Court File and Parties

COURT FILE NO.: FS-14-399356-00 DATE: 2018-06-07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeanette Forsythe AND: Jeffrey Leonard Tone

BEFORE: J.T. Akbarali J.

COUNSEL: Erin Crawford and Andy Faith for the applicant Susan Adam Metzler and Baktash Wasil for the respondent Susan Sack for F. Yehia

HEARD: June 4, 2018

ENDORSEMENT

Overview

[1] The trial in this family litigation began before me on May 28, 2018. Unfortunately, during the re-examination of the first witness, the applicant, it became apparent that there had been some communication between the applicant and her counsel during the applicant’s cross-examination. As it turns out, that communication included discussions about the applicant’s evidence and the issues in the case. I have determined that I must declare a mistrial. These reasons explain why, and address the terms that are necessary.

Background

[2] The parties to this action were married on November 26, 1998 and separated on August 28, 2014. There are two children of the marriage, born September 19, 2001 and January 5, 2004.

[3] The litigation between the parties has been extremely acrimonious. Notwithstanding, by the time the trial commenced, they had managed to settle most child-related issues and the equalization of the value of net family property. The issues that remain for determination are the parties’ respective incomes for purposes of support, a determination of child support, s. 7 expenses, spousal support, occupation rent, and terms for the sale of the matrimonial home.

[4] The applicant was the first witness. Her cross-examination commenced on May 29, 2018 and concluded on May 30, 2018, at which time her re-examination began. At every break in evidence during the applicant’s cross-examination, I cautioned her not to discuss her evidence with anyone.

[5] During re-examination, the applicant’s counsel introduced certain new documents which the applicant identified. The third such document was an email the applicant had received from a friend. The applicant had forwarded the email to a law clerk in her counsel’s office. It was apparent from the face of the document that it had been forwarded late in the evening of May 29, 2018, while the applicant was under cross-examination.

[6] At that time, I had discussions with the applicant’s counsel. During those discussions, she advised me that the applicant had forwarded another email the night before which had already been put to the applicant in re-examination and marked as an exhibit. It was apparent on the face of that email that it had also been forwarded to the law clerk, but the date and time of the forwarding was not apparent.

[7] The applicant’s counsel advised me that she had had no telephone or face-to-face conversations with the applicant while the applicant was under cross-examination. She said there was no other correspondence between them.

[8] The respondent’s counsel suggested that, in view of the communication between the applicant and her counsel, re-examination should be shut down.

[9] We broke for lunch early so I could consider the issue.

[10] On return from the lunch break, I advised the parties that, subject to any submissions they wished to make, I intended to hold a voir dire to determine the admissibility of the evidence I had heard on re-examination. I directed the applicant’s counsel to provide the respondent’s counsel, by close of business, with an affidavit from the law clerk disclosing all communications between the applicant and her counsel’s office, whether in writing, face-to-face, or by telephone, that took place from the commencement of the cross-examination to its conclusion. I said that respondent’s counsel would conduct a cross-examination of the law clerk and the applicant on the voir dire, and I would ask any necessary follow-up questions. I would then hear submissions on whether the communications were improper, the appropriate remedy if they were, and on costs.

[11] At that time, the applicant’s counsel reiterated “for the record”, “because of the seriousness of the allegations”, that there had been no discussions, no telephone calls, no in-person meetings and no communications between her and the applicant. She stated that the applicant had voluntarily produced the two documents in issue, and apart from those two documents, all other documents referred to in re-examination had been produced to the respondent in advance of the trial. She held up a folder which she said contained all the communications the applicant had had with her counsel’s office during cross-examination, which I declined to take because I had already directed affidavit evidence to be produced on the topic.

[12] The next day the voir dire did not proceed. Rather, I was advised that applicant’s counsel had reported herself to LawPro. Ms. Sack, a lawyer retained by LawPro, attended to represent her. I was told that the applicant’s counsel was now in a position of conflict vis-à-vis the applicant and could no longer act. The applicant had retained civil litigation counsel, Mr. Faith, who also attended, and advised he was seeking the involvement of new family law counsel for the applicant as well.

