IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131002

Docket: M2131

Registry:
Powell River

Between:

Rudolphus Johannes
Franciscus Vander Maeden

Plaintiff

And:

Michael Francis
Condon and Donald Scott Hart

Defendants

– and –

Docket: M2380

Registry: Powell River

Between:

Rudolphus
Johannes Franciscus Vander Maeden
also known as Rudy Vander Maeden

Plaintiff

And:

Catherine
Anne Mander also known as Anne Mander

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment:
Defence Application to Discharge the Jury

[1]            
 

Introduction

[1]            
The plaintiff in these actions, Mr. Rudolphus (Rudy) Vander Maeden,
sought an award of damages for injuries he claimed he suffered as a result of
two accidents involving motor vehicles. Mr. Vander Maeden chose to have
his claims tried by a court composed of a judge and jury and, by consent of all
parties, both actions were tried together.

[2]            
At the conclusion of Mr. Vander Maeden’s counsel’s final
submissions, defendants’ counsel applied for a mistrial and a remedial order
that instead of ordering a new trial, the jury be discharged and the proceeding
continue before me as a judge alone trial.

[3]            
I acceded to the defendants’ application and directed that the trial
continue before me without the jury. In doing so, I provided oral reasons for
my decision and indicated that I would deliver more detailed written reasons in
due course. These are my reasons.

The Impugned Submissions

[4]            
The impugned portions of Mr. Vander Maeden’s counsel’s final submissions
to the jury are numerous and include:

a)   
Informing the jury that it was Mr. Vander Maeden who asked to have
his claims tried by a jury.

b)   
Referring to his own personal views, knowledge and experiences,
including:

i.      
“From a plaintiff’s point of view, from my point of view as — as the
way I practise, we have to put the facts in front of you. We’re not trying to
hide the fact there was second accident. We’re not making more of the second
accident than it actually is.”

ii.     
“And you have in Exhibit 4, I think Exhibit 4, this is the
examination for discovery excerpts, Exhibit 4, and my friend handed these
out and read them in as — as the start of his case. This is the start of the
defence. And so I can — I can submit to you that in law school we’re taught to
start your case off with your strongest evidence and finish your case with
strong evidence and put the average stuff in the middle, and so my submission
to you is that this part of the strongest evidence of the defence case.”

iii.   
“Personally, and maybe we could — maybe it’s — I’ll make it my
submission. In my submission, many of us could not tell you what we’re doing or
what we did in January 2008, who we contracted with, and what started in December
2008. I mean I would have no chance, I can tell you that … It, in my
submission, is impossible to say — for me to say or anyone to say what they
were doing on February the 2nd, 2007 and confirm that they talked about back
pain to their doctor.

c)     Encouraging
the jury to disregard legal arguments: “I don’t want you to get misled in some
technical legal arguments”.

d)    Referring to the
opinion of a medical doctor who had examined Mr. Vander Maeden when that doctor
did not testify at trial and when the opinion, although mentioned during the trial,
was not adopted by any medical expert who did testify at trial.

e)    Commenting on the
manner in which defendants’ counsel conducted the defence, including:

i.       choosing
to begin the defence by reading-in the excerpts from Mr. Vander Maeden’s
examination for discovery evidence;

ii.      only
using portions of Mr. Vander Maeden’s examination for discovery evidence;
and

iii.    Telling the jury
that defendants’ counsel had accused one of Mr. Vander Maeden’s witnesses
of “colluding” with another witness.

f)      Telling
and showing the jury that a binder of clinical records that had been used by
defendants’ counsel in cross-examination of Mr. Vander Maeden and other
witnesses, but not marked as an exhibit, contained many more records that had not
been used by the defence.

g)    Telling the jury
that the defendants had not sought to have Mr. Vander Maeden examined by the
author of their expert medical-legal report.

h)    Telling the jury
that Mr. Vander Maeden’s general physician had reconsidered his written
opinion that “the plaintiff [Mr. Vander Maeden] is almost fully recovered” and had
testified that with the benefit of hindsight he knew better and that his
opinion had only been his best guess at the time.

i)       Referring
to injuries unrelated to the motor vehicle accidents that Mr. Vander
Maeden allegedly suffered when he was examined by a doctor retained by the
defendants.

j)      Attempting
to explain the meaning and purpose of certain tests conducted by a medical expert
whose report had been entered into evidence but who did not testify at trial.

k)     Referring
to and attempting to introduce before the jury a document he had created but had
not disclosed to defendants’ counsel regarding Mr. Vander Maeden’s claim
for future care costs.

