CLOSING ARGUMENT IN A CIVIL TRIAL. The Objective of Closing Argument

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1 CLOSING ARGUMENT IN A CIVIL TRIAL By R.W. Howard Lightle Weaver Simmons LLP The Objective of Closing Argument The closing argument is counsel s last opportunity to meaningfully address the trier of fact about the case that was advanced. It is the only opportunity to synthesize the totality of the evidence in a fashion that meshes with your theory. You know the case you want to make, and the trier of fact may not. A judge or jury might not necessarily see where subtle, and sometimes even obvious, points in the evidence fit into your theory. Counsel s role is to enlighten the trier of fact in closing in that regard. You have an opportunity to take each and every helpful point of evidence and weave it into legal principles that apply so as to persuade the trier of fact that your theory should rule the day. In order to achieve the objective a careful review of the evidence is required. Highlight the evidence that is in support of your case, and that which does not support the opponent s case. If your opponent has a theory that hinges on a certain strength in his or her view, identify credible flaws in having that evidence be wholly determinative of the result. Try your best to credibly downplay any perceived weaknesses in your case. Closing argument, at least in front of a jury, should be kept simple and pointed. Flowery verbiage or an effort to display exceptional command of the English language is best left for another forum. The closing argument also should clearly propose to the trier of fact what result it is you expect to be reached for your client. You must specifically ask for the result. Closing Argument Is Markedly Different From Opening Address While some refer to the closing as an address and others as argument (and both are acceptable), the opening is really an address and not argument. In opening you are to introduce to the judge or jury the factual background you expect to establish in the evidence, but not suggest what to do with the evidence. In closing you then reference that evidence and argue why it should be accepted and why, at law, it ought to translate into success for your client. In a famous and often quoted description Justice Riddell described closing argument as a

2 2 1 fight and not afternoon tea. On the flip side, an opening address is as close as you get to afternoon tea at a trial. In Ontario the limits in an opening have been described as follows: In Brophy v. Hutchinson, a 2003 decision of the British Columbia Court of Appeal, cited at [2003] B.C.J. No. 47, the British Columbia Court of Appeal made the same or similar observation. The court said, at paragraph 41, that in an opening statement counsel must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors' emotions, rather than their reason. The court added that "The opening is not argument, so the use of rhetoric, sarcasm, derision and the like are impermissible." 2 It would seem to follow that rhetoric, sarcasm, derision and the like would then be permissible in closing argument. The use of rhetoric in closing argument is most certainly permissible (and advisable). Sarcasm is likely permissible, but perhaps not always advisable. Derision and the like, one could argue, are impermissible and ill advised in both opening address and closing argument. Procedural Considerations For Closing Argument Both the Plaintiff and Defendant have the right to make closing argument at a civil trial, and both should exercise that right. In jury trials the right is granted by rule of the Rules of Civil Procedure, and in non-jury trials it is an established tradition in the common law. The Trial Judge may call upon counsel to proceed with closing argument immediately following the completion of the evidence, so counsel should be prepared to proceed accordingly. Increasingly judges will allow for an afternoon or weekend so counsel can prepare in greater detail before making closing argument. This depends on the presiding judge, the Court s schedule, the length and complexity of the case and consideration for the jurors if it is a jury trial. It is advisable for counsel to consult the Trial Judge before the evidence has been completed to canvas the prospect of breaking to finalize closing argument so everyone knows what to expect. In a civil jury trial rule mandates the Defendant closes first, followed by the Plaintiff, with a few potential exceptions. If the Defendant does not call any evidence then the Plaintiff makes closing argument first. If the onus of proof is reversed a judge may order that the Plaintiff closes prior to the Defendant. Where there is more than one Defendant the order of their closing argument is directed by the Trial Judge, but often follows the order in which parties are named in the pleadings. 1 2 Dale v. Toronto R.W. Co. [1915] O.J. No.49 (S.C. Appellate). Baillargeon v. Paul Revere Life Insurance Co., [2006] O.J. No (Ont.S.C.J.) at para.5.