[13] Ms. Sack provided me with an affidavit sworn by the applicant’s former counsel in which, contrary to her representations to me on two separate occasions the day before, she confirmed that she had conversations with her client about her client’s evidence and issues in the proceeding after cross-examination had commenced. She also confirmed that she both received and sent emails to her client about her client’s evidence and issues in the proceeding after cross-examination had commenced. Ms. Sack indicated that counsel was remorseful.

[14] The evidence from the counsel made it clear that we were dealing not only with whether the re-examination process had been compromised by inappropriate communications between counsel and the applicant, but also whether the applicant had been coached through her cross-examination by her counsel such that the integrity of the cross-examination was also in question.

[15] The respondent sought a mistrial on terms. The applicant sought an adjournment to allow her civil litigation counsel to find family law counsel and to figure out what had transpired in order to make submissions on the request for the mistrial and the terms sought. LawPro took no position.

[16] I granted an adjournment until June 3, 2018 to allow the applicant time to retain family law counsel and prepare to address the respondent’s request for a mistrial and the terms sought.

[17] On June 3, 2018, we reconvened. Before me were Ms. Sack, Mr. Faith, Ms. Crawford, who is the applicant’s newly-retained family law counsel, and Ms. Metzler, who is the respondent’s counsel.

[18] Ms. Metzler advised that her client was no longer seeking a mistrial, but rather an adjournment of the trial on terms. Those included (i) that the re-examination not continue and the documentary evidence introduced on re-examination, including the email that had not yet been made an exhibit, be expunged from the record; (ii) that the applicant be ordered to withdraw all statements of arrears related to s. 7 expenses from the FRO and be ordered not to file any new statements of arrears with the FRO until the eventual release of reasons from the trial; (iii) that the matrimonial home be listed for sale immediately, with terms as to the manner of sale; and (iv) costs thrown away as quantified in her bill of costs, which she filed. Ms. Metzler did not seek to reopen cross-examination but was prepared to do so to cross-examine on the extent to which the cross-examination had been tainted by discussions between counsel and the applicant if I considered it necessary.

[19] Ms. Crawford argued that the fault in this case was not the applicant’s, but her former counsel’s, and that any safeguards put in place in the trial to address potential prejudice to the respondent ought not to prejudice the applicant. She was particularly concerned with any terms that would limit the applicant’s ability to fully present her case, including through proper re-examination. She submitted that the safest course of action was to declare a mistrial.

[20] Mr. Faith and Ms. Sack made submissions on costs, which I address in my discussion of terms, below.

[21] The issues before me are:

a. Is a mistrial necessary?

b. If so, what, if any, terms should be ordered?

Is a mistrial necessary?

[22] In determining whether to declare a mistrial, I have been greatly assisted by the thorough review of relevant law contained in van Ooyen v. Carruthers, 2018 SKQB 73 at paras. 7-16.

[23] Mistrials are relatively rare, and particularly so in family law cases. They are caused by some fundamental error or serious irregularity in the conduct of the trial. The question is whether the irregularity is of sufficient scope or degree to prevent the prejudiced party from presenting his or her case fully, or from securing a fair adjudication on the merits. A declaration of a mistrial is a last resort, where no other curative measures will suffice: van Ooyen at paras. 7-8.

[24] The decision to grant a mistrial is discretionary. In exercising my discretion, I should consider whether, in all of the circumstances, a mistrial is needed to prevent a miscarriage of justice. Before declaring a mistrial, I should allow other options to be canvassed to see if the trial can be saved in a way that is just and fair in the circumstances: van Ooyen at para. 10.

[25] A mistrial should only be declared in the clearest of cases, where there has been a “fatal wounding of the trial process” or to the administration of justice which cannot otherwise be remedied: van Ooyen at para. 9.

[26] In van Ooyen, at para. 11, the court identified a number of factors relevant to declaring a mistrial, whether in the criminal, civil, or family law context:

a. There is no “one size fits all” test. The particular circumstances of each case must be carefully assessed by the trial judge.

b. An accused is entitled to a fair trial, not a perfect trial: R v Khan, 2001 SCC 86 at para 72, [2001] 3 S.C.R. 823.

c. In Khan at para. 73, the question is asked as to whether “a well-informed, reasonable person considering the whole of the circumstances … [would] have perceived the trial as being unfair or as appearing to be so.”

d. Does the precipitating event relate to a central or peripheral issue? Could it affect the verdict?

e. Is there any defence or Crown conduct that is a factor?

f. What corrective measures are available that can adequately remedy the problem? Would a mid-trial instruction assist?

g. “What matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness”: Khan, at para 84.

h. A mistrial should only be granted as a last resort, in the clearest of cases, and where no other remedy is available: R v Toutissani, 2007 ONCA 773 at para 9.