Position of the Defendants

[5]            
The defendants acknowledged that certain of Mr. Vander Maeden’s counsel’s
transgressions were of a minor nature and that if they had been the only ones,
then they could have been addressed and rectified during my instructions to the
jury. For example, counsel for Mr. Vander Maeden informing the jury that it was
Mr. Vander Maeden who had sought a jury trial and his counsel’s reference to
the additional injuries Mr. Vander Maeden may have suffered when he was examined
by a doctor retained by the defendants. However, the defendants contend Mr.
Vander Maeden’s counsel’s wrongdoings were so numerous and some were so
egregious, that when considered collectively they created such prejudice for
the defendants the only viable option to ensure a fair trial was to discharge
the jury and complete the proceeding as a judge alone trial.

Position of the Plaintiff

[6]            
Counsel for Mr. Vander Maeden acknowledged that some of his submissions may
have been factually incorrect and may have crossed the line of proper advocacy.
Counsel explained that any misconduct on his part was entirely unintentional
and was likely on account of his inexperience before juries.

[7]            
Counsel for Mr. Vander Maeden agreed, after having Ms. Geraldine Bergstrom’s
testimony replayed in court (in the absence of the jury) that defendants’
counsel never used the words “collude” or “collusion” at any point in his
cross-examination, nor had he made any suggestion to any of the witnesses that
they had engaged in such conduct. Counsel for Mr. Vander Maeden expressed his “astonishment”
at how he could have “strayed so far on an important point” and observed that it
was “very troubling that the word colluded was not used” by defendants’ counsel.

[8]            
Mr. Vander Maeden wished to have the trial continue and for the jury to
render a verdict in this case. His counsel submitted that the court could correct
any errors in his submissions and that any prejudicial effects of his improper
comments could be cured by strong directions from the court to disregard those
comments.

Law

[9]            
A trial judge hearing a case with a jury has the discretion to declare a
mistrial before a verdict is rendered when there has been a breach of an evidentiary
or procedural rule or there has been misconduct on the part of a party or their
counsel. The alleged breach or misconduct must be of such a nature and
magnitude that it has caused a substantial wrong and that to permit the trial
to continue with the jury would promote a miscarriage of justice. The alleged
misconduct need not be shown to be intentional or deliberate on the part of the
offending party or their counsel: Birkan v. Barnes, (1992), 69 B.C.L.R.
(2d) 132 (C.A.).

[10]        
Where there are justifiable grounds to declare a mistrial, the court may
instead of ordering a new trial, remedy the situation by resorting to Rule 12-6(12)
of the Supreme Court Civil Rules, which allows for the continuation of
the trial without the jury. Rule 12-6(12) reads:

If, by reason of the misconduct
of a party or the party’s lawyer, a trial with a jury would be retried, the
court, with the consent of all parties adverse in interest to the party whose
conduct, or whose lawyer’s conduct, is complained of, may continue the trial
without a jury.

[11]        
 In Ennis v. Allenby, 2007 BCCA 80, at para. 12, Hall J.A. addressed
the concept of “misconduct” in the context of an application for a mistrial and
associated request that the trial continue before the trial judge without the
jury, as follows:

[12]      Misconduct is a strong term. Allegations of
misconduct of counsel should be sparingly advanced by opposing counsel and
judges ought to be suitably cautious in making such a finding against a member
of the bar. The case of Birkan v. Barnes (1992), 93 D.L.R. (4th) 392, 69
B.C.L.R. (2d) 132 (B.C.C.A.) [cited to D.L.R.] is an apt illustration of conduct
found to be sufficiently egregious to qualify as misconduct. I take a
description of what occurred in that case from the reasons of Gibbs J.A., at
394, who gave the leading judgment for the court:

 At the commencement of the
trial, and in the absence of the jury, there was a discussion between the trial
judge and counsel concerning the decision of counsel for the appellant not to
call his client as a witness. The reason given was that the appellant had no
recollection of the events leading up to or occurring at the time of the
collision.

