermittent continuing work on my jury charge and the preparation/release of those promised reasons. See, in that regard: Ismail v. Fleming, 2018 ONSC 5978, (providing reasons for dismissing the defendants’ objection concerning the sequence of plaintiff witnesses); Ismail v. Fleming, 2018 ONSC 5979, (providing reasons for sustaining the plaintiff’s objection concerning relevance of collateral benefits to the plaintiff’s work motivation); Ismail v. Fleming, 2018 ONSC 6140, (providing reasons for dismissing the plaintiff’s motion to exclude vehicle damage evidence), and Ismail v. Fleming, 2018 ONSC 6311, (providing reasons for dismissing the plaintiff’s objection concerning the admissibility of defence surveillance video as substantive evidence). Following release of these reasons for declaring a mistrial, I will return to completion of my last outstanding set of promised reasons in relation to this trial; i.e., the reasons for my dismissal of the plaintiff’s motion to strike the jury notice filed by the defendants.

[4] I decided to include that Thanksgiving holiday, in my calculation of an appropriate “extension” for time lost through no fault of the parties, notwithstanding the reality that the loss of trial time on that particular day obviously could and should have been foreseen by counsel and taken into account in the provision of their trial duration estimates given immediately prior to jury selection. Indeed, loss of trial time on that day was taken into account by counsel in that regard, as evidenced by the draft calendar provided at the outset of trial by plaintiff counsel, with no expressed concerns by defence counsel.

[5] Not surprisingly, (having regard to the mandatory requirement of automobile insurance in this province), the defendants in this case had such an insurer. That was confirmed by the report to trial judge, indicating that liability for the underlying automobile accident had been admitted by the defendants in exchange for the plaintiff’s agreement to confine the quantum of her claims to the limits of third party liability insurance available to the defendants.