Court of Appeal for Ontario

Citation: Williams v. Grand River Hospital, 2016 ONCA 793

Date: 2016-10-26

Docket: M46774 (C62238)

Before: Strathy C.J.O., LaForme and van Rensburg JJ.A.

Between

Lynda Williams, Angie Williams, Kim Widdes and Tyler Bell Plaintiffs (Respondents)

and

Grand River Hospital and Dr. Peter Schuringa Defendant (Appellant)

Counsel: Eli S. Lederman and Madison Robins, for the Defendant (Appellant) Allan Rouben and Greg Carr, for the Plaintiffs (Respondents)

Heard: October 14, 2016

Motion to quash the appeal

ENDORSEMENT

[1] The motion to quash this appeal was granted, with reasons to follow. These are the reasons.

[2] The trial judge declared a mistrial in this civil action and discharged the jury. The conduct of two jurors gave him concern about the appearance of the trial’s fairness, although he did not find that there was a reasonable apprehension of bias.

[3] The judge ordered that he would remain seized of the matter and it would be placed on the list of jury trials commencing in September 2016.

[4] The appellant submits that the order granting a mistrial was final because it went to the jurisdiction of the court, relying on Hopkins v. Kay, 2014 ONCA 514. That case held that an order refusing to stay an action based on lack of jurisdiction was a final order.

[5] In this case, the court did not lose jurisdiction. It expressly retained jurisdiction. The case is similar to Kaybar Fluid Power Ltd. v. Danfoss A/S (2003), 2003 CanLII 4285 (ON SCDC), 168 O.A.C. 196 (Div. Ct.) in which the trial judge, in a judge alone trial, declared a mistrial due to the failure of the plaintiff to produce documents. The judge expressed concern that he would not be able to conduct a fair trial were it to resume. The Divisional Court found the order was interlocutory, because it did not dispose of the merits of the issue before the judge. It simply determined that the issue had to be decided elsewhere, on another occasion.

[6] In our view, for the same reasons, the order under appeal is interlocutory and the respondent’s motion for an order quashing the appeal is granted. Costs of the appeal and the motion fixed at $7,500.00, inclusive of disbursements and all applicable taxes, payable to the respondents in the appeal.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

“K. van Rensburg J.A.”