Lennox v. Arbor Memorial Services Inc. [Indexed as: Lennox v. Arbor Memorial Services Inc.]

56 O.R. (3d) 795

[2001] O.J. No. 4725

Docket No. C34772

Court of Appeal for Ontario

Rosenberg, Feldman and Sharpe JJ.A.

November 29, 2001

Courts -- Judges -- Bias -- Conduct of Trial -- Intervention of trial judge in presentation of case -- Trial judge interfering with examination of defendant's witnesses -- Trial judge cross-examining defendant's witnesses -- Trial judge requiring production of evidence that had not formed part of case as presented by counsel -- Appearance of possible injustice -- New trial ordered.

After a trial, the defendant AMS Inc. was found liable for having wrongfully dismissed its employee, the plaintiff L. AMS Inc. appealed on the ground that the trial judge interfered in the conduct of the trial to such an extent that the image of judicial impartiality was destroyed, denying AMS Inc. a fair trial.

Held, the appeal should be allowed.

A trial judge is expected and entitled to take reasonable steps to ensure that the issues are clear, that evidence is presented in an organized and efficient manner and that the trial runs smoothly and proceeds in a timely manner. Trial judges are also entitled to intervene where there is a need for clarification. However, there is a point at which judicial intervention becomes interference and is improper. In this case, the judge intervened unduly. The trial judge redirected lines of questioning that AMS Inc.'s counsel sought to pursue as unhelpful and strategically ill-advised; engaged in extensive cross-examination of AMS Inc.'s witnesses and challenged their credibility; required the production of AMS Inc.'s policy manual, which was not part of the pleadings and productions and not part of the case as prepared and conducted by counsel; and sought more than a clarification, by extensively questioning about the policy manual. Both the nature and the extent of the interventions were such that the trial judge crossed the line and created the appearance of possible injustice. Moreover, the interventions were only directed at AMS Inc. and created an appearance of unfairness. Where errors are made by the trial judge in the conduct of the trial, a new trial is required.

APPEAL of a judgment of Jenkins J. (2000), 2000 CanLII 22605 (ON SC), 3 C.C.E.L. (3d) 119, [2000] O.J. No. 2756 (S.C.J.) for the plaintiff in an action for damages for wrongful dismissal.

Cases referred to Boran v. Wenger, 1942 CanLII 306 (ON CA), [1942] O.W.N. 185, [1942] 2 D.L.R. 528 (C.A.); Majcenic v. Natale (1967), 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.); McKinley v. B.C. Tel, 2001 SCC 38, 200 D.L.R. (4th) 385, 9 C.C.E.L. (3d) 167

Neal J. Smitheman, for appellant. Andrew Felker, for respondent.

[ 1 ] BY THE COURT: -- The appellant "Arbor" operates a large cemetery business in Ontario and elsewhere in Canada. The respondent Lennox was a groundskeeper at Arbor's Peterborough cemetery. Arbor terminated Lennox for cause. Lennox had misled Arbor about needing to take time off work in order to look after his daughter when the true reason was to cover for his wife who provided management services to another cemetery. Arbor appeals from a finding at trial that it wrongfully dismissed Lennox and from the judgment for damages in the amount of $31,749.13 representing salary in lieu of nine months' notice.

[ 2 ] There are two grounds of appeal, one involving the proper application of the law in respect of just cause for dismissal, as recently explained by the Supreme Court of Canada in the case of McKinley v. B. C. Tel, 2001 SCC 38, 200 D.L.R. (4th) 385. The second and main ground of appeal is that the trial judge interfered to such an extent in the conduct of the trial that the image of judicial impartiality was destroyed, thereby denying Arbor a fair trial.

[ 3 ] Regretfully, we are obliged to give effect to the second ground, and on that basis, set aside the judgment and order a new trial.

Facts

[ 4 ] Arbor carries on a funeral business in Ontario. Mr. Lennox began working for Arbor on a part-time basis while he was a student in 1986, became assistant property manager at its Scarborough location in 1987, then worked as a groundskeeper at the Peterborough property from 1995 until he was terminated on January 13, 1998.

[ 5 ] In 1996, Mr. Lennox applied for employment at a small rural cemetery near Peterborough called Emily Cemetery. They were unable to pay him a salary sufficient to allow him to leave Arbor. However, he accepted their invitation to join the Board of Directors on a volunteer basis. Shortly thereafter, Mrs. Lennox began her own cemetery management company and commenced working in the spring of 1997. Her company provided management services to the Emily Cemetery, including hiring the back-hoe operator to dig the graves, providing the grass- cutting and flower services, and attending to arrange for burials as needed.

[ 6 ] When Mr. and Mