Groen v. Harris, 2010 ONCA 621

CITATION: Groen v. Harris, 2010 ONCA 621

DATE: 20100929

DOCKET: C51223

COURT OF APPEAL FOR ONTARIO

Goudge, Cronk and Armstrong JJ.A.

BETWEEN

Rebecca Groen, John Groen and The Estate of Linda Groen, Deceased, as Represented by John Groen

Plaintiffs (Appellants)

and

J. Bradley Harris and John Harris

Defendants (Respondents)

John F. Evans Q.C. and Andrea M. Hill, for the appellants

Paul J. Pape and David S. Steinberg, for the respondents

Heard: September 7, 2010

On appeal from the order of Justice Caroline E. Brown of the Superior Court of Justice dated September 29, 2009.

By The Court:

[1] This appeal results from a trial in which the jury was asked to assess the damages suffered by the appellants as a result of a motor vehicle accident for which the respondents admitted liability. After three weeks of evidence, and closing addresses by counsel, the respondents, who had delivered the jury notice, moved for a mistrial. The trial judge granted the order, finding that the cumulative effect of certain comments in the closing address of appellants’ trial counsel (not Mr. Evans or Ms. Hill) impaired trial fairness to an extent that could not be corrected by any charge she might give. In the absence of the respondents’ consent, the trial judge refused to decide the issue of damages herself and ordered a mistrial.

[2] In this court, the appellants argued that the trial judge erred in finding that trial counsel’s comments compromised trial fairness and could not be corrected by appropriate instructions. Secondly, the appellants say that, in any event, the trial judge erred in refusing to decide the question of damages herself.

[3] We do not agree with these submissions. There is no doubt that, as Mr. Evans forcefully argued, trial counsel has the right, and indeed the duty, to advance the client’s cause fearlessly and with vigour and must be given considerable latitude in doing so, even to the point of extravagant declaration. But there are also important limits on the bounds of a closing address. See Landolfi v. Fargione (2006), 2006 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at para. 78. As difficult as it is, there is a line to be drawn.

[4] In doing so here, the trial judge gave anxious and detailed consideration to all the various comments in counsel’s closing address that the respondents put forward as offensive, and provided clearly expressed reasons for her conclusions.

[5] She found that a number of the improprieties, including misstating the onus of proof with respect to future losses, misstating the evidence, and inviting the jury to decide based on information not in evidence, could be cured by a correcting instruction.

[6] However, there were a number of statements that she concluded could not be so corrected. These included appeals to the jury’s emotions, and asking the jury to decide the case based on counsel’s opinion of the evidence. For example, she expressed particular concern about counsel telling the jury that in making their decisions they should act on the basis of what they felt in their gut and in their heart and further, that their decision should be based on whether they would be able to look the plaintiff in the eye should they meet her on the street. The trial judge concluded that the statements, of which these are examples, particularly when taken cumulatively, were highly prejudicial and endangered trial fairness. There were simply too many to effectively correct. Her view was that any attempt to do so would only reinforce the emotional considerations already left with the jury.

[7] We agree that it was open to the trial judge to find the comments were inflammatory and diverted the jury’s attention from deciding the issues in this case on the basis of the evidence and that they impaired the fairness of the trial.

[8] While appellants’ counsel carefully took us through each of the comments one by one, focusing on each separately masks the reality that, as is often the case, it was the cumulative effect of the comments that caused the trial judge the greatest concern.

[9] This court has been clear that considerable deference must be given to a trial judge’s assessment of whether counsel’s statements have impaired trial fairness and whether any correcting instruction is possible. The judge hearing the comments in the courtroom is best placed to assess their impact and whether the appearance and reality of trial fairness have been endangered so that correction by the appropriate charge is impossible. See Fiddler v. Chiavetti (2010), 2010 ONCA 210, 317 D.L.R. (4th) 385 (C.A.), at para. 48.

[10] In this case, we can see no basis to interfere with the assessment of the trial judge that a number of the statements in counsel’s closing address crossed the line and, taken together, carried an impact that she could not correct.

[11] That conclusion necessitated dismissing the jury. Since the jury notice was served by the respondents, the decision by the trial judge to decline to decide damages herself was simply an appropriate recognition in the circumstances of this case that the respondents ought not to be deprived of their right to have this issue decided by a jury simply because of the transgressions of appellants’ trial counsel. We would not interfere with her decision to decline to decide the issue and order a mistrial.

[12] In the result, despite Mr. Evans’ able argument, the appeal must be dismissed. Costs to the respondent fixed at $15,000 inclusive of disbursements and applicable taxes.

RELEASED: SEP 29 2010 (“S.T.G.”)

“S. T. Goudge J.A.”

“E. A. Cronk J.A.”

“Rob P. Armstrong J.A.”