[27] To make sense in the family law context, the factors outlined above must be modified to consider the conduct of the parties, and recognize that the trial before me was a judge-alone trial.

[28] Considering the factors laid out above, I am of the view that a mistrial is necessary.

[29] The applicant was expected to be the only witness in support of her claim. Her evidence is critical to the resolution of the issues in the trial, and touches on all of the issues. A key component of a fair trial for the respondent is the ability to fairly cross-examine the applicant.

[30] As Moldaver J. wrote recently for the majority of the Supreme Court of Canada in Groia v. Law Society of Upper Canada, 2018 SCC 27 at para. 72, “[t]he importance of resolute advocacy cannot be understated. It is a vital ingredient in our adversarial justice system — a system premised on the idea that forceful partisan advocacy facilitates truth-seeking.” In our system of justice, that forceful partisan advocacy takes place within a well-understood framework that ensures a fair trial for all parties. That framework requires that a witness under cross-examination be considered the witness of the party cross-examining. The witness under cross-examination is not available for discussion with his or her counsel. Preparation of a witness ends when examination in chief ends. When one party breaks this rule, the imbalance in the forceful partisan advocacy on which our system depends is obvious. It is not fair, nor does it appear to be fair.

[31] In this case, the applicant received an unfair advantage. She appears to have been coached through her cross-examination and prepared for her re-examination. The extent to which the consultation between lawyer and client tainted the cross-examination and re-examination is impossible to know. I am concerned, however, by the misrepresentations former counsel made to me in court, both at the time the issue first arose, and over an hour and a half later after the lunch break. She misled me with respect to what actually occurred. I am also concerned because the first email produced in re-examination did not have a date and time to show when it was forwarded from the applicant to the law clerk. One would normally expect that information to be apparent. I am concerned it might have been deliberately removed. That, together with the repeated misrepresentations she made, raise questions as to whether applicant’s counsel engaged in a deliberate attempt to cheat the trial process and deceive the court. The end result is that the process by which the respondent tested the applicant’s evidence was not fair, either in appearance or in fact.

[32] I have considered whether any measures short of a mistrial might remedy this assault on the integrity of the trial process. The respondent submits that if the re-examination is closed off, and the documentary evidence introduced on re-examination is expunged, he is prepared to proceed. In my view, this is not a sufficient measure to contain the prejudice. It does not address the prejudice arising from the infected cross-examination.

[33] At the same time, the measure the respondent proposes prejudices the applicant, because it denies her the ability to have a proper re-examination following cross-examination through what the applicant says is no fault of her own. I have no evidence before me to suggest that the applicant is at fault for the discussions with her counsel. The former counsel has not alleged it. The respondent has no evidentiary basis on which he could allege it. The cautions I gave the witness were to not talk to anyone. I did not specifically caution her against speaking to her lawyer. As a result, for the purposes of determining whether I should declare a mistrial, I will assume that the applicant is not at fault for these unhappy circumstances.

[34] Since I see no way to cure the prejudice to the respondent without causing prejudice to the applicant, I conclude that a mistrial must be granted. The conduct at issue was a “fatal wounding” to the trial process. The trial must begin anew.

[35] In reaching this conclusion, I have considered the decision in Morris v. Collette, 2001 CarswellNB 506 (N.B.Q.B.), where the court considered whether to declare a mistrial where a party under cross-examination discussed an aspect of his evidence with another witness. The court concluded that the area of evidence in respect of which there was some consultation was not of great import and had no real bearing on the case. The court took note of The Law of Evidence in Canada by Sopinka, Lederman & Bryant. I quote the relevant paragraph from the fourth edition at section 16.158 which is identical to the paragraph in the second edition quoted in Morris:

If a cross-examination is interrupted by an adjournment or a recess, it is improper for counsel to communicate directly or indirectly with the witness. Once the cross-examination of a witness has commenced, counsel should not converse with him or her until it is concluded, unless leave is obtained. It is questionable whether, in addition to being a rule of ethical conduct, this rule is one of evidence which can result in rejection of evidence. Breach of the rule may, however, affect the weight to be given to the evidence. [cites omitted]

[36] The respondent provided me with this case and questioned whether, in the circumstances, the former counsel’s discussions with the applicant raised an issue as to the admissibility of the evidence, or whether the matter should go only to weight, in which case an adjournment on terms might be available.

