The purpose of a closing jury address is to present that party’s case clearly and in a way that is of help to the court in the performance of its duty. A lawyer is afforded considerable latitude to fairly and fully advance her client’s case. However, there are important limits to ensure that the jury is not distracted from its task of deciding the case on the evidence and trial fairness is not undermined.
In OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, Justice Bell struck the jury after seven weeks of trial, and the plaintiff’s counsel’s closing address to the jury.
The defendant’s moved to strike the jury because of the cumulative effect of 69 “areas of concern” in the plaintiff’s closing address. A chart of all 69 transgressions were included as an appendix.
Justice Bell summarized the applicable law on closing jury addresses and identified the following objectionable comments:
- Misstatements on the evidence;
- Invitations to the jury to consider irrelevant matters;
- Comments that inform the jury of factual matters not in evidence;
- Statements that call the attention of the jury to the consequences of their verdict; and
- Unfair comments on the evidence.
In dealing with an improper address to the jury, the trial judge has three options:
- She can immediately correct any misstatements of counsel during the address or after;
- She can dismiss the jury and take the matter from the hands of the jury, provided that non-offending counsel are given the option as to whether or not they wish the matter to continue with a new jury; or
- She can declare a mistrial if she is of the opinion that the offending remarks are likely to make it difficult if not impossible for the jury to properly discharge their function.
Justice Bell held that plaintiff’s counsel made numerous improprieties and misstatements in his closing address. These statements were from each of the identified categories of objectionable comments: statements suggesting a new claim; statements that invited the jury to consider the consequences of its verdict; misstatements as to the role of the jury; attempts to adduce evidence in closing argument not adduced at trial; misstatements of the law; misstatements of the evidence; and misstatements as the defendants’ positions; and references to evidence ruled irrelevant.
An example of a misstatement as to the role of the jury was plaintiff’s counsel statement that, “the soccer community wanted to teach Mr. Sezerman a lesson. This is why we are here today in front of you. It is up to you to decide whether what the soccer associations did was right or wrong.” Rather, Justice Bell held that the role of the jury is to decide the facts and to render a verdict.
Justice Bell concluded that given the serious nature and extent of the transgressions, the fairness of the trial process and justice to the parties required that the matter not be left in the hands of the jury. The cumulative effect of all the misstatements in plaintiff’s counsel’s closing rendered correction by an appropriate charge impossible.
