CITATION: Montgomery v. Corlies, 2016 ONSC 1223
COURT FILE NO.: DC-14-0003-00
DATE: 2016, February 19
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
MONTGOMERY FLEET SERVICES INC.
Plaintiff
(Respondent)
– and –
BILL CORLIES c.o.b. as TYS LOGISTICS
Defendant
(Appellant)
Scott McMahon, for the Plaintiff
Robert J. Reynolds, for the Defendant
HEARD: February 16, 2016
Tausendfreund, J.
OVERVIEW
[1] This is an appeal by the defendant from the Judgment of Deputy Judge Mowat of the Small Claims Court sitting in Belleville and dated July 7, 2014. The defendant asks for an Order setting aside the Judgment and directing a new trial.
FACTS
[2] The plaintiff sued the defendant personally for money owing on mechanical services to several transport trucks said to be owned by a corporation, “There’s Yer Sign Ltd” (“TYS”). The defendant is said to be at all times the president and directing mind of TYS which operated a trucking firm.
[3] The plaintiff capped its claim for its unpaid services at $25,000.00.
[4] The defendant raised two defences at trial:
a. that he should not be found personally liable as TYS at all times had dealt with the plaintiff; and
b. that the plaintiff had overcharged.
[5] At trial, the defendant was a self-represented litigant (SRL).
[6] The plaintiff testified as to the unpaid invoices for which he claimed. These he filed as exhibits. During the defendant’s cross-examination of the plaintiff, the defendant attempted to rely on two invoices not produced by the plaintiff. Counsel for the plaintiff objected, as these documents had not previously been disclosed, as required by the Rules of the Small Claims Court. The Deputy Judge ruled as follows:
“. . . One of the rules is that there is no trial by ambush and that means that documents that you intend to rely on at the trial have to be disclosed to the other side, well in advance of trial. In any event, at least 30 days, I think it says in the Rules, prior to trial, so that they can know what they are going to face when they get here and be prepared to answer to that.
When you start to pull out documents and I don’t know how many documents you’ve got like that, it’s very difficult. The other side is being asked to respond to them with no prior notice of what you are trying to do. . . . you are kind of on the wrong side of the Rules at this stage here.
. . .I think rather than get into a situation here where you are starting to hand pieces of paper to the witness that haven’t been discussed in advance, maybe you can hang on to these documents for now and when it comes to the point where you are testifying, if you feel it’s reasonable and necessary that we look at them, then we can consider it at that time. . .
We are not going to make these two invoices an exhibit at this time. You can deal with that when it’s your turn to testify, if you want.
(Speaking to the defendant). . . I’ll hear from you when it’s your turn to give evidence. You can, at that stage, if you feel it’s necessary to go that route, we’ll look at it at that point.
At this stage, I simply don’t think it’s appropriate that you are pulling out paperwork that you haven’t given notice of, in advance and asking the witness to comment on it.
He couldn’t possibly be prepared for that. If he had known you were going to do that perhaps he might have prepared in a different way.
That’s the concern I have but we’ll save that until you are giving evidence and we’ll deal with any issues about that at that time.”
[7] The defendant testified, but made no further reference to these two documents nor to any other documents or reports.
[8] Judgment was given for the plaintiff for $25,000.00 and costs fixed at $3,000.00.
Analysis
[9] The defendant admits that he did not disclose any documents or reports prior to trial.
[10] Disclosure obligations are addressed by Rule 13.03(2) of the Rules of the Small Claims Court:
At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,
a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence;.
[11] As admitted, the defendant failed to meet that obligation.
[12] Attempting to cross-examine on undisclosed documents is not only unfair to the witness, but is equivalent to trial by ambush. It should not be judicially condoned: see Iannarella v. Corbett, 2015 ONCA 110, [2015] O.J. 726 at para 33.
[13] I note that Rule 1.03(2) of the Small Claims Court contemplates that where required, the court may be guided by the Rules of Civil Procedure.
[14] On the issue of disclosure obligations, I find that the following comment by Lauwers J.A. in Iannarella ibid at para 46 applies equally to proceedings in the Small Claims Court:
“Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules.”
That is so whether a party is represented by counsel or appears as an SRL. A trial, no matter the level of court, is by definition an adversarial process.
[15] As noted above, the trial Judge was alive to the issue of non-disclosure. His ruling did not permit the defendant to cross-examine the plaintiff on non-disclosed documents. His ruling left open the option for the defendant to refer to at least these and perhaps other non-disclosed documents as part of his case. The defendant did not. The record is unclear as to the reason. He may have forgotten, or for unknown reasons have decided not to refer to such documents or may have misunderstood the ruling to have applied to his part of the case as well. His only comment in chief on this issue is at p. 72 of the transcript:
“It seems that there is a whole lot of evidence that I could have given here, had I known the procedures of the courts more diligently. . .”
[16] The ruling of the Deputy Judge had the effect of preventing the defendant from cross-examining the plaintiff on documents the defendant had not disclosed and for reasons that are not clear from putting these documents into evidence as part of the defendant’s case.
[17] At the start of trial, the defendant raised with the Deputy Judge the fact that a non-subpoenaed anticipated witness was on vacation and was not available to testify. For that reason the defendant requested an adjournment. Counsel for the plaintiff opposed the request. The Deputy Judge ruled on this issue as follows:
“THE COURT: Mr. Corlies if you had felt that this particular witness was really crucial to your case, you could have notified the Court, well in advance. You could have brought a motion to have the trial date moved to another day.
