Narayan et al. v. Dhillon, 2020 ONSC 7273

Narayan et al. v. Dhillon

[Indexed as: Narayan v. Dhillon]

Ontario Reports

Ontario Superior Court of Justice, Divisional Court

Harris J.

November 25, 2020

153 O.R. (3d) 721 | 2020 ONSC 7273

Case Summary

Civil procedure — Trial — Witnesses — Plaintiff bringing small claims action to recover wages from corporate and personal defendants — Plaintiff's counsel having a personal defendant, employee of corporate defendant, excluded from courtroom as a witness — Plaintiff obtaining judgment — Defendants' appeal allowed — Witness was excluded despite having been requested by defendants' counsel to be present to instruct him — Counsel was entitled to that decision regardless of whether witness was an officer or official representative — Excluding the witness was an error resulting in appearance of unfairness and requiring a new trial — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 52.06.

The plaintiff commenced a small claims action against corporate and personal defendants to recover wages that she claimed were owed to her. The main issue at trial was whether the plaintiff was an employee or independent contractor. If the former, all defendants were subject to liability. If the latter, only the corporate defendant could be liable and it was a shell with no real assets. At the outset of the trial, counsel for the plaintiff sought to have one of the personal defendants, N, excluded from the courtroom. The judge was prepared to grant the request on the basis that N had been noted in default and was thus only a witness and no longer a party. Counsel for the defendants indicated that he would be getting instructions from N, who was an employee of the corporate defendant. The judge replied that he might have been prepared to make an exception for a director or president, but not for an employee. N was excluded from the courtroom as a witness. The trial judge held for the plaintiff on all issues. The defendants appealed.

Held, the appeal should be allowed.

A miscarriage of justice was brought about by excluding N from the trial. N was a person requested by defendants' counsel to be present to instruct him during the trial. It had nothing whatever to do with whether she was an employee or an officer. Nor did it have anything to do with whether she was a representative of the company in any formal or legal sense. Counsel had a right to his decision barring exceptional circumstances of which there were none. The fact that N was also going to be a witness did not change anything. The trial judge had a broad discretion to exclude witnesses at the request of a party, but that discretion did not extend to a witness whose presence was essential to instruct the lawyer for the party calling the witness. Presence at trial was a fundamental right and a necessary adjunct of due process. Excluding N from the trial contravened the rules and was an error of law. The plaintiff's case was powerful and it was doubtful that N's presence would have made any difference in the result, but exclusion of an essential person was more about the appearance of fairness than actual unfairness. The miscarriage of justice required a new trial.

GFC Landscaping Interlock Ltd. v. Januszewigz, [2018] O.J. No. 561, 2018 ONSC 637, 289 A.C.W.S. (3d) 299 (S.C.J.), consd

Liu Estate v. Chau (2004), 2004 8234 (ON CA), 69 O.R. (3d) 756, [2004] O.J. No. 306, 236 D.L.R. (4th) 711, 182 O.A.C. 366, 128 A.C.W.S. (3d) 1185 (C.A.), distd

Other cases referred to

Canadian Radio-Television and Telecommunications Commission v. Canada (Human Rights Tribunal), 1990 12525 (FC), [1990] F.C.J. No. 819, [1991] 1 F.C. 141, 37 F.T.R. 50, 47 Admin. L.R. 302, 91 CLLC para. 17,005, 23 A.C.W.S. (3d) 108, 1990 CarswellNat 614, 14 C.H.R.R. D/87 (T.D.); Dhillon v. Narayan, 2019 110825 (Ont. S.C.J.)

Statutes referred to

Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 50 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 52.06, (1), (2)

APPEAL from the Judgment and Order of Deputy Judge Preet Kaler dated August 16, 2019 and reported at Dhillon v. Narayan, 2019 110825 (Ont. S.C.J.).

O. Chaudhry, for defendants (appellants).

Edward Brogden, for plaintiff (respondent).

1HARRIS J.: — The plaintiff respondent sued the corporate and personal defendants for not paying her wages in 2014 and 2015 to the tune of about $6,000 plus lost benefits and punitive damages. The corporate defendant, Airside Security Access Inc. ("Airside"), a closely held corporation, operates at Toronto Pearson International Airport and supplies security escorts for airport authorities, airlines, construction companies and the like. The personal defendants are directors and the management of the corporation.

2The trial judge held for the plaintiff on all issues, granting the unpaid wages and punitive and aggravated damages for a total of $23,098. The appellants appeal on several grounds, only one of which will be explored in any detail in these reasons.

3The main issue at trial was whether the plaintiff was an employee or an independent subcontractor. If an independent contractor, the personal defendants would not be liable, only the corporate defendant. The corporation was a shell with no real assets except for two aging mini-vans. Success against the corporation alone would be a pyrrhic victory. For this reason, the plaintiff's position that she was an employee. The trial judge ultimately agreed.

