In Abdallah v. Snopek, the Divisional Court, by a margin of 2-1, ordered a new trial of a personal injury action arising out of a motor vehicle accident. The decision opened with the often-quoted words, “[a] jury trial is a fight and not an afternoon tea”.
The action had been tried by Justice Alan Whitten and a jury in May, 2006. The plaintiff claimed to have been injured in a rear-end collision in 2001 and to have suffered chronic pain as a result. Liability was admitted but the defendants denied that the plaintiff was entitled to damages.
The jury concluded that the plaintiff had not sustained any injury and assessed his damages at zero. The trial judge, on the other hand, ruled that the plaintiff had met the Insurance Act threshold.
The reasons of the Divisional Court say that Whitten J. “ruled that [the plaintiff] had sustained ‘a permanent and serious impairment of an important bodily function’, thereby meeting the threshold.” However, for a 2001 accident, in non-fatal cases, the wording of the threshold is:
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
The phrase, “bodily function” does not appear in the Bill 59 threshold. This error seems to have crept into Whitten J.’s reasons as a result of his having referred to pre-Bill 59 cases, decided at a time when “bodily function” was part of the threshold. In fact, Justice Whitten actually stated correctly the current threshold wording in the first part of his reasons.
In any event, following the jury decision, the plaintiff appealed the dismissal of his action. He objected to a portion of the jury address of defence counsel. The full text of the offending portion of the address is set out in the reasons of the Divisional Court, but the court summarized the tenor of the remarks this way:
In his closing address to the jury, defence counsel referred to the fact that Mr. Abdallah is an immigrant to Canada, accused him of taking unfair advantage of Canada’s social welfare system, and suggested that he was seizing on the car accident to collect an award that he would use to start his own business, perhaps not even in this country. Defence counsel then urged the jury to give Mr. Abdallah nothing.
The majority of the Divisional Court (Justices Molloy and Lane) left little doubt as to what they thought of this part of the defence address. They characterized it as “offensive”, “irrelevant”, “inflammatory”, “inappropriate”, “not rooted in the evidence”, “prejudicial”, “incorrect in law” and “completely improper”.
Justices Molloy and Lane also had some criticism for the plaintiff’s counsel at trial (for having failed to object to the address) and for Justice Whitten himself (for having failed to take adequate measures in response to the address).
Justice Molloy, who wrote the majority reasons, undertook a detailed review of the law relating to jury addresses. She also noted that while there is an onus on trial counsel to make timely objections, the failure to do so is not necessarily fatal. She described it as “a considerable hurdle to be faced when seeking a new trial…[but] not an insurmountable one”.
As for the trial judge’s handling of the matter, the majority suggested that the trial judge ought to have taken the following staged approach to the difficulty raised by the objectionable (but not objected-to) jury address:
- Inquire of counsel, in the absence of the jury, whether there were any concerns arising from the jury address.
- If an objection had then been made, the judge could have dealt with it in the usual way.
- If not, he should have specifically raised the concern that he should have had regarding the charge and invited submissions. If plaintiff’s counsel had then objected, again, the matter could have been dealt with in the usual course.
- If plaintiff’s counsel had still failed to make an objection, the trial judge could have declared a mistrial, struck the jury, given a strong correcting instruction or done nothing. But if the matter had been directly raised in this fashion at trial and plaintiff’s counsel had remained silent, an appellate order for a new trial would have been much more difficult to obtain.
The majority found it quite significant, that the jury had “done exactly as they were asked by defence counsel: they found that even though the accident had occurred and Mr. Abdallah was not at fault in any way, he had sustained no injury whatsoever. This is an unusual verdict in all of the circumstances”, among which was the fact that the trial judge had ruled in the plaintiff’s favour on the threshold motion.
Justice Gans, dissenting, said that appellant’s counsel “overstates the situation when he says that the impugned comments were only intended to inflame passions and play on whatever Arab phobia might exist in the minds of the jurors”. He was much less offended by the defence address, saying only that “some of the comments of defence counsel bumped up against or even crossed the line of propriety”. However, he felt that the trial judge’s charge had adequately dealt with any issues arising from them.