COURT FILE AND PARTIES

COURT FILE NO.: CV-06-315832-0000

DATE: 2012 02 14

SUPERIOR COURT OF JUSTICE - ONTARIO

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 17, 2012

ENDORSEMENT

[ 1 ] This is the second motion for a mistrial in this action, brought by the Defendants following the opening address of the solicitor for the Plaintiffs. A brief history is necessary to put this motion in its proper context.

[ 2 ] This is a claim for damages brought by the infant Christopher Hoang (“Christopher”) as a result of injuries sustained in a motor vehicle accident that occurred in August of 2004, when he was six years of age. It is alleged that his father, the Defendant Can Hoang (“Hoang”), instructed the infant, along with some other young children, to get out of the car, cross the street and meet him on the opposite side where they would purchase tickets to Centre Island to watch the dragon boat races. As Christopher was in the process of crossing the intersection, it is alleged that his hat blew off and he ran to retrieve it. As he was in the process of doing so, he was struck by the motor vehicle operated by the Defendant Adriano Vicentini (“Vicentini”).

[ 3 ] Liability and damages are contested in this jury trial. The trial was set to commence January 9, 2012. Various motions were brought by the Plaintiffs after the selection of the jury, including a motion to amend the prayer for relief, for leave to call more than three expert witnesses and for leave to call experts whose reports were delivered late. I ruled on the various motions, delivering oral reasons.

[ 4 ] Of particular significance to the motion currently before me was my ruling on the motion for leave to call more than three experts. As part of that motion, the Plaintiffs sought leave to call the police mechanic, Sergio Grisolia (“Grisolia”), who examined the Vicentini vehicle after the collision and filled out a two page form, which is found at tab 12 of Exhibit A in this trial. That document, dated August 9, 2004, contains a list of examination results for the various parts of the vehicle, including brakes, steering and tires. There are five columns next to the various items and the examiner can tick off whether the part in question was satisfactory or unsatisfactory. Identified as unsatisfactory in the brakes section are the friction material and the mechanical components, specifically that the “front calipers sliders seized”. The balance of the brake items are noted as satisfactory. None of the boxes indicating whether the defect existed prior to collision are marked.

[ 5 ] In my ruling delivered January 11, 2012, I stated as follows:

The Rules have very specific provisions for the inclusion of expert testimony at trials, and the 2010 amendments to the provisions governing expert reports with the Court, in my view, provide for more stringent requirements before an expert is permitted to testify. No report from Grisolia that complies with Rule 53.03 has been tendered, and there is nothing in the form that he completed in 2004 that sets out his opinion. I have no information as to what qualifications Grisolia has, apart from the fact that he was employed by the police to do mechanical inspections of vehicles. I don’t know if he has the proper qualifications that would even permit him to be qualified as an expert at trial. In my view, on the basis of the document he completed on his inspection of the vehicle, I am not prepared to permit him to give expert testimony. The fact that the solicitor for the Plaintiffs has provided a synopsis of his expected testimony does not, in my mind, get around the problems with him offering an expert opinion to this Court. Counsel has retained an expert engineer who will testify on the liability issues…

[ 6 ] While I have not heard any evidence in this case, I have been provided with the expert reports of the engineers and the human factors experts. It is conceded that nowhere in the expert reports on liability is it suggested that the operation of the brakes on the Vicentini vehicle caused or contributed to the accident. Rather, Mr. Hrycay, the engineer retained by the Plaintiffs, concludes that Vicentini “ought to have been at a heightened level of awareness due to the traffic and obstacles within the intersection and he should actually have been poised and able to react to any hazard that presented within .75 seconds”, “there was some delay between when Mr. Vicentini could have started his perception-reaction and when he actually did” and “had Mr. Vicentini applied his brakes at the maximum rate when the emergency first began with the appearance of the hat, he would have been able to bring his vehicle to a complete stop prior to or at the start of the skid marks and would have thereby avoided striking Christopher.” There is nothing in this report about the condition of the brakes or any role played by brakes in the occurrence of the accident. Similarly, the report of Giffin Koerth, the engineers retained by the defendant Vicentini, makes no mention of the brakes as a factor. The collision reconstruction report prepared by Detective Constable De Los Rios makes no reference to the brakes on the Vicentini vehicle, although he reviewed the inspection document prepared by Grisolia.

[ 7 ] Following the opening address made by Plaintiffs’ counsel in the first trial, the defendants moved for a mistrial. In oral reasons delivered January 12, 2012, I granted the motion. In doing so, I commented on the impropriety of Mr. MacDonald’s remarks to the jury on the condition of the brakes, stating,

…In my view, these comments concerning the brakes and the anticipated evidence of Mr. Grisolia were improper in an 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 would not be entitled to express an expert opinion on the condition of the brakes or any role they may have played in the accident. To suggest to the jury that the mechanic would, as a layman, give evidence about the brakes and the friction material contravenes the intent of my ruling and was, in my opinion, inappropriate. These statements of counsel, in my mind, 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 improper…

[ 8 ] The trial commenced again January 16, 2012 with the selection of a new jury. Mr. MacDonald commenced his opening remarks to the jury and after approximately 1.5 hours when I adjourned court for the day, counsel was not finished although he had completed his remarks on liability. At that point, Mr. Zuber rose and advised the Court that he intended on bringing a motion for a mistrial following completion of counsel’s opening address.

Positions of the Parties

[ 9 ] Mr. Zuber submits that there are five reasons that a mistrial must be declared. First, Mr. MacDonald told the jury that drivers are required to keep their brakes in satisfactory condition and, if they fail to do so and someone is hurt, they are responsible. According to Mr. Zuber, this amounts to a submission to the jury that they can make a finding of negligence in the absence of any evidence to support it. It was submitted that Mr. Macdonald made numerous references to the calipers being seized and if they do not move, they cannot bring a wheel to a stop. Given that there is no evidence to support this contention, it was argued that in effect, it was a suggestion to the jury that the brakes did not work properly and played some role in the inability of Vicentini to avoid the collision. Mr. Zuber argued that the length of time devoted to the brake issue in Mr. MacDonald’s opening remarks suggested to the jury they played a significant role in the accident.

[ 10 ] Mr. Zuber objected to the remarks made by Mr. Macdonald as to the adequacy of the police investigation. Mr. MacDonald told the jury that the police never secured any information from Vicentini which is inaccurate and, furthermore, that the jury would be in a better position than the police officers because they would have all of the information before them when they determined liability. It was submitted that this was completely improper in opening remarks.

[ 11 ] Mr. Zuber argued that counsel’s submissions to the jury that they were bound with the duty to enforce rules to ensure that people are not injured on the roadways were inappropriate. This invited the jurors to assume the role of the enforcer of the community standards, which is clearly improper.

[ 12 ] Mr. Zuber submitted that Mr. MacDonald’s opening address was full of argument which is clearly improper.

[ 13 ] On behalf of Ford Credit Canada Leasing Company (“Ford”), Mr. Mitchell noted that I had ruled the mechanic could not give opinion evidence on the brake function. By telling the jury that the right front brakes were very worn and unsatisfactory, it is submitted, was a clear breach of my ruling as the inspection document does not say that. Further, there is no nexus between the deficiencies noted on the report and the function of the brakes in the collision. Mr. Mitchell submits that by inviting the jury to draw the conclusion that the brakes played a role in the accident, in light of my rulings, brings the administration of justice into disrepute and places the defence in an extremely unfair position.

[ 14 ] Mr. McCarthy submitted that another mistrial must be declared. He agreed that the comment in the opening address of Mr. MacDonald contravened my rulings. By telling the jury that Grisolia had conducted 200 inspections of cars was suggesting that he was in the position of an expert. It was Mr. McCarthy’s submission that there was no material difference between Mr. MacDonald’s original opening address which resulted in the declaration of a mistrial and his more recent opening.