. . .a party has the duty here to secure the attendance of their witnesses and that means that if there was somebody that you thought needed to be here today, there is a manner that you can do that. You can subpoena them, a summons to witness. You would serve that on them and then they would be obliged to be here.
If you had done that and the witness failed to attend, then in that situation perhaps, we could have considered an adjournment, but I am just not in a position to grant your request today. The matter is set for trial today and I think we are going to have to proceed with the witnesses that are here today.”
[18] In my view, the denial of the defendant’s requested adjournment plays into the issue of the undisclosed documents.
[19] This takes me to Rule 53.08 of the Rules of Civil Procedure which states:
Rule 53.08(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
(2) Subrule (1) applies with respect to the following provisions:
Subrule 30.08(1) (failure to disclose document).
Rule 30.09 (failure to abandon claim of privilege).
Rule 31.07 (failure to answer on discovery).
Subrule 31.09(3) (failure to correct answers on discovery).
Subrule 53.03(3) (failure to serve expert’s report).
Subrule 76.03(3) (failure to disclose witness).
[20] In Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497, Perell J. considered the issue of the failure in a civil action to grant an opposed adjournment request. I consider the following of his comments to be particularly applicable to this appeal.
“33. These cases about the law associated with opposed requests for an adjournment reveal that the granting or the refusing of an adjournment is a discretionary act, and an appellate court will not interfere with the exercise of the discretion unless it is shown that the judge or master failed to exercise his or her discretion judicially.
- Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:
• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• that justice not only be done but appear to be done;
• the particular circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical effect or consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• the prejudice not compensable in costs, of any, suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to orderly process civil proceedings; and
• the need of the administration of justice to effectively enforce court orders.
- In Prassad v. Canada (Minister of Employment & Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560 (S.C.C.), Sopinka, J., for the majority of the court, adopted the following statement about an adjudicator’s discretion to grant or refuse an adjournment. The statement was taken from Pierre v. Canada (Minister of Manpower & Immigration), 1978 3634 (FCA), [1978] 2 F.C. 849 (Fed. C.A.), per Jackett C.J. at p.851:
“The adjudicator is given discretion to determine whether an adjournment shall be granted, but, of course, this discretion is guided by the notion of a “full and proper” inquiry. In other words, the discretion must be exercised in accordance with principles of fairness and natural justice.”
Where a judge fails to take into account relevant considerations, he or she may exercise his or her discretion unreasonably, and if the result is contrary to the interests of justice, an appellate court is justified in intervening: Khimji v. Dhanani, supra per Laskin, J.A. at para 14. Laskin, J.A. delivered a dissenting judgment but the majority agreed with his articulation of the legal principles.
While as a matter of appellate review, deference must be given to the discretionary decision of a judge or master whether to grant or refuse an adjournment, a review of the recent judgments of the Court of Appeal reveal that it may be a highly contentious point whether or not a judge or master has properly exercised his or her discretion. Put somewhat differently, while it is difficult to overturn a judge’s decision about an adjournment, it remains a viable ground of appeal.
In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.”
[21] In Rocca Dickson Andreis Inc. v. Andreis, 2013 ONSC 5508, the Divisional Court noted at para 33:
“In R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713 (Ont. C.A.)., Laskin J.A. considered the term “error in principle” in the context of appellate deference to a discretionary decision. At p. 71 he wrote:
“Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law. [citations omitted]”
Once an error in principle has been shown to exist, the motions judges’ decision is no longer entitled to deference. An appellate court is free to exercise an original discretion of its own.”
[22] I turn now to the application of these principles to this appeal.
[23] The effect of the denial to grant the defendant the requested adjournment and the ruling that prevented the defendant from cross-examining the plaintiff on undisclosed documents curtailed the defendant’s ability to make full answer and defence to the claim the plaintiff advanced against him. That said, the defendant was clearly offside on his disclosure obligations and to a lesser degree, on his failure to subpoena his proposed witness.
[24] In addition to his ruling, did the Deputy Judge owe a duty to the defendant to give him the option of an adjournment on terms that would be just and equitable to both sides? In my view, he did. That would be so, whether the defendant was represented by counsel or not.
[25] Natural justice dictates that a party to an action should have the opportunity within the rules of engagement to fully advance his or her case. That did not unfold in this trial, based on the defendant’s failure to address obligations expected of him. In the face of the defendant’s expressed request for an adjournment, based on his failure to subpoena his proposed witness and on his implied request under Rule 53.08 of the Rules of Civil Procedure, based on his failure to disclose documents, the court had an obligation to put to the defendant the option of an adjournment on terms. The failure to have done so I find to be an error in principle.
[26] The appeal is allowed. The trial judgment is set aside and a new trial is directed. The costs of the first trial are reserved to the Deputy Judge hearing the second trial.
[27] As this appeal evolved from the failure of the defendant to have followed expected rules of engagement, there will be no costs of this appeal.
Honourable Mr. Justice W. Tausendfreund
Released: February 19, 2016
CITATION: Montgomery v. Corlies, 2016 ONSC 1223
COURT FILE NO.: DC-14-0003-00
DATE: 2016, February 19
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
MONTGOMERY FLEET SERVICES INC.
Plaintiff
(Respondent)
– and –
BILL CORLIES c.o.b. as TYS LOGISTICS
Defendant
(Appellant)
Tausendfreund, J.
Released: February 19, 2016