 Counsel for the respondent
took the position that counsel for the appellant should refrain from telling
the jury why the appellant was not called if, indeed, the trial proceeded on
that basis. The trial judge agreed with counsel for the respondent and counsel
for the appellant undertook not to give an explanation to the jury …

…

 During the course of his
address to the jury, after all of the evidence was in, counsel for the
appellant was in unequivocal breach of his undertaking and of the trial judge’s
ruling. He gave evidence. He told the jury that the reason his client had not
been called to testify was that he had no recollection of the events of the
accident

[12]        
In Cleeve v. Gregerson, 2009 BCCA 2, at paras. 42 – 46,
Kirkpatrick J.A. provides the following helpful summary of the considerations
and test applicable to circumstances like those in the case at bar:

[42]      There is a heavy onus
on the applicant to establish that the prejudice is so great that it cannot be remedied
by the court. Ultimately, the trial judge must be of the opinion that the
comments or conduct in issue caused a substantial wrong or miscarriage of
justice, so that it would be unfair to continue with the present jury (Hamstra
v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, 34 B.C.L.R. (3d) 10).

[43]      The question is whether
the particular jury, in the particular circumstances of the case, will be able
to dispel the matters of concern from their minds (Martin Estate v. Pacific
Western Airlines, Ltd. (1981), 34 B.C.L.R. 39, 24 C.P.C. 237 (S.C.);
Schram v. Osten, 2004 BCSC 1789, 33 B.C.L.R. (4th) 336).

[44]      In other words, the
trial judge must determine that she or he cannot disabuse the minds of the jury
in regards to the inflammatory remarks made by counsel (McLachlan v. Hamon,
2001 BCSC 1679; Martin Estate v. Pacific Western Airlines, Ltd.; Birkan
v. Barnes (1992), 69 B.C.L.R. (2d) 132, 93 D.L.R. (4th) 392 (C.A.)).

[45]      Even where several
errors have been made by counsel, an immediate and final instruction to the
jury concerning the issues of concern may be sufficient to prevent a
substantial wrong (Schram v. Osten).

[46]      The circumstances in which mistrials have been
granted in relation to comments made by counsel in closing submissions include:

 (a)        Where in the
concluding address to the jury, counsel for plaintiff breached an undertaking
and prior ruling of the trial judge by giving evidence that the reason the
plaintiff did not take the stand was because he had no memory of the collision which
caused his injuries (Birkan v. Barnes (1992), 69 B.C.L.R. (2d) 132, 93
D.L.R. (4th) 392 (C.A.)).

 (b)        Where defendant’s
counsel, during closing submissions and cross-examination, made inflammatory
remarks throughout the trial and during submissions, including comments on
causation, casting unfair aspersions on her use of jury challenges, and broad
comments about the plaintiff’s credibility that asked the jury to disregard
evidence and take counsel’s opinion into account (McLachlan v. Hamon, 2001
BCSC 1679).

 (c)        In addition to
various improprieties in the opening statement of the plaintiff, in the closing
submissions, plaintiff’s counsel inserted his own conduct into the case, made
sarcastic comments in regards to the defendant, made an unfounded attack upon
the personal integrity of a doctor witness, and put defence counsel on trial (de
Araujo v. Read, 2004 BCCA 267, 29 B.C.L.R. (4th) 84).

Decision

[13]        
In my view, the defendants’ application is well founded. Some of Mr.
Vander Maeden’s counsel’s statements were of such a nature that they could have
been addressed, if necessary, by directions from the court. Informing the jury that
it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury
they should not consider “technical legal arguments”, advising the jury that
the defendants had not sought to have their medical expert personally examine
Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would,
in my view, fall into this category. However, in my respectful opinion, the
cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made
it pointless to attempt any corrective instructions or measures, for I do not
believe there was anything that could have said that would have, with any
degree of confidence, disabused the minds of the jury of the misstatements and
misconduct.

  Improper personalization

[14]        
In my view, Mr. Vander Maeden’s counsel improperly personalized his
submissions and in doing so he impermissibly inserted and added his own credibility
into the plaintiff’s case.

