COURT OF APPEAL FOR ONTARIO DATE: 20240319 DOCKET: C70705
Gillese, Trotter and Coroza JJ.A.
BETWEEN
Jasmine Jarvis, Jeanette Marie Jarvis and Willby Watson Jarvis Plaintiffs (Appellants/ Respondents by way of cross-appeal)
and
Stacey Oliveira, Jose M. Oliveira and Aida F. Oliveira Defendants (Respondents/ Appellants by way of cross-appeal)
Nick Todorovic and Robert Trenker, for the appellants/respondents by way of cross-appeal Donald Rollo and Robert Bowman, for the respondents/appellants by way of cross-appeal
Heard: September 21, 2023
On appeal from the judgment of Justice Audrey P. Ramsay of the Superior Court of Justice, dated April 12, 2022, sitting with a jury, and on cross-appeal from the costs endorsement, dated May 17, 2023, with reasons reported at 2023 ONSC 101.
Trotter J.A.:
Introduction
[1] These appeals arise from a civil jury trial concerning a collision between a motorist and a young pedestrian.
[2] Jasmine Jarvis was 16 years old when she ran across the street and collided with a car driven by Stacey Oliveira. She suffered a severe brain injury, skull fractures, and other injuries. Ms. Jarvis has no memory of the collision.
[3] Ms. Jarvis [1] sued Ms. Oliveira [2] in negligence. The parties eventually agreed on the quantum of damages. Liability was the only issue at trial. It was acknowledged that Ms. Jarvis was partly at fault for the collision. After a five-day trial, a jury found that Ms. Oliveira was not liable at all for what happened. There was no award of damages. In a ruling released more than a year later, the trial judge decided to make no costs award against the plaintiffs.
[4] Both sides appeal. I will refer to the plaintiffs in the underlying action as the appellants throughout, and to the defendants as the respondents. In what I will refer to as the “main appeal”, the appellants appeal the jury’s verdict based on what they submit was an unfair trial. They contend that the trial judge admitted irrelevant and prejudicial bad character evidence about Ms. Jarvis: the fact that, when she ran across the street and collided with the car Ms. Oliveira was driving, Ms. Jarvis and a friend were running from a taxi without having paid the fare.
[5] The trial judge gave no clear ruling on the admissibility of this evidence. However, from her various discussions with counsel, it would appear that the evidence was admitted for narrative purposes only. The appellants contend that respondent counsel exploited this unclear ruling and used the evidence in a way that smeared Ms. Jarvis’ character. The trial judge’s instructions to the jury failed to adequately address this unfairness.
[6] The respondents cross-appeal the trial judge’s costs ruling. The trial judge decided to award no costs based on the tragic circumstances of the case, as well the unfair conduct of respondent counsel in handling the taxi fare evidence: Jarvis v. Oliveira, 2023 ONSC 101, at paras. 46-50. The respondents submit that the trial judge erred in both respects and that they should be awarded costs.
[7] I would allow the main appeal. The manner in which the trial judge dealt with the taxi fare evidence resulted in an unfair trial. Moreover, respondent counsel took advantage of the unclear ruling on the taxi fare evidence to tarnish Ms. Jarvis’ character by implicitly conveying the message that, because of her dishonesty in evading the taxi fare, she was undeserving of compensation. The trial judge’s instructions to the jury did not adequately cure this prejudice. There must be a new trial.
[8] Given the manner in which I would dispose of the main appeal, it is not necessary to consider the cross-appeal. Nonetheless, as discussed below, there are aspects of the costs ruling that illustrate the lack of clarity that suffused the trial arising from the manner in which trial judge handled the bad character evidence.
A. Factual Overview
[9] The factual context of this appeal is straightforward. Ms. Jarvis and her friend, both intoxicated, ran from a taxi without paying the fare and Ms. Jarvis collided with the vehicle driven by Ms. Oliveira. The amount of the fare was $13.00.
[10] Ms. Jarvis was a minor at the time of the collision. It is undisputed that her injuries were caused when she came into contact with the car driven by Ms. Oliveira as she ran across Bathurst Street near St. Clair West Avenue, in midtown Toronto. This event occurred a little after 1:00 a.m. on August 30, 2014.
[11] There were conflicting accounts about how the collision occurred. One narrative of this event was missing: due to her injuries, Ms. Jarvis has no memory of that evening. Her last memory before the crash was of attending a music festival about a month beforehand. She told this to the jury in her very brief testimony, which the trial judge described as being given in a very slow and halting manner, obviously due to her injuries. The limited scope of Ms. Jarvis’ evidence is relevant to the admissibility of the taxi fare issue, discussed below.
[12] Ms. Jarvis was not alone that night. Her friend at the time, Tamara Seixas, was called as a witness by the respondents. She explained that they had been at a park with a few friends, drinking and hanging out. By all accounts, she and Ms. Jarvis were very intoxicated. Ms. Seixas agreed that Ms. Jarvis was “a lot drunk.” They decided to share a taxi with another friend, who got out of the taxi before they did. When they arrived in the area of Bathurst St. and St. Clair Ave. West, they ran from the taxi without paying, as they had planned to do.
