Ontario Court of Appeal: No Bias in Proceeding Despite Counsel Illness

The Ontario Court of Appeal recently affirmed that a trial's continuation, even amidst delays and the appellant's counsel's illness, did not constitute a reasonable apprehension of bias or unfairness, thereby dismissing an appeal seeking a new trial in *Leendertse v. Ontario, 2026 ONCA 629*. This case originated from a 2012 incident where the appellant, Leendertse, was struck by a police vehicle while cycling, leading to claims for personal injury damages based on negligence and Charter damages for detention-related breaches. The trial, initially set for February 10, 2020, was adjourned to February 18, 2020, due to the appellant's lawyer's illness, likely COVID-19, and further delayed by the subsequent COVID lockdown. The appellant's motion for a mistrial, alleging that the delay and his lawyer's ill health during the trial week hindered proper representation, was denied. The trial concluded in 2022, with Justice Kelly Gorman of the Ontario Superior Court of Justice dismissing the action. The appellant appealed, seeking a new trial and Charter damages, but the Ontario Court of Appeal dismissed the appeal and ordered the appellant to pay the respondent costs of $30,000.

This ruling carries significant legal implications for trial management and the standards for appellate intervention in Ontario. It reinforces the principle that courts have inherent discretion to manage their dockets and proceedings efficiently, and that a high threshold must be met to establish a reasonable apprehension of bias or procedural unfairness warranting a mistrial or a new trial on appeal. The Court of Appeal's decision signals that while counsel's health issues are serious, they do not automatically necessitate an adjournment or mistrial unless a clear and demonstrable prejudice to the client's right to a fair hearing can be proven. This case highlights the balance courts strike between ensuring justice for litigants and preventing undue delays in the judicial system, particularly in the context of unforeseen events like a pandemic or counsel's illness.

For practitioners, this decision serves as a crucial reminder of the importance of robust trial preparation and contingency planning. Lawyers must anticipate potential disruptions, including their own health issues, and consider measures such as co-counsel arrangements or clear succession plans to ensure continuity of representation. When seeking an adjournment or mistrial based on counsel's health, it is imperative to provide compelling evidence of how the illness specifically and materially impaired the ability to represent the client effectively, leading to actual prejudice, rather than merely asserting a general disadvantage. The Ontario Court of Appeal's stance indicates a reluctance to overturn trial decisions on such grounds unless the unfairness is patent and severe, emphasizing the need for counsel to be exceptionally well-prepared to articulate the specific impacts of any health-related challenges on their client's case.