  Improper use of a medical opinion not in
evidence

[15]        
During the cross-examination of Dr. Brad Schweitzer, Mr. Vander Maeden’s
general physician, defendants’ counsel referred to the clinical records and
consultation reports of various other medical professionals who had examined
Mr. Vander Maeden at Dr. Schweitzer’s request. In July 2009, Dr.
Schweitzer sent Mr. Vander Maeden to Dr. J.P Claasen, an ophthalmic surgeon,
for an examination of Mr. Vander Maeden’s eyesight. In a consultation report
dated 24 August 2009, Dr. Claasen concluded: “I don’t feel his [Mr. Vander
Maeden’s] symptoms are related to his blunt head injury.” Dr. Claasen did not
testify at the trial, nor was his report entered into evidence. In
cross-examination Dr. Schweitzer agreed that he had received and read Dr.
Claasen’s report and furthermore he confirmed that he agreed with Dr. Claasen’s
conclusion about Mr. Vander Maeden’s symptoms being unrelated to any head
injury. In effect, Dr. Schweitzer adopted Dr. Claasen’s opinion and therefore
it became a part of his own evidence.

[16]        
In re-examination of Dr. Schweitzer, counsel for Mr. Vander Maeden drew
the doctor’s attention to the consultation report of Dr. Steven Shaver, an “eye
physician and surgeon” dated 12 May 2004. Like Dr. Claasen, Dr. Shaver did not
testify at trial nor was his report entered into evidence. Dr. Schweitzer
acknowledged receiving Dr. Shaver’s report and agreed that it indicated the
following:

I saw Rudy back recently. As you know he has been blind for
some time with probably retinitis pigmentosa. He has noticed no changes.

***

Conclusion: Rudy has stable
findings of at this point and he should be followed yearly unless he notices
any difficulties.

[17]        
Dr. Schweitzer also agreed with Mr. Vander Maeden’s counsel’s suggestion
that that Dr. Shaver’s report “seemed to indicate” that Mr. Vander Maeden’s
vision was stable with no deterioration at the time his examination in 2004. In
his final submissions to the jury, counsel for Mr. Vander Maeden said:

We heard about Mr. Vander Maeden’s vision and the fact that
before the accident his vision was, well, very bad. He was — he was blind. He
was actually designated a person with disabilities because of his loss of
vision. And — and we heard in — in cross-examination and in reply with Dr. Schweitzer
that he’d been referred to ophthalmologists, specialists for vision, long
before the accident and so it’s — it’s not a new — it’s — since been there
since age 10. You heard all about that.

But we also heard that — some
testimony from Dr. Schweitzer that — regarding Dr. Shaver and the — and the
ophthalmologist he was sent to four years prior to the accident and — and we
heard in that exchange that Dr. — Dr. Shaver, the ophthalmologist, was a
consultation that Rudy went to — that Mr. Vander Maeden went to, and there Mr.
Vander Maeden reported no changes in his vision and that his vision was stable,
and so the — Dr. Shaver’s recommendation was that he be reviewed annually
after the 2004 – 2005 consultation, and that’s the consultation that happened
before the accident. And then we heard that he was sent to Dr. Claasen as — as
a result of Mr. Vander Maeden’s reports immediately after the accident that
he’s noticed a big change in his vision lost — vision loss.

[18]        
Dr. Schweitzer did not, as he had done with Dr. Claasen’s opinion, specifically
agree with and adopt Dr. Shaver’s opinion. Consequently, the contents of Dr. Shaver’s
report were hearsay and did not form part of Dr. Schweitzer’s evidence at trial.
There was no admissible evidence before the jury of what Mr. Vander Maeden had
told Dr. Shaver in 2004 about the state of his vision or what Dr. Shaver’s
views were regarding the stability of Mr. Vander Maeden’s vision at that time.
The only plausible reason why counsel for Mr. Vander Maeden in his final
submissions referred to the report of Dr. Shaver, was to show that Mr. Vander
Maeden’s eyesight was stable four years prior to the first accident and to rebut
the opinion of Dr. Claasen that had been adopted by Dr. Schweitzer in his
evidence. In my view, this was an impermissible and prejudicial use of the
contents of Dr. Shaver’s report.

  Improper Comments on the Conduct of the Defence

[19]        
Counsel for Mr. Vander Maeden commented on the order in which
defendants’ counsel presented their evidence. Prior to the start of the
defendants’ case and in the absence of the jury, defendants’ counsel had
informed the court and Mr. Vander Maeden’s counsel that the first defence
witness was not available until later in the proceeding and thus, not wanting
to delay matters, he would start the defendants’ case by reading in portions of
Mr. Vander Maeden’s examination for discovery evidence. In my view, it was
unfair of counsel for Mr. Vander Maeden to suggest to the jury that the
examination for discovery evidence must have been the defendants’ strongest evidence
given that it was introduced first, when he knew the true reason why the
defendants were proceeding in this manner.