3 3 In a judge alone trial there is no governing rule but salutary practice is for the Plaintiff to present closing argument first, followed by the Defendant. The Plaintiff is permitted a reply in most cases. When making closing argument the historical practice was for counsel to stand at the lectern and proffer your submissions. In jury trials there are some counsel who prefer to approach the jury box and get a little more up close and personal with jurors. Judges will stop counsel short of tap dancing for and throwing roses to jurors, but how intimate counsel are permitted to become is in the discretion of the Trial Judge and the limits can vary wildly. Limits on Closing Argument While not a tea party, closing argument is still subject to restrictions. In 2006 the Court of Appeal provided detailed roadmap of the limitations on closing argument, emphasizing that while not a tea party, it is not also a free-for-all: [76] It is well-established that considerable latitude is afforded counsel concerning the permissible scope of a closing jury address in [page787] a civil trial. This court observed in Stewart v. Speer, [1953] O.R. 502, [1953] 3 D.L.R. 722 (C.A.), at p. 508 O.R., quoting from Dale v. Toronto R.W. Co., [1915] O.J. No. 49, 34 O.L.R. 104 (C.A.), at pp O.L.R., that counsel has the right to make an impassioned address on behalf of his or her client and, in some cases, the duty to so do, so long as it "does not offend in other respects", and "courts do and must give considerable latitude, even to extravagant declamation". See also J. Sopinka, D.B. Houston and M. Sopinka, The Trial of an Action, 2nd ed. (Toronto and Vancouver: Butterworths, 1998) at 130ff. [77] This principle lies at the core of the advocate's duty to his or her client and the independence of the bar. Counsel are required to advance their client's cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel's obligations as an advocate and officer of the court. [78] But there are also important limits on the bounds of a closing jury address. As this court recently stated in Brochu v. Pond (2002), 62 O.R. (3d) 722, [2002] O.J. No (C.A.), at paras. 15 and 16: [T]he expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence. Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are "inflammatory", in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. 3 3 Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at paras

4 4 When engaged in litigation, and trial in particular, counsel can often lose patience with opposing counsel. It is imperative that civility prevail and that edict still reigns in closing argument. Opposing counsel is not open to derision and the like. In Landolfi Plaintiff s counsel argued in closing that defence counsel had told four whoppers (suggesting untruths) to the jury, misrepresented evidence to the jury by making up his own, ignored medical evidence and on a number of occasions referred sarcastically to defence counsel with the salutation Dr. as opposed to Mr.. The Court of Appeal rebuked this conduct commenting: [88] Counsel for the Landolfis properly acknowledged before this court that there is no room in our adversarial system of justice for unwarranted ad hominem attacks at trial on opposing counsel. I agree. This is not simply a matter of courtesy. Such attacks are not only uncivil and unprofessional, left unchecked they also endanger trial fairness and stain the administration of justice. [89] In this case, the offending comments regarding defence counsel were inflammatory and prejudicial to the defence because they improperly invited the jury to decide the case on the basis of an extraneous and irrelevant consideration -- the credibility of defence counsel -- rather than on the strength of the evidence adduced at trial: see Ross v. Lamport, [1955] O.R. 542, [1995] 4 D.L.R. (2d) 826 (C.A.), at pp O.R., revd on other grounds [1956] S.C.R. 366, [1956] S.C.J. No. 15; and Brochu, supra, at paras. 15 and 16. In this sense, the comments risked diverting the jury's attention away from its true task, namely, an objective evaluation of the relevant issues, the positions of the parties in relation to those issues, and the evidence pertaining to the issues. This prejudicial impact was compounded by the fact, as I have said, that at least some of the comments on the evidence by plaintiffs' counsel were inaccurate and misleading. [90] Nor do I accept that the challenged comments concerning defence counsel were inadvertent minor lapses uttered during the heat of an enthusiastic and forceful closing address. In developing the theme in his closing address that defence counsel made speculative statements to the jury that were not supported by the evidence, plaintiffs' counsel, a very experienced personal injuries lawyer, stated that defence counsel "made up" evidence concerning Landolfi's injuries to which no medical expert had testified. In so doing, plaintiffs' counsel referred to defence counsel, on six separate occasions, as "Dr." McCartney. 