Court File and Parties

COURT FILE NO.: CV-15-00541672-0000 DATE: 20240709 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zorica Grujic, Plaintiff AND: Daniel M. Fine, Defendant

BEFORE: Carole J. Brown J.

COUNSEL: Lena Vartanian, Counsel for the Plaintiff Yasar Saffie, Troy Asselin and Callum Micucci, Counsel for the Defendant

HEARD: June 5, 2024

Endorsement

[1] The defendant brings this motion for a mistrial following the plaintiff’s opening address to the jury. No evidence has been called in this trial. In determining this motion, I have considered the parties’ motion records, facta, and the caselaw they have relied on and their oral submissions.

[2] 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 as presented. Counsel must not state anything in an opening address that he or she cannot prove or does not intend to prove: Phipson On Evidence, 13th edition, page 772.

[3] The object of an opening is to give the court a general notion of what will be given in evidence. In [his or her] opening, counsel states what [he or she] 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 or she] has to adduce and its effect on proving the case, and [he or she] will refer to the relevant correspondence between the parties and other documents. He or she will remark upon any point of law involved in the case, but the opening is not the occasion for detailed argument on legal issues 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 or her 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: Brochu v Pond (2002), 62 OR (3d) 722 at para. 12.

[4] The types of comments that are not proper in an opening statement include the following. Inflammatory language, argument, appeals to the emotions of the jurors, expressions of personal opinions by counsel on the evidence, misstatements of evidence and informing the jury about evidence that is inadmissible are not appropriate for opening addresses to the jury, and may result in a mistrial where such could cause a miscarriage of justice. In addition, one cannot argue one’s case in opening remarks: Hall v Schmidt (2001), 56 OR (3d) 257.

[5] The test for granting a mistrial is, in essence, whether there is a “real danger of prejudice or danger of a miscarriage of justice: see R. v Burke, 2002 SCC 56, [2002] SCJ No 57, [2002] 2 SCR 857.

[6] In determining whether there has been a mistrial, the address to the jury as a whole must be considered, and the cumulative effect of inappropriate comments.

[7] As regards the plaintiff’s opening address to the jury, her remarks were inflammatory, she appealed to jurors’ sympathy and emotions, she gave personal opinions as regards evidence, such as “none of the accidents were Zorica’s fault”. She included argument which was only appropriate for closing address after all the evidence is in.

[8] Rather than stating that the evidence would establish a fact or that it was anticipated that the evidence would establish a fact, her address often indicated expressly that “the fact is…” or “in fact….”, suggesting to the jury that these were already established facts. In other remarks, she simply made a statement that would sound to the jury as if it were an accepted fact, when, in reality, it had to be proven through a witness.

[9] Further, she stated that “the evidence will demonstrate that the defendant had been diagnosed with an eye disease, and which to date, the defence will not provide us with all of the information regarding the particulars of this eye disease”. This would suggest that the accident was or was likely caused by a condition of the eye suffered by the defendant and that the defendant was hiding something by not producing documentation. This issue had been discussed in preliminary discussions with the parties the day before. It was ascertained at that time that the defendant had given all of the records that were asked for by the plaintiff for all of the dates that the plaintiff had requested reports. All reports that were asked for and undertakings were provided by the defendant. There were no reports that were not produced and no reports that were refused to be produced. This statement in the opening address could leave the jury with the wrong impression as regards the defendant’s willingness to provide documentation requested and potentially the defendant’s desire to hide things. As previously indicated, counsel must not state anything in an opening address that he or she cannot prove or does not intend to prove.

[10] Further, the plaintiff raised the issue of insurance and the defendant’s insurer, despite the fact that I had cautioned counsel the day before not to refer to insurance in their opening addresses. Traditionally, mention of insurance in an opening address to the jury was essentially an automatic mistrial. However, since Hamstra, [1997] 1 SCR 1092, it has been held that in assessing the likelihood of prejudice, it must be considered whether the fact that the defendant is insured is well known. In Canada, given that mandatory insurance is the rule, the mere mention of insurance should not be cause for a mistrial.

[11] However, the plaintiff’s opening address to the jury was much more than a mere mention of insurance. Her statement was as follows:

“The fact is we are here today, 11 years after her accident, because this file was not acknowledged by the defendants’ insurers, nor was there any attempt to compensate my client in any meaningful way”…. “There were no attempts to compensate Zorica in any meaningful way…..” “The denials of liability in this claim have caused the physical, psychological, as well as social well-being of my client.“

[12] While we all know that insurance is required to register a vehicle in Ontario, the insurer is not a defendant in this case. The defendant is Mr. Fine. Further, the comment was inflammatory.

[13] While some of the foregoing comments included in the opening address to the jury may be able to be corrected by a strong curative instruction to ignore the comments, there are other comments that, in my view, cannot be cured, including, inter alia, the inferences regarding eye conditions and the suggestions that the defendant is hiding something, as well as the serious issue of the reference to an insurer which attempts to suggest that the insurer is on trial rather than the insured regarding causation.

[14] In this case, the plaintiff gave an opening address replete with deficiencies throughout the address to the extent that the cumulative effect was to improperly create a powerful theory and a lens through which the jurors would, from day one of the trial, view the evidence. Her comments were, throughout, balanced in favour of her client and against Mr. Fine.

[15] In Carleton v Beaverton Hotel, the court, in considering the cumulative effect of inflammatory remarks, opined that an opening address replete with inflammatory language can be enough to deny a party the right to a fair trial even at that early stage: 2009 Carswel Ont 7811. In this case, the statements of the plaintiff made in the opening address, went far beyond just inflammatory comments, as stated above.

Can a Curative Instruction Remedy the Prejudicial Effects of the Improprieties

[16] The defendant seeks a mistrial, while the plaintiff submits that curative instructions would be sufficient to remedy any improper comments.

[17] While declaring a mistrial is a last resort, the extent to which curative instructions would have to be given to the jury would, in this case, in my view, have a prejudicial effect.

[18] It is not practical to caution a jury where numerous corrections are necessary. Correcting instructions are not appropriate in such situations because it would be unwieldy and ineffective, and because the number and extent of instructions needed would affect the jury’s perception of the credibility of counsel, thereby creating a risk that a party would not receive a fair trial: see Burke v Behan, [2004] OJ No 5245 at para. 27.

[19] As stated in Hoang v Vincentini, 2012 ONSC 1067 at para 27:

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… 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.

[20] The effect of the numerous curative instructions that would have to be given in this case could leave a negative impression of the plaintiff’s counsel and plaintiff on the parts of the jurors.

[21] Moreover, in regard to the defendant and as regards the issue at hand in this motion, given all of the foregoing and considering the entirety of the opening address of the plaintiff, I do not believe that strong curative instructions would be sufficient to remedy what the jurors have already heard in the plaintiff’s opening address. I do not believe that curative instructions that I might give would be sufficient to ensure that the jurors ignore the comments made by plaintiff’s counsel. In my view, the improper and inappropriate comments made by counsel for the plaintiff are sufficient to render a miscarriage of justice in this matter. Further, simply attempting to give a curative instruction to the jurors, given the number of inappropriate and improper comments in the opening statement of the plaintiff would, in my view, still potentially cast Mr. Fine in an unfavourable light to the jury, given the plaintiff’s comments, and I am concerned that their view of him for the rest of the trial would be unfairly compromised.

[22] I am not satisfied that unfairness and a miscarriage of justice can be avoided in the absence of a declaration of mistrial.

[23] A mistrial must be declared.

C. J. Brown J. Date: July 9, 2024