[20]        
When referring to defence counsel’s use of Mr. Vander Maeden’s examination
for discovery evidence, counsel for Mr. Vander Maeden told the jury:

And — and that’s all the
questions and answers from the first examination for discovery, six questions
and answers. So you know there’s a lot more questions and answers. We can — we
can determine that… So we spent a lot of time — or some time on examination
for discovery questions and answers. There’s a body of material there that
obviously you weren’t referred to, other questions and answers. The plaintiff
cannot use the transcript from examination for discovery. I can’t say, “Go to
question 750 and look at that, what he says there”. The plaintiff can’t use
this, only the defendant (sic) can use that, and so that’s why you were given
an excerpt from the examination for discovery. The defendant (sic) want to use
that and they’ve chosen those questions. In my submission, the approach is
somewhat problematic and the — the approach is — is a bit of a memory test
spanning questions over time, spanning events over many years, and — and the
problem with that is it distracts us from why — from why we’re here.

[21]        
Mr. Vander Maeden’s counsel’s comments incorrectly imply there were no means
for Mr. Vander Maeden to have additional questions and answers from his examination
for discovery introduced into evidence. These observations would have left the
jury with the impression that there was additional evidence favourable to
Mr. Vander Maeden’s claims but the defendants wanted to prohibit them from
seeing it. The fact of the matter is there was an avenue for Mr. Vander Maeden
to have additional portions of his examination for discovery evidence
introduced at trial. Rule 12-5(49) provides:

If part of an examination for
discovery is tendered in evidence, the court may review the whole of that
examination and if, following the review, the court considers that another part
of the examination is closely connected with the part tendered in evidence, it
may direct that the other part be tendered in evidence.

[22]        
Counsel for Mr. Vander Maeden made no request to have additional
portions of Mr. Vander Maeden’s examination for discovery evidence read in
pursuant to Rule 12-5(49). In my view, it was unfair to suggest there was
more evidence, when no effort was made to have that evidence introduced. It was
also prejudicial to the defendants because it cast them in an unjustifiably negative
light by implying they were trying to hide evidence from the jury.

[23]        
Counsel for Mr. Vander Maeden’s reference to the binder of clinical
records was problematic as well. At one point, counsel told the jury:

…then we spent a lot of time going over some pre-accident
clinical records of the plaintiff, and the — for example, I think we got stuck
on one particular pre-accident clinical record about — questioning about
whether he went to see Dr. Schweitzer on February the 2^nd, 2007, and
we spent some time on that clinical record, and “Did you go to see Dr. Schweitzer
on that day? Did you report back pain on that day, “ et cetera, et cetera. The
whole entry was not read to Mr. Vander Maeden and he was asked questions about
it.

[24]        
If counsel for Mr. Vander Maeden thought defendants’ counsel was being
unfair by not putting an entire clinical record to Mr. Vander Maeden or was
using the records improperly, then counsel could have objected. The court then could
have assessed the situation and if need be required that additional portions of
the record or records be put to Mr. Vander Maeden. No such objection was
raised. In my view it was not for counsel for Mr. Vander Maeden to tell the
jury that the entire record was not read to Mr. Vander Maeden. Moreover, referring
to the clinical record binder as a whole and advising the jury that it
contained many more records than those counsel for the defendants had used,
added to sense that there was additional evidence available but the defendants
did not want the jury to see.

[25]        
The final and possibly the most troubling aspect of Mr. Vander Maeden’s
counsel’s submissions arose when he addressed the manner in which the
defendants’ counsel cross-examined two of Mr. Vander Maeden’s witnesses.
Mr. Vander Maeden’s counsel told the jury:

