A jury had been convened, on the respondent/defendant's
request, to assess the damages suffered by the appellant/plaintiff
as a result of a motor vehicle accident for which fault was
admitted. After several weeks of evidence, the appellant's
counsel made impassioned pleas to the jury during the closing
arguments, including asking the jury to rely on pure emotional
considerations. On this basis, the respondent's counsel
successfully obtained a mistrial.
There were two issues for consideration before the Court of
Appeal. First, the appellant argued that the trial judge erred in
finding that the closing comments compromised trial fairness and
that they could not be corrected with appropriate jury instruction.
Second, the appellants argued that the trial judge erred in
refusing to decide on the question of damages herself.
On the first issue, the Court of Appeal emphasized prior
jurisprudence on appropriate language to be used by counsel in
closing statements. While the Court acknowledged that some of the
errors made by counsel in closing could have been addressed by
instruction to the jury, the Court also relied upon recognized
deference to the trial judge to determine when fairness in the
trial had been compromised. In particular, the Court held that the
trial judge was able to order a mistrial on the cumulative effect
of the closing statements based on emotional pleas. The Court
specifically refused to address the effect of individual statements
by counsel from the trial record.
On the second issue, the Court held that the trial judge had
made an appropriate decision by declining to decide the issue of
damages alone. Absent consent from both parties, the Court held
that the respondents should not be deprived of their right to have
the case decided by a jury because of the appellant's trial
counsel. The appeal was dismissed.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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