Petti v. George Coppel Jewellers Ltd., 2008 CanLII 10051 (ON SCDC)

St. Catharines Court File No. 48293/06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN: )

VINCENT PETTI ) Vincent Petti,

) plaintiff (appellant),

Plaintiff ) self-represented

(Appellant) )

– and – )

GEORGE COPPEL ) Philip Coppel,

JEWELLERS LTD. ) officer of defendant

) (respondent),

Defendant ) self-represented

(Respondent) )

) HEARD: February 20, 2008,

) at St. Catharines

J.W. Quinn J.: ―

Introduction

1The plaintiff appeals a final order of a deputy judge of the Small Claims Court dismissing his claim at trial. I heard the appeal sitting as a judge of the Divisional Court.¹ The plaintiff appeared by himself on the appeal, but had counsel at trial. The defendant, a limited company, was represented both here and there by one of its corporate officers, Philip Coppel.

2The appeal raises the propriety of relying on polygraph evidence in legal proceedings.

3At the opening of the appeal, I confirmed with Mr. Coppel that he had not filed responding materials. He said that he was unaware of such a requirement and requested an adjournment for that purpose. I declined the request on the basis that his failure fell within the minimal level of self-education required of self-represented litigants.

Background

4The plaintiff took a diamond to the defendant’s jewellery store in St. Catharines to be valued. Mr. Coppel provided a valuation on the spot² following which the plaintiff requested Mr. Coppel to place the diamond in a box. Mr. Coppel contends that he did so. The plaintiff left with the box, made a number of stops (including a trip to Toronto) in what appears to have been a busy day, and, when he returned to his residence in Niagara Falls that evening, he says that the diamond was not in the box. The plaintiff accuses Mr. Coppel of pocketing the diamond and sues for damages in the amount of its value. Mr. Coppel indignantly denies the accusation.

5The plaintiff and Mr. Coppel submitted to polygraph tests and the results were filed at trial. The polygraph examiners were served with a Summons to Witness but did not attend the trial. The test results favoured Mr. Coppel.

6After adverting to the polygraph test results and reviewing the evidence (having earlier identified the central issue in the trial as one of credibility), the trial judge concluded that the plaintiff had not met the burden of proof and dismissed the claim.

Grounds for appeal

7The materials filed by the plaintiff on this appeal certainly bear the hallmark of self-representation. There is a helter-skelter quality to them. The Notice of Appeal states that the trial judge:

(a) erred in not allowing an adjournment so that a key witness who ignored a subpoena may be ordered to testify;

(b) committed an error in fact;

(c) committed an error of law by improper application of the common law, questionable interpretation of a statute and improper consideration of evidence.

8I do not find any of these grounds to be well-founded, but I have allowed the appeal on another ground.

The trial

9On November 2, 2005, the trial commenced. At the outset, the trial judge indicated that he had “reviewed the file” and “the only question is going to be credibility.”

10The plaintiff and Mr. Coppel testified and were the only witnesses. In the course of their testimony, it came out that the issue of polygraph testing had been raised when the matter was being investigated by the police (before the civil suit was initiated). While cross-examining the plaintiff, Mr. Coppel asked him, “Did you want to – you wanted to take a lie detector test?” The plaintiff answered, “Of course” and added, “Even today, if you want, we’ll go take a lie detecting test.”

11At this point the trial judge intervened:

Let us adjourn this and why do you not do a lie detector test? . . . because the credibility issue now is 50-50 and, my goodness, if we have a chance to have this resolved by this scientific or quasi-scientific means, why not do it?

12The plaintiff and his counsel agreed, as did Mr. Coppel. The trial was adjourned to permit the testing. The judge ordered that the parties should bear their own costs associated with the polygraphs and said:

I am endorsing that each party will exchange the [polygraph] reports within 15 days of receipt and I have also endorsed that the [individual] conducting the report (sic) should be here. I am sure that the person with the more favourable report will make the subpoena arrangements.

13On March 28, 2006, the matter was back before the trial judge. Counsel for the plaintiff advised the judge that the parties “both used the same polygraph person,” being Frank Wozniak, a Certified Forensic Polygraph Examiner with Toronto Polygraph Services. When it came time to serve Mr. Wozniak with a Summons to Witness, he was out of town. However, Mr. Wozniak advised that he would be available to testify at a later time. Counsel for the plaintiff, therefore, informed the defendant that he would be seeking an adjournment on March 28^th. Upon being told of these events, the trial judge said,

From our part, I think it would be an interesting exercise to hear about these matters. So I am going to adjourn it . . .

14The matter was next in front of the trial judge on August 10, 2006. By then, the plaintiff (unhappy with his test results) had retained another polygraph examiner (from Toledo, Ohio) and had submitted to that gentleman’s testing procedure. But, neither of the examiners was present in court on August 10^th. Counsel for the plaintiff advised the trial judge as follows:

Neither one of them are [sic] here. Both of them were sent subpoenas and both of them were requested to come and both of them were requested to confirm they were coming. I just conferred with my secretary. She had made two requests to the most recent polygraph individual, in addition to the subpoena to show up, and I understand that my client spoke to the gentleman who was coming from the States, who’s getting a hotel, the whole nine yards, and he’s not here.³

15A discussion then ensued as to the procedure to be followed in those circumstances. Initially, the trial judge stated,

Well, I guess the tests are not too good unless the experts are here to say what happened.

However, after hearing submissions from Mr. Coppel, the trial judge (who indicated that he “had an opportunity to go over the lie detector tests”) reversed himself and ruled:

. . . so I think it is probably a good idea that the [reports of the] tests be submitted in evidence . . . seeing that I ordered the tests, taken on the basis that both parties agreed, I should make use of them . . . let us file all the polygraphs but my statement right now is, I put very little weight on the one from this gentleman in Toledo.

16The trial judge referred to the polygraph test results obtained by Mr. Wozniak and, in so doing, must be taken to have relied on them to some extent (there being no disclaimer otherwise). The opening passage of the oral reasons for judgment reads:

This is a claim relating to the loss of a diamond in June 2004. At one point in the trial, which was in March of this year, the question of polygraphs arose with one party challenging the other to polygraphs, which I acted upon. The result of this was that Mr. Young, as solicitor of the plaintiff, selected the polygraph agent and both parties attended. With respect to [the plaintiff], the results were neutral and with respect to [Mr. Coppel], they were certainly positive and in his favour. Another polygraph was submitted to the Court [on behalf of the plaintiff] and, unlike the first ones, I do not know if the defendant consented to this extra polygraph test. In any event, I was not satisfied by what was before me as to the expertise of the person [administering] the test. With respect to Mr. Wozniak, both parties were equally at risk and the chips would fall where they may.

17The trial judge then reviewed the testimony of the plaintiff and Mr. Coppel and concluded:

One could consider many scenarios how the stone may have disappeared but considering the journey taken by the plaintiff upon leaving the jewellery store, I believe the one put forth by the plaintiff is the least likely. I find the plaintiff has not, by his evidence, satisfied the burden of proof to prove his claim. I accept the evidence of [Mr. Coppel] that he indeed placed the stone in a box in the presence of the plaintiff and that the plaintiff saw this happen. I am going to dismiss the plaintiff’s claim. Costs to the defendant.

Discussion

18In legal proceedings, polygraph tests may be approached from three perspectives: (1) whether the taking of the polygraph test was volunteered or, if offered, rejected; (2) the questions asked and the answers given on the test; and, (3) the results of the test.

19With respect to (1) above, there seems to be some authority making narrowly relevant, in both criminal and civil cases, the fact that a litigant volunteered to take a polygraph test. For example, in R. v. B. (S.C.) (1997), 1997 6319 (ON CA), 36 O.R. (3d) 516 (C.A.), a criminal case, at para. 29, the Court stated:

29Evidence that an accused offered to take a polygraph test has probative value only to the extent that it reasonably yields the inference that the accused was prepared to do something which a guilty person would not be prepared to do. In fact, an accused who offers to take a polygraph test risks nothing since the results are inadmissible: R. v. Beland and Phillips, [(1987), 1987 27 (SCC), 36 C.C.C. (3d) 481 at 494-95 (S.C.C.)]. An inference favourable to the accused from such an offer could only be drawn if, despite the inadmissibility of the results, the accused believed that a negative test result could be used against him at trial . . .

At para. 30, the Court added:

30Even if there was evidence that an accused believed that a polygraph test result could be used against him, the admissibility of a mere offer to take the test is still problematic. An offer to take the test is hardly an unequivocal act. Its probative value depends on a number of factors. What did the accused know about the accuracy of the test? Did the accused believe he could “fool” the machine? What advice did the accused have before making the offer? Was the offer a bona fide one? These and other possible considerations could lead to extensive inquiries into matters which are far removed from the question of the accused’s culpability in the offence charged. Evidence proffered by the defence will be excluded where its probative value is substantially outweighed by its prejudicial effect on the proceedings . . .

[20] In Whiten v. Pilot Insurance Co. (1999), 1999 3051 (ON CA), 42 O.R. (3d) 641 (C.A.), a civil case involving a claim for fire loss where the insurer alleged arson and refused to pay, at para. 34, the Court appears to have approved of viewing an offer to take a polygraph test as evidence of the “Whitens’ good faith” and “willingness to co-operate in resolving their claim.” The Court stated, “The offer to take a polygraph test was but one part of the total evidence showing the Whitens’ co-operation with Pilot’s investigation.” The Court went on to say, “The admissibility of the offer and the trial judge’s instructions on how the jury could use the offer are consistent with this court’s judgment in R. v. B. (S.C.).” Whiten was reversed by the Supreme Court of Canada at 2002 SCC 18, [2002] 1 S.C.R. 595 on the issue of punitive damages but, as to the polygraph, the Court stated, uncritically, at para. 24:

[24]. . . the Whitens, in an attempt to satisfy Pilot that they did not set the fire, offered to take a polygraph test administered by an expert selected by Pilot. This was apparently accepted by the jury as a good faith offer made to allay Pilot’s suspicions. Pilot refused, without giving any reasons.

21Here, as both parties offered to take, and took, a polygraph test, this could not be relevant in ascertaining good faith (and, in any event, the trial judge did not use the tests for that purpose).

22In a proper case, the questions and answers on a polygraph test – (2) above – may be admissible where, for example, the answers constitute an admission against interest. That is not the situation at bar.

23The results of a polygraph test – (3) above – are not admissible in an Ontario court, as those results usurp the very function of the trier of fact.⁴ And, if the results are tendered by a litigant who passed the test, they are tantamount to oath helping.

24In the case before me, the trial judge relied on the results of the polygraph tests, at least in part, when reaching his decision to dismiss the claim. In other words, the results were used to help decide the truth of the facts in dispute. In my view, this amounts to a reversible error. The error is not erased by the fact that the parties consented to the tests. The court should not delegate its jurisdiction, even on consent.

Conclusion

25The appeal is allowed and, pursuant to s. 134(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, I order a new trial. Costs were not sought.

The Honourable Mr. Justice J.W. Quinn

Footnotes

1. 1An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action for the payment of money in excess of $500.00 excluding costs: see s. 31(a) of the Courts of Justice Act, R.S.O 1990, c. C.43; a proceeding in the Divisional Court may be heard and determined by one judge where the proceeding is an appeal under s. 31: see s. 21(2)(b); every judge of the Superior Court of Justice is also a judge of the Divisional Court: see s. 18(3); and, an appeal to the Divisional Court shall be heard in the region where the hearing that led to the decision appealed from took place, unless the parties agree otherwise or the Chief Justice of the Superior Court of Justice orders otherwise: see s. 20(1).
2. 2The valuation was in the sum of $20,000. The plaintiff waived the excess of his claim over the $10,000 monetary jurisdiction of a deputy judge presiding in Small Claims Court: see O. Reg. 626/00, s. 1(2).
3. 3Perhaps I should point out that the adjournment to August 10^th was peremptory to the plaintiff and, on that date, neither the plaintiff nor his counsel requested an adjournment due to the absence of the polygraph examiners.
4. 4Indeed, I am unaware of any Ontario judicial recognition for polygraph testing as a reliable science.