4 There was a time where the mention of insurance potentially responding to a tort claim resulted in an automatic mistrial. That is no longer the case, but it must be remembered that it is still not considered a relevant fact for purposes of closing argument: [92] In addition, on several occasions during his closing address, plaintiffs' counsel intimated to the jury that the actual defendant in the case was an insurance company. Given the contemporary prevalence of insurance as a commodity and the advent of compulsory automobile insurance, such references in a civil jury trial in Ontario no longer automatically trigger the discharge of the jury. Rather, the decision whether to discharge the jury in a civil case as a result of such references is a matter within the trial judge's discretion: see Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, [1997] S.C.J. No Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at paras

5 5 [93] Thus, plaintiffs' counsel's suggestion to the jury that the actual defendant was a third party insurer did not render the declaration of a mistrial mandatory. As the trial judge observed when dismissing the mistrial motion, "everybody knows that all Ontario drivers are insured". [94] However, the insurance company-related references in this case were extensive. They were not confined to the implied fact of the involvement in the action of a defence insurer. Plaintiffs' counsel also raised the irrelevant considerations that defence counsel had considerable resources at hand (presumably through funds provided by an insurance company) to retain witnesses adverse to the Landolfis, that he had searched fruitlessly for such witnesses, and that the aereal' defendant had ample funds from which to satisfy defence counsel's fees. As well, by attacking defence counsel's honesty and Dr. Hunter's impartiality, in part on the basis of Dr. Hunter's frequent retainer by insurance companies, plaintiffs' counsel insinuated to the jury that the person actually directing the defence, an insurance company, was prepared to engage in an inappropriate trial strategy by hiring dishonest experts and lawyers to defeat the Landolfis' legitimate compensation claims. [95] Although plaintiffs' counsel did not expressly invite the jury to make improper use of the suggested involvement of a [page791] wealthy insurance company, the danger existed that the jury would believe that the ability of the aetrue' defendant in the case to pay damages was relevant to its assessment of damages. This is an extraneous and improper consideration. 5 Conduct that has been subject of previous litigation, such as an earlier punitive damages award and its quantum, are also examples of what is not permissible in closing argument. In Bonaiuto Plaintiff s counsel submitted the following his closing address to the jury: Members of the jury, in 2002 the Supreme Court of Canada upheld a most substantial punitive damage award against this same defendant. I submit to you, that based on the misconduct of the defendant insurance company in this case, clearly that award was not effective in deterring this defendant. The Trial Judge rightly characterized such argument as inflammatory and irrelevant: [11] Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are "inflammatory", in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. 6 While a trial is not a tea party there remains an obligation to the Court a duty to maintain civility and not prejudice the jury with inflammatory comments. A you got to do what you got to do approach is not countenanced: [97] There is also a further aspect of this case about which it is appropriate to comment. At trial, plaintiffs' counsel resisted the defence mistrial motion, in part by seeking refuge in the premise that a civil jury trial is "not a tea party". In addition, at the conclusion of trial, when he was properly (and somewhat mildly) 5 6 Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at paras Bonaiuto v. Pilot Insurance Co., [2010] O.J. No (Ont.S.C.J.) at para.11.