[13] By the time of the trial, Ms. Jarvis and Ms. Seixas were no longer friends. They had a falling out. Ms. Seixas explained that Ms. Jarvis’ mother blamed her for what happened that night.
[14] Ms. Oliveria was 20 years old at the time of the incident. She had been driving since she was 16. On the night of the collision, Ms. Oliveira’s father was in the front passenger seat; her mother was asleep in the back seat. They were returning from Woodbine Casino. Ms. Oliveira testified that she did not see Ms. Jarvis until she was less than a foot away from the side of the car. Ms. Oliveira swerved to the right, but it was too late. Ms. Jarvis’ head hit the windshield.
[15] Ms. Oliveira’s father, Jose, was a driving instructor. That night, he warned his daughter to be careful because he believed there were radar “traps” in the area. He testified that he did not see anyone in front of them; he only heard the sound of the collision with Ms. Jarvis. However, in a statement provided to the police at the scene, Mr. Oliveira said, “I saw the girl running. She ran right to the car. My daughter swerved to the right, she almost hit the pole.”
[16] Two independent witnesses, Jessica Guerrero and Laura Covi, were in a car traveling in the opposite direction as the Oliveira vehicle. Ms. Guerrero, who was in the passenger seat, saw Ms. Jarvis and Ms. Seixas standing on the sidewalk. She had an inkling that they were about to cross the street. She told Ms. Covi to be careful. Ms. Covi was able to slow the car down and both girls cleared the path of their vehicle. One of the girls made it all the way across the street, but the other was struck by a vehicle.
[17] There was also expert evidence. Scott Walters, the appellants’ forensic engineer, testified that Ms. Oliveira had enough time to perceive the situation and stop her vehicle. The respondents’ forensic engineer, Mark Paquette, testified that Ms. Oliveira could not have avoided the collision. Dr. Adam Campbell, a human factor expert, was of the same opinion. Each of these opinions was vigorously challenged in cross-examination.
B. The Trial
[18] The unfairness that developed at this trial was cumulative. As a result, it is necessary to examine the trial proceedings in some detail, and in chronological order.
(1) The Pre-Trial Motions
[19] On March 28, 2022, six jurors were selected. [3] The next day, three pre-trial motions were argued. The trial judge gave written reasons on two of them, but not on the one that is at the heart of this appeal.
(a) The Motion on Admissibility of Photographic Evidence
[20] The first motion related to the admissibility of photographic evidence and a CT scan report. In a written ruling delivered the next day (March 30, 2022), the trial judge held that appellants’ counsel could refer to a post-operative photo of Ms. Jarvis’ head, which shows a large crescent-shaped scar with staples. However, the trial judge ruled inadmissible the CT scan report because it contained unattributed commentary and description: Jarvis v. Oliveira, 2022 ONSC 1982.
[21] No issue is taken with this ruling.
(b) The Motion on Order of Proceedings
[22] The second motion was about the order of proceedings, in light of the reverse onus faced by the respondents under s. 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. On March 30, 2022, the trial judge ruled that the customary order of proceedings would be observed – the plaintiffs followed by the defendants: Jarvis v. Oliveira, 2022 ONSC 1972.
[23] No issue is taken with this ruling.
(c) The Motion on Bad Character Evidence
[24] The focus of this appeal is on the third pre-trial motion, relating to the allegation that Ms. Jarvis and her friend fled the taxi to avoid paying the $13 fare. The trial judge received further submissions on March 30, 2022 – the day she ruled on the first two motions. At the end of argument that day, the parties and the trial judge anticipated that there would be further submissions on the issue. As the proceedings were winding down that morning, the trial judge said:
Well, to the extent that there’s a potential problem with the admissibility of the evidence, I’m sure everyone knows what to do, or not to do. So, I’ll just leave that.
[25] The issue was left unresolved and problems quickly emerged.
(2) The Trial Proper Commences
[26] When court resumed later that morning, both counsel delivered their opening addresses to the jury. Appellant counsel did not make any mention of the taxi. However, in his opening address, respondent counsel was already hinting at the significance of the taxi evidence. Referring to appellant counsel’s opening address, respondent counsel said: “What he didn’t mention though is that she was running from a taxi.” He said Ms. Jarvis “bolted”. He told the jury he was trying to set the record straight: “…I wanted to state at the outset that there were certain omissions in my friend’s opening address that needed to be put in balance, shall we say.” At the time, the trial judge had yet to rule on the admissibility of the taxi fare issue.
[27] After the opening addresses, the jury retired for lunch. The trial judge addressed counsel on some administrative matters, during which she said: “The only other matter is then the character evidence or similar fact evidence, do we need to determine when we’re going to hear that motion? Should we do it tomorrow morning?” Both counsel agreed. In the afternoon, the two independent witnesses, Ms. Covi and Ms. Guerrero, testified, followed by Ms. Jarvis.