4There was no real issue but that the plaintiff was owed her wages. Besides the independent contractor argument, the defendants also said that she had provided her invoices too late for them to be paid. The trial judge rejected this argument, saying [Dhillon v. Narayan, 2019 110825 (Ont. S.C.J.), at p. 15]:

I am convinced, that the heavy reliance on the late submission of invoices by the plaintiff, in the absence of any considerable value of them in determination of the pay is an excuse to wriggle out of the responsibility and a sheer tactic to frustrate the plaintiff's claims in the present matter.

5Ms. Dhillon testified that she started working for the company November 2013 and was terminated in March of 2016. Two other workers who said that they too had been treated unfairly in much the same way testified for the plaintiff as well. There was a long period of not being paid despite many requests. When they complained repeatedly, they were terminated. The plaintiff recounted a virtually identical experience at the hands of Airside.

6Several defendants testified, Chandra Narayan, Allan Ramiksoon and Tony Vaccarello. The trial judge rejected their evidence, saying amongst other things [at p. 24],

Throughout these proceedings the defendants have been evasive and have been caught lying on various occasions. It has been established that the defendants acted maliciously and in bad faith during the tenure of the Plaintiff Ms. Sonya's employment with them.

Was It an Error of Law to Exclude Chandra Narayan from the Courtroom?

I. The circumstances

7Amongst other issues raised, the appellants argued that the trial judge erred in excluding Ms. Narayan from the courtroom at the beginning of the trial, before any evidence had been called. These are the circumstances. At the outset, the Deputy Judge asked whether anybody was seeking an exclusion of witnesses and counsel for the plaintiff answered that he was asking that Ms. Narayan should be included in the order. The judge said that since she had been noted in default, she was now only a witness, implying that she was no longer a party. Counsel for the defendants interjected and said that Ms. Narayan would be giving him instructions. The trial judge replied that if counsel was objecting, then exclusion was necessary so that her evidence would not be tainted. When counsel for the defendants asked rhetorically how he was going to get instructions without Ms. Narayan, the trial judge said that it was difficult because she was no longer a defendant. He asked if she was a director. Counsel for the defendants said she was an officer but Ms. Narayan herself interjected that this was incorrect, she was only an employee.

8The trial judge then said that if she was a director or president, he might have made an exception, but not for an employee. Counsel for the defendants said that she had full authority to be present for Airside. The Deputy Judge then asked how an employee could have full legal authority to represent the corporation. The judge ruled that his "hands were tied . . . unless your friend agrees with it, the law is pretty clear on that. If there is an order for exclusion of witnesses, the parties are included. . . ." Counsel for the plaintiff said that the defence could have Mr. Vaccarello, another defendant, giving instructions. The trial judge said that as an officer, he could give instructions "An officer has the right to represent . . . a company, but not an employee [like Ms. Narayan]."

II. Rule 52.06 of the Rules of Civil Procedure

9The trial judge, in my opinion, erred in law in his understanding of his witness exclusions powers. The exclusion of witnesses is governed by rule 52.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The rule states as follows:

Exclusion of Witnesses

Order for Exclusion

52.06(1) The trial judge may, at the request of any party, order that a witness be excluded from the courtroom until called to give evidence, subject to subrule (2).

Order not to Apply to Party or Witness Instructing the Lawyer

(2) An order under subrule (1) may not be made in respect of a party to the action or a witness whose presence is essential to instruct the lawyer for the party calling the witness, but the trial judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.

10Pertinent to subrule (2), Ms. Narayan was not only a witness, she was a person requested by defendants' counsel to be present to instruct him during the trial. It had nothing whatever to do with whether she was an employee or an officer. Nor did it have anything to do with whether she was a "representative" of the company in any formal or legal sense. Counsel for the defendant had made the judgment that she was the best person to instruct him during the trial. He had an absolute right to this decision, barring exceptional circumstances of which there were none. In the words of rule 52.06(2), she was a "witness whose presence [was] essential to instruct the lawyer for the party calling the witness".

11That Ms. Narayan was also going to be a witness, did not change anything. In Canadian Radio-Television & Telecommunications Commission v. Canada (Human Rights Tribunal), 1990 12525 (FC), [1990] F.C.J. No. 819, 1990 CarswellNat 614, [1991] 1 F.C. 141 (T.D.) a witness had been excluded who also had been chosen as the instructing party by the CRTC. Justice MacKay held that this was an error. Although relying principally on s. 50 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, MacKay J. also held that the tribunal had breached its duty of fairness: see para. 24. To the argument that other individuals could have filled in to represent and instruct, MacKay J. disagreed, saying [at paras. 25 and 26],

This surely is a question for C.R.T.C., not for the tribunal or for this Court.