6 6 chastised by the trial judge for his attack on defence counsel in his closing address, plaintiffs' counsel made the remarkable response that trial counsel "have got to do what you have got to do". [98] These statements were disdainful of the court and of counsel's obligations as an advocate and officer of the court, obligations that are owed to the court, the litigants and opposing counsel: see for example, R. v. Felderhof (2003), 68 O.R. (3d) 481, [2003] O.J. No (C.A.), at paras They were also misconceived. Although it is true, in the language coined by Riddell J. in Dale v. Toronto R.W. Co., supra, at p. 108 O.L.R., that, "a jury trial is a fight and not an afternoon tea", a civil trial is not open season for attacks on opposing counsel and litigants. This court recently stressed in Felderhof, at paras. 95 and 96, that the professional obligation of counsel to keep his or her rhetoric at trial within reasonable bounds has "nothing to do with trials not being tea parties'". Nor does a hard fought trial, like this one, license counsel to make inappropriate and prejudicial submissions to the jury, including those that cast aspersions on the integrity of opposing counsel. 7 In 1917 and today speculating on a Plaintiff s nationality and how any damages award might be spent is an irrelevant, and therefore impermissible, consideration to put to the jury in closing argument. In Gage v. Reid the Plaintiff was an Austrian citizen of Serbian descent alleging false imprisonment in Canada. At the time the First World War was underway. Defence counsel suggested to the jury in his closing argument that the Plaintiff ought to be awarded nothing, or very little, as he might use it to assist the enemy of the Commonwealth in the war effort. The Court of Appeal held: [14] To say that the question of a man's nationality might be in some cases a question for a jury, is to say something so obviously irrelevant as really to need no observations upon it, yet it may be said: in this case it was not in question even in the remotest way; nor could it have been, because it was admitted; and, if it had been, it justly could not have affected the question of damages or of the defendant's liability for false imprisonment in the remotest way. If the man's nationality had had any effect upon his action, it could only have had the effect of staying it during the war: there should not have been any other trial of any issue between the parties: it would have been improper to have assessed damages or have tried whether the plaintiff had been falsely imprisoned by the defendant. There is no sort of excuse for the introduction of such evidence, and it could have had no purpose but that of an unjust discrimination because of the man's nationality: a thing so obviously inexcusable that it is surprising to me that there should be any attempt to excuse it, not to speak of attempting to justify it. It was just as bad as attempting to influence a jury to disregard their duty and their oath of office, in denying justice to any one on account of his creed or colour; and in its effect was worse in this case, because it was so easy to stir up the animosities of the jury against an alien enemy, whilst it might have been difficult, if not impossible, on account of colour or creed. 8 More recently in Abdallah v. Spooner defence counsel raised the issue of nationality in closing argument to the jury as set forth below: 7 8 Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at paras. 97 and 98. Gage v. Reid (1917), 38 O.L.R. 514, [1917] O.J. No. 153 (Ont.C.A.) at para.11.

7 7 Mr. Abdallah also talked about how much he loves Canada. Let's just review what he's done since he's been in Canada. He came to Canada, he got a job that he worked for five months and then quit. Then he made an EI claim. Six months later he was in an accident and made an accident benefits claim. He then goes on to work a total of three weeks over the next almost five years. He goes back to the Middle East twice for a total of 20 months and he moves his entire family back there. And now he's here asking for money from my client. Sure, he loves Canada. Why not? What's not to love? We're all immigrants or our forefathers are immigrants, but Canada wasn't built that way. It was built by hard working people who don't drop out of the workforce for [page777] five years because of a fender bender. Canada wasn't built by people who try to take advantage of a car accident to write their ticket Ask yourself what you think will happen if you order my client to pay him money. Do you think he will take that money and sit around the house for the next five years and use it for medical treatment, or do you suspect he may find the energy and back strength to start his own business, perhaps not even in this country? Which do you think is more likely to happen? Ladies and gentlemen, this car accident should not be an opportunity for Mr. Abdallah to get a leg up on everyone else who comes to this country trying to start a new life. This accident should not be a down payment for a house, it shouldn't be an early retirement fund or seed capital for a new business anywhere. And I ask you, do not let that happen. It's a serious matter to drag someone through a lawsuit and use this court's time. Does Ms. Snopek look happy to be here? The courts of Ontario are not an ATM machine. Please exercise common sense. This accident didn't happen the way he said. He's not injured. He hasn't proven his case. He should get nothing. That's all, thank you. 9 It should come as no surprise that the Court of Appeal was critical of the tenor of those submissions to the jury. It had this to say of that closing argument: [24] In my view, there can be little doubt that the concluding portion of defence counsel's jury address was irrelevant, inappropriate and offensive. [page780] [25] There is considerable room for skillful advocacy in trial counsel's closing address to a jury. The advocate's purpose in addressing the jury is to summarize his or her client's case in a persuasive fashion and, in doing so, to convince the jury to return a favourable verdict. Counsel's address to the jury must be rooted in the evidence, rather than irrelevant considerations. There is nothing wrong with counsel being passionate in support of his client. However, jury addresses that are designed to influence jurors towards making decisions based on their emotional reactions to irrelevant issues, rather than on a rational and logical analysis of the evidence, are improper Abdallah v. Snopek, [2008] O.J. No. 729 (Ont.C.A.) Abdallah v. Snopek, [2008] O.J. No. 729 (Ont.C.A.) at paras. 24 and 25.