[ 15 ] In response, Mr. Bennett argued that Mr. MacDonald did not engage in argument in his opening but rather was an attempt to persuade the jury, which is permissible. He noted that the Plaintiffs in their Statement of Claim pleaded that the brakes were not in proper working order. Under section 193 of the Highway Traffic Act , R.S.O. 1990, c. H.8, it is up to Vicentini to prove that the unsatisfactory condition of the brakes as found by Grisolia did not cause or contribute to the accident. Cases were cited to support the argument that the inference can be drawn by the jury in the absence of expert evidence. It was argued this case is similar to Snell v Farrell [1] where the late Justice Sopinka commented on cases where the facts lie for the most part within the knowledge of the Defendant, very little evidence on the part of the Plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. Mr. Bennett denied that Mr. MacDonald told the jury that the brakes caused the accident; rather, he summarized the evidence and told them that they could draw the inference. It was submitted that the evidence from Grisolia is circumstantial and from that, the jury can draw the inference that the brakes played a role in the collision and that Vicentini was negligent if he fails to satisfy the onus on him to prove that he was not negligent.

[ 16 ] Mr. Bennett denied that Mr. MacDonald told the jury that Vicentini failed to provide a statement to the investigating officer; rather, he said that there was no information from Vicentini given to the accident reconstruction officer, Mr. De Los Rios. At all times, Mr. MacDonald made it clear that the investigation was a civil one, not a criminal one.

[ 17 ] Mr. Bennett submitted that Mr. MacDonald did not try to inflame the jury by reference to common sense rules; rather, this was a “folksy” way of telling the jury what the standard of care is.

[ 18 ] Mr. Bennett denied that Mr. MacDonald ignored my rulings about the ambit of Grisolia’s testimony and submitted that everything that Mr. MacDonald said could be supported on the evidence.

Analysis

[ 19 ] I do not intend to repeat my comments contained in my prior ruling on the motion for a mistrial, particularly those where I enunciated the purpose of an opening address. These reasons ought to be read in conjunction with my earlier ruling. Several objections are raised by defence counsel to the contents of Mr. MacDonald’s opening remarks and it is submitted that because of the cumulative effect of the various transgressions, there must be a mistrial because the improprieties cannot be corrected through an instruction from me.

[ 20 ] It is a well-accepted principle that the purpose of an opening address is to provide the jury with an idea of what evidence will be called by a party during the trial, so that the jury will be able to better understand the evidence. Counsel must not state anything in an opening address that he or she cannot prove or does not intend to prove. Phipson on Evidence, 13 th edition [2] , p. 772.

[ 21 ] Argument has no place in an opening address; that is best left for the closing address. As Geoffrey Adair noted in his text, On Trial ,

There does not appear to be any definitive statement as to how far counsel may go in the opening address. A court, in controlling an opening, can only be guided by bearing in mind the appropriate purpose of the opening address and intervening when good advocacy descends into outright argument, which has no place in the opening address. Openings which present the case on the basis of passionate storytelling, thinly veiled opinions of counsel, or argument, whether obvious or in the form of excessive adjectives or rhetorical questions, must be curbed….” [3]

[ 22 ] The opening remarks must be read and considered in their entirety. I will deal with the various objections raised by defence counsel, Mr. Zuber.

The suggestion to the jury that they must approach their task as enforcers of the rules:

[ 23 ] Mr. MacDonald stated,

We in society here in Canada and around the world, trust that drivers will pay attention to pedestrians. Especially children. Especially when they know children are present…As a society we all look out for children, and when we drive we look out for them carefully. If we did not look out for them many more children would be hurt or killed in situations which become dangerous for children who can’t recognize dangerous as well or as quickly as we can.

