Ismail v. Fleming, 2018 ONSC 6615 (CanLII)
This was a trial on damages for a motor vehicle accident which occurred in 2009, as liability had been admitted. The trial began on October 1, 2018 and continued until October 31, 2018, at which time the trial judge, Justice Leach, declared a mistrial.
In Justice Leach’s lengthy decision, he emphasizes the vital importance of accurate trial duration estimates to the efficient and effective administrative justice in this province. The parties provided the court with a trial duration estimate of five weeks at the last pre-trial conference despite the anticipation of 20 witnesses for the Plaintiff and 8 witnesses for the Defendent. By October 26, 2018, the parties had not fully completed the testimony of more than two witnesses (the Plaintiff and her psychotherapist); although they had started the testimony of three physicians, those remained incomplete at the end of the fourth week. Justice Leach declared the mistrial after having no hope that the trial could be completed within the time allotted. Justice Leach provided significant detail on the context for how trial estimates effect the court system as well as the conduct of this trial which led to the decision to declare the mistrial. The comments made by Justice Leach are extensive and a summary will not do the decision justice: the decision ought to be read in its entirety. Justice Leach also stated his preliminary view that each side should bear their own costs of the aborted trial. The parties were permitted to provide written cost submissions if they did not agree.