[28] The trial judge heard further argument the next morning. During a colloquy with counsel, she expressed the tentative view that the non-payment of the fare was part of the narrative. Appellant counsel submitted that the evidence was bad character evidence, and that its prejudicial impact would outweigh its probative value. Respondent counsel submitted that the evidence was admissible as part of the narrative. He submitted that to exclude the evidence would “virtually emasculate the cab driver’s evidence. Why else is he there?” As it turned out, the respondents did not call the taxi driver as a witness. Moreover, respondent counsel initially told the trial judge that it was not his intention to “besmirch” Ms. Jarvis’ character. But as discussed below, given the continued lack of clarity on the proper use of the taxi fare evidence, he did just that.
[29] At the conclusion of submissions that day, the trial judge did not give a definitive ruling on the admissibility of this evidence. The colloquy ended in the following way:
THE COURT: So -- okay, so we'll deal with that when we get to -- but it --but it's, on the face of it, it seems to be part of the narrative and so we're assuming that the jury is going to take certain inferences, and we don't know what the inference will be.
I -- I, you didn't hear Mr. Rollo saying this morning that he intends to use it to cast dispersion [ sic , aspersions] or to say that it -- they were fleeing from a criminal activity or act, which was something that was said previously, but -- but so, I -- I think both sides are aware of where the boundaries are, and so I leave you to -- to deal with that.
But it does seem to me part of the narrative as to why they were running, and the jury can from that make any inferences in terms of whether or not they were in haste or -- or what happened. [Emphasis added.]
[30] The appellants called further evidence that day, including the evidence of their forensic engineer, Scott Walters. He had previously provided a written report. In cross-examination, Mr. Walters read aloud from this report, in which he sourced a Motor Vehicle Accident Report (“the Accident Report”) prepared by a police officer who was at the scene of the accident. This Accident Report was not in evidence; no police witnesses were called. The Accident Report included a notation that Ms. Jarvis had fled the taxi without paying the $13 fare. This was read to the jury.
[31] At the next break, and in the absence of the jury, appellant counsel again raised concerns about the admissibility of this evidence, noting that the trial judge had yet to formally rule on the issue. In the colloquy that followed, there was a disconnect between appellant counsel and the trial judge about the nub of the problem. The trial judge expressed a legitimate concern about the hearsay nature of this evidence. However, appellant counsel’s focus was on the bad character features of the evidence. During the discussion that ensued, the trial judge said that she had heard nothing about non-payment of the taxi fare during Mr. Walters’ evidence, only that Ms. Jarvis was running away from the taxi. This was incorrect. Mr. Walters did mention the taxi fare; that is why appellant counsel raised the issue again.
[32] During this same discussion, appellant counsel also expressed concern about respondent counsel’s opening address, in which he highlighted the importance of the circumstances in which Ms. Jarvis and her friend got out of the taxi. Appellant counsel said that, had he known that respondent counsel was going to pursue this issue, he too would have done so in his opening address. Appellant counsel was concerned that the jury would think that he was attempting to mislead them, when all he was doing was waiting for a ruling on the issue. Counsel asked for a cautionary instruction on this issue, which was never forthcoming.
[33] The issue arose again the following day, during the testimony of one of the respondents’ experts, Mark Paquette. While giving his evidence, he projected a diagram from the Accident Report onto a large screen. The diagram contained the following notation: “P1 WAS IN THE TAXI ATTEMPTS TO FLEE THE TAXI FARE”.
[34] During the examination-in-chief of this witness, the trial judge intervened on her own motion. She asked that the diagram be removed from the projector and directed the jury to retire. Again, the trial judge was concerned about the hearsay nature of the evidence – not that it was bad character evidence. The problem was further complicated by the fact that the diagram had been included in a package of documents that had been made an exhibit. The offending document was never removed from the package and was available to the jury when it deliberated.
[35] When the jury returned, the trial judge made the following comments:
Members of the jury, you were handed a package this morning, which you have. So the document that's up on the screen is taken from an investigating officer's work. It is hearsay. The officer was not at the scene. She’s – the officer’s not here today to be cross examined. It is merely to assist Mr. Paquette in giving his evidence.
[36] This passage contains no caution about the use of the evidence projected onto the big screen; it merely characterizes the evidence as hearsay because the officer did not testify. With respect, this missed the point raised by counsel. The evidence would still have been hearsay had it been introduced through the police officer, as opposed to someone with direct knowledge of what happened. But again, the complaint was not about hearsay; it was about bad character.
(3) The Address to the Jury
[37] When it came time to address the jury, respondent counsel did not refrain from attacking Ms. Jarvis’ character by using the evidence of the $13 taxi fare. He referred to it five times explicitly and alluded to it at other times. Counsel said:
It’s also important, I submit to you, to find why she was running and as result of the reason why she was running the likely speed she achieved. She wasn’t out for a jog in the park.
