A recent Ontario Court of Appeal case had to consider an appeal in which the appellants claimed that the trial judge should have declared a mistrial after a car accident victim complained of experiencing stress as a result of the litigation process and was awarded over two million dollars in damages.

The Facts

The respondent-plaintiff alleged that as a result of a relatively minor motor vehicle accident, he suffered from chronic pain, anxiety and depression. His statement of claim asked for $250,000 special damages and $750,000 general damages.

However, the appellants argued that many of the respondent-plaintiff’s complaints were the product of pre-accident psychological trauma and issues as well as stress from the litigation.

At trial, during his cross-examination, the respondent exhibited signs of stress and complained that the appellants’ trial counsel was yelling at him and that he was asking about the suicide of the respondent’s step-father. In re-examination, he complained that the appellants’ counsel had also yelled at him and questioned him about his step-father’s suicide during his examination for discovery.

The trial judge ruled that evidence about what had happened during discovery was not admissible because there was a risk it would make the appellants’ counsel a witness.

During trial, the respondent’s treating psychiatrist was asked to comment on the stress of the lawsuit and he reported that the respondent felt abused and mistreated by the appellants’ counsel. The psychiatrist also stated that defence counsel’s conduct had a negative impact on the respondent’s psychological condition.

After this, the appellants objected and asked the trial judge to declare a mistrial. The trial judge refused the motion, finding that while the evidence should not have been introduced and was prejudicial to the appellants, any prejudice could be cured by a mid-trial instruction to the jury.

The jury awarded $600,000 for non-pecuniary general damages; $840,000 for loss of income; $860,000 for future health care expenses and special damages within the limit claimed in the statement of claim. The trial judge reduced the non-pecuniary award to the then current cap of just over $379,000.


The appellants raised two grounds of appeal; they argued that the damages awarded by the jury were excessive and that a new trial should be ordered on two grounds:

  1. The trial judge erred in failing to grant a mistrial; and
  2. The trial judge erred in allowing an amendment to the prayer for relief in the statement of claim following the jury’s verdict.

The Decision

On the first issue, the court of appeal noted that the trial judge instructed the jury that litigation was often stressful, that litigants often have a difficult relationship with opposing counsel but that the details of the interactions of litigant and opposing counsel were not relevant to the issues the jury had to decide. The trial judge had told the jury that the respondent’s allegations about the defence counsel were inadmissible and were to be totally disregarded. He told the jury the same thing applied to the treating psychiatrist’s testimony regarding opposing counsel.

After reviewing the trial judge’s instructions, the appeal court did not accept the appellant’s submission that the trial judge erred in law by refusing to grant a mistrial. It noted that it is well established by case law that a mistrial is a remedy of last resort and that it is within a judge’s discretion to deal with such issues by instructing the jury rather than declaring a mistrial.

While the appellants submitted that the jury’s damages award was the product of being inflamed by the respondent’s complaints of mistreatment at the hands of their trial counsel, the court stated:

“The jury was appropriately cautioned that litigation of this nature is inherently stressful and that the relationship between a plaintiff and a defence counsel would often be difficult and stressful. The jury was also cautioned […] about the use it could make of the objectionable evidence. Moreover, over the course of the trial judge’s final charge, the jury was instructed several times that it was to assess the damages issues without sympathy or prejudice and that damages were intended to be compensation and not a form of retribution against the defendants.”

As a result, the court found that it was within the discretion of the trial judge to conclude that the respondent’s criticism of appellants’ counsel “did not rise to the level of causing an injustice that could only be cured by a mistrial.”

Additionally, the court noted that the appellants did not argue that the verdict was unreasonable and that there was evidence that the respondent was unemployable following the accident. The court found that the fact that the non-pecuniary damages award exceeded the cap and was at the top end of the range, did not demonstrate that the jury was inflamed.

The court therefore dismissed the first ground of appeal.

Moving to the second issue, the court noted that the trial judge had not instructed the jury on the “cap” for non-pecuniary general damages and that the judge did allow the respondent to amend his statement of claim to claim damages of over two million dollars. The appellants claimed that they had prepared for and conducted the litigation on the basis of the amount claimed and that they were unfairly prejudiced by the amendment.

The court did not agree with the appellants’ argument that the trial judge erred by granting that amendment. It found the trial judge had carefully considered the issue and that the amendment had not altered the outcome of the trial.

As a result, the court dismissed the appeal and ordered the appellants to pay costs of $30,000.

For Help

At Campbell Litigation, we investigate your claims arising from a car accident, and we seek the compensation you need to recover from your injuries. In the event you have sustained a catastrophic physical impairment or any permanent, serious impairment of any important physical, psychological or mental function, we will help obtain your insurance benefits and fair compensation from those at fault for the motor vehicle accident. We are experienced in handling cases for the most severely injured. We understand the challenges and worries faced on a day-to-day basis by those dealing with newfound hardships.

Our lawyers have decades of experience practising law in southern Ontario. We help our clients get access to unbiased therapists, doctors and assessors who are independent of those hired by insurance companies. We believe that the best success for our clients is a full recovery.

Legal advice can help you make sure you have what you need following a car accident. To speak with the Waterloo car accidents lawyers at our firm, call us at 519-886-1204 or contact us online. We offer prospective accident clients a free initial consultation.