What is the test for a mistrial in a civil case where the jury was not shown exhibits that had not been disclosed to the jury?
British Columbia, Canada
The following excerpt is from Oberreiter v. Akmali, 2009 BCSC 318 (CanLII):
Where an irregularity such as the inadvertent inclusion of non-admitted material in exhibits left with the jury occurs, it is usually identified during the course of the trial. When that occurs, the court must consider all possible actions to remedy potential prejudice before ordering a mistrial. It may be that such an irregularity could be corrected with an instruction to the jury: see Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349.
Where the irregularity cannot be cured and the trial judge is satisfied that it may have a prejudicial effect impacting the result of the trial, a mistrial is the appropriate remedy: see de Araujo v. Read, 2004 BCCA 267, 29 B.C.L.R. (4th) 84. In that case, Mr. Justice Thackray observed at para. 68: "...a new trial may be ordered where trial irregularities may have influenced the verdict or award of the jury... ".
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