SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-06-315832-0000
DATE: 2012 02 14

RE: Christopher Hoang and Danielle Hoang, both minors by their Litigation Guardian, San Trieu and San Trieu, personally, Plaintiffs

AND:

Adriano Vicentini, Ford Credit Canada Leasing Company and Can Hoang,

Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
D. MacDonald, M. Bennett and R. Ben , Counsel for the Plaintiffs

D. Zuber , Counsel for the Defendant, Adriano Vicentini

T. McCarthy , Counsel for the Defendant, Can Hoang

B. Mitchell , Counsel for the Defendant, Ford Credit Canada Leasing Company

HEARD: January 11, 2012

ENDORSEMENT

[ 1 ] When the solicitor for the Plaintiffs was partially through his opening address to the jury in this personal injury action, counsel for the Defendant Hoang moved for a mistrial. This motion was supported by counsel for the Defendant Vicentini and for the Defendant Ford Credit Canada Leasing Company [“Ford”].

[ 2 ] Liability is contested in this trial. Briefly, the claim arises out of an accident that occurred August 6, 2004 when the infant Plaintiff, Christopher Hoang, who was six years of age at the time, along with some other older children, was asked by his father, the defendant Hoang, to get out of the car and cross the street while Hoang went to park the car. As the infant was crossing the street, his hat blew off and he ran to retrieve it. At the same time, the vehicle being driven by the defendant Vicentini was travelling along Queen’s Quay and struck the infant, resulting in personal injuries for which damages are claimed in this lawsuit.

[ 3 ] Mr. MacDonald commenced his opening address and had not completed his remarks on liability when I adjourned Court for the lunch break. It was at that time that Mr. McCarthy rose and advised the Court that he was moving for a mistrial.

[ 4 ] Briefly put, it is the position of the defence that for a variety of reasons, the opening address of Plaintiffs’ counsel was inappropriate and the prejudice created cannot be corrected by an instruction to the jury. It was submitted that most of counsel’s address consisted of argument, which was inappropriate. One of the objections related to the numerous statements made to the jury that the Defendants [emphasis mine] bore the reverse onus under the law and, therefore, they had to prove that they did not do anything wrong. It was submitted by Mr. McCarthy, counsel for the Defendant Huang, who is also the father of the infant plaintiff, that his client does not bear the reverse onus under the Highway Traffic Act , R.S.O. 1990, c. H.8 and, therefore, the multiple statements to the jury that “the Defendants” must prove that they were not negligent was inaccurate in law and left the wrong impression with the jury.

[ 5 ] Further, objection was taken to the reference made by Mr. MacDonald to an answer to a question posed at the examination for discovery in which Mr. Hoang admitted that his actions were not those of a reasonable parent. Mr. McCarthy submitted that it was improper for Mr. MacDonald to read that answer to the jury when he knew it was inadmissible at the trial and further, that by telling the jury “He told us”, the jury would believe that somehow Mr. Hoang had made an admission that he was responsible for the accident involving his son. This question goes to the very issue that the jury must decide in this case. Furthermore, it was submitted that Mr. MacDonald’s failure to read the numerous questions that preceded the question that was finally answered, particularly when Mr Hoang did not have the benefit of an interpreter, was unfair.

[ 6 ] Mr. Zuber agreed with the submissions made by Mr. McCarthy and took issue with Mr. MacDonald’s comments about the effect of the brakes on the ability of the Vicentini car to come to a stop. Mr. Zuber submitted that the reference to the two components on the brakes that did not meet the minimum standards of the Ministry of Transportation and the suggestion that this caused the accident was improper as none of the experts will testify that the brakes played any role in the collision. Mr. Zuber noted that Mr. MacDonald made reference in his address to the evidence of Mr. Grisolia (“Grisolia”), the police mechanic who inspected the Vicentini car after the accident. Mr. MacDonald suggested that Grisolia would testify that the brakes played a role in the accident. This was improper, it was argued, in light of my ruling that Grisolia would not be permitted to offer opinion evidence to this Court.

[ 7 ] Mr. Mitchell argued that it was improper for Mr. MacDonald to offer the jury his opinion on the evidence and further, he should not have made reference to evidence that might be ruled inadmissible. Mr. Mitchell agreed that Mr. MacDonald told the jury that it was up to the Defendants to prove that they did nothing wrong and this is a gross misstatement of the law. He noted that there are three different Defendants in this lawsuit and to suggest that they all bore the reverse onus of proof at this trial was fundamentally wrong and cannot be corrected by an instruction from the Court. Finally, it was submitted that the bulk of Mr. MacDonald’s address consisted of argument which is clearly not permitted in an opening address.

