COURT FILE NO.: 04-DV-000988

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

B E T W E E N:

TERESA ANNA DRZEMCZEWSKA and BERNARD ASHWORTH HODSON

Hank Witteveen, for the Plaintiffs (Appellants)

Plaintiffs (Appellants)

• and -

DAN GRIGORESCU c.o.b. HERITAGE BUILDING RESTORATION

Wayne Cusack, for the Defendant (Respondent)

Defendant (Respondent)

HEARD: August 8, 2006

(ON APPEAL FROM DEPUTY JUDGE GILBERT)

REASONS FOR DECISION

R. Smith J.

1The Appellants appeal from the decision of Deputy Judge Gilbert denying their claim and granting the counterclaim. The Appellants allege that the words or actions of the presiding judge give rise to a reasonable apprehension of bias to an informed and reasonable observer and therefore renders the trial unfair. Mr. Hodson also alleges that the fact that he is hearing impaired was a factor which coloured the progress of the trial.

2The Respondent submits that the Deputy Judge agreed to and did accommodate the Plaintiff’s hearing problem. Exchanges were repeated for the Plaintiff on three occasions when he indicated that he was unable to hear what was said. The Respondent also submits that the Deputy Judge’s demeanour was the same with both parties and the examples of impatience were taken out of context and, as a result, the comments of the trial judge do not demonstrate a reasonable apprehension of bias to an informed reasonable observer.

Analysis

3The test for finding a reasonable apprehension of bias was set out by Justice Cory in R. v. S. (R.D.), [1997] 3 S.C.R. 484 S.C.C. as follows:

The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.

4In Sorger v. Bank of Nova Scotia, 109 O.A.C. 130 (Ont. C.A.) the Court stated the test as follows:

Fairness and impartibility must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.

5In R. v. S. (R.D.), supra, Justice Cory cautioned that the threshold of finding a perceived bias is high and depends on a careful analysis of the facts of the particular case. The finding must be carefully considered as it calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

6The Ontario Court of Appeal has held that the relevant factors which may create an apprehension of bias include prejudgment of issues, prejudgment of credibility and undue and one-sided interventions with counsel or in the examination of witnesses: Sorger v. Bank of Nova Scotia, supra.

7In the case of Garry v. Pohlmann, [2001] B.C.J. No. 1804 cited in Autotrim Shop v. Preston, [2005] 2005 CarswellOnt. 577 (Ont. S.C.J.) the Court stated that, “appellate courts have recognized that the role of trial judges in Small Claims Court is often, by necessity, more interventionist.” An appellate court must consider the interventions in the context of the Small Claims Court proceedings and in this case, with the fact that neither party was legally represented.

Factual Background of Claim

8The Appellant homeowners contracted with the Respondent contractor to perform certain renovations to their basement. The contractor was initially engaged to repoint the basement wall and then he was requested to do additional work to finish the basement. The contractor furnished a written estimate outlining the work to be performed for the price of $5,000.00, and the homeowners were to supply the materials.

9As the work progressed the parties orally expanded the work to be performed by the contractor and changed the renovation from a one-bedroom to a two-bedroom situation without any new written estimate. The claim and counterclaim concern the cost of the additional work.

Hearing Impairment of the Appellant

10Mr. Hodson submits that his hearing impairment was a factor which coloured the progress of the trial. I have reviewed the transcripts and find that the Deputy Judge was advised at the commencement of the trial that the Appellant had a hearing problem and the Deputy Judge said, “I’ll do my best to speak up. Just let me know if you can’t hear.” The trial judge did repeat what he had said when the Appellant indicated that he had not heard what was said during the trial on several occasions. I find there was no evidence of any inappropriate conduct or remarks related to the Appellant’s hearing impairment. In fact to the contrary, the Deputy Judge did his best to accommodate the Appellant’s hearing impairment during the trial.

Was There a Reasonable Apprehension of Bias?