8 8 In the same vein as above, personal attacks on counsel s or a litigant s integrity in closing argument is swimming in dangerous waters. In Gilbert v. South Plaintiff s counsel submitted in closing: I can only suggest to you that York Insurance is not on the search for the truth. Rather, it wants to divert your attention away from the truth, put up some smoke screens, and confuse the real issue by using tactics of selectively cherry picking the evidence to convince you to award as little money as possible. 11 The Court of Appeal took exception to the remarks, commenting: [20] Thus, I think the trial judge was right to be concerned about the comments of Gilbert's counsel set out above. They were improper. They exceeded the limits of zealous advocacy. They raised the risk the jury would focus on the character of York Fire's counsel and his client instead of what the jury should focus on: the evidence. 12 Objections to Comments in Closing Argument The general rule of thumb is that objections should be made at the time of the offending remark, and that a failure to object can be fatal. However there are generous exceptions to that historical practice: It is well-settled law in this Province that, as a general rule, a Court of Appeal will not order a new trial because of inflammatory language used in addressing the jury where no objection was taken at the trial, but, although that is the general rule, it is not an absolute one and it still remains the duty of the Court to 13 interfere if we are clearly of the opinion that an injustice has been done. The Court of Appeal in Landolfi also took it upon itself to consider inflammatory remarks that were not objected to at trial in arriving at its decision to order a new trial: [101] I recognize that defence counsel did not object at trial to the personal attack made on him in the offending closing address. This, however, did not diminish the trial judge's responsibility to maintain civility in the courtroom and to intervene to avoid the risk of prejudice: see Felderhof, at paras. 57, 83, 94 and 95; and de Araujo v. Read, [2004] B.C.J. No. 963, [2004] 8 W.W.R. 473 (C.A.), at paras. 4 and 53, leave to appeal to S.C.C. refused [2004] S.C.C.A. No Gilbert v. South, [2015] O.J. No (Ont.C.A.) Gilbert v. South, [2015] O.J. No (Ont.C.A.) at para. 20. Ross v. Lampert, [1955] O.R. 542 (Ont.C.A.) at p.562. Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at para.101.

