Judge finds allegations lawyer fed info to newspaper irrelevant in mistrial motion

A mistrial was avoided in a civil jury trial after a judge ruled allegations the defendants made about the conduct of plaintiffs’ counsel were irrelevant to whether the jury could fairly decide the case.

Mark Elkin filed a mistrial motion after a Toronto Sun article published on the second day of trial included inadmissible evidence.
Mark Elkin filed a mistrial motion after a Toronto Sun article published on the second day of trial included inadmissible evidence.

In Pena v. U-Pak Disposals Limited, Ontario Superior Court Justice Benjamin Glustein dismissed a mistrial motion brought by the defendants’ lawyers concerning information in a Toronto Sun article published on the second day of trial.

The defendants’ lawyers alleged plaintiffs’ counsel had fed information to Toronto Sun journalist Michele Mandel for the article, which they said created a danger of a miscarriage of justice. The defendants’ lawyers also claimed that the conduct of the plaintiffs’ counsel was “so egregious to warrant a mistrial.”

Mandel’s article referred to the circumstances of the 2011 fatal car accident that spurred the case. As the defendants had already admitted liability before the trial started, the judge had ruled this information was irrelevant and inadmissible because it “may unduly arouse the jury’s emotions of prejudice, hostility, of sympathy.”

Mark Elkin, one of the defendants’ lawyers, says the article included particulars of the accident that were never mentioned in court.

“There was evidence and information in there that was incorrect and was not even before the court,” he says.

The article, which was published on the second day of the trial, also inaccurately reported that in Elkin’s opening statements, he had said the defendants had made an offer that the plaintiffs rejected.
Elkin says he never said this.

“You’re not allowed to refer to offers in an opening statement,” says Elkin.

In their submissions, the defendants’ lawyers contended that plaintiffs’ counsel gave the information in the article to Mandel, and that this was an attempt to violate the judge’s ruling.

The plaintiffs’ lawyers, however, said they had no contact with the Toronto Sun about the facts of the case and had not discussed the circumstances of the accident with Mandel other than to say the information was in the public domain.

Plaintiffs’ counsel also pointed to 12 articles, the contents of public court record and an earlier procedural decision in the proceedings, which all referred to the circumstances of the accident. They also provided an email that showed they had told the reporter that defendants’ counsel did not refer to an offer in his opening submissions.

Glustein made no findings on the plaintiffs’ conduct as he determined it was irrelevant to the issue of a mistrial. He provided additional instructions to the jury telling them not to read the article and asked each juror if they had read any media reports about the case since the trial started. They all said no.

The judge, therefore, determined that a mistrial was not required as there was no real danger of prejudice.

Glustein also found that the conduct of plaintiffs’ counsel did not require a mistrial, as the source of Mandel’s information was irrelevant. At issue was whether the jury could fairly decide the case with that information disclosed and not whether the lawyers had created that situation, he said.

“I make no finding with respect to conduct because the issue is irrelevant,” Glustein said in the decision.

“If a party or counsel were to act such as to improperly circumvent a court order, they would face potential consequences under the Rules of Professional Conduct or possibly under contempt provisions.”
He added that it would not be appropriate to “turn a mistrial motion into an investigation of the conduct of lawyers.”

Glustein also rejected a suggestion by the defendants’ counsel that such an approach would give lawyers “carte blanche” to indirectly violate court orders.

Greg Abogado, one of the lawyers representing the plaintiffs, was not available for comment before deadline.

Mandel did not immediately respond to a request for comment.

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