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PROCEEDINGS IN CONTRACT - Evidence - Appeals and judicial review - Of final orders

Wednesday, February 12, 2020 @ 10:28 AM  

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Appeal by the Government of Saskatchewan and Ladham from the $5 million damages judgment against them, awarded by a jury, for breach of contract and inducing breach of contract. The plaintiff obtained a temporary position with the Government with the expectation he would be hired if he passed an assessment and became licensed as a forensic pathologist. After the period of assessment, Ladham, a forensic pathologist employed by the Government, determined the plaintiff did not have the required qualifications. The plaintiff was not licensed as a forensic pathologist and was not hired by the Government. The trial judge allowed the jury to hear evidence of Ladham’s alleged bad character and discreditable conduct. Several of the plaintiff’s professional witnesses provided opinion evidence without being qualified as experts. The appellants did not object to any of the evidence, the plaintiff’s closing argument or the jury charge.

HELD: Appeal allowed; new trial ordered. On its own, the admission of the bad character evidence would not be sufficient to warrant a new trial but was a factor to consider in determining the cumulative effect of the errors made by the trial judge. It was an error of law for the trial judge to have permitted five witnesses to provide opinion evidence without first qualifying them as expert witnesses and indicating in the jury charge that they could accept the entirety of those opinions. The trial judge did not improperly interject in the questioning of witnesses. The plaintiff’s closing address to the jury, which openly invited the jury to punish Ladham and consider irrelevant issues, was highly inflammatory and completely improper. Even in the absence of an objection, the closing submission was so problematic that there was a considerable risk a miscarriage of justice had occurred. The jury charge on breach of contract and inducing breach of contract was insufficient and erroneously asked the jury to determine if Ladham, who was not a party to the contract, had breached the contract. There was a significant risk the jury was diverted to a belief it could substitute a finding of bad faith for a finding of breach of contract.

Racette v. Saskatchewan, [2020] S.J. No. 3, Saskatchewan Court of Appeal, R.K. Ottenbreit, L.M. Schwann and J.A. Tholl JJ.A., January 3, 2020. Digest No. TLD-February102020010