When — when Cheryl Youngen and
— and Geraldine Bergstrom testified, they — they did so. They told you what
they did and why they did it and what they saw. When they were cross examined,
Geraldine Bergstrom was asked a lot of questions. She was asked whether she
thought it was an opportunity and she jumped on the opportunity, and that is to
provide housekeeping assistance and presumably get paid for it. She was asked
whether she colluded with Cheryl Youngen and I thin — I think the word
colluded was used. I looked up the word collude and — just so I can tell you. Collude
— collude is — or collusion is defined as a secret agreement to cheat or
deceive, and that is what Geraldine Bergstrom was asked on cross-examination,
essentially, to use the definition, “Did you have a secret agreement to cheat
or deceive us here with your testimony?” And so, the — I have to say the —
it’s — it’s amusing and it’s disappointing and — and it’s, in my submission,
ultimately inappropriate when a person like Geraldine Bergstrom comes along and
provides housekeeping assistance for a person she can see needs housekeeping —
housekeeping assistance, and she comes to court to testify about that and she’s
asked if she’s colluding, colluding to cheat, or deceive us … in my submission,
a direct approach would have been preferable to accusations of collusion.

[26]        
These observations were factually incorrect and highly inflammatory. Defendants’
counsel had asked each of the witnesses whether they had spoken to the other
about their evidence; however there was no reference to collusion or cheating
anyone. Even if there had been such a suggestion, it was not for counsel for Mr.
Vander Maeden to “look up” what collude or collusion meant and then reframe the
questions that were allegedly asked by defendants’ counsel. Moreover, Mr.
Vander Maeden’s counsel’s comment that it is “amusing” and “disappointing” is a
grossly unfair and inappropriate attack on the conduct of the defence. The
clear implication of counsel’s submission, given other observations during his
submissions, is that Mr. Vander Maeden’s case was direct, honest and open while
the defendants’ case was based on personal attacks and accusations of
collusion. In my view, this transgression of Mr. Vander Maeden’s counsel, taken
on its own, justified granting the order sought by the defendants.

  Incorrect
recital of Dr. Schweitzer’ Evidence

[27]        
I am of the view that Mr. Vander Maeden’s counsel incorrectly submitted to
the jury that Dr. Schweitzer had reconsidered his opinion that Mr. Vander
Maeden was “almost fully recovered”. In his submissions to the jury, counsel
for Mr. Vander Maeden said the following:

I wanted to go back to Tab 3A,
though, which is a July 16^th, 2009, letter and just touch on
one of the — one of the points that — that Dr. Schweitzer addressed in
his testimony, but he lists the symptoms or the — the symptoms from the
accident on page 1 and on the second page he says [as read in]:

At this time Rudy is almost fully recovered from the above
injuries although he does unfortunately

And then he goes on to make a
list of things he hasn’t recovered from. Dr. Schweitzer was asked about
that on cross-examination and he said, well with the benefit of hindsight, he
now knows better. That was his guess at the time, his prognosis at the time,
and he now knows better.

[28]        
Counsel for Mr. Vander Maeden’s description of Dr. Schweitzer’s
evidence was seriously inaccurate. Counsel had attempted to address this
portion of Dr. Schweitzer’s report in the doctor’s direct examination.
Defendants’ counsel objected to this line of questioning, arguing it was an
improper attempt at rehabilitating or amending a portion of the doctor’s
evidence that was prejudicial to Mr. Vander Maeden’s case. I upheld the
objection. Notwithstanding this ruling, counsel not only referred to the
evidence but incorrectly described it as Dr. Schweitzer having
reconsidered his opinion. Dr. Schweitzer did not provide such a revised opinion
and even if something of the sort had been said by the witness, it was inadmissible.

  Improper
Explanation of Dr. Longridge’s Evidence

[29]        
Dr. Neil Longridge is a medical doctor with a specialty in
otolaryngology who prepared an expert medical-legal report for Mr. Vander
Maeden. Pursuant to Rule 11-6, Dr. Longridge’s report was entered as
evidence without the necessity of him testifying. The defendants did not
require Dr. Longridge for cross-examination pursuant to Rule 11-7(3).

[30]        
In his final submissions to the jury, counsel for Mr. Vander Maeden
read portions of Dr. Longridge’s report that touched on various tests he
had Mr. Vander Maeden perform. Counsel then told the jury:

Now, Dr. Longridge is an
otolaryngologist and that means he’s an ear, nose, and throat specialist, and
so when you have a person who has damage to the — or potential damage to the
hearing and balance systems, this is the kind of specialist that is best able
to assess that damage so that’s why Dr. Longridge became involved . because Mr.
Vander Maeden’s symptoms are in large part vestibular as — if I — if you may
— if I — if I can say that and that is in relation to the inner ear …

***

And so on the next page, 5, Dr.
Longridge goes on to talk about examination. That’s a physical examination to
see what’s going on. And then the next page, 6, his investigation. And so this
is a description of the tests that Dr. Longridge has done. And so at the
— at the assessment, Dr. Longridge has run Mr. Vander Maeden through a whole
bunch of testing that ENT doctors do and so that’s pretty well described.