If [a party] . . . is not free to select its representative as it sees fit, then the person who stands in at the hearing and whose presence is primarily to instruct counsel may not have the full confidence of those responsible for the corporate or statutory body. That surely is the basis on which a body selects its representative and is the key to accepting the representative named as the person with the responsibility assigned by the corporation, or in this case C.R.T.C., to instruct counsel on its behalf.

12Arguably, the situation differs from Liu Estate v. Chau (2004), 2004 8234 (ON CA), 69 O.R. (3d) 756, [2004] O.J. No. 306, 236 D.L.R. (4th) 711 (C.A.) and my previous case of GFC Landscaping Interlocking Ltd. v. Januszewigz, [2018] O.J. No. 561, 2018 ONSC 637, 289 A.C.W.S. (3d) 299 (S.C.J.) because it might be said that Ms. Narayan was not a party, unlike the situation in those decisions. However, there is no need to determine the esoteric issue of whether a party in default remains a "party" for the purpose of rule 52.06(2).

13Whether a party or not, based on rule 52.06, the defendants had the right to choose a person to instruct counsel acting on their behalf. That is the intention of the rule. Subrule (1) gives a broad discretion to a trial judge to exclude witnesses at the request of a party. This, however, on the clear statutory language, is subject to subrule (2) which prohibits the application of this provision to "a party to the action or a witness whose presence is essential to instruct the lawyer for the party calling the witness" (emphasis added). Even if Ms. Narayan was not a party, she was inarguably an essential person to instruct counsel.

14Presence at trial is a fundamental right and is a necessary adjunct of due process. It is a matter of actual fairness, the appearance of fairness and openness: Liu Estate v. Chau, at paras. 23-24, 27. If there are facts testified to by a party for the other side, such as the plaintiff Ms. Dhillon in this instance, counsel ought to have his choice of who to advise him with respect to cross-examination of the witness and any other pertinent matters which might arise. The instructing individual will generally have a more informed and in-depth factual knowledge than will the lawyer.

15Excluding Ms. Narayan from the trial was in contravention of the rules and was an error of law. The focus turns to whether there has been a miscarriage of justice. The leading Liu Estate case provides guidance not only on the exclusion from the courtroom issue but with respect to remedy as well. The first factor is that this was a very strong case for the plaintiff. Having read the entire transcript of the trial I believe that the trial judge's bad faith and other negative findings of fact were fully justified. The invoices were a not so clever dodge to attempt to justify the failure to pay Ms. Dhillon for the work she had done. In their actions at the time and at the trial, there was considerable deceit practised by the defendants.

16Unfortunately, exclusion of a party or an essential person from the courtroom is more about the appearance of fairness than actual unfairness: GFC,at paras. 26-28. The strength of the case, if the appearance is sufficiently jaundiced, is quite irrelevant. That is frequently true with matters of procedural due process.

17These are the other factors in this instance:

(i) Counsel for the defendants was without the instructing person requested for the entirety of the plaintiff's evidence as well as the similar evidence of her co-workers Darryl John and Herman Jones. In other words, for the entire plaintiff's case, counsel was without the person he was relying on to instruct him.

(ii) This exclusion was deliberate and was not inadvertent. It was based on judicial confusion between Ms. Narayan's dual roles as witness and party/instructing person. Counsel for the plaintiff pushed for the exclusion when the judge made it clear that his agreement could have resolved the controversy.

(iii) It was clear from Ms. Narayan's eventual evidence that she was a key person in the dealings between the company and the plaintiff. Her instructions could have had an effect on the trial.

18In the end, I am skeptical whether Ms. Narayan's presence would actually have made any difference in the result. The plaintiff's case was powerful. But, again, the appearance of unfairness does not look ultimately to the efficacy of having an instructing person present in order to alter the result. Even if the result of the trial may well be correct, a fundamentally unfair trial process is unacceptable and cannot stand.

19This case is more like GFC and less like Lui Estate. In Lui Estate, Rosenberg J. concluded that there was no miscarriage of justice brought about by excluding the party. But in that case, although the appellant was wrongfully excluded, her co-appellant who had exactly the same interest and position remained for the entire trial. That was not true here.

20I have reluctantly come to the conclusion that a miscarriage of justice was brought about by the exclusion of Ms. Narayan from the trial. A new trial is required. I would note that I have reviewed the other grounds of appeal and find no merit to them. In particular, I disagree that there was a reasonable apprehension that the trial judge was biased against the defendants.

21The appeal is allowed and a new trial ordered. Particularly because this is a small claims matter, the parties should be able to agree on costs. If not, the appellants shall deliver submissions of not more than two pages, not counting the bill of costs, within 30 days; the respondent shall have the same limit and must file within 20 days of the appellants.