Law Times

www.lawtimesnews.com Law TiMes / March 10, 2008 Page 3 New trial after 'irrelevant' comments in closing A Divisional Court panel has granted a new trial to a man seeking dam- ages following a car accident, af- ter finding that a closing address to jurors by defence counsel included "inflammatory, irrel- evant, and improper" comments the trial judge didn't properly address in his predeliberation instructions. "Irrelevant considerations were left to the jury and may well have improperly poisoned their minds against the plain- tiff," writes Justice Anne Marie Molloy in she and Justice Den- nis Lane's majority decision, which was opposed by their fellow judge, Justice Arthur Gans. Abdallah v. Snopek involves plaintiff Nezam Abdallah, an immigrant from the West Bank who was involved in an automo- bile collision on Aug. 11, 2001, in which his car was hit from behind by another car. Abdallah alleges that, as a result of the ac- cident, he suffered from chronic pain, depression, and a sleep dis- order. Defendants Bozena and Josef Snopek, while admitting liability, argue that Abdallah did not sustain any injuries. During the trial, Abdallah's family doctor testified he had been treated for back, neck, and shoulder pain, as well as sleeping difficulties, says the judgment. The family doctor's testimony was supported by two other doc- tors and a physiotherapist. The defence presented evi- dence from an orthopedic sur- geon, "who expressed the opin- ion that Mr. Abdallah was a malingerer and could return to work at any time," as well as evidence from a physiotherapist who felt that Abdallah was over- stating his pain symptoms, says the judgment. Jurors also viewed surveil- lance videotapes, which showed Abdallah "holding his back and grimacing in apparent pain" while doing daily activities, writes Molloy. In his closing address, defence counsel Bill Evans, representing insurer Aviva Canada Inc., urged jurors to conclude Abdallah was not credible and pointed to the amount of damage to Abdal- lah's car and medical evidence to back up the argument, says the judgment. In the appeal, Abdallah objected to comments made later in the closing address, although his trial lawyer did not object to them when they were made at trial, writes Molloy. Those comments includ- ed the following statements, according to the judgment: "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 peo- ple who don't drop out of the workforce for 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. "This car accident should not be an opportunity for Mr. Ab- dallah to get a leg up on everyone else who comes to this country trying to start a new life. "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 in Ontario are not an ATM machine. Please exer- cise common sense. This acci- dent didn't happen the way he said. He's not injured. He hasn't proven his case. He should get nothing." After deliberating for seven -and-a-half hours, the jury re- turned a verdict awarding Ab- dallah no damages after finding he had not sustained any injury, says the judgment. The plain- tiff immediately applied for the verdict to be set aside as unrea- sonable, but the trial judge dis- missed that motion. The divisional court majority found that the defence counsel's jury address was "inflammatory." "There is nothing wrong with counsel being passionate in sup- port of his client," writes Molloy. "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." The decision later states: "In the case at bar, it was improper of counsel to dwell on the plain- tiff 's national origin and to in- vite the jury to speculate about what the plaintiff would do with any award he received." Molloy goes on to say: "They are not simple slips, or unfortu- nate stray comments made by counsel caught up in the heat of the moment. This was a pre- pared and calculated strategy." The court also found that, al- though it would have been pref- erable for Abdallah's counsel to raise objections immediately following the defence's clos- ing address, it was not fatal. The judgment says: "The courts have always recog- nized exceptions to the gen- eral rule, depending on the extent of the impropriety and the overarching require- ment to see that justice is administered fairly." The court also found that the trial judge should have asked the lawyers away from jurors if they had any concerns regarding the jury address; and if none were raised, the judge should have brought up any prob- lems and asked counsel to address them. The court found that the defence counsel, plaintiff 's counsel, and trial judge all made mistakes in the trial. "This court ought not to com- pound those mistakes by deny- ing a new trial because of the failure of counsel to object. . . or by deferring to the discretion of the trial judge." In his dissenting opinion, Gans rejected the notion that the trial judge erred in the case. "Respectfully to the decision of my colleagues, I do not think the charge as delivered and the actions of [the trial judge] be- fore and after the charge and immediately before and after the jury's verdict are suggestive, in the least, or give voice to the no- tion of his having committed an overriding and palpable error," writes Gans. Gans also takes issue with the appeal court's attempt to "dissect a jury address or charge when no contemporaneous objection is made at first instance." He writes: "The absence of 'outrage,' which is the emotion that the appellant's counsel is now seeking to elicit in this ap- peal, is more consonant with the 'temperature' of the room at the time the address was made than we, sitting on appeal, can now gauge and assess many months later and while removed from the fray." Gans concludes by writing: "There was more than sufficient evidence upon which the jury could have arrived at its conclu- sion in disbelieving the evidence of the plaintiff in terms of the root cause of the injuries about which he was heard to com- plain." Karin Ots, a lawyer who is senior vice president of casualty and injury claims at Aviva Can- ada Inc., says the company has not given up on the case. "We respectfully disagree with the decision . . . and will be appealing the case," Ots tells Law Times. "From a legal perspective, there's two important principles involved," says Ots. "One is whether or not a counsel's clos- ing argument should be reviewed out of the context of the broader scope of the trial." Ots says another question is "the extent to which the appel- late court can overturn the deci- sion of a jury that sat and heard the evidence." She says the ma- jority "made some assumptions about the jury deliberations." Adam Little, Abdallah's lawyer at the appeal court, says lawyers should take note of the case. "The decision serves as a re- minder to counsel that you basi- cally have to stick to the relevant facts," he says. NEWS For information on DD Direct Access contact Kim Hines Dye & Durham Search & Registration Services connects you to over 40 Search & Registration services. Your ONE-Stop Service Provider. 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