CITATION: Elder v. Rizzardo Bros. Holdings Inc., 2016 ONSC 7098

COURT FILE NO.: CV-11-102525

DATE: 20161115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HELEN ELDER, Plaintiff

AND:

RIZZARDO BROS. HOLDINGS INC, HANK WILLIAMS and HANK WILLIAMS o/a H.C.S.W. PROPERTY MANAGEMENT, Defendants

BEFORE: The Honourable Justice C. Boswell

COUNSEL: T. Boland and D. Romaine for the Plaintiff

B. Jones for Rizzardo Bros. Holdings Inc.

F. DelGiudice and D. Elmaleh for Hank Williams

HEARD: November 15, 2016

ENDORSEMENT on motion to strike jury

Overview

[1] The plaintiff slipped on an icy island in the parking lot of a Sobeys grocery store. She sustained a fractured elbow. She sued the owner of the plaza where the store was located, as well as the property manager responsible for snow and ice removal. Damages were settled. A trial of the issue of liability commenced today with opening statements. Both defendants elected to open immediately after the plaintiff’s opening.

[2] Following the defence openings, the plaintiff’s counsel signaled an intention to move to strike the jury.

[3] The plaintiffs submit that counsel to Mr. Williams made improper argument in his opening, impugned the motives of plaintiff’s counsel, and injected his personal opinions and beliefs as part of his opening narrative. They say they have suffered prejudice that can only be remediated by discharging the jury. Rather than a mistrial, they seek to proceed before a judge alone.

[4] The defendants take a threefold position in response. First, they argue that there were no improper comments made in Mr. DelGiudice’s opening. In the alternative, that if improper comments were made, none were so compelling that they are not capable of being resolved with a curative instruction. Finally, that the plaintiff has failed to meet the high threshold required before a jury is discharged.

The Governing Principles

[5] Counsel’s opening statement to a jury represents his or her first opportunity for advocacy. It allows counsel to introduce himself or herself to the jury and to give the jury a sense of what the case is about (from that party’s point of view) and what evidence is expected to be called.

[6] The boundaries of opening addresses in a civil action have never been delineated by bright lines. Obviously our system of justice operates on the adversary model and counsel is expected to be partisan whenever opportunities for advocacy present. That said, while there is a reasonably wide latitude afforded to counsel, the case law makes it clear that there are certain areas that counsel must generally not stray into.

[7] The leading case would appear to be the Court of Appeal’s decision in Brochu v. Pond 2002 CanLII 20883 (ON CA), [2002] O.J. No. 4882. Citing Halsbury's Laws of England, 4th ed. (London: Butterworths, 1982), vol. 37 at para. 513, Cronk J.A. described the opening address as follows:

The object of an opening is to give the court a general notion of what will be given in evidence. . . . In his opening, counsel states what he submits are the issues and the questions between the parties which have to be determined, what are the facts of the case, the substance of the evidence he has to adduce and its effect on proving his case, and he will refer to the relevant correspondence between the parties and other documents. He will remark upon any point of law involved in the case, but the opening is not the occasion for detailed argument on legal questions or an extensive examination of the authorities. In opening, counsel may refer to those facts of which the court takes judicial notice. Neither in the opening nor at any stage of the trial may counsel assert his personal opinion on the facts or the law, or mention facts which require proof but which it is not intended to prove, or which are irrelevant to the issue to be tried.

[8] Justice Cronk went on to describe certain conduct that is not appropriate in an opening statement, including:

(a) Extravagant and inflammatory statements;

(b) The expression of personal opinions, beliefs or feelings regarding the merits of the case, which tend to put the lawyer’s own credibility and reputation in issue; and,

(c) Comments that encourage assessment of the evidence on the basis of emotion or other irrelevant considerations.

[9] Other cases have made it clear that argument is not an appropriate aspect of an opening address either: see Trypis v. Lavigne, [2009] O.J. No. 2089 at para. 8 and Morrison v. Greig (2006), 34 C.P.C. (6th) 363.

