An Ontario Superior Court judge has released his detailed reasons for upholding a jury’s verdict in a multi-vehicle accident case, despite finding that a defence lawyer made several improper and prejudicial statements to the jury during his closing arguments1. The ruling provides insight into the high threshold required to dismiss a civil jury, even in the face of what the judge deemed inflammatory and inappropriate advocacy. The trial concluded with the jury finding one driver, Bharrat Sutram, 93 percent liable for the collision, and a second driver, John G. Rae, 7 percent liable.
The issue arose on September 25, 2025, after legal counsel for all parties had made their final submissions to the jury. Following the closing address by Allan Rachlin, the lawyer for defendant John G. Rae, counsel for the plaintiff, Samantha McFee, expressed serious concerns about the content of the address. Justice Sunil S. Mathai ordered the parties to appear before him the next morning to address the matter. The plaintiffs subsequently identified 19 specific statements from Mr. Rachlin’s closing that they argued were improper and moved to have the jury notice struck. This would have resulted in the jury being dismissed and the judge deciding the case alone.
After hearing arguments, Justice Mathai dismissed the motion. Instead of taking the drastic step of discharging the jury, he proceeded with his final instructions, known as the charge, including explicit corrective instructions to address what he found to be the most objectionable comments. The jury then began its deliberations and returned its verdict on September 29, 2025. The reasons for the judge’s decision not to strike the jury were released on October 7, 2025.
In his written reasons, Justice Mathai organized the 19 impugned statements into six categories. The most problematic, in the judge’s view, were statements that appealed to the jurors’ emotions and asked them to consider irrelevant factors. For example, Mr. Rachlin had urged the jury, “do not make Mr. Rae a victim again or a further victim by holding him partly responsible for another man’s poor judgment.” The judge found this comment unnecessarily personalized the jury’s task and improperly encouraged them to decide the case based on sympathy.
Another set of highly problematic statements involved Mr. Rachlin suggesting that finding his client negligent would have broad, negative implications for all drivers in the province. He argued it would create an “unreasonable standard of care to expect of motorists in our province.” Justice Mathai determined that this was an irrelevant consideration. The jury’s task was only to decide the facts of the specific case before them, not to consider wider societal impacts. He concluded that these statements exceeded the bounds of zealous advocacy and caused prejudice to the plaintiffs. In his charge to the jury, Justice Mathai directly addressed these comments, instructing the jurors that their verdict would not make anyone a “victim” and that concerns about the “broader impacts” of their decision were irrelevant and had “absolutely no place” in their decision making.
The judge also analyzed submissions where Mr. Rachlin was alleged to have misstated the law. These included claims that the plaintiffs were asking the jury to make Mr. Rae responsible for Mr. Sutram’s “wrongful, unlawful acts.” Justice Mathai found these statements were “technically speaking, wrong in law,” as the plaintiffs were alleging Mr. Rae was negligent for his own actions, not Mr. Sutram’s. However, he deemed the prejudice caused by these remarks to be “negligible,” viewing them as “rhetorical flourishes” that the jury would likely understand in context. To remedy any potential confusion, he modified his final charge to clarify the precise legal question before the jury, without explicitly calling out the lawyer’s misstatement in order to maintain a balanced presentation.
A fourth category involved Mr. Rachlin commenting on an absence of evidence, suggesting the plaintiffs had failed to provide certain expert or mathematical data to prove their case. The judge found these comments were largely permissible, as counsel is entitled to point out what evidence is missing. However, to ensure the jury was not misled, Justice Mathai modified his charge to clarify that while the jury could consider the lack of evidence, the plaintiffs were not legally required to produce the specific types of evidence Mr. Rachlin had identified.
A more complex issue arose from statements made to explain the conduct of Mr. Rae, who did not testify at the trial. Portions of Mr. Rae’s pre-trial testimony from a discovery examination were read to the jury. In his closing, Mr. Rachlin suggested “as a matter of common sense” the jury did not need Mr. Rae to testify to understand why his estimate of a distance, made “in the dark at 70 kilometres per hour,” might not be accurate. The judge found this type of comment acceptable, as it simply provided a commonsense reason for the jury to weigh certain evidence. However, other statements went too far by inviting the jury to speculate on Mr. Rae’s motives. Mr. Rachlin suggested that his client was “staying the course” in order to be “predictable.” Justice Mathai noted there was no evidence before the jury to support this explanation for Mr. Rae’s actions. He addressed this by modifying his charge to instruct the jury that while they were free to reject Mr. Rae’s stated reason for his actions, they were not entitled to speculate about other potential reasons.
The final category involved a single pejorative comment, where Mr. Rachlin referred to Mr. Sutram as “this crazy guy beside him.” Justice Mathai found that while the term was “ill advised” and should be removed from lawyers’ vocabularies, it was “just barely within the bounds of permissible advocacy” in the specific context of the case. He reasoned that the jury was already well aware of the exceptionally dangerous nature of Mr. Sutram’s driving and would have understood the comment as a description of the driving, not the person.
In concluding his reasons, Justice Mathai reiterated the legal principle that the right to a civil jury trial is a fundamental one and that discharging a jury is a remedy of last resort. A judge may only do so if the prejudice to a party is so significant that a corrective instruction cannot cure it. In this case, he determined that his combination of explicit corrections and more subtle modifications to the final jury charge was sufficient to address the prejudice caused by the improper statements and ensure a fair trial for all parties. As a result, the motion to strike the jury notice was dismissed and the jury’s verdict stands.
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