An Ontario judge who declared a mistrial in a wrongful dismissal case against Sobeys after the plaintiff’s counsel displayed an image of Charles Manson on a computer screen has rejected a claim of bias and awarded costs to to the defendant.
The plaintiff, JM, who had previously accused a fellow employee of fabricating allegations leading to her dismissal, sought damages for what she claimed was an unjust termination.
Things took a turn when a witness, the alleged ringleader who purportedly conspired with other employees to get JM fired, was on the stand for the defendant. During the testimony, counsel for JM called up images of Charles Manson on a computer and then huddled together and laughed between themselves.
“Evidently, counsel were of the view the witness bore some resemblance to the notorious cult leader who was imprisoned for murder and conspiracy to commit murder, having coerced his followers to kill a number of people,” the court said.
This was done with a direct sightline to the jury box, and was witnessed by a juror who disclosed it “at the first opportunity when it could be reported in a confidential way,” the court said.
“I was at the time, and I continue to be, of the view that the image and the impression of likening the witness to a manipulative serial killer could not have been dispelled with a limiting instruction to the jury,” the judge said, concluding there was no option but to dismiss the jury.
The plaintiff then refused the offer to proceed by way of judge alone, and a mistrial was declared.
Urgent motion
JM then filed an urgent motion to have the judge recused from this proceeding on the basis of a reasonable apprehension of bias, alleging a predisposition against the plaintiff and/or her counsel. Further, she sought to have the matter remitted for a new trial before a new judge.
The judge noted that, having declared a mistrial, “I am precluded from hearing the new trial.” The only matter before the court, then, was whether it should be recused from the last outstanding issue from the initial trial: Costs.
The judge found no merit in the apprehension of bias and dismissed the recusal motion.
“I am not satisfied that a reasonable or fair minded person would perceive bias simply because of my decision to declare a mistrial on learning that at least one juror had witnessed counsel laughing and comparing the appearance of a material witness to Charles Manson,” the court said. “Her argument does not disqualify me from making a costs order in respect of the mistrial.”
Effort to delay costs decision?
The judge highlighted that the motion seemed to be an attempt to delay a decision on the costs from the mistrial, and noted that the “urgent” motion filed by the plaintiff was “in fact not urgent.”
It awarded costs to Sobeys on a substantial indemnity basis, and asked for submissions on the appropriate amount limited to two pages plus a costs outline.
For more information, see (Plaintiff) v. Sobeys Capital Inc., 2023 ONSC 6279 (CanLII)