Later on in his address, he said,

We know that if that rule isn’t followed many lives would be at stake when any vehicle travels on any roadway. It is critical to all of our society’s members that this rule be followed so that we can all be protected and feel that our vehicles will stop on the roadway.

[ 24 ] In my view, these statements are objectionable as they suggest to the jurors that their task in this trial is to ensure rules in society are to be enforced by them. These statements do not approach the impropriety of the remarks made by counsel in Hall v. Schmidt [4] although they are of the same ilk. They are inappropriate as they imply to the jury that their role is to make determinations in order to deter negligent driving which leads to injury and death. That is not their task: it is to make findings of fact based on the evidence in this particular case. They are not the enforcers of the rules of the roadway, as suggested by Mr. MacDonald. This transgression, taken in isolation, however, is not fatal.

The comments made concerning the police investigation:

[ 25 ] Mr. MacDonald told the jury:

Unfortunately, the police officer who did the report didn’t have several important pieces of information. First of all, the police officer didn’t get the chance to review any information at all from the driver, Mr. Vicentini. Because he did not have any information from the defendant, Mr. Vicentini, the police officer did not know Mr. Vicentini said he was watching the bus near his parking garage as he was about to—as the accident was about to happen. The police officer did not have that information. He did not place that information within his report. A second concern was that because the police officer did not have any information from the defendant, Mr. Vicentini, the police officer didn’t know that Mr. Vicentini said he did not see the bright blue child’s hat until it was right in front of him, even though it was there to be seen as it rolled through two full lanes, over 8 metres. So the police officer didn’t get a chance to calculate Christopher’s speed of movement as Christopher pursued his hat into the intersection. He did not make any of those calculations. Because he didn’t make that calculation, the officer was not able to determine, as Mr. Hrycay and the defendants’ own engineer both did, that Mr. Vicentini could have seen Christopher moving for 2.5 seconds before Mr. Vicentini struck him if Mr. Vicentini had been looking for Christopher. The police officer didn’t get the chance to learn from Mr. Vicentini that he had his foot on the brake as he entered the intersection….Finally, you will be in a much better position than the police officer because you will have all of that information to help you make the decisions that you need to make…

[ 26 ] This passage is objectionable for several reasons. First, it is inaccurate. The liability brief marked as Exhibit A contains the police investigation file. There is a statement from the Defendant Vicentini that was given to the investigating officer at the scene of the accident. Constable De Los Rios, the police officer who completed the reconstruction report a few days later, in the list of documents he reviewed, does not make reference to reading the statement of the Defendant. However, he does not indicate why he did not review Vicentini’s statement, nor does he say that there was no statement provided by Vicentini to the investigating officer. Therefore, to tell the jury that the police officer did not have any information from Vicentini was quite simply wrong and could leave the incorrect impression with the jury that he was not forthcoming with information or perhaps was not co-operative.

[ 27 ] Of greater concern was the suggestion to the jury that they would be in a superior position to the investigating officers when considering the facts of the accident. This is misleading and strikes me as an attempt to appeal to the jurors to decide the case on something other than the evidence. It is not rooted in fact; to the contrary, the police investigation appears to be thorough and nowhere is there any reference to needing further information from Vicentini which was not forthcoming or which hindered their ability to conduct a proper investigation.

[ 28 ] Finally, this type of suggestion to the jury is clearly argument and therefore inappropriate in opening remarks. Perhaps if the evidence bore out the allegation of an inadequate police investigation, this type of comment might be found to be acceptable in counsel’s closing address, but certainly not in an opening address.

[ 29 ] This inappropriate suggestion to the jury was reinforced by counsel’s comments earlier on in his address when he stated,

Before coming to trial to meet you, we had to figure out a few things…The police investigated this accident and some of the findings made by the police are relevant in our case, however, in this matter we are dealing with civil laws and not criminal laws…

These comments taken together with the statements about the shortcomings of the police investigation suggest to the jury, in my view, that had they had all of the information from Vicentini, there might well have been some sort of charges, which is completely unsupported by the evidence contained in the police file. It is misleading at best and casts the Defendant Vicentini in an unfair light.

The references to the brakes:

[ 30 ] Finally, I turn to the issue of the reference to the condition of the brakes on the Vicentini vehicle. Mr. MacDonald told the jury:

…the second reason we’re suing Mr. Vicentini has to do with the condition of the brakes. The safety rule is a driver is required to keep the brakes on his car in good working condition so that he does not needlessly endanger others. As a result of this accident, the police seized Mr. Vicentini’s vehicle for inspection immediately after the collision. The police mechanic, Sergio Grisolia, conducted a thorough mechanical inspection of the car, including its brakes and tires. He has conducted more than 200 similar police inspections of vehicles. …Mr. Grisolia found that the brakes were in an unsatisfactory state of repair. Mr. Grisolia found that the front brake pads’ friction material was unsatisfactory, and Mr. Grisolia found the front brake—and this is on the right front brake—Mr. Grisolia found the front brake caliper sliders were seized so that instead of sliding they were stuck open. These mechanical parts were also deemed to be unsatisfactory….

[ 31 ] A great deal of time was spent by Mr. MacDonald describing the function of the various components of the brakes, including the sliders, the brake calipers, and the brake pads. Photos were shown to the jury of the rotor, new brake pads, the metal backing plate and the police photograph showing the skid marks left by Vicentini’s car. Mr. MacDonald told the jury that there is a rule that drivers must keep the brakes on their car in good working order and if that rule is not followed, many lives would be in jeopardy.

[ 32 ] What Mr. MacDonald has done in his opening remarks is to invite the jury to find that the condition of Vicentini’s brakes played a role in the occurrence of the accident. There is no evidence to support this contention and as such, it is highly improper. The circumstances of the accident giving rise to this claim have been investigated by numerous experts, including engineers and human factors experts retained by the plaintiffs and the defence. Nowhere in any of the reports, including the police investigation and police reconstruction report, is there any suggestion that the brakes on the Vicentini car had any effect on the occurrence of the accident.

[ 33 ] The Plaintiffs’ own engineer, Mr. Hrycay, is of the opinion that the Defendant Vicentini was not paying proper attention and should have been alert to the existence of children in the intersection. Had he been an attentive driver, he would have observed the hat and Christopher sooner than he did and would have taken evasive action to avoid striking the boy. Certainly, during the course of preparing his report, if Mr. Hrycay was of the view that the brakes on the Vicentini car were somehow responsible for his inability to stop in a timely fashion, he could have expressed that opinion. He did not.

[ 34 ] As I have previously indicated, there is nothing in the police file that points to the condition of the brakes on the Vicentini vehicle as being in any way responsible for the accident. The police reconstructionist who reviewed the mechanical inspection prepared by Grisolia has this to say about the Vicentini car,

The vehicle was found in satisfactory mechanical condition. Notwithstanding the satisfactory mechanical status, one item was identified as unsatisfactory, namely, front caliper slider seized. Even though the above mentioned component was seized the vehicle was able to brake as was evident at the collision scene by way of two distinct parallel tire marks. Further, the vehicle showed regular wear and tear.

Nowhere in the body of the report, including the technical analysis, conclusion or opinion, does the reconstruction officer offer the opinion that the condition of the brakes was of any significance.

[ 35 ] The only evidence concerning the condition of the brakes can come from the police mechanic Grisolia who noted on the paper he filled out that the front calipers sliders seized [unsatisfactory] and friction material [unsatisfactory]. He does not say the brakes themselves were unsatisfactory for the job they were to perform, nor does he describe the effect of the seized calipers or friction material.