11The Appellants’ main ground of appeal is that the comments and interventions of the trial judge give rise to a reasonable apprehension of bias. The Appellant complains about the following statements made by the trial judge:

a) “Is this considered to be an opening statement or what? Okay. Just keep it short because I have an appreciation from the allegations.” The comments are in the nature of an inquiry as to whether the Appellant was giving evidence or making an opening statement. The Deputy Judge’s comment that any opening statement in a Small Claims Court case should be kept short is appropriate.

b) “The - where are the bills … I explained at the outset to everyone in this court that I don’t present cases for people…” Again this comment would not lead a reasonable informed person to conclude that the Deputy Judge had closed his mind or had decided the issue of credibility. He is indicating that he wants the Appellants to produce invoices to support their claim.

c) “I don’t think it comes anywhere close to intimidation.” The comment relates to a phone call by the Respondent to Mr. Davies, the contractor, who finished the basement renovation and who was called as a witness at trial. The Appellants alleged that the Respondent had tried to intimidate the witness and the Deputy Judge did not agree as the witness did not say that the Respondent tried to intimidate him. The Deputy Judge advises the Appellant to “keep to relevant stuff”. The Deputy Judge was correct, the witness did state that the Respondent had tried to intimidate him and at page 86 in cross-examination Mr. Davies agreed that the Respondent had not threatened or mistreated him in any way.

d) i) “Would you not lead the witness?”

ii) “He’s giving evidence, not you.”

These are appropriate comments given to a non-legally trained litigant who is not familiar with the rules of evidence and trial procedure.

e) I find that questions posed by the Deputy Judge to Mr. Hodson were asked in order to clarify the basis of Mr. Hodson’s claim and to determine what work had been completed and what work was not completed. I find that while many questions were posed to Mr. Hodson and to Mr. Davies, the questions would not lead a reasonable informed person to conclude that the Deputy Judge was biased or had closed his mind to the issues before him or had made up his mind on the issues.

f) The Deputy Judge stated that, “It’s misleading to suggest that work has been done and done improperly. It just hadn’t been done and you haven’t been charged for it … So please don’t mislead the Court.”

While the comments indicate that the Deputy Judge believed he was being misled by Mr. Hodson’s suggestion to the witness that certain work had been done improperly, when both Mr. Hodson and his wife had previously testified that the work in question had not been done. The Appellants do not suggest that the Deputy Judge was wrong in his understanding of the evidence. The language used was on the strong side and does indicate that the Deputy Judge believed that Mr. Hodson was deliberately misleading the witness, however I do not find that this comment would lead a reasonable informed person to conclude that the Deputy Judge was biased in any way.

12The three contextual factors that must be considered by an appeal court are:

a) The fact that this is a Small Claims Court proceeding and proceedings are more informal;

b) The parties were self-represented and appeared to be unaware of how to enter evidence, exhibits, prove damages, etc.; and

c) The nature of the case, namely a fact-based construction dispute involving what work was done, was it done properly or not, and the value of the work performed.

13I have also found several incidents where the Deputy Judge also made several direct comments to the Defendant Mr. Grigorescu:

a) At page 7 when he attempted to speak: “You can explain whatever you want when you get your chance, okay.”

b) At page 8 when Mr. Grigorescu again attempted to speak while Mr. Hodson was giving evidence he stated: “This is not an open forum.”

c) At page 22 when Mr. Grigorescu stood too close to the witness he said: “Just stand over there please. Stand over there.”

14I find that when the comments of the Deputy Judge are considered in the context of conducting a trial in the Small Claims Court, with self-represented parties who were not familiar with how to present evidence or how to examine and cross-examine witnesses, and when the Deputy Judge asked questions to understand details of the repair work which was done pursuant to the partly written and partly oral agreement to renovate the basement, and to determine what work was not done and what work was not properly done, I find they would not lead a reasonable informed observer to conclude that the Deputy Judge’s questions or comments give rise to a reasonable apprehension of bias or that the Deputy Judge had made up his mind on the issues to be decided.

Disposition

15The appeal is therefore dismissed.

16The Respondent shall have ten days to make any additional submissions on costs and the Respondent shall have ten days to respond.

R. Smith J.

Released: September 22nd, 2006

COURT FILE NO.: 04-DV-000988

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)