The two close friends cheated the taxi driver of the fare. Now, this is not something any person would likely be proud of but there may be some people who are proud of it.
…the plaintiff was hightailing it across the road to escape the taxi driver
…the two planned the venture, they both executed it by getting out of the car and escaping the fare.
… Ms. Jarvis is skipping from the fare….
[Emphasis added.]
[38] Referring to the verdict sheet, respondent counsel said the following about assessing Ms. Jarvis’ contributory negligence:
So, if you find that there’s negligence on the part of the plaintiff in question four, you would put question five, she was fleeing the cab, she was not paying attention, she was running across the road, she interfered with the driver’s right of way. [Emphasis added.]
[39] In his closing address, appellant counsel identified a number of “red herrings” in the case, which included the following passage:
Cheating. Cheating, again, it’s the reference to not paying a fare, that wasn’t something that the experts had to take into their calculations at all. I’m going to suggest it’s there to inflame. [Emphasis added.]
(4) The Pre-Charge Conference and the Trial Judge’s Final Instructions
[40] The trial judge instructed the jury a week after the closing addresses of counsel. On the same day, she conducted a pre-charge conference and received submissions on the content of the charge.
[41] On an earlier occasion, counsel provided the trial judge with summaries of their positions to be included in her final instructions. As noted above, respondent counsel previously represented that he was not attempting to “besmirch” the character of this 16-year-old girl by suggesting she was a criminal. However, in his proposed summary, respondent counsel wanted the trial judge to include the comment that Ms. Jarvis was “fleeing the scene of a crime” when she ran across the road. Appellant counsel objected. The trial judge refused to include this comment.
[42] In her final instructions, the trial judge gave the standard warning to “set aside all feelings of sympathy, prejudice or passion so that justice can be administered fairly and impartially. In reaching your decision, you should not base your verdict on sympathy for the plaintiff or for the defendant or any of the witnesses.”
[43] However, in outlining the “Defendants’ Theory of the Case”, the trial judge mentioned that Ms. Jarvis was “fleeing the cab” and that this was relevant because it provided “context with respect to the speed and reckless manner in which [Ms. Jarvis] was running.” In her review of the evidence, the trial judge summarized Ms. Seixas’ evidence, including: “The accident occurred around 1:00 a.m. They intended to get out of the taxi and run away without paying. Once the taxi stopped, they got out of the taxi, and they started to run away.”
[44] The character evidence issue was addressed at the pre-charge conference. In a draft of the final instructions provided to counsel, the instruction on the taxi fare evidence started in the following way:
Character Evidence
An attempt has been made to impeach the evidence of witnesses by showing Ms. Seixas’ testimony and other evidence that Ms. Jarvis did not pay the taxi and was fleeing from the cab.
[45] Respondent counsel objected to the heading and this opening sentence. He submitted that there had been no attempt to impeach any witness based on character evidence. As he said, “I’m not sure who was being impeached.” Counsel further said: “In fact, that was subject to a significant motion during the trial, and the ruling was character evidence – we withdrew our application to use evidence that the taxi fare was not paid as character evidence. We withdrew that, and instead inserted [ sic , asserted] the evidence as simply part of the narrative.” Counsel further emphasized that it was not character evidence. He said: “Her character’s not being impugned frankly, nor is Ms. Seixas’ character from – from that, or from the degree of impairment.” These submissions are incapable of being squared with the manner in which respondent counsel used this evidence in his closing address to the jury, given a week earlier.
[46] Appellant counsel agreed with the request to remove the first sentence from the trial judge’s draft. As delivered, the final instruction read as follows:
Character Evidence
Ms. Seixas’ testimony was that Ms. Jarvis did not pay the taxifare and was fleeing from the cab is part of the narrative as to how this collision occurred. Ms. Jarvis has no recollection of the collision. This evidence was not put to Ms. Jarvis. The evidence should not be used to show that Ms. Jarvis has a bad general reputation. It is proper for you in deciding the credibility of a witness and the weight to be given to the witnesses’ evidence, to consider all the evidence both for and against this admission. However, you must not use it for any other purpose. If you see fit, you may reject it altogether, and decide on the credibility and weight of the witness’ testimony without regard to this evidence. [Emphasis added.]
[47] At the end of her charge, the trial judge provided some “Correcting Instructions”. She referred to the diagram projected onto the screen by Mr. Paquette. The trial judge said: “The diagram contains an opinion by the police officer as the possible route of the pedestrian as well as a narrative about the pedestrian fleeing the taxi and the direction of travel in the narrative.” She cautioned the jury that this portion of the evidence was hearsay and was inadmissible. Nothing was said about the aspects of respondent counsel’s jury address dealing with the taxi fare evidence, reproduced in paras. 37-38, above. In fairness to the trial judge, appellant counsel did not ask her to say anything about it – an issue I will address below.