[ 36 ] As I have indicated earlier in these reasons, I delivered an oral ruling in which I specifically stated in response to the solicitor for the Plaintiffs’ requests to have Grisolia offer expert testimony at this trial that I was not prepared to allow him to do so. Grisolia can only testify about his findings, he will not be permitted to offer an expert opinion on the effect of his findings on the functioning of the brakes on the Vicentini vehicle. He will not be allowed to hypothesize to the jury on what the possible effects might be of the finding on the two items he identified as not meeting the Ministry standards.

[ 37 ] In his submissions, Mr. Bennett provided me with cases on the ambit of expert testimony, the same cases that I was provided with during argument on the Plaintiffs’ motion for leave to call more than three expert witnesses. I have already dealt with the issue of Grisolia’s evidence and I am not prepared to revisit this point.

[ 38 ] I agree that following my granting of the first defence motion for a mistrial, Mr. MacDonald removed some of the remarks from his opening address concerning the brakes, specifically the ones that I identified in my ruling. That does not, however, deal with the impropriety of suggesting the jury can come to a finding of fact on evidence that will not be heard at the trial.

[ 39 ] In his submissions on the second mistrial motion, Mr. Bennett argued that there was nothing improper in what Mr. MacDonald told the jury about the brakes and that he did not offend my ruling. It is the position of the Plaintiffs that because there is a reverse onus on Vicentini by virtue of section 193 of the Highway Traffic Act , it is up to Vicentini to disprove the causal link. In my view, this is a flawed argument that misses the point.

[ 40 ] Section 193 of the Highway Traffic Act states:

Where loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

It is not disputed that the reverse onus applies to Vicentini. However, this is of no assistance to counsel with respect to putting the condition of the brakes on Vicentini’s car in issue in the absence of evidence to support this contention.

[ 41 ] As a result of my ruling on the ambit of Grisolia’s evidence, he will not be permitted to testify beyond the findings noted on the document he completed. He will not be able to say, as Mr. MacDonald suggested to the jury, that the brakes did not work properly on the Vicentini car. He will not be permitted to testify that the condition of Vicentini’s brakes played any role in the collision. Indeed, since none of the boxes are ticked off indicating whether the defect existed prior to the collision, he cannot even say whether the two unsatisfactory items he noted were present before the accident happened. Neither of the engineers will offer the opinion that the condition of the brakes made any difference to Vicentini’s ability to avoid the impact.

[ 42 ] For Mr. Bennett to argue that as a result of the reverse onus, it is up to Vicentini to disprove that the brakes caused the accident is incorrect in law. A Defendant who bears the reverse onus does not have to disprove every allegation contained in the Statement of Claim. In this case, Vicentini must prove that the injuries suffered by Christopher did not arise through his negligence or improper conduct. He does not, for example, have to prove that he was not impaired at the time of the collision because there is no evidence of this. Similarly, he does not have to prove that the condition of his brakes prevented him from stopping his vehicle sooner and thereby avoiding the collision as there is no evidence of this. A Defendant who bears the reverse onus has to discharge the onus of the negligence alleged against him, based on the evidence in the case and the case that is anticipated at trial; to suggest otherwise is to place an impossible burden on a Defendant.

[ 43 ] In one of the cases I was referred to by Plaintiffs’ counsel, Winnipeg Electric Co. v. Geel [5] it is noted,

…by reason of that enactment the onus is now upon the defendant to show that it was not negligent, whereas normally in other cases it would be upon the plaintiff to show that the defendant was negligent. The result of that is that if the evidence is evenly balanced both ways the defendant has not shown that there was no negligence, and having failed in that, it could be held liable for negligence or a breach of duty, because the duty on the defendant is to free itself from the imputation of negligence. In doing that, the defendant has not to carry it to any unreasonable extremes; it is just a mere preponderance in the balancing of the evidence…. [emphasis added].

