Overview
This recent decision of the Ontario Court of Appeal addresses key principles of trial fairness in the civil context. The Court of Appeal unanimously allowed the appeal ruling that the admission of prejudicial evidence about the appellant resulted in an unfair trial.
Facts and Trial Decision
The appellant was 16 years old when she was struck as a pedestrian by a motorist. She suffered severe injuries and had no memory of the collision. At the time of the collision, the appellant was intoxicated. She was riding in a taxi with her friend and they both fled from the taxi to avoid paying the $13 fare. This evidence was admitted by the trial judge as narrative evidence and was put before the jury. The jury found the respondent, the driver of the vehicle, not liable and therefore no damages were awarded.
Both parties appealed the decision. The issue on appeal was whether the jury’s verdict should be set aside as the use of the taxi fare evidence resulted in an unfair trial. The issue on the cross-appeal was whether the trial judge erred in awarding no costs based on the circumstances of the case and the conduct of the respondent’s counsel with respect to the taxi fare evidence.
Held
The Court allowed the appeal and held that “[t]he unfairness that developed at this trial was cumulative” (at para 18). As a result, the Court ordered a new trial. The cross-appeal was not addressed given the ruling on the appeal. The Court held that “[g]iven that this matter must be returned to the Superior Court for a new trial, the judge presiding over that proceeding is best suited to deal with the costs of both trials” (at para 91).
Analysis
The Court began by citing section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the power of an appellate court to order a new trial only where some substantial wrong or miscarriage of justice has occurred. The Court continued, stating that although on appeal “great deference must be afforded to a jury’s verdict in a civil trial…civil jury verdicts are not impervious to review. As a matter of first principles, a jury’s verdict must be the product of a fair trial” (at para 50).
Examining the taxi fare evidence, the Court held it was inadmissible as evidence of bad character. The prejudicial impact of this evidence was much greater than the little probative value it held in providing a narrative of events to the jury. The Court held that this evidence cast the appellant – a minor and intoxicated at the time – “in an unfavourable light…as a ‘cheat’ who is undeserving of compensation” (at para 60).
Citing Racette v. Saskatchewan, 2020 SKCA 2, the Court stated that character evidence in a civil action is generally inadmissible unless it fits into an exception to this rule. The first exception discussed by the Court was the permissibility of cross-examination of a witness “relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty…to diminish the credibility of a witness” (at para 56, citing Deep v. Wood et al. (1983), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250). The second exception the Court noted is the admissibility of similar fact evidence in civil cases. The Court held that neither exception applied to the taxi fare evidence.
Further, the Court held that the prejudicial impact of the taxi fare evidence was compounded by repeated references to this evidence in respondent counsel’s jury address. The Court noted that respondent counsel’s address was inflammatory and contradicted his earlier representations that he was not attempting to assail the appellant’s character.
Examining the trial judge’s conduct during the trial, the Court found several shortcomings which had the result of producing an unfair trial. Notably, much of the Court’s analysis centred on the delay of an evidentiary ruling on the taxi fare evidence and the inadequacies of the charge to the jury.
In this case, the Court held that in not providing counsel with a written ruling on the issue, it “was left hanging as the trial progressed, leaving counsel to fathom the range of the evidentiary playing field” putting the appellant at a disadvantage (at para 61). The trial judge failed to exercise the judiciary’s gatekeeper function. This was especially so given that the issue was identified by the parties and was argued as a pre-trial motion.
Turning to the jury charge, the Court held the charge did not properly address the taxi fare evidence and respondent counsel’s address. In reference to the jurisprudence on correcting instructions, the Court found that the trial judge’s correcting instructions on the taxi fare evidence were insufficient and confusing. Namely, “[t]he jury needed to be told in unequivocal terms that it must not use the evidence concerning the taxi fare, and counsel’s comments about it, to find that Ms. Jarvis was a bad person, a “cheat”, who was undeserving of compensation” (at para 77).
The Court found the trial judge’s response to respondent counsel’s address similarly deficient. After outlining the principles of inflammatory jury addresses as informed by criminal appeals, the Court noted that these principles also apply to civil jury trials. The Court held that “[i]n the face of an inflammatory jury address, a judge presiding over a civil jury trial has three options. They may caution the jury by giving a correcting instruction, strike the jury, or declare a mistrial” (at para 73). The Court concluded that no caution was given by the trial judge about the inflammatory remarks made by respondent’s counsel.
With respect to the appellant’s counsel, the Court held that his failure to object was not fatal to appellate intervention. The Court stated “that an appellant from a civil jury trial faces a steep uphill battle after failing to object to the charge. However, a court is still able to provide relief where there was no objection if the interests of justice require it” (at para 82). At trial, appellant counsel raised objections at some points and his position as to the inadmissibility of the taxi fare evidence was on the record.
Further, appellant counsel did not waiver on this position throughout the course of the trial. The Court concluded that although “it would have been preferrable for counsel to focus his submissions on the extent and strength of the warning [to the jury] that was required in this case, his failure to do so is not fatal…The issue was in play from the very beginning of the trial. Appellant counsel’s position never changed” (at para 84).
Conclusion
Jarvis v. Oliveira is an instructive decision for both plaintiff and defence counsel alike. When seeking to attack a witness’ character, counsel should be certain it falls within the exceptions to the rule. Besmirching a witness through bad character evidence is not permitted and is further compounded where a witness cannot “give substantive evidence about the events” (at para 54). This decision also emphasizes the importance of making an objection at the outset of trial and maintaining that position throughout where an issue is contentious between the parties. Although the Court held that the failure to object was not fatal to appellate intervention, the consistency of appellant counsel’s position by counsel was raised in the Court’s ruling.