C. Analysis
(1) The Main Appeal
(a) Introduction
[48] The appellants submit that the jury’s verdict should be set aside because the manner in which the taxi fare evidence was handled resulted in an unfair trial. Consequently, they request that we order a new trial.
[49] Section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 sets out the powers of an appellate court in civil cases. An appellate court may order a new trial (s. 134(1)(b)), but only where “some substantial wrong or miscarriage of justice has occurred” (s. 134(6)). As this court held in Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (C.A.), this power extends to appeals from jury verdicts. Cronk J.A. wrote, at para. 121:
Under s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), this court may only direct a new trial in a civil case if a substantial wrong or miscarriage of justice has occurred. This authority may only be exercised where the interests of justice plainly require a new trial: see Arland and Arland v. Taylor, [1955] O.R. 131 (C.A.); and Brochu, supra. The concept of “miscarriage of justice” under s. 134(6) of the CJA extends to situations where the jury in a civil case may have been influenced by irregularities in the conduct of the trial: see de Araujo, supra, at para. 69. [Emphasis added.]
See also Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9; Willick v. Willick, 2023 ONCA 792, at para. 59; Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at para. 20; and Nemchin v. Green, 2019 ONCA 634, 147 O.R. (3d) 529, at para. 71.
[50] I acknowledge that, on appeal, great deference must be afforded to a jury’s verdict in a civil trial: Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at paras. 32-36. However, civil jury verdicts are not impervious to review. As a matter of first principles, a jury’s verdict must be the product of a fair trial.
[51] In my respectful view, the sequence of events outlined above resulted in a trial that was unfair. Respondent counsel was permitted to impugn the character of Ms. Jarvis, a minor at the time of the events at issue, based on evidence of marginal probative value. This was done by installment over the course of the trial, and in the face of counsel’s representation to the trial judge that he would not attempt to “besmirch” her character. This occurred despite appellant counsel’s repeated requests for clarity on this issue. I accept that there were no strong objections to the trial judge’s charge, but appellant counsel did provide input into the final version, maintaining that there should be an instruction about character evidence. However, at that point, it was doubtful that any warning could have reclaimed trial fairness. The charge that was given did not restore the balance.
(b) The Taxi Fare Evidence Was Inadmissible
[52] As outlined above, over the course of the trial, it became apparent that the trial judge admitted the taxi fare evidence as narrative evidence, although this was never clarified through reasons. There was also an implicit suggestion by respondent counsel, repeated by the trial judge in her charge to the jury, that the evidence of why Ms. Jarvis was running was relevant to how she was running and her level of attention. Again, there was no formal ruling on the matter. As such, we do not have the benefit of the trial judge’s reasoning on how the evidence was relevant. Just as importantly, the trial judge did not engage in the balancing of the probative value of the evidence against its prejudicial impact, even though the issue was put squarely before her during appellant counsel’s submissions.
[53] It was undisputed that Ms. Jarvis was running at the time of the collision. The question of why she was running, while perhaps loosely related to the narrative of events, was not otherwise relevant. Respondent counsel contended, both at trial and on appeal, that the reason why Ms. Jarvis was running was probative of the speed and the manner in which she was running.
[54] I do not find this submission persuasive. It rests on an unfounded assumption that a person running from a cab fare is likely to be more careless than someone who is running across the street for some other reason, such as trying to get out of the rain, attempting to cross as the pedestrian “walk” sign changes, or simply being in a rush. The unfairness of this evidence was amplified by the fact that Ms. Jarvis could not give substantive evidence about the events that night. She was incapable of testifying about her state of mind at the time.
[55] Ultimately, and no matter how respondent counsel sought to characterize it, the taxi fare evidence was evidence of bad character. In Racette v. Saskatchewan, 2020 SKCA 2, Tholl J.A. stated the general rule, at para. 23: “As a starting point, character evidence – good or bad – is generally inadmissible in a civil action”. There are exceptions to this rule, but none of them apply in this case.
[56] One exception arises during the cross-examination of witnesses. As this court said in Deep v. Wood et al. (1983), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250: “cross-examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness” (emphasis added). Similarly, in Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), the authors state that, subject to preventing vexatious and oppressive questions, “a witness can be asked nearly anything as a test of his or her credibility” (at p. 711).
[57] This exception is inapplicable in this case. Although Ms. Jarvis testified, she had no memory of the event. She was not cross-examined on the taxi fare incident. Thus, the evidence was not admissible for the purpose of assessing Ms. Jarvis’ credibility.
[58] It might be said that the evidence could have been used to assess Ms. Seixas’ credibility. But the exception had no realistic application to Ms. Seixas as a witness. She was called by the respondents. As noted above, when objecting to the trial judge’s earlier draft of her charge, respondent counsel said: “I’m not sure who was being impeached.”