[ 8 ] In response, the solicitor for the Plaintiffs advised the Court that he does not agree that the reverse onus does not apply to all of the Defendants and, in any event, what counsel says to the jury concerning the law is subject to the instruction from the trial judge, who can clear up any erroneous statements of law that have been made. Mr. MacDonald takes the position that he is entitled in his opening address to refer to any evidence that will be called at the trial and by quoting from an answer given by Mr. Hoang at his examination for discovery, there was nothing offensive about this and it was unnecessary for him to put the answer in context. Mr. MacDonald submits that he only used one quotation from the discovery evidence of Mr. Hoang and there were other similar responses which he could have made reference to. It is permissible for counsel to use an answer given by a party at his discovery as evidence at trial. The fact that the response elicited goes to the heart of the liability issue at trial does not mean it cannot be referred to during counsel’s opening.

[ 9 ] On the issue of the reference to the brakes and the anticipated evidence of the mechanic, Grisolia, Mr. MacDonald was adamant that he did not suggest to the jury that the mechanic would be providing opinion evidence at trial, suggesting that the condition of the brakes caused the accident. He acknowledged that he told the jury that they could make findings of negligence based on their own common sense but submitted that this is entirely appropriate. In sum, it is the position of counsel for the Plaintiffs that there was nothing in his opening remarks that offended the rules or that could prejudice a fair trial.

Analysis

[ 10 ] Lawyers practising in Ontario have the benefit of a number of fine texts that are excellent resources for advocates. One such publication which is often used by lawyers and referred to by judges is “The Trial of an Action” [^1] . In that text, it is noted that the purpose of an opening address is to give the trier of fact a “general notion” of what the evidence will be in the case. Others have described the function of an opening address as limited, with the prime purpose being to articulate the issues in the case and outline the facts that the party intends to adduce occupational therapy establish its case. All of the texts concur that any invitation to the jury to decide the case based on emotion or on anything other than the evidence called at the trial is inappropriate and inflammatory. As John Olah writes in his text, “The Art and Science of Advocacy” [^2] , “…you cannot argue your case in your opening remarks. Persuasion is achieved by arranging the evidence in a compelling manner and by the choice of language.”

[ 11 ] In my opening remarks to the jury, I told them that counsel were going to make opening addresses to them which would be like a roadmap, to let them know each party’s position and what to expect as the trial progressed. The purpose of an opening address is not to persuade the jury that they ought to find in that particular party’s favour; that is one of the functions of the closing address, after all of the evidence has been heard.

[ 12 ] I find the quotation from former Chief Justice Burger in United States v. Dinitz [^3] which is referred to in the decision of Justice Dan Ferguson in Hall v. Schmidt [^4] to be instructive on the purpose and scope of an opening address:

An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statement which will not or cannot be supported by proof is, if it relates to significant elements of the case, …fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching its verdict…”

[ 13 ] In my opinion, there were several problems with the opening address of Plaintiffs’ counsel, and these were identified by defence counsel in their submissions to me. First, there was the misstatement of the law by Mr. MacDonald. While it is true that the Highway Traffic Act imposes a reverse onus on a driver of a motor vehicle who strikes a pedestrian, in my view, that section does not necessarily apply to Mr. Hoang based on the allegations in this case. The case against Mr. Hoang is framed in negligence for his failure to properly supervise the infant, in dropping him off and telling him to cross the street without supervision and thereby placing him in a situation of danger. In his address, Mr. MacDonald told the jury,

We are suing Mr. Hoang for two main reasons—if a driver lets his passengers out and needlessly endangers them and as a result, one is harmed, the driver is responsible…Second, Mr. Hoang violated the safety rule of a parent. In any possibly dangerous situation the parent of a 6 year old must choose the safest available course and if he does not and as a result the child is hurt, the parent is responsible…In addition, Mr. Hoang did not walk with his children as they crossed the road…

There is no evidence that the Hoang motor vehicle struck the infant or caused his injuries.

[ 14 ] While counsel for the Plaintiffs submitted to the Court that the accident arose out of the use or operation of the Hoang motor vehicle, that particular issue deals with coverage under an insurance policy and is not before me for determination. Whether or not the accident arose out of the use or operation of the Hoang motor vehicle is a question of law and is not one that the jury would be asked to answer in any event.