9 9 In his book On Trial Geoffery Adair outlines the current sentiment regarding the timing of an objection, saying, It is suggested that the better practice is to withhold any objection except in the most flagrant and serious cases until the opening address or the closing address of offending counsel has been concluded. 15 In a jury trial there is a danger in objecting in front of the jury, especially with frequency, even if the objections are warranted. A jury may not know why you are objecting and may form the opinion that you are being difficult and obstructive. Jurors may wrongly believe you are trying to keep an important piece of evidence, or an important submission in argument, from being heard. If opposing counsel must be interrupted wihtout completing argument it is more often than not preferred practice to ask that the jury be excused so a frank discussion about the impugned remarks can be had with the Trial Judge, and then the jury cautioned if necessary. Redress for Improper Comments in Closing Argument Invariably the limits on closing argument apply to both jury and non-jury trials. Irrelevant and inflammatory argument is always frowned upon. Practically speaking a judge alone trial does not invoke the same potential remedies for exceeding the limits as a jury trial. A judge is better suited to recognize improper considerations and ignore them. There is a danger jurors are not so well positioned. As a result where a jury has been subjected to irrelevant, inflammatory and prejudicial comments in closing argument three remedies are available: [21] Faced with an improper closing jury address warranting intervention, a trial judge has a choice of three remedies: caution the jury by giving a correcting instruction, strike the jury and conduct the trial alone, or declare a mistrial A mistrial is the remedy of last resort for the Trial Judge. The decision to grant or deny a mistrial lies with the Trial Judge. Recall that the right to a trial with a jury is a substantive right that cannot be taken away simply by the misconduct of opposing counsel. Rather, if the jury must be discharged, the innocent party will normally be permitted to start anew, and select a new jury. That requires putting the matter over to a fresh jury sitting. Costs and delay should be avoided so the mistrial is invoked only where the impropriety is incapable of being corrected: [99] As I have said, the decision whether to declare a mistrial is squarely within a trial judge's discretionary domain. Consequently, a trial judge's decision on this issue attracts considerable deference Adair, Geoffery, On Trial, (Butterworths Canada Ltd, 1992) at page 310. Gilbert v. South, [2015] O.J. No (Ont.C.A.) at para. 21. Gilbert v. South, [2015] O.J. No (Ont.C.A.) at para. 22.

10 10 from this court: see Hamstra, supra, at para. 26; and R. v. Emkeit, [1974] S.C.R. 133, [1972] S.C.J. No. 114, at p. 139 S.C.R. Nonetheless, there may be situations where the nature of the offending remarks by counsel to a jury gives rise to a danger of substantial prejudice to the opposing litigant. In these circumstances, in my view, it is incumbent on the trial judge to intervene. 18 Where a correcting instruction can be given to the jury that avoids a mistrial and allows justice to be done it is the Trial Judge s obligation to properly caution the jury of the transgression. In Bonaiuto the Trial Judge was satisfied that the remarks regarding a previous punitive damages award were irrelevant and inflammatory, but also believed that a correcting instruction to the jury was sufficient to remedy the wrong. Her correction implored the jurors as follows: Members of the jury, I have asked you to come back because there is one matter that I wanted to straighten out that Mr. Katz just said, that I wanted to correct before you have a chance to think about it overnight. It is not a correction as much as an over-reach. He referred to a Supreme Court of Canada case involving the same defendant in which the defendant had made a very large punitive damage award, and I must tell you that you have to completely disregard that statement that he made in that regard. The defendant insurance company, as you know, deals with many, many, I can't even begin to hazard how many thousands or hundreds or whatever many claims. The facts each may be very different, and those facts were not before this court, and there has been no evidence about what the facts in that case was. That case is not a part of the law in this case, and the fact that there have been punitive damages awarded against this defendant is a factor that is completely irrelevant for the purposes of what you must decide in this case. And I instruct you therefore to completely ignore that statement, which should not have been made. Having believed a correction was sufficient Justice Harvison-Young then added when the seemingly draconian remedy of a mistrial might be appropriate: [15] It is clear from the case law that a mistrial is by no means an automatic for prejudicial or inappropriate remarks on the part of counsel. As McIntyre J. stated in R. v. Mills, [1986] 1 S.C.R. 863 at para. 266: "It is to be hoped that trial judges will devise, as the circumstances arise, imaginative remedies to serve the needs of individual cases." In most cases, correcting instructions are likely to be adequate and mistrials will be appropriate only in cases where the trial judge considers that the prejudice cannot be so cured: see Hamstra v. British Columbia Rugby Union (1997), 145 D.L.R. (4th) 193, at paras per Major, J.; see also Brochu v. Pond et al. (2002), 62 O.R. (3d) 722 (Ont. C.A.). 19 Finally the rationale for a correcting instruction as opposed to a mistrial was expressed by Justice Harvison-Young: [19] Mr. Katz's remarks, though completely irrelevant and extraneous to the issues at trial, were an isolated occurrence in the course of a week-long trial. A single comment, though prejudicial, is likely more easily remedied with a timely correcting instruction to the jury -- and such a comment is likely more easily Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at para.99. Bonaiuto v. Pilot Insurance Co., [2010] O.J. No (Ont.S.C.J.) at para.15.