[37] In my view, the conduct at issue here is distinguishable from that which the court was dealing with in Morris. The discussions in Morris related to one area of evidence that the court judged to be not particularly important, and took place between two witnesses. Here, we are faced with a situation where counsel appears to have coached her client through her cross-examination and re-examination thus potentially infecting every issue of importance in the case. This goes beyond the question of admissibility of some evidence but strikes at the heart of the fair trial process. In my view, the decision in Morris does not apply here. A mistrial is necessary.

[38] I note that, at first, the situation which arose during re-examination did not seem unfamiliar. Unfortunately, despite the emphasis in our family law and civil rules on early and full disclosure, it is not uncommon for a witness under cross-examination to locate relevant documents that have never been produced before. In such situations, counsel is not without options. If counsel becomes aware of relevant documents not previously disclosed, counsel can rise at the earliest opportunity, in the absence of the witness, to advise the court of the fact that relevant evidence has been located. The court can then determine the best way to deal with the situation to ensure the trial is conducted fairly and justly, and having regard to the parties’ disclosure obligations. Counsel should not, however, engage with the witness in any discussions about the witness’s evidence, documents, or the issues in the case. The most prudent course of action is to discuss nothing at all with the witness – not even the score in last night’s game. Counsel should make clear to her witnesses that, once they are under cross-examination, all communication of any kind is prohibited.

[39] The consequences of failing to abide by the conventions and obligations that exist to ensure a fair trial process are dire. When the trial process is compromised, the parties are at risk of significant costs and delay in resolving their dispute, with the resultant stress and distress. The administration of justice suffers from the misuse of its resources. And counsel who missteps risks serious personal consequences. The perceived gain from taking unfair advantage is just not worth it.

[40] I have also considered whether any portion of the trial should or can be salvaged to reduce the risk of delay for the parties: Rosati v. Reggimenti, 2015 ONSC 1335 (Div. Ct.) at para. 8. In my view, no portion of the trial should be saved. The only unaffected portion of the trial is the applicant’s examination in chief, which was about a day long. In my view, it is preferable to commence the trial afresh, given how little can be preserved, and the fact that the applicant has had to retain new counsel.

Terms

[41] The respondent sought three terms:

a. an order that the matrimonial home, located at 28 Silver Birch Avenue in Toronto, be listed for sale on or before June 15, 2018, and that if the parties are unable to agree on any aspect of the sale, either party may return the matter to court (to me if I am available) on an urgent basis with abridgment of time for service and filing of motion materials, for determination;

b. an order that the applicant is to immediately withdraw from the FRO any and all Statements of Arrears that she has filed since she filed the Statement of Arrears dated November 20, 2017, and that she not file any further Statement of Arrears without a further court order permitting her to do so; and

c. costs.

[42] With respect to the first term, being the sale of the matrimonial home, the applicant argues that I have no jurisdiction to grant such an order as a term of the mistrial, because terms of the sale of the home formed part of the trial before me, and as such, form part of the new trial. She argues that when a new trial is ordered, the judge presiding at the new trial is not bound by the findings made at the first trial. A new trial is wholly independent of the first: Coulter v. Ball, 2007 BCSC 720 at para. 19.

[43] In Coulter, no mistrial was declared. Rather, a new trial was ordered by the Court of Appeal.

[44] While I appreciate the rationale behind the decision in Coulter, in my view, it does not apply in this case. It is necessary to understand why the terms of sale of the matrimonial home are at issue in this trial.

[45] The parties separated almost four years ago. They have settled the terms of the equalization of their net family property. Both parties recognize that the house has to be sold. The applicant explained in her evidence that she wants to delay the sale until the school year is over so the children do not have to put up with showings while they are studying for exams.

[46] In addition, the applicant wishes to have certainty as to the support payments she can expect to receive so she can make arrangements to purchase a new home that she can afford. The terms of the sale of the home are not the true issue for trial. It is the determination of income and support, to which the applicant has attached the terms for the sale of the home, which must be determined at a new trial.

