Ontario’s highest court has declined to order a new trial in what is believed to be the first civil appeal in Canada to deal with juror Googling.

After an eight-week trial, an Ottawa jury found the plaintiff in a personal injury lawsuit was 73 per cent at fault after he was struck by a motorist. The plaintiff then asked for a mistrial arguing the jury had improperly relied on information found online.

The jury foreperson admitted to conducting internet research — in defiance of the judge’s instructions — and sharing it with fellow jurors. That information was a statutory provision taken from an Ontario government web site that was “irrelevant and inapplicable” to a civil case, the Ontario Court of Appeal said in a ruling released Thursday.

The trial judge, Superior Court Justice Charles Hackland, rejected the mistrial request and awarded the plaintiff damages of almost $310,000, significantly less than the $4 million claimed.

The plaintiff appealed, arguing the trial judge failed to conduct a proper inquiry as to what information the jury had obtained from the internet search, and that failing to do so had resulted in a miscarriage of justice. A second ground of appeal was that the judge failed to appropriately analyze the prejudicial effect of the information.

The case was argued in Toronto earlier this month. On Thursday, the Ontario Court of Appeal dismissed the appeal, finding the trial judge “did conduct a proper inquiry and made findings as to the nature and extent of the extrinsic information the jury received.”

The three-judge panel also determined that the trial judge, who presided over an eight-week trial, was “well-positioned” to conclude his instructions to the jury had “disabused” them from considering the irrelevant information obtained from the internet.

“We see no basis for this court to intervene,” the judges agreed.

“Our clients are very disappointed with the decision and are considering the option of seeking leave to appeal to the SCC (Supreme Court of Canada,” Ottawa lawyer Tom Connolly, who represented the plaintiff, wrote in an email. He declined to comment further. The respondent’s lawyers could not be reached for comment.

Omar Ha-Redeye, a civil litigator and executive director of the Durham Community Legal Clinic, said in an interview that in similar juror Googling cases, the Court of Appeal has indicated that the best person to determine the impact on trial fairness is the trial judge who is there. Ha-Redeye was not involved in the Ottawa case but is familiar with the issue, which he says isn’t going away.

“We can expect, unfortunately, that jurors will continue to improperly access online information during trials,” he said Thursday.

The courts need to be “especially vigilant” so that “individuals who get selected for jury duty know it’s absolutely essential that they don’t do outside research, because it might be incorrect or misconstrued,” he said.

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