11 11 excised from jurors' minds. Indeed, in Landolfi, supra, the Court of Appeal clearly considered that a stern limiting instruction would have been the best approach despite noting that the offending comments were "sustained and serious" (at para. 104). The fact that the jury did not award any punitive damages, though unknown at the time of the in appropriate remark and the correcting instructions, supports the view that the correcting instruction was sufficient. [20] In short, this was not a situation that warranted a mistrial, but rather a correcting instruction, which was provided shortly after the offending remark. 20 The Court of Appeal similarly upheld that type of reasoning in Gilbert, focusing the number of improper remarks and whether a substantial miscarriage of injustice would arise: [23] The trial judge's refusal to grant a mistrial was entirely reasonable. To intervene, allow the appeal, and order a new trial, we would have to be satisfied his refusal caused a substantial wrong or miscarriage of justice: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). Here, the trial judge's refusal did not cause any miscarriage of justice. The improper comments of Gilbert's counsel were few and were not so serious or so prejudicial that they could not be addressed by an appropriate correcting instruction to the jury. Thus, appellate intervention in the exercise of the trial judge's discretion would be entirely unjustified. I would not give effect to this ground of appeal. 21 The Court of Appeal in Landolfi ordered a new trial and reasoned that the transgressions of Plaintiff s counsel were so serious that it had no option. Had correcting instructions been given contemporaneous with the offending remarks, even without objections from defence counsel, a mistrial (or new trial) may well not have been the remedy. Ultimately the decision must be arrived by considering the totality of the impugned conduct: [104] The offending comments by plaintiffs' counsel in this case were sustained and serious. Viewed in their entirety, they exceeded by considerable margin the bounds of legitimate rhetoric in a closing jury address. Left unaddressed by the trial judge, they raised the real prospect that, in approaching its task, the jury may have taken into account irrelevant, prejudicial and distracting matters that it ought not to have 22 been permitted to consider. Consequences of Mistrial If the Trial Judge rules that the only way to continue with a fair trial is a mistrial and a new jury must be selected offending counsel potentially faces serious consequences. The Court may order costs thrown away payable forthwith, which means the claim can be struck if the costs award has not been satisfied prior to the selection of the new jury. Counsel may also be personally Bonaiuto v. Pilot Insurance Co., [2010] O.J. No (Ont.S.C.J.) at paras.19 and 20. Gilbert v. South, [2015] O.J. No (Ont.C.A.) at para. 23. Landolfi et al. v. Fargione (2006), 79 O.R. (3d) 767 (Ont.C.A.) at para.104.

12 12 responsible for costs. To that end counsel should be mindful Justice Quinn s musings in Burke v. Behan following his declaration of a mistrial: [30] If costs cannot be agreed upon, counsel should arrange to make oral submissions. For what it may be worth, my preliminary view is that the defendant is entitled to his thrown-away costs for trial preparation and certainly his costs associated with the two days of trial, all, probably, on the substantial indemnity scale. In addition, I regret to say that I think those costs should be paid by Mr. Lingard personally. Furthermore, I am of the view that Mr. Lingard should not be allowed to bill his clients for the two days of trial or for a portion of the pre-trial preparation, as, six months from now, much of that preparation will have to be repeated. 23 While counsel is obliged to pursue their client s case with vigour and fearless advocacy, being fearless does not mean engaging in a free-for-all with no consequences that follow conduct. Fearless advocacy may require rigorous rhetoric and some degree of pomp, but simultaneously should incorporate caution, credibility and civility. 23 Burke v. Behan, [2004] O.J. No (Ont.S.C.J.) at para. 30.