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Appellate Litigation

A mistrial is a trial that is not successfully completed – meaning that it’s “terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a non-jury trial. The trial is then over and has no legal effect or result.

Mistrials are declared most often when there is a lack of jurisdiction, some serious prejudice occurring, or a deadlocked jury. Recently, a new cause has emerged: a trial not being able to be completed within the time frame estimates of the lawyers on the case.

Justice Delayed is Justice Denied

This well-known expression is often heard from those seeking access to the court system for a speedy resolution of their legal entanglements.

Lengthy delays in having their legal problems adjudicated generate a sense of great frustration for the parties involved. The Supreme Court of Canada has set thirty months as the time limit in which criminal matters must be resolved before the charges may be stayed. Civil matters are heard after criminal matters. Those civil cases of any length or complexity often wait years before they can be heard.

A recent example in point is the case of Ismail v Fleming started, but never completed, in the Superior Court of Ontario.


The action was commenced as the result of an injury suffered in 2009. It was pre-tried three times by different judges, none of whom were able to resolve the matter. On three to five previous occasions a trial was scheduled, a jury picked, all only to be postponed because of the lack of judicial resources. The trial finally commenced on October 1st, 2018.

Estimated Trail Time

In every civil trial, the court is dependent on the lawyers before them to provide an accurate assessment of the trial or courtroom time required to hear and dispose of the matter.

Here, there were estimates provided by very senior and experienced counsel. The estimate was for four (4) weeks of trial. That was later modified by the pre-trial judges to from four (4) to six (6) weeks. Trail counsel assured the trial judge that five (5) weeks would be sufficient with a small chance of needing two days of a sixth week.

A trial calendar was prepared, and agreed to, by the lawyers at the request of the trial judge.

The Progress of the Trial

In the decision, the trial judge set out a blow by blow summary of each trial day in October. This was up to the beginning of the fifth week of the trial.

At that point, only two witnesses had given their evidence. Three other witnesses had commenced giving their evidence but had yet to finish. The list of witnesses to be called seemed variable but potentially totalled twenty-one (21) for the plaintiff and six (6) or more for the defence. This did not include time for the lawyers to make their closing submissions, for the pre-charge deliberations, the judges charge to the jury and for the jury to deliberate.

It was clear at this point that the trial would extend far beyond the five, maybe six weeks that had been scheduled.

Haphazard Scramble

The judge had been very frank with the lawyers about the possibility of a mistrial if the trial could not be completed in the time allotted. That pressure began to work on the lawyer’s who understandably did not want the time spent on the trial wasted.

The result was a sudden shortening of the time estimates for the remaining witnesses or their not be called at all. The judge was now worried that the quality of justice was being impaired. The judge described these developments with the words “a sense of haphazard scramble was palpable”.


The judge, as a result, declared a mistrial. He would not proceed as judge alone as the defence had requested a jury trial and the plaintiff had attempted to strike it and the other inequities remained. Each party was left to bear their own costs.


What’s not evident from the decision is that trial counsel were well known to each other.This was not their first dance together. The matter, although liability was admitted, was hotly contested and every step forward would have been carefully calculated and therefore opposed. How much a more open discussion of the issues and evidence beforehand would have helped is unknown, but it would have possibly dealt with some, if not the majority, of the time management problems that developed.

Litigation is risky, expensive and often unpredictable. Litigation counsel must know how to gauge and manage risk, keep costs down with efficient and effective strategy and guide clients through the choices they will face as litigation evolves. At Milosevic & Associates we provide thorough, multi-disciplinary legal advice and representation at mediations, hearings, and trials across a number of practice areas. We are skilled litigators. Over the years, our lawyers have seen it all and our impressive track record speaks for itself. Call us at 416-916-1387 or contact us online to learn how we can help.