[47] The only reason the applicant wants to wait to sell the house is for her convenience in arranging her affairs. In the meantime, the respondent is and has been inconvenienced with respect to arranging his affairs. The applicant has lived in the house for almost four years since separation. It is time the house be sold, notwithstanding the inconvenience to the applicant.

[48] Moreover, I am concerned that if the house is not listed for sale this summer, given the applicant’s reluctance to list the house for sale while the children are in school, she will not want to list it for another year, until next summer. This is a delay the respondent did not expect. The respondent bears no responsibility for the delay in the trial. He should not be prejudiced by having to wait longer before he can realize his capital from the house.

[49] I thus order the house to be listed for sale by June 20, 2018. If the parties are unable to agree on any aspect of the sale, they may return the matter to court on an urgent basis, with abridgment of time for service and filing of the motion materials, before me if I am available, for determination.

[50] With respect to the second term sought, the applicant agrees to an order that the FRO be directed not to enforce any Statements of Arrears and agrees not to file any further Statements of Arrears. She does not agree to withdraw the Statements of Arrears she has already filed.

[51] The Statements of Arrears relate to expenses the applicant claims are s. 7 expenses. There is some disagreement about the appropriateness of at least some of the s. 7 expenses she has claimed.

[52] Stewart J. made a temporary order respecting s. 7 expenses on August 12, 2015, which provides that the respondent shall pay 62% of the children’s s. 7 expenses. This order remains in force. The respondent did not pay s. 7 expenses under the order but he was not given the chance to. Rather than provide the respondent with receipts for s. 7 expenses, the applicant provided receipts directly to the FRO with a Statement of Arrears. The respondent is now being garnished an extra $1200 monthly from his pay for the “arrears” he never had the opportunity to pay.

[53] In my view, it is appropriate that the applicant withdraw her Statements of Arrears filed since November 20, 2017 with the FRO and that she be ordered not to file any new Statements of Arrears with the FRO unless permitted to do so by court order. Moreover, I direct the FRO not to enforce any child support arrears related to s. 7 expenses against the respondent until further order of this court.

[54] This does not mean that the respondent has no responsibility to contribute towards the children’s s. 7 expenses. The order of Stewart J. continues to apply. The applicant shall provide any receipts for s. 7 expenses for which she seeks reimbursement to the respondent and the respondent shall reimburse her for his proportionate share of s. 7 expenses in accordance with Stewart J.’s order. To the extent there is disagreement as to the appropriateness of the expenses, that issue can be addressed in the new trial that must be held.

[55] Finally, there is the matter of costs. This is a complicated issue. The respondent seeks his costs on a full indemnity scale from the time of the trial management conference going forward. The respondent’s bill of costs was prepared in support of the costs thrown away if there were an adjournment, not a mistrial. I do not have a figure as to what the respondent will seek in costs. Undoubtedly, however, he is entitled to something.

[56] But there are complications. The applicant argues that she should not be responsible for the respondent’s costs; that responsibility should lie with her former counsel. Mr. Faith advised that he either has put or will be putting the former counsel on notice that costs will be sought against her personally.

[57] Costs may thus require two hearings: one to determine the quantum of costs to which the respondent is entitled, and a second, which may involve privileged communications, to determine who should pay those costs.

[58] There may be another issue, in that the applicant has indicated her intention to seek her own costs thrown away from her former counsel. I am not certain whether she intends to seek those costs in this proceeding or in another proceeding.

[59] The parties have agreed that a reasonable first step in determining the costs issues is to hold a conference on the issue with a judge of this court to determine if costs can be resolved. If the conference fails to resolve the issues, I will determine them. I direct the parties to contact the trial office to set a date for a case conference on the costs issues with another judge of this court and, if it fails, to write to me to arrange a telephone conference at which I will hear submissions on the process by which I should determine the costs issues. I will then provide the necessary directions.

[60] I advised the parties that if I declared a mistrial, I would be prepared to conduct a settlement conference in this matter. The parties indicated that would be welcome. I thus direct the parties to contact the trial office to schedule a half day settlement conference with me. No briefs need be filed, but the parties should attend with their documents and comprehensive offers to settle.

J.T. Akbarali J.

Date: June 7, 2018