[ 15 ] During the course of his address, Mr. MacDonald, on numerous occasions, told the jury that the law is that when a pedestrian is injured and a car is involved, “it is not up to the pedestrian to prove the Defendants did something wrong; it is up to the Defendants to prove that they did not do anything wrong…” He went on to say it was up to the jury to determine whether the Defendants proved they were not negligent. He stated in his remarks,

…the crucial question is did the Defendants prove to you that they were not negligent?...you will use your common sense and good judgment to make conclusions to determine whether the defence have proved to you that they could not have done anything else to, as careful drivers, prevent this collision from happening…”

This is not an accurate statement of the law as it relates to the Defendant Hoang. On multiple occasions Mr. Macdonald advised the jury that the Defendants had to prove they did nothing wrong to escape a finding of liability and by doing so, he erroneously told them that the reverse onus applies to all of the Defendants.

[ 16 ] Further, it is problematic that counsel continually lumped the three Defendants together, suggesting that the same considerations on the issue of liability were applicable to all of them, when this clearly is not the case. If the misstatement of the law were the only offensive portion of the opening address of counsel for the Plaintiffs, I am of the view that through a strong correcting statement to the jury on the law, this problem could be remedied and the trial proceed. However, there were more serious transgressions contained in the opening address that must be scrutinized.

[ 17 ] I turn now to the issue of the numerous references to the brakes on the car.

[ 18 ] Counsel for the Defendants objected to the specific references to the condition of the brakes on the Vicentini vehicle. Mr. Zuber argued that Mr. MacDonald went on at great length about the unsatisfactory condition of the brake pads and urged the jury to find that the brake pads were a cause of the accident, when there will be no expert opinion at trial to state that the brakes caused or contributed to the accident. Mr. MacDonald conceded that his engineer will not comment on the brakes but he argued that there was nothing improper in his reference to the brakes being less than optimal because the jurors are the finders of the facts and it is open to them to find that the brakes on Vicentini’s car were one of the causes of the collision.

[ 19 ] I agree that a considerable amount of time was devoted to describing the braking system to the jury. They were shown what the brakes looked like and how the brake pads worked. Mr. Macdonald showed photographs depicting the brake pads and a sample braking mechanism which was passed around among the jurors. He told the jury that the evidence of Grisolia would be that the brake pads were unsatisfactory and did not meet the minimum standards of the Ministry of Transportation. He advised the jury that Grisolia will testify “that there was very little friction material on the right front brake. That’s what he thought, and basically he makes a layperson’s observation that the friction material is almost non-existent…” Mr. MacDonald went on to tell the jury that while the brakes on three of the wheels of the Vicentini car worked properly, the brakes would have worked better had the fourth wheel had satisfactory material on the pads. He stated as follows, “The other component is for you to determine whether the brakes, in their unsatisfactory state, did anything that caused the vehicle not to stop as quickly as it would have stopped if it had satisfactory braking material.” Finally, and to my mind, the most offensive reference to the brake issue occurred when Mr. Macdonald stated,

Will the Defendants prove to you that they were not negligent and that is a photograph taken by police of the skids of the Vicentini vehicle after the vehicle was seized. So what you’re seeing in this picture is the brake on the left and the brake on the right. I can give you a close up to look at those paths. Look at those paths and use your best judgment to determine that the Defendant can prove that the brakes did not cause this accident or contribute to this accident…

[ 20 ] In my view, these comments concerning the brakes and the anticipated evidence of Grisolia were improper in the opening address given that it is not anticipated that any of the experts or lay witnesses for that matter will testify that the brakes played any role in the collision. Furthermore, I specifically ruled that the mechanic Grisolia would not be entitled to express an expert opinion on the condition of the brakes and the issue of causation. To then suggest to the jury that the mechanic would, as a “layman”, give evidence about the brakes and their function contravenes my ruling and was inappropriate. These statements of counsel constitute argument and invite the jury to come to a conclusion on the role of the brakes that is not borne out in the evidence and as such, are unacceptable.

[ 21 ] Of paramount concern, however, in the opening remarks of Mr. MacDonald was the reference to the answer given by the Defendant Mr. Hoang to a question put to him at his first examination for discovery. I quote from the discovery transcript at questions 400 and 401:

Question: Do you think it was prudent the way that you dropped Christopher off at the intersection?

