In a judgement released today the BC Court of Appeal discussed the power of Trial Judges to make orders relating to “Trial Fairness” matters.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for personal injuries from a 2004 BC car crash. The matter went to trial and a Jury awarded the plaintiff about $118,000 in total damages. Before the judgement was ‘entered’ it was discovered that the jury was given access to surveillance footage of the Plaintiff which had not been entered into evidence. The Plaintiff successfully applied for a mistrial. (Click here to read my summary of the mistrial application).
The Defendants brought the matter to the Court of Appeal arguing, amongst other things, that the Trial Judge had “no jurisdiction to entertain a motion after a jury has rendered its verdict and been discharged“.
The BC Court of Appeal disagreed with this submission and dismissed the appeal. In doing so Madam Justice Smith gave the following useful and succinct outline regarding the powers of trial judges to rule on “trial fairness” matters:
 It is settled law that until a judgment or order has been entered, a trial judge continues to be seized of the matter before him or her. In Clayton v. British American Securities, 1 D.L.R. 432 at para. 83,  3 W.W.R. 257 (B.C.C.A.), the court noted that this was recognized as an “unquestioned practice” and “one of very long standing”. Similarly inBurke, the court concluded that, as a principle of law, a trial judge retains the remedial jurisdiction to declare a mistrial on an issue that goes to trial fairness (in that case it was whether there existed a reasonable apprehension of bias) after a jury verdict has been rendered and the jury discharged.
 In my view, there is no conflict in the authorities and none were provided that would suggest that a trial judge, before judgment is entered, does not retain jurisdiction to address a trial fairness issue. If that were so, then there would be no jurisdiction for a trial judge, as an issue of law, to address an application to reduce a jury’s award on damages that exceeded the “cap”. In my view, there was no arguable or meritorious issue as to whether the trial judge was functus officio to hear the application.