Brian Sunohara and Erin Crochetière Successfully Defend Mistrial Motion

In the recent decision of Leendertse v. HMQ, 2021 ONSC 3765, Brian Sunohara and Erin Crochetière successfully defended a mistrial motion brought by the plaintiff.

The initial part of the trial proceeded over four days in February 2020. It was adjourned to May 2020, but the COVID-19 pandemic prevented the trial from continuing.

Plaintiff’s counsel argued that a mistrial should be declared because she was ill during the initial part of the trial. Justice Gorman rejected this argument, indicating that the evidence fell short of demonstrating that plaintiff’s counsel’s illness affected her ability to properly represent her client.

The plaintiff also argued that a mistrial should be declared because of the delay in continuing with the trial. Justice Gorman stated that the mere passage of time is not a sufficient basis upon which to declare a mistrial. Her Honour noted that civil non-jury matters often proceed over time. Moreover, Justice Gorman indicated that she took detailed notes of the trial and that the transcripts are available.

Although the plaintiff did not want to continue the trial by video conference, Justice Gorman noted that, since the start of the pandemic, the Superior Court of Justice has had to modify and invent new procedures to get work done.

Justice Gorman did not see any prejudice that would result by proceeding by video conference.  As a result, Her Honour dismissed the mistrial motion and ordered the trial to be completed by Zoom.