“A jury trial is a fight and not an afternoon tea.” That observation from a 1915 decision remains as true today as when it was first written. However, jury trials have rules – and the boundaries of what a trial lawyer can say in front of the jury are restricted to ensure fairness and to avoid miscarriages of justice. Earlier this year, I argued an appeal from a trial decision that dealt directly with those boundaries.
In 2000, Nezam Abdallah and his family immigrated to Hamilton, Ontario from the West Bank, in search of new opportunities away from the political unrest of their home land. In August of 2001, Abdallah was injured in a car accident. He sued the driver of the vehicle that struck him. The driver’s insurer admitted that it was responsible for the accident, but took Abdallah to trial on the issue of whether or not he had sustained any injuries.
At the end of Abdallah’s civil jury trial in May of 2006, the insurer’s lawyer asked the jury to find that Abdallah had not been injured. His closing remarks included statements such as “Canada wasn’t built by people who try to take advantage of a car accident to write their ticket”, and “the courts of Ontario are not an ATM machine”.
Following the improper closing argument, the jury decided to award Abdallah nothing for his injuries. We took the case over from a Hamilton lawyer and appealed the jury’s finding. The insurer argued the comments were harmless and taken out of context. In a lengthy decision, the court decided the comments were highly inappropriate, reversed the jury’s decision and ordered a new trial.
As a result of this decision, lawyers can now be confident there is no place for such inappropriate comments in Ontario’s courts. A jury trial may be a fight, but it still has rules to ensure the fight is fair.