Case: Yaqub v. Meadow Ridge Taxi Ltd., 2026 BCCA 305 (CanLII)
Keywords: MVA; jury trial; “misconduct”; Supreme Court Civil Rules, B.C. Reg. 168/2009
Synopsis:
The Appellant brings a claim against the Respondents Meadow Ridge Taxi Ltd. and Soon Lee for damages to compensate injuries sustained in a car accident. The Respondents admit liability for the accident, but key questions remain: did the accident cause the Appellant’s physical and psychological injuries and, if so, what is the appropriate measure of damages? (See para. 3). The matter proceeds to trial – as “required by” the Respondents. (See para. 9). In closing submissions, the Respondents’ counsel makes a number of comments which the Trial Judge concludes have “the potential to prejudice or mislead the jury”. (See para. 4). In particular:
- submissions concerning a psychiatrist’s report which was not in evidence (i.e., that it contradicted the Appellant’s psychiatrist who opined that the car accident caused PTSD); and
- an “attack on the impartiality of an expert who addressed the [Appellant’s] future treatment requirements”. (See paras. 5-6).
The Trial Judge finds these comments warrant discharging the jury, but do not rise to the level of “misconduct” within the meaning of Rule 12-6(12) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. (See para. 8). Importantly, where Rule 12-6(12) is engaged, the plaintiff (i.e., the Appellant herein) gets the choice to carry on with the trial and proceed without the jury:
If, by reason of the misconduct of a party or the party’s lawyer, a trial with a jury would be retried, the court, with the consent of all parties adverse in interest to the party whose conduct, or whose lawyer’s conduct, is complained of, may continue the trial without a jury. (See para. 8).
By contrast, applying Rule 12-6(11) means the Trial Judge asks the defendants (i.e., the Respondents herein) for their consent to have the trial continue by judge alone:
If, for any reason other than the misconduct of a party or the party’s lawyer, a trial with a jury would be retried, the court, with the consent of the party who required a jury trial, may continue the trial without a jury. (See para. 8).
Given this choice, the Respondents insist on a new trial with a jury; the Trial Judge declares a mistrial. (See para. 9). The Court of Appeal (Fenlon, DeWitt-Van Oosten and Mayer JJ.A.) allows the appeal, remits the case to the Trial Judge to complete the trial, and awards costs to the Appellant. (See para. 27).
Importance:
As outlined by the Court of Appeal, this case concerns an important question of law:
[T]he interpretation of R. 12-6(11) and (12) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which govern how a proceeding is to continue when a jury must be discharged during trial. In issue is the meaning of the word “misconduct”—in particular, whether a judge who has determined that a lawyer’s closing submissions are sufficiently prejudicial to necessitate the discharge of a jury may find nonetheless that no “misconduct” has occurred. (See paras. 1-2).
The Court of Appeal clarified the meaning of the word “misconduct” under Rule 12-16:
“Misconduct” within the meaning of R. 12‑6(12) is not limited to deliberate wrongdoing. As Justice Southin explained in Birkan at 138:
… There can be “misconduct” although counsel was behaving, in his own mind, honourably and many other members of the bar might agree with the way he dealt with matters. (See para. 17; Birkan v. Barnes, 1992 CanLII 910 (C.A.)).
For the Court, the practical question turns on “identifying who or what necessitated the jury’s discharge”, rather than the subjective character of counsel’s conduct or “the degree of impropriety” beyond the basic threshold (i.e., whether comments or conduct caused prejudice sufficient to require the discharge of the jury to avoid a miscarriage of justice). (See paras. 15-17).
The Court also reviewed its prior decision in Ennis v. Allenby, 2007 BCCA 80, finding that there is no requirement to meet any “super-added” wrongdoing threshold in Rule 12-6(12). (See paras. 16-21). The Court’s interpretation of Ennis is that the Rule should only be invoked “where the reason for the mistrial can be laid fairly on the shoulders of one lawyer or one party. It is not an invitation to weigh on finely‑calibrated scales the degree of wrongdoing involved”. (See para. 21). The Court also emphasized that, to even get to Rule 12-16, the Trial Judge has alreadydetermined that trial fairness was compromised and that “[i]t matters not that the lawyer did not intend to cause prejudice, or indeed that they thought they were simply being an effective advocate for their client. If their conduct as counsel is the reason that the jury must be discharged, that amounts to misconduct under the Rule.” (See para. 22).
In the result, the Court concluded that since the prejudice in this case was “correctly attributable” to the Respondents’ counsel, the choice to proceed by judge alone should be given to the Appellant in accordance with Rule 12-16(12). (See para. 23). Despite the discretionary nature of the Rule, the Court added that “it will be a rare case indeed where it will be appropriate for a judge to order a new trial against the wishes of the ‘innocent’ party where the trial has all but concluded when the jury is discharged.” (See para. 24). The Court also noted that, given that the accident occurred more than 8 years ago, remitting the matter to the Trial Judge serves the “interests of justice”. (See para. 25).
Counsel for the Appellant: Y Wong, K Stewart
Counsel for the Respondents: J D James