[59] There is another exception. It is also inapplicable. The common law has recognized the admissibility of similar fact evidence in civil cases: Mood Music Publishing Co. Ltd. v. De Wolfe Ltd., [1976] 1 All E.R. 763 (C.A.), at p. 766. See also The Law of Evidence in Canada, at pp. 709-712. This label was thrown around from time to time during the trial. But respondent counsel acknowledged that this route to admissibility did not apply.
[60] Ultimately, the evidence was inadmissible. Its prejudicial impact far outweighed any marginal value it had in explaining the narrative of events to the jury. It was subsequently used to paint Ms. Jarvis in an unfavourable light – that she was a dishonest person who was not worthy of being compensated for her devastating injuries. And it must be remembered that, at the time, she was a minor, a 16-year-old, who was very intoxicated, and who ran from a measly $13 fare. A young person in these circumstances can hardly be characterized as a “cheat” who is undeserving of compensation.
(c) The Delay in the Ruling Caused Unfairness
[61] The appellants submit that the trial judge erred in not providing counsel with a written ruling on this issue, like she did for the other two motions. Instead, the issue was left hanging as the trial progressed, leaving counsel to fathom the range of the evidentiary playing field.
[62] Although a written ruling may be very helpful to counsel, it is not mandatory. A clear oral ruling may often achieve the same goal. But there must be a proper ruling of some type, one which articulates the decision and why that decision was made. It is a basic entitlement of litigants; it is also critical to meaningful appellate review: Penate v. Martoglio, 2024 ONCA 166, at para. 21.
[63] Sometimes it is necessary for a trial judge to wait to see how the evidence unfolds before a proper ruling on admissibility can be made. That was not the case here. The issue was well-framed by the parties and was fully argued as a pre-trial motion. The issue was ripe for decision at that time and should not have been left lingering as the trial unfolded.
[64] The timing of the ruling put appellant counsel in a disadvantageous position. Recall that, in his opening address to the jury, appellant counsel did not advert to the taxi fare issue. This was out of respect for the fact that the trial judge had not yet ruled on the issue. Respondent counsel did not take the same approach. In the examination-in-chief of its own expert, appellant counsel did not address the taxi fare issue. Respondent counsel did. Appellant counsel was understandably concerned that it might appear to the jury that this was something his clients were trying to hide, when in fact he did the right thing by waiting for the trial judge to rule on the matter. Appellant counsel requested that the trial judge instruct the jury in a manner that would alleviate this concern, but she did not.
[65] This case demonstrates the hazards of delaying the delivery of such an important evidentiary ruling. A key part of a trial judge’s gatekeeping function is to screen out inadmissible evidence: Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 70. This is especially important in jury trials. This was not done in this case.
(d) Respondent Counsel’s Jury Address Was Inflammatory and Prejudicial
[66] The prejudice that accompanied the admission of the bad character evidence was compounded by respondent counsel’s jury address, which highlighted the evidence repeatedly.
[67] Inflammatory jury addresses are typically the province of criminal appeals. The focus is usually on Crown counsel: see Robert J. Frater, Prosecutorial Misconduct, 2nd ed. (Toronto: Thompson Reuters, 2017), at pp. 249, 264-265. The issue sometimes arises by counsel for a co-accused in a multiple-accused trial: see R. v. Giesecke (1993), 13 O.R. (3d) 553 (C.A.). Inflammatory jury addresses are objectionable because they distract jurors from their solemn duty to reach a verdict based on their appraisal of the evidence and the applicable law. Inflammatory jury addresses appeal to emotion, prejudice, other irrelevant considerations, or a combination of each. They have no place in the adjudicative process.
[68] The same principles apply to civil jury trials. In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), this court set out the principles that should inform the propriety of opening and closing addresses in the civil jury context. After noting the prohibition against the expressions of personal opinion by counsel, Cronk J.A. wrote, at para. 16:
Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. [Emphasis added.]
See also Fiddler, at paras. 16-17; J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis, 2020), at pp. 183-186.
[69] That being said, the courts afford counsel “considerable latitude in a closing address”: Brochu, at para. 17, citing Sopinka on the Trial of an Action. In Landolfi, Cronk J.A. wrote that, at para. 77:
This principle lies at the core of the advocate’s duty to his or her client and the independence of the bar. Counsel are required to advance their client’s cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel’s obligations as an advocate and officer of the court.
[70] Cronk J.A. then reaffirmed the limitations on counsel from her earlier reasons in Brochu, reproduced above. See also Fiddler, at paras. 35-37.
[71] In my view, respondent counsel’s address was designed to appeal to the jury’s emotions by denigrating Ms. Jarvis’ character. He had previously asked the trial judge to tell the jury that Ms. Jarvis was fleeing “the scene of a crime”, the implication being that she was a “criminal”. This request was made in the face of counsel’s previous representations that he was not attempting to “besmirch” Ms. Jarvis’ character.