***

And so if — if Dr. Longridge
were here, he would talk — I would have asked him about that, but I’ll explain
what that means is that this is a test to measure exaggeration and malingering,
that is, whether Mr. Vander Maeden is telling the truth. And in many
doctors’ reports, with — with particular emphasis on some specialities, but in
many doctors’ reports, they will do some testing to determine whether a person
— whether a patient is malingering or holding back or exaggerating their
responses, and so — and so that’s the testing done by ENTs to determine
whether a person’s telling the truth or not and get some feeling of — it’s one
of the factors that go into the feeling whether a person telling the truth.

[31]        
Pursuant to Rule 11-7(5), Mr. Vander Maeden could have had
Dr. Longridge testify at trial to “clarify terminology in the report or to
otherwise make the report more understandable.” No such request was made and
consequently Mr. Vander Maeden’s counsel’s comments about what he “would have
done” and his understanding or interpretation of Dr. Longridge’s report,
particularly with respect to any tests conducted to “determine whether a person
is telling the truth”, were, in my view, ill-advised and prejudicial to trial
fairness. It is not for counsel to tell jurors what he would have asked a
witness had the witness testified and it is certainly not for counsel to
explain what a witness would have said or, as was done in the present case, explain
to the jury why Dr. Longridge had Mr. Vander Maeden perform certain specialized
test.

  Improper Attempt
to Introduce a Document

[32]        
At the pre-charge conference the day prior to final submissions, I
canvassed with counsel whether either of them would be relying upon any written
argument or materials during their respective addresses to the jury. Both
counsel indicated that they would not be doing so.

[33]        
Near the end of his submission to the jury, Mr. Vander Maeden’s counsel
said the following:

The — the next category I want
to talk about is cost of future care and I’ve referred to it because when we
were looking at the medical evidence, the doctor’s reports, and so I’ve
provided a — I’ve provided a summary of my submissions to you about what you
should award on this basis, and I’m just handing this up —

[34]        
At this point, counsel for the defendants objected and the jury was
excused. According to counsel for Mr. Vander Maeden, the document in question
was “a reworked document from mediation”. Mr. Vander Maeden’s counsel’s surprising
decision to use this document without disclosing it in advance to counsel for
the defendants, particularly given what was said during the pre-charge
conference, created an unnecessary and in the circumstances serious problem. The
defendants were forced to object to the document being given to the jury, and in
light of everything else that had been said by Mr. Vander Maeden’s counsel
about the questionable approach and tactics of the defendants during the trial,
the jury may well have interpreted the defendants’ objection as yet another
attempt to keep important information from them.

Conclusion

[35]        
Counsel for Mr. Vander Maeden expressed his “hope” that proper
instructions to the jury could cure any defects in the trial or prejudice to
the defendants that were caused by his submissions. That hope was
understandable, but in the circumstances it was in vain. Although I accept
without hesitation that there was no malice or improper design on the part of
Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and
transgressions amounts, in my view, to misconduct.

[36]        
With great respect for each member of the jury, in my opinion their
ability to fairly and impartially perform their role as the triers of fact was
irreparably compromised by Mr. Vander Maeden’s counsel’s final submissions.

[37]        
In my view counsel for the defendants is correct when he submits the
only means of salvaging the trial is to discharge the jury and have the
proceeding continue as a judge alone trial. In my view a just, effective and
efficient resolution to the situation is for the jury to be discharged, for Mr.
Vander Maeden’s counsel to make additional submissions on the issues at trial if
he believes they are necessary and then for counsel for the defendants to make
his final submissions.

Order

[38]        
The defendants’ application for a mistrial is granted. Pursuant to Rule 12‑6(12),
instead of ordering a new trial, I direct that the jury be discharged and that
the proceedings continue before me as a judge alone trial.

[39]        
Counsel for Mr. Vander Maeden has leave to make further submissions
regarding the plaintiff’s claims before defendants’ counsel make his final
submissions.

                    “G.R.J.
Gaul, J.”                   

The
Honourable Mr. Justice G.R.J. Gaul