The British Columbia Supreme Court has granted a rare mistrial order in a case where the defendant appears to have concealed evidence that directly contradicts his own testimony at trial.
In Manning v. Dhalla, the plaintiffs claim that the defendant referred them to a Ponzi scheme while concealing the fact that he was receiving massive commissions from the orchestrator of the scheme – Rashida Samji – for doing so. At trial, the defendant denied receiving any commissions, while Ms. Samji testified that she did pay him commissions, but could not recall precise details. There was no other evidence that the defendant received commissions, and the court preferred the defendant’s testimony. Based on the evidence at trial, the plaintiffs had alleged that the defendant received commissions totaling approximately $60,000.
After reasons were issued, but before any order was entered, the plaintiffs discovered a document which on its face appeared to have been created by the defendant, and recorded him receiving commissions of more than half a million dollars for referring the plaintiffs to the scheme. The defendant had not produced this document, but rather had consistently denied receiving any commissions at all.
On the basis that the absence of the new evidence completely undermined the fairness and integrity of the trial, the plaintiffs applied for a mistrial. In granting the mistrial, the court observed that “the plaintiffs appear to have found a ‘smoking gun’. The only way to avoid a miscarriage of justice is through a new trial with the evidentiary gun in evidence.” The court also said that the evidence suggests “that the defendant perpetrated a fraud on the court” through testimony in which he consistently denied receiving any commission at all.
Mark G. Underhill and Arden Beddoes were counsel for the plaintiffs at trial. Ken McEwan, Q.C., of McEwan Partners, and Arden Beddoes were counsel for the plaintiffs in the mistrial application.
The court’s decision is available here.