Answer: What do you mean prudent?

Question: Do you think it was something that a reasonable parent should do?

Answer: No.

[ 22 ] These questions and answers were blown up and displayed on a large screen during the course of Mr. Macdonald’s opening address. Counsel told the jury that Mr. Hoang had admitted that his actions were not those of a reasonable parent during his discovery. I quote from the address: “Mr. Hoang himself admits to dropping Christopher off and admits that dropping Christopher off where he did was not something a reasonable parent should do…” While the Rules of Civil Procedure , R.R.O. 1990, reg. 194 provide that a party can read in discovery evidence of an adverse party as part of their case, that is subject to limitations Simply because questions were asked and answers given at an examination for discovery, does not necessarily constitute admissible evidence at the trial of an action.

[ 23 ] I agree with the submissions of defence counsel that the manner in which the solicitor for the Plaintiffs referred to the discovery evidence of Mr. Hoang made it appear that there was somehow an admission of liability made by that party, when in reality, the opposite is true: liability is hotly contested by Mr. Hoang in this case. It is misleading for counsel in an opening address to suggest to the jury that there has been an admission by a party when that is clearly not the case.

[ 24 ] It was inappropriate for counsel to make reference to the statement given by Mr. Hoang at his discovery for several reasons: first, it incorrectly suggests to the jury that somehow the issue of Mr. Hoang’s negligence has been admitted; secondly, it is likely that the answer would be inadmissible at the trial of the action and the law is clear that counsel cannot refer to evidence that is inadmissible; thirdly, the answer given deals with a determination that must be made by the jury at the end of the case—that is, whether the actions of Mr. Hoang were those of a reasonably prudent parent or not; finally, the question that was emphasized to the jury was taken out of context. By this, I mean that the preceding questions attempted to secure from Mr. Hoang an affirmative answer to the question of whether he believed the accident was partly his fault. These questions were objected to as improper questions on the discovery. Mr. Bennett continued to ask the questions in the face of objections from counsel and, at one point, Mr. Hoang inquired what the word ”prudent” meant. Given that he did not have the benefit of a Vietnamese interpreter at the discovery and another discovery was later convened with an interpreter, in my view, it was unfair for counsel to take these two questions and responses, display them up on a large screen for the jury to view during the address and suggest to the jury that the defendant Hoang had somehow admitted that he had been negligent.

[ 25 ] If the question that was shown to the jury was on a minor point, perhaps this impropriety could be corrected by a further instruction from the Court. However, such emphasis was placed on the answer of Mr. Hoang and the suggestion made that this constituted an unequivocal admission that, in my opinion, it is so highly prejudicial that it cannot be corrected.

[ 26 ] When determining whether a mistrial ought to be declared as a result of an improper opening address, the Court must examine the address in its entirety. In my opinion, the opening address of the solicitor for the Plaintiffs contained a substantial amount of argument, as well as a fundamental misstatement of the law as it applies to the defendant Hoang. Portions of the opening address sounded more akin to a closing address and, in my view, this was an attempt to persuade the jury, which is improper.

[ 27 ] The many references to the role of the brakes in causing the accident in the absence of expert opinion to support this argument, and the urging of the jury to use their common sense to come to a determination of whether the Vincentini car braked as it should have in the circumstances, was improper. Of paramount concern, however, is the reference to the answer made by Mr. Hoang on his initial examination for discovery and the suggestion that there has been some sort of admission of negligence on his behalf in this lawsuit. I have considered at length whether I could remedy the prejudicial effects of these improprieties through a strong, corrective instruction. Regrettably, I have concluded that I cannot. The cumulative effects of these comments have had a serious prejudicial effect that compromises a fair trial. I would not want to leave a negative impression of counsel for the Plaintiffs with the jury at the outset of a long trial as a result of strong correcting instructions, as this could potentially affect the manner in which the jury views counsel and perhaps the Plaintiffs.

[ 28 ] A combination of these various infractions, in my view, makes it impossible to correct the prejudice that has been created in the minds of the jury and a mistrial must be declared.

D.A. Wilson J.

Date: 2012 02 14

[^1]: John Sopinka, The Trial of an Action (Toronto: Butterworths, 1998).

[^2]: John Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990).

[^3]: (1975), 424 U.S. 600 at 612.

[^4]: (2001), 15 O.R (3d) 257 at para. 64 .