Court Of Appeal Upholds Striking Of Jury Due To Inaccurate Trial Duration Estimate And Late Disclosure

• Published date: 15 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Rogers Partners LLP
• Author: Ms Meryl Rodrigues

In an interesting decision released by the Court of Appeal on October 13, 2020, the Court appears to have swiftly dealt with a defendant's broad appeal on the merits of a trial judgment in an action arising from a motor vehicle accident.¹

The case of Rolley v. MacDonell arose from a pedestrian/motor vehicle collision in 2012 and proceeded to trial in 2017, which continued into 2018. Ultimately, after discharging the jury mid-trial, the trial judge awarded the plaintiff's damages totalling $2,023,016, plus interest, costs and disbursements.

The trial gave rise to a number of procedural and substantive issues, the subject of various rulings by the trial judge, the most notable of which included striking the jury², refusing to grant a mistrial³, and refusing to admit surveillance evidence⁴. Indeed, these were three of the grounds on which the defendant driver appealed the trial judgment.

Motion to Strike the Jury/Motion to Declare a Mistrial

At first instance, the trial judge granted the plaintiffs' motion to strike the jury for two reasons.

First, inaccuracies with respect to the estimated length of trial were going to result in a 44-day delay before the trial would resume and a notable gap in the calling of evidence, which the trial judge found would have the potential to prejudice the jury's reasoning process and its ability to fulfil its role.

Second, there was late, mid-trial disclosure of coverage under an umbrella policy available to the defendant, which resulted in the plaintiffs reformulating a significant claim for attendant care. The trial judge agreed with the plaintiffs that this would result in prejudice to the plaintiffs, including in respect of subsequent differences in the way the attendant care claim was presented to the jury following the late disclosure versus in plaintiff counsel's opening statement.

On appeal, the defendant contended that the trial judge erred in striking the jury, resulting in a miscarriage of justice. The Court, however, was not convinced of any such error in the trial judge's exercise of discretion in that regard.

The Court noted that counsels' "gross underestimation of the length of trial" resulting in the 44-day delay, and the late disclosure of the umbrella policy resulting in a reasonable change in the attendant care claim each provided sufficient basis for discharging the jury. Indeed, the Court held that the latter was ample basis for the trial judge to conclude that there would be potential prejudice to the...