[10] Trial judges have a wide discretion to control opening addresses. In the event of a transgression by counsel, the trial judge may caution the jury, strike the jury and conduct the trial by judge alone, or declare a mistrial: Brochu, para. 24.

[11] The discretion to strike a jury should not be lightly exercised. As Austin J.A. recognized in Hunt (Litigation Guardian of) and Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 655 (C.A.) at para. 52, “[T]he right to trial by jury is a statutory right and a substantial one.”

[12] The Court of Appeal has directed that in most cases of transgressions during opening statements, a trial judge should be able to fashion a remedy (such as a jury instruction) that will attenuate any prejudice rather than discharge the jury: see Brady v. Lamb, 2005 CanLII 46734 (ON CA), [2005] O.J. No. 5403 at para. 13.

Discussion

[13] In exercising the court’s discretion, it is necessary to assess whether a transgression has occurred, how serious that transgression is in terms of prejudice (individually and cumulatively if there are multiple transgressions) and what, if any remedy is appropriate in the interests of justice.

[14] The plaintiff’s counsel filed a factum in which eleven alleged transgressions were enumerated. They include the following statements made by Mr. DelGiudice:

(a) Statements alleged to be argument:

• Not surprisingly we don’t agree with much of what Mr. Romaine has said in his opening statement;

• They (HCSW) exceeded their obligations in the circumstances. In fact, if there was ever a case where a winter maintenance contractor should be absolved of any liability for an alleged slip and fall on ice, this is it;

• You will also hear that he (Mr. Williams) has been a volunteer fire chief for over 30 years which, in and of itself, suggests that he takes pride for the safety of the members in his community and doing what is reasonable in the circumstances to minimize such risks;

• If you properly inspect and apply the salt, it’s not your fault;

• I ask you to you use your common sense. Our winters in Canada are such that people fall all the time without someone being responsible in negligence;

• Even if you believe that Ms. Elder slipped on ice, it would be unrealistic to hold the defendant liable for the alleged small patch of ice on the large plaza parking lot; and,

• Hank Williams did a reasonable job that day, even if it was not, as alleged by the plaintiff, 100% perfect.

(b) Statements alleged to impugn plaintiff’s counsel:

• You have heard Mr. Romaine on behalf of the plaintiff, Helen Elder, provide a summary of Ms. Elder’s version of how the alleged slip and fall in front of the Sobeys store occurred on February 10, 2009. No doubt, based on Mr. Romaine’s opening remarks, he has engendered feelings of sympathy in you towards the plaintiff, and after all, I suppose it’s part of his job to do that…

(c) Personal beliefs or opinions:

• We don’t believe that the plaintiff’s version of events…will support the plaintiff’s contention that the parking lot that morning was not safe and that the defendants did not take reasonable care in the circumstances to make their premises reasonably safe.

(d) Statements made without a reasonable basis to believe that evidence will be called in support:

• We do not agree on how or why the plaintiff fell; and,

• No evidence whatsoever of anyone else falling that day.

[15] Obviously I was present during the opening addresses. My initial observation is that they were all compact and efficient. Mr. DelGiudice’s opening was completed in eight minutes and thirty two seconds. It struck me as by and large innocuous as I sat and listened to it, though I do agree that at times it encroached into the realm of argumentative.

[16] Mr. Boland conceded in argument, fairly I think, that no issue is taken with the tone of Mr. DelGiudice’s submissions. But some of the content was, from the plaintiff’s point of view, quite objectionable.

[17] In my view, some of the impugned statements were nothing more than counsel setting out a broad statement of the position of Mr. Williams, without argument. In my view it was fair for him to do so. The following statements fall into this category:

• Not surprisingly we don’t agree with much of what Mr. Romaine has said in his opening statement;

• We don’t believe that the plaintiff’s version of events…will support the plaintiff’s contention that the parking lot that morning was not safe and that the defendants did not take reasonable care in the circumstances to make their premises reasonably safe; and,

• We do not agree on how or why the plaintiff fell.