[72] Respondent counsel further claimed that Ms. Jarvis had “cheated” the taxi driver, implying that she was a bad person who did not deserve to be compensated. Respondent counsel fortified this submission with the following rumination: “Now, this is not something any person would likely be proud of but there may be some people who are proud of it.” This censorious and moralizing commentary, which had no factual foundation, had no place in counsel’s jury address.
[73] In the face of an inflammatory jury address, a judge presiding over a civil jury trial has three options. They may caution the jury by giving a correcting instruction, strike the jury, or declare a mistrial: Gilbert v. South, 2015 ONCA 712, 127 O.R. (3d) 526, at para. 21; and Penate, at para. 19. As discussed below, no caution was given about counsel’s improper remarks.
(e) The Jury Charge Was Inadequate
[74] The jury charge must be examined both in terms of how it addressed the inadmissible evidence and the inflammatory jury address. In this case, they are inextricably bound. The charge failed to meaningfully address the dangers associated with this nascent theme of the trial.
[75] In Gilbert, Laskin J.A. addressed what should be included in a correcting instruction, at paras. 26-27:
Ideally, a correcting instruction should have four components. It should
- be clear and unambiguous;
- point out to the jury the offending comments;
- explain that these comments are improper and why they are so; and
- instruct the jury to disregard the comments and base its findings and decision solely on the evidence.
The trial judge has considerable scope in fashioning a correcting instruction. An appellate court should not intervene unless the interests of justice require it to do so. [Emphasis added.]
[76] Similarly, in Fiddler, LaForme J.A. said, at para. 18:
Generally courts are to be guided by the principle that clear improprieties in an opening or closing address by counsel are to be identified for the jury and coupled with an unambiguous direction that they are to be disregarded as irrelevant. In this way, the jury will know what statements by counsel are wrong or inappropriate and will be left in no doubt about the way in which it is to approach its task: Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (C.A.), at paras. 106-07. This need not involve an admonishment of counsel, although, in some cases, that may be appropriate in the exercise of the trial judge's discretion. [Emphasis added.]
[77] In my view, the trial judge’s correcting instructions on character evidence were not sufficient. The jury needed to be told in unequivocal terms that it must not use the evidence concerning the taxi fare, and counsel’s comments about it, to find that Ms. Jarvis was a bad person, a “cheat”, who was undeserving of compensation. Instead, and with respect, the instruction was confusing. For convenience, I repeat the instruction here:
Ms. Seixas’ testimony was that Ms. Jarvis did not pay the taxifare and was fleeing from the cab is part of the narrative as to how this collision occurred. Ms. Jarvis has no recollection of the collision. This evidence was not put to Ms. Jarvis. The evidence should not be used to show that Ms. Jarvis has a bad general reputation. It is proper for you in deciding the credibility of a witness and the weight to be given to the witnesses’ evidence, to consider all the evidence both for and against this admission. However, you must not use it for any other purpose. If you see fit, you may reject it altogether, and decide on the credibility and weight of the witness’ testimony without regard to this evidence.
[78] As noted above, during the pre-charge conference, it would appear that the trial judge thought the evidence had impeachment value, that it was relevant to credibility. She removed a sentence objected to by both counsel. But the final instruction, as set out above, remained largely tethered to the issue of credibility, oscillating between the evidence of Ms. Jarvis and Ms. Seixas. It would have been confusing to the jury.
[79] The trial judge was required to instruct the jury not to use the taxi fare evidence to infer that Ms. Jarvis was a person of bad character who should not be compensated. The jury should also have been instructed to disregard respondent counsel’s inflammatory comments about the taxi fare evidence. She should have also told them not to fill out the jury sheet in the manner that respondent counsel had told them to. Instead, when setting out the positions of the parties, the trial judge endorsed some of the problematic aspects of the evidence by repeating the theme of respondent counsel’s approach.
[80] In conclusion, the trial judge’s final instructions did not defuse the prejudicial impact of the improperly admitted evidence, nor did they neutralize the improper comments in respondent counsel’s closing address.
(f) The Failure to Object is Not Fatal
[81] The respondents submit that the appeal should fail because of the lack of objection by appellant counsel, especially as it related to the jury charge.
[82] This court has held that an appellant from a civil jury trial faces a steep uphill battle after failing to object to the charge. However, a court is still able to provide relief where there was no objection if the interests of justice require it. This was thoroughly explained by in Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.). As Laskin J.A. said, at paras. 14-15:
Although the failure to object at a civil trial is not always fatal to a party’s position on appeal, an appellate court is entitled to give it considerable weight, indeed ordinarily more weight than the failure to object at a criminal trial. In most civil cases where a party’s failure to object is in issue, the appellant seeks a new trial because of the alleged error. For this reason, civil cases on the failure to object have typically focused on the question of whether a substantial wrong or miscarriage of justice has occurred.
