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Fridays With Rogers Partners

At this morning’s muffin meeting, we reviewed an appeal of a trial judge’s decision to not strike the jury at trial and to not declare a mistrial. We also a reviewed a case addressing what considerations must be taken into account for a lawyer to withdraw from representation of a client.

Appeal of Dismissal of Motions to Strike the Jury and Declare a Mistrial

Ankita Abraham discussed the Court of Appeal’s decision in Patterson v. Peladeau, 2020 ONCA 137, an appeal of the trial judge’s dismissal of motions to strike the jury and to declare a mistrial in a motor vehicle personal injury action.

At trial, during deliberations, the jury asked the court a question that revealed that they might have accessed inappropriate extrinsic information that was irrelevant and inapplicable to the case, but which, if applied, could impact the apportionment of liability. Namely, the jury seemingly inquired about the application of the Fault Determination Rules, which was irrelevant to the liability issues in the action.

Upon questioning the jury foreperson, it was discovered that he had found the provision on an Ontario government website and shared it with the other jurors. The foreperson also revealed that this was the full extent of the extrinsic information, and that no other juror had accessed the Internet with respect to this case.

The trial judge was satisfied that he did not need to question the other jurors and that the issue that had arisen could be dealt with by way of a correcting charge. The trial judge thus dismissed the plaintiff’s pre-verdict motion to strike the jury, as well as a post-verdict motion to declare a mistrial. The plaintiff appealed.

The Court of Appeal found that the trial judge conducted a proper inquiry and made findings as to the nature and extent of the extrinsic information the jury received. The Court of Appeal also found that the trial judge properly considered the prejudicial nature of the extrinsic information by providing the jury with a correcting charge.

In addition, the Court of Appeal stated that “absent legal error, misapprehension of the evidence or patent unreasonableness, an appeal court should accord deference to the trial judge’s decision to provide a correcting charge rather than declare a mistrial.” The Court of Appeal found no basis to intervene and, as such, the appeal was dismissed.

Motion to be Removed as Lawyers of Record

Micah Pirk O’Connell discussed the case of Cengic v. Castro, 2020 ONSC 986, involving a motion by counsel for the plaintiff to be removed as lawyers of record for the plaintiff in two actions, citing a breakdown in the solicitor-client relationship.

In considering the motion, Justice Myers reviewed Rule 3.7-1 of the Rules of Professional Conduct, which provides that a lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client. Justice Myers’ decision focused on the “reasonable notice” aspect of the rule.

His Honour noted that the principle in determining the quality of reasonable notice is that the client should not be deserted at a critical stage in the matter, or at a time when the withdrawal would put the client in a position of disadvantage or peril. At the time of the motion, trial was only six weeks away.

In seeking to withdraw from representation, counsel relied essentially on two instances of disagreement wherein the plaintiff simply did not heed counsel’s advice, including one in relation to the withdrawal of a settlement offer. Counsel contended that where a client rejects a lawyer’s advice, the trust underlying the solicitor-client relationship is broken.

Justice Myers disagreed, pointing out that if a lawyer’s role is to be understood as presenting the issues and making recommendations, it follows that the decision to accept a settlement or risk going to trial falls with the client.

His Honour further commented that when a lawyer is retained on a contingency fee basis, the economic interest of the lawyer is arguably in conflict with the client. If the lawyer does not believe the fees generated from trial will justify the further investment of time and effort, they may be inclined to push for a settlement.

With six weeks before trial, the decision to adjourn the proceedings or have them continue without representation for the plaintiff was not a choice at all as, either way, the plaintiff would be imperiled and disadvantaged beyond what was permitted by the Rules. Accordingly, the motion was dismissed, without costs.