Lawyer's closing arguments crossed the line: Saskatchewan Court of Appeal

Court orders new trial in constructive dismissal case where worker was awarded 15 months' notice and five months' Wallace damages
|employmentlawtoday.com

The Saskatchewan Court of Appeal has ordered a new trial in the case of a worker who claimed constructive dismissal because his lawyer crossed the line in his closing remarks to a jury.

Dawson Thompson started working for Consolidated Fastfrate Inc. in 1970. He worked for the company on and off until 1981 when he was hired as a permanent employee and began continuous employment with Fastfrate until 2004. When his employment ended he was 55.

In 2002 Thompson was promoted from Regina regional branch manager to manager of the Midwest region, an area that included terminals in Regina, Saskatoon, Winnipeg and Thunder Bay, Ont.

On Feb. 21, 2004, senior management met in Toronto to discuss organizational changes. The company decided to create a new prairie region that would include all of the former Midwest region plus Alberta. The new region was not only larger geographically, but also triple its size in terms of economic significance.

Since Thompson’s old region would no longer exist, neither would his position. Fastfrate therefore had to decide whether Thompson, or someone else, would became manager of the new larger prairie region. The company ultimately decided not to give him the position but to have him return to manage the Regina regional branch. Thompson would, however, retain the same salary and benefits and work out of the same office as before, but would have less responsibility and potentially less entitlement to an annual bonus.

Thompson did not react well to the news. He was devastated by the restructuring and his reassignment. One of his new supervisors was someone formerly at his same level in the hierarchy and the other was an individual with whom he had previously had some difficulties.

Thompson reacted angrily and said he would not accept the Regina posting and demanded a severance package equal to 16 months’ salary. But the company insisted he was not being terminated and it would not offer a severance package.

The chief operating officer asked for the opportunity to speak to Thompson alone and made a personal appeal for him to remain with the company. But Thompson refused, reiterating his demand for a severance package.

Fastfrate indicated no such package would be forthcoming if he refused to continue as regional branch manager. But, given the situation, Thompson was told he was not wanted at the managers’ meeting the following day. No one asked Thompson to return the company’s laptop, cellphone or keys and he was able to return them when he was ready. He returned to his office in Regina to clean out his desk and did so without interference. He was able to review his files and remove documents he thought might be useful to him when suing the company.

Thompson filed a lawsuit against Fastfrate alleging wrongful and constructive dismissal and claiming wages in lieu of reasonable notice. He also alleged the dismissal was made in bad faith and claimed

Wallace

damages.

Damages awarded

A jury ruled in favour of Thompson, awarding him 15 months’ pay in lieu of notice plus five months’

Wallace

damages for a total of $129,030. Thompson was also compensated for some lost benefits.

After the jury delivered its verdict, Fastfrate brought a formal motion to set aside the jury verdict on the grounds that inflammatory and inappropriate comments were made to the jury by Thompson’s counsel and that the verdict was perverse, bad in law, devoid of evidentiary support and unreasonable and unjust.

The trial judge dismissed the motion, without reasons. Fastfrate appealed to the Saskatchewan Court of Appeal.

The lawyer’s closing statement

The Court of Appeal said there was “no question” that many of the comments complained of by Fastfrate were “inappropriate and were intended to invite and encourage the jury to make its determination on the basis of irrelevant considerations.”

Thompson’s lawyer said his comments were neither inflammatory nor prejudicial and were within the permissible limits of counsel’s obligation to strenuously advance his client’s cause. But the Court of Appeal disagreed.

“Certainly counsel is entitled to strenuously argue his or her client’s case. However, counsel may not misstate the evidence or state facts which are not in evidence,” the Court of Appeal said. “He or she should not invite or encourage the jury to decide the case based on emotion or irrelevant considerations, including dislike or disdain for one party or sympathy for the circumstances of another.”

The Court of Appeal said jurors should not be invited to put themselves in the position of one party, “for this is a direct appeal to the jury’s sympathy and interest and impedes an impartial and objective assessment.”

Although irrelevant to the issues before the jury, Thompson’s lawyer repeatedly sought to portray the parties as David and Goliath, saying:

The lawyer’s comments:

“Except to his family, Dawson is not an important person. Dawson is not the chief executive officer of a major corporation. He does not own shares in Fastfrate, a $200 million corporation. He does not have a pension plan. To his family, though, Dawson is one of the most important persons in the world.

“In Canada, decent, hard-working and caring people like Dawson are valued and have rights. One of those rights is to receive fair and reasonable compensation when his livelihood is damaged by a wrongful dismissal. Can we really understand the burden Dawson carries knowing that his livelihood was taken away? Can we imagine the pain of an attack of his sense of self-worth when that is the very thing he prizes the most?

“The defence has tried to avoid responsibility. As the trial progressed the defence became more confused, more inconsistent and more desperate. The defence, first of all, suggested that Dawson was a bad Midwest regional manager and was ineffective. He was stretched too thin, but they never called Ron Tepper to prove that Dawson was a bad Midwest regional manager, they relied on other people. They never put any documents into evidence to prove that he was a bad Midwest regional manager.

“Dawson received raises and bonuses every year. He received positive evaluations almost every year. Dawson today is dealing with the trauma of his dismissal. He is still angry, as you can see from his testimony. Would you not be angry if you lost your livelihood of 28 years and have no pension plan and no shares?

“In some respects Dawson is David and Fastfrate is Goliath. When the first line of argument did not work, Fastfrate said that it had a history of reassigning managers to positions of lower responsibility depending on Fastfrate's operational requirements. Well, what I like about jurors is they have something I refer to as BS detectors. They're not visible on your heads like antlers, but you have a strong sense of what the truth is and what isn't.”

The Court of Appeal’s commentary:

The court said the statements above included irrelevant and prejudicial reference to the size of the corporation.

“They attempted to paint (Fastfrate) as dishonest and ‘willing to go to any lengths to avoid responsibility,’” the Court of Appeal said. “This is more than a personal opinion and an appeal to the jury’s emotions.”

Read as a whole, the address to the jury was almost entirely focused on an appeal to the juror’s emotions, the Court of Appeal said.

“Counsel blatantly attempted to make the jurors identify with himself and his presentation of the case, and to infer that their role was the same as his,” the Court of Appeal said. “At one point counsel literally begged the jury to compensate his client because he was 56 years old and ‘very deserving.’ At another he implored the jury: ‘During the trial if I was overzealous or made mistakes, please hold them against me and not against Dawson.’ This comment misdirected the jury to ignore any shortcomings in the evidentiary case of (Thompson), implying that the case merits a favourable decision despite any deficiencies it may have because such deficiencies were the fault of counsel and should not be a reflection of the (Thompson’s) case.

What a lawyer can’t say to a jury

The Court of Appeal said counsel is not entitled to make comments which would “hinder or impede the objective consideration of the evidence by jurors.”

Counsel should not make inflammatory comments at any time and must not encourage the jury to assess the evidence on the basis of emotion or irrelevant considerations, the Court of Appeal said.

It said the rules are discussed in

On Trial Advocacy Skills Law and Practice

, a text published by Butterworths in 2004. On pages 464-465 it states:

“Language that appeals to emotion or otherwise attempts to stir the passions of the jury is quite acceptable. Such submissions go too far, however, when counsel resorts to language or suggestion that tends to steer the jury away from their proper course of deciding the case on the evidence or invites them to give consideration to extraneous facts or circumstances or to approach their decision making function on a wholly erroneous basis.”

The Court of Appeal said Thompson’s lawyer expressed his personal opinions on many occasions, including his sympathy for Thompson. He repeatedly invited the jurors to share that sympathy and to put themselves in the position of Thompson, and even of his counsel, going so far as to suggest the jury had already made up their minds to favour the respondent, it said.

Other comments by Thompson’s lawyer

•I've walked along that road with Dawson Thompson for about a year now, and last night I was awake half the night wondering what I would say to you ensuring that justice would be done for Dawson.

•I've struggled to imagine what it would be like to lose my career as a lawyer and my reputation in an instant. What it must have been like for Dawson in that hotel room in Calgary on Feb. 24, 2004.

•I keep thinking that where one instant there is prestige and respect for Dawson, the next instant after that meeting there was terror, there was loss of prestige, there was humiliation, embarrassment, anger and despair.

•I wonder if it ever happened to me if I would ever get over it, and I'm quite sure I never would because my work is at the centre of my universe just as Dawson's was.

•My road ends here. I can walk no further with Dawson. As he searched for truth, I have searched for justice with him.

•Well, what I like about jurors is they have something I refer to as BS detectors.

•A wrongful dismissal that crushed his spirit and destroyed his reputation...

•To his family though, Dawson is one of the most important persons in the world.

•If Dawson had a choice, he would not ask you for money.

•He's 56 years old, he's very deserving. Please give him ...

•Please, please give him the bonus.

•The defence has tried to avoid responsibility. As the trial progressed, the defence became more confused, more inconsistent and more desperate.

•However, the defence now grasps at any straw to avoid responsibility.

•It was as though the defence would go to any length to avoid responsibility.

•I know that you probably decided some time ago that the defendant was at fault.

•You likely made the decision to hold Fastfrate responsible...

The judge’s charge to the jury

In the trial judge’s charge to the jury, she said:

“Counsel for (Thompson) suggested to you that you've already reached your verdict, he misspoke. I am confident that you have done as any impartial judge must do, made no decision until you've heard all the evidence, the addresses of counsel and my charge. Counsel also told you what his views or feelings were about in this case, those views or feelings are entirely irrelevant. Counsel is here to make submissions to you on the evidence and on the law. It's not appropriate for counsel to suggest their feelings for obvious reasons, they are not impartial. You are to decide the case without sympathy or passion on the evidence as you find it and on the law.”

She subsequently added:

“Counsel for (Thompson) suggested that documents or a witness should have been presented by the defendant that was not presented. The calling of witnesses and presentation of evidence is entirely within the decision of counsel. Unless a party can point to relevant evidence that should have been called but was not, no adverse inference can be drawn against a party for failing to call evidence that they do not deem relevant.”

The Court of Appeal said the lawyer’s comments required a “clear and blunt correcting instruction to the jury.” But the trial judge’s instructions were inadequate.

“The judge’s comments were relatively mild in tone and general in nature,” the Court of Appeal said. “The corrective charge did not call the jury’s attention to any specific comments of counsel except for his completely unacceptable suggestion to the jury that it had already made up its mind in favour of (Thompson.) Given the totality of the inappropriate comments made by counsel, we are of the view that this charge would have been unlikely to undo the damage the remarks were likely to have caused.”

The Court of Appeal allowed Fastfrate’s appeal and ordered a new trial.

For more information see:

Thompson v. Consolidated Fastfrate Inc.

, 2006 CarswellSask 416 (Sask. C.A.)

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