[18] I accept that the language “we don’t” tends to implicate counsel’s opinions, but my view is that properly understood, these submissions were nothing more than a broad outline of the defence position.

[19] I also believe that the statement, “Hank Williams did a reasonable job that day, even if it was not, as alleged by the plaintiff, 100% perfect” is a statement of the defendant’s position, though it may fall into a grey zone between outline and argument. The jury was told that their task would be to determine if the defendants met their standard of care, which is one of reasonableness. I do not consider it improper to indicate in an opening that Mr. William’s position is that he did a reasonable job.

[20] I further do not share the plaintiff’s concern about the common sense inference that people often fall in Canada during the winter. That is a common experience shared by virtually all Canadians. Frankly, this suggestion carries with it no prejudice to the plaintiff.

[21] On the other hand, I do agree that the following comments were argument which is appropriate in a closing, but not in an opening address:

• They (HCSW) exceeded their obligations in the circumstances. In fact, if there was ever a case where a winter maintenance contractor should be absolved of any liability for an alleged slip and fall on ice, this is it;

• If you properly inspect and apply the salt, it’s not your fault; and,

• Even if you believe that Ms. Elder slipped on ice, it would be unrealistic to hold the defendant liable for the alleged small patch of ice on the large plaza parking lot.

[22] The comment about Mr. Romaine engendering sympathy is somewhat offside as well in my view. Mr. Romaine made an appropriate opening statement and did nothing to encourage the jury to engage in impermissible reasoning. It was unfair to suggest that he had.

[23] I further have a modest concern about the volunteer fire chief comment. It is, in my view, an attempt to bootstrap the credibility of Mr. Williams before he has testified and that is not proper content of an opening statement. That said, Mr. Williams will no doubt be examined by his counsel on his occupation and Mr. DelGiudice may properly highlight those factors that support his credibility in closing submissions. Hence any prejudice occasioned by this comment is minimal.

[24] From my current vantage point I am unable to decide whether there was anything untoward about mentioning the absence of other slip and falls on the date in question. I will have to wait and see how the evidence plays out before I consider this item further.

[25] In the result, I have concluded that there were three brief comments that are argumentative in nature. There was one comment that unfairly impugned Mr. Romaine. And there was one comment that unfairly bolstered Mr. Williams’ credibility. In other words, I am satisfied that there were transgressions. The next task is to assess the level of prejudice occasioned by the transgressions.

[26] Looking at the improper statements individually and cumulatively, I am hard-pressed to appreciate any significant prejudice to the plaintiff. In my view, none of the comments – taken alone or together – compromise the plaintiff’s right to a fair trial.

[27] Mr. Boland argued that prejudice ought to be inferred from the improprieties. To some extent, I agree. There is an inherent unfairness where one side scrupulously complies with the rules and another side does not. The difficulty is, once I start to attempt to “level the playing field” there is a real risk that I simply highlight comments that were otherwise improper, when to leave them alone would likely result in them fading into the background of the overall trial narrative.

[28] My conclusion, in the circumstances of this case, is that the infractions in Mr. DelGiudice’s opening were minimally prejudicial. They certainly do not justify discharging this jury, who are presumed to be impartial and who are presumed to follow my instructions.

[29] I have already instructed the jury that they alone are the judges of the facts in this case and that they alone assess the credibility and reliability of each of the witnesses. I am satisfied that they are clear on their role.

[30] I do intend, however, to address two comments. First, the suggestion that Mr. Romaine engendered sympathy for Ms. Elder. I will address this directly. Second, that Mr. Williams’ status as a volunteer firefighter, in and of itself, makes him a more credible witness. I do not wish to draw attention to this comment again, so I intend only to give a general confirmatory instruction that the assessment of a witness’s testimony is the exclusive jurisdiction of the jury.

[31] I will make my comments in a short curative instruction, a copy of which I will forward to counsel for their review and comment.

Boswell J.

Date: November 15, 2016