Even apart from the question whether a new trial should be ordered, however, a party in a civil case generally should not bring an appeal on the basis of some aspect of the trial proceeding to which it did not object. For example, if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 2nd. Ed. (1999), at p. 47. Similarly, an objection to the charge to the jury in a civil case will generally be unsuccessful if raised for the first time on appeal. Thus, this court has held that where a party on appeal argues non-direction of the jury “in civil cases, failure to object ... is usually fatal”, G.K. v. D.K. (1999), 122 O.A.C. 36 at 42. A failure to object at trial to an incomplete jury instruction weighs heavily against a litigant bringing an appeal because “it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted”, Tsalamatas v. Wawanesa Mutual Insurance Co. et al. (No. 2) (1982), 141 D.L.R. (3d) 322 (Ont. C.A.). This court will relieve against the failure to object only if the interests of justice require it. [Emphasis added.]
See also Hoang v. Vincentini, 2016 ONCA 723, 352 O.A.C. 358, at para. 45, in the context of the failure to object to the admission of inadmissible evidence.
[83] In Landolfi, the court dealt with a failure to object to aspects of opposing counsel’s closing address. As Cronk J.A. held, at para. 101:
I recognize that defence counsel did not object at trial to the personal attack made on him in the offending closing address. This, however, did not diminish the trial judge’s responsibility to maintain civility in the courtroom and to intervene to avoid the risk of prejudice: see Felderhof, at paras. 57, 83, 94 and 95; and de Araujo v. Read, 2004 BCCA 267, [2004] 8 W.W.R. 473 (B.C.C.A.) at paras. 4 and 53, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 346. [Emphasis added.]
[84] Appellant counsel did raise objections at some points, but not at others. On the admissibility issue, appellant counsel was persistent in his pursuit of a ruling to exclude the impugned evidence. He brought a formal pre-trial motion to exclude the evidence. This was supported by a Statement of Law, accompanied by the relevant authorities. He raised the issue repeatedly and was unwavering in his position that the evidence should not be admitted. On one of the occasions when this issue was addressed, appellant counsel said: “if I’m unsuccessful in…my objection, then certainly my – my request to the court would be a very strong charge to the jury in the relation to the use of that evidence”. His position was clearly on the record. During the pre-charge conference, he was successful in preserving some aspects of the “Bad Character” instruction. While it would have been preferrable for counsel to focus his submissions on the extent and strength of the warning that was required in this case, his failure to do so is not fatal: Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 21-22. The issue was in play from the very beginning of the trial. Appellant counsel’s position never changed.
[85] With respect to respondent counsel’s jury address and the trial judge’s instructions, there were no objections. This is a factor that weighs against appellate intervention. However, for the reasons discussed throughout this judgment, the interests of justice justify allowing the appeal.
(g) Conclusion
[86] For all of the reasons above, I have concluded that the trial was unfair. There must be a new trial.
(2) The Cross-Appeal
[87] As noted at the outset of these reasons, given my conclusion on the main appeal, it is not necessary to address the correctness of the trial judge’s decision to award no costs to the successful parties at trial. However, there is an aspect of the costs decision that illustrates the problems that emerged at trial.
[88] In the part of her Costs Endorsement, entitled “Failure to conduct the trial fairly” (at paras. 46-50), the trial judge was critical of respondent counsel for eliciting the taxi fare evidence through the cross-examination of the appellants’ forensic engineer before she had made her ruling. As the trial judge explained, at para. 48: “… I ruled that evidence that the girls had been running before the collision could be part of the narrative, but evidence to suggest that Ms. Jarvis was fleeing the cab to avoid paying the cab fare was character evidence and was not relevant to the issue of liability.”
[89] With respect, this was not the trial judge’s ruling at trial. At the end of the day, the trial judge appeared to rule that all of this evidence was admissible as part of the narrative – not just that Ms. Jarvis was running from the taxi, but also that she was doing so because she had not paid the fare. The trial judge’s error in her Costs Endorsement serves to underscore the lack of clarity on this issue that pervaded the trial, and which contributed to its unfairness.
D. Disposition
[90] I would allow the appeal and dismiss the cross-appeal. I would order costs to the appellants in the agreed-upon amount of $15,000 for the main appeal and $5,000 for cross-appeal, both amounts inclusive of costs and disbursements.
[91] The appellants also seek their costs at trial. Given that this matter must be returned to the Superior Court for a new trial, the judge presiding over that proceeding is best suited to deal with the costs of both trials.
Released: March 19, 2024 “E.E.G.”
“Gary Trotter J.A.”
“I agree. E.E. Gillese J.A.”
“I agree. Coroza J.A.”
[1] Jeanette Marie Jarvis and Willby Watson Jarvis are claimants under the Family Law Act, R.S.O. 1990, c. F.3.
[2] Jose and Aida Oliveira owned the vehicle involved in the collision. They are Stacy Oliveira’s parents.
[3] Subsequently, one juror was discharged after testing positive for COVID-19. The trial continued with the five remaining jurors in accordance with s. 108(8) of the Courts of Justice Act, R.S.O. 1990, c. C.43.