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CIVIL PROCEDURE - Trials - Jury trials

Tuesday, February 25, 2020 @ 7:59 AM  

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Appeal by the defendant from a jury award in a personal injury action. The appellant argued that counsel for the respondent misconducted himself in the opening statement and closing submissions to the jury to such an extent that the trial was rendered unfair. The appellant argued that respondent’s counsel personalized the case and expressed personal opinions to the jury to such an extent that the trial process was unfair, and that the corrective instruction was inadequate to ensure trial fairness. Although defence counsel made only limited objections to the impugned submissions and advised the trial judge that he was content with the contents of the charge, the appellant argued that this case fell into the category of exceptional circumstances which merit a new trial.

HELD: Appeal dismissed. While the submissions of respondent’s counsel inappropriately personalized the case on several occasions and went beyond the proper role of counsel in addressing a jury, the corrective instruction of the trial judge, when considered in light of the failure of defence counsel to object to most of the conduct that was now impugned or to request a mistrial, was sufficient to overcome the potentially prejudicial effect of counsel’s submissions. The trial judge instructed the jury appropriately concerning personal opinions of counsel once in the middle of closing submissions of respondent’s counsel and once in his charge to the jury, to caution them not to be influenced by such comments. Defence counsel did not object to counsel’s personalizing of the case or ask the judge to take any of the stronger steps the appellant now asked this court to take.

Brown v. Goodacre, [2020] B.C.J. No. 87, British Columbia Court of Appeal, D.C. Harris, J.J.L. Hunter and B. Fisher JJ.A., January 23, 2020. Digest No. TLD-February242020005