Joy v. Atkinson,


2008 BCSC 776

Date: 20080303
Docket: M043125
Registry: Vancouver


Eugenis Joy aka Geno Joy



Burton Atkinson and Robert Atkinson


Before: The Honourable Mr. Justice Cole and Jury

Oral Reasons for Judgment

March 3, 2008

Counsel for Plaintiff

M.P. Maryn
Y.S. Wong

Counsel for Defendants

L.G. Harris
N. Gill

Place of Trial/Hearing:

Vancouver, B.C.


[1]                THE COURT:  This is an application by the defendant for a mistrial.  Negligence is admitted.  The opening comments of plaintiff's counsel to the jury referred to the defendant as breaking the rules of the road and how the defendant must pay for breaching the rules of the road.  He referred to the defendant as falling asleep at the wheel of his car, causing the accident.  The general theme of the plaintiff's opening comments was such as to create an atmosphere of sympathy for the plaintiff.  The defendant takes the position that under these circumstances no warning would be adequate.

[2]                I am very reluctant to order a mistrial, but I am satisfied that the plaintiff's counsel did go over the line in his opening.  The damage that has been caused to the jury may be significant, but no one can ever tell.  I am satisfied that a warning would not be appropriate.  I feel that the only fair thing to do is to err on the side of caution.  I am reluctant to declare a mistrial, but in these circumstances it appears to me to be the only fair thing to do.

The Honourable Mr. Justice F. W. Cole