Ruling finds defence counsel's prejudicial closing submissions amount to misconduct under BC civil rules
The British Columbia Court of Appeal has overturned a mistrial declaration in a personal injury case, ruling that a trial judge erred by applying an additional wrongdoing test before deciding which party could control whether the trial continued without a jury.
In Yaqub v. Meadow Ridge Taxi Ltd., 2026 BCCA 305, decided July 21, 2026, the court allowed the appeal of plaintiff Sajad Rajabian Mohammad Yaqub and remitted the matter to the trial judge to complete the proceeding. The respondents were Meadow Ridge Taxi Ltd. and Soon Lee.
Trial collapses after counsel’s closing submissions
Yaqub had sued the respondents for damages arising from a car accident in which liability was admitted. The central issues at trial were the nature and extent of his physical and psychological injuries and the quantum of damages. The defendants required a jury trial.
The trial ran 10 days. Yaqub, who moved to Belgium after the accident, returned to Vancouver to testify. Three expert witnesses were cross-examined. During closing submissions, defence counsel made a series of comments that the trial judge determined had the potential to prejudice or mislead the jury. Six could be remedied through corrective instructions. Two could not.
The first irremediable submission involved defence counsel referencing a psychiatrist’s report that was not in evidence — suggesting Yaqub’s PTSD arose from childhood experiences rather than the accident. The trial judge had already ruled during the proceeding that the report confirmed the PTSD diagnosis but made no finding on causation. The second involved an attack on the impartiality of an expert who addressed Yaqub’s future treatment needs.
The pivotal question: which rule applies?
Once the jury was discharged, the judge faced a procedural fork under R. 12-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009.
- Under s. 12-6(11), where the discharge is for any reason other than a party’s or counsel’s misconduct, the party that originally required the jury decides whether to proceed without one.
- Under s. 12-6(12), where misconduct is the cause, that decision passes instead to the parties adversely affected.
The trial judge concluded that defence counsel’s submissions, though prejudicial enough to warrant discharging the jury, did not “rise to the level of misconduct” required by s. 12-6(12). The judge applied s. 12-6(11), asked the defendants whether they consented to proceed by judge alone, and when they refused, declared a mistrial.
Appeal court rules no secondary wrongdoing test required
Writing for a unanimous panel, Justice Fenlon held the trial judge had erred. Once the judge determined that counsel’s conduct necessitated discharging the jury, no further inquiry into the degree of wrongdoing was required.
“Misconduct within the meaning of R. 12-6(12) is not limited to deliberate wrongdoing,” Justice Fenlon wrote. The purpose of the subrules, she found, is to determine what is fair to the parties facing a trial rupture, not to assess the culpability of counsel who caused it.
The court also addressed its earlier decision in Ennis v. Allenby, 2007 BCCA 80, which described misconduct as a “strong term” warranting judicial caution. That admonition, Justice Fenlon wrote, was a directive to correctly identify who caused the discharge, and not an invitation to separately weigh culpability. Where counsel’s prejudicial submissions cannot be cured by jury instructions, that conduct is misconduct under the rule.
Having correctly attributed the prejudice to defence counsel, the trial judge should have given Yaqub, not the defendants, the choice of proceeding by judge alone.
The court remitted the matter to the trial judge to complete the trial and awarded Yaqub costs of the appeal. The court also noted that the accident occurred more than eight years ago and that the trial judge herself had expressed reluctance in declaring the mistrial, recognising the significant resources already spent.
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