[ 44 ] This case and others cited by Mr. Bennett discuss what is required on a Defendant to discharge the reverse onus under section 193 . These cases all refer to the fact that to discharge this onus, the Defendant has to satisfy the Court on a preponderance of evidence that he was not negligent. There is no evidence in the case before me that the condition of the brakes on Vicentini’s car caused the accident or had any effect on his ability to bring his vehicle to a timely stop, just as there is no evidence that he was impaired at the time of the accident. He does not have the onus of persuading the Court of these two facts, because to do so would, in my view, be an example of forcing a Defendant to carry a burden to “an unreasonable extreme” as referred to in the Winnipeg Electric Company v. Geel case, supra .

[ 45 ] Mr. Bennett, in his submissions, made reference to the purpose behind the enactment of s. 193 , being that injured Plaintiffs might not have knowledge of all of the relevant facts and circumstances which lead to an accident and so to remove the inequity of this, the onus shifts to the Defendant. While I do not disagree with this assertion, it is irrelevant to my consideration of the propriety of Mr. MacDonald’s opening remarks. In the case before me, I note that both sides have had ample opportunity to have all of the liability issues reviewed by experts who have provided their opinions. As I have indicated previously, none of the experts have placed the functioning of the brakes in issue in this lawsuit. I see no disparity between the positions of the parties in this case concerning the liability issue.

[ 46 ] Mr. Bennett also cited several cases dealing with causation and suggested that the Plaintiffs do not need to call expert opinion to enable the jury to draw the inference that there was a causal connection between the unsatisfactory items noted on the mechanical inspection and the functioning of the brakes at the time of the motor vehicle accident. I do not agree. The cases referred to me by counsel for the Plaintiffs which discuss the issue of causation are distinguishable on their facts and of little assistance to the motion for a mistrial.

[ 47 ] Snell v. Farrell , supra and Wilson Estate v Byrne [6] dealt specifically with proving causation in a medical negligence action which is very different than the case before me. Athey v. Leonati [7] deals with causation concerning damages, not liability.

[ 48 ] Mr. Bennett submitted that it is sufficient for the Plaintiffs to lead circumstantial evidence about the brakes and that it is unnecessary for the Plaintiffs to have an expert opinion on this issue; the jury can draw the inference, it is submitted, that the brakes did not work properly and caused or contributed to the motor vehicle accident. I disagree. This is, in my opinion, a “smoke and mirrors” argument. In this case, both the Plaintiffs and the Defendants have had the opportunity to have their chosen experts thoroughly review liability. It was open to Mr. Hrycay, the plaintiffs’ engineer, to opine that the two brake components identified as unsatisfactory by Grisolia contributed to the accident—he did not. For Mr. Bennett to suggest that the jury can make the leap from Grisolia’s notations on his inspection to finding the brakes did not work properly and caused or contributed to the accident is, in my view, unsupportable in law on the facts of this case.

[ 49 ] Looking at the opening remarks in their entirety, bearing in mind my ruling on the motion for leave to call Grisolia as an expert witness and my ruling on the motion for a mistrial, I am of the opinion that a mistrial must be declared. The remarks about the brakes were not just passing commentary; Mr. MacDonald spent a great deal of time on this issue with the jury and I do not believe that I can tell the jury through a strong corrective instruction to ignore these comments. To do so would, in my opinion, cast Mr. MacDonald in an unfavourable light with the jury and I am concerned that their view of him for the balance of the trial would be unfairly compromised. A mistrial must be declared.

D.A. Wilson J.

Date: 2012 02 14

[1] 1990 , [1990] 2 S.C.R. 311 .
[2] John Huxley Buzzard et al., Phipson on Evidence (London: Sweet & Maxwell, 1982).
[3] Geoffrey D.E. Adair, On Trial: Advocacy Skills Law and Practice, 2 nd ed (Markham, ON: LexisNexis Canada Inc., 2004).
[4] (2001) , 56 O.R. (3d) 257 , [2001] O.J. No. 4274 (QL) .
[5] 1931 , [1931] S.C.R. 443 .
[6] 2004 , [2004] O.J. No. 2360 (QL) .
[7] 1996 , [1996] 3 S.C.R. 458 .