Okell and Weisman v. Mitchell

Court File: DC-13-0351

Heard: March 26, 2014

[1] The first ground of appeal is that the Deputy Judge made palpable and overriding errors in the factual findings. I do not accept this submission. First, the relevant findings of fact (including those reached by inference) are supported by testimony and documents. Second, the impugned facts are not plainly and obviously wrong and they are peripheral to the issue of the alleged negligence. For example, whether the defendant complained about his concerns at the time or only after the fact is extraneous to the outcome.

[2] On the question of whether Mr. Weisman gave notice of an increase in his hourly rate, the trial judge made a finding of fact that he did, through his assistant. The evidence on that point may fairly be described as tenuous, but it was open to the trial judge to reach that conclusion.

[3] The second ground of appeal is that the language used by the trial judge during the trial and in his reasons infers that he required the defendant’s negligence claim to meet a higher standard of proof than mere balance of probability. It is clear that the Deputy Judge considered an allegation of professional negligence as a very serious “accusation”, with potential repercussions to the plaintiff’s solicitor beyond the monetary claims at stake. However, I do not read into the words of the trial judge any misapprehension concerning the standard of proof. There is no identifiable error of law or error in principle on this point.

[4] As an overarching consideration on these first two grounds of appeal, it is also important to note that the defendant led no evidence whatsoever on the applicable standard of care. The trial judge tried several times to elicit from counsel for the defendant an articulation of how he intended to prove the standard of care and what acts or omissions amounted to a breach of the applicable standard. Counsel for the defendant identified “chronic unresponsiveness” to communications from the defendant and others as negligence and seemed to rely on the fact that the Deputy Judge did not require expert evidence, because he is a lawyer, even though the Deputy Judge made it clear he expected a witness to give evidence on the point. The negligence claim was also unsupported by any direct evidence of causation. The connection between alleged errors or omissions of the plaintiff and any damages of the defendant was rejected by the trial judge.

[5] The final ground of appeal is that the interventions of the trial judge give rise to a reasonable apprehension of bias. I accept the submission that a breach of procedural fairness may warrant a new trial, even if the outcome is otherwise unassailable. However, in this case, the interventions of the trial judge do not establish a reasonable apprehension of bias.

[6] I have read the entire transcript carefully and have come to these conclusions:

• The trial judge made very numerous comments and questions, even considering the more informal context of a Small Claims Court action. However, the charts attached to the appellant’s factum as Schedules “C” and “D” present a significantly exaggerated picture. In almost every instance, the trial judge was interrupted in a question, comment or observation, often multiple times. These charts count the number of times the trial judge spoke so that, for example, if he was interrupted three times in one sentence, that would be counted in the charts as three interventions, not one. Moreover, on many occasions, the defendant or counsel for the defendant was the one interrupting the trial judge, yet the charts in his factum record these occasions as multiple interjections by the trial judge for each unfinished part of the judge’s sentence(s).
• The interventions of the trial judge were not inappropriate. Though the interventions were numerous (even when adjusted for double and triple counting) it is quite evident that the judge had a legitimate purpose in mind. He was sincerely trying to understand the evidence and the theory of the defendant’s claim through his many of those interjections. The interjections in the cross-examination of the plaintiff were just as pointed as the interjections during the cross-examination of the defendant. The interjections were not one-sided. The trial judge expressed some frustration in his interjections but his expressions were restrained and appropriate.

[7] I conclude that there is no merit to any of the grounds for appeal. The appeal is therefore dismissed.

[8] If the parties are unable to agree on costs written submissions may be served and filed with the Divisional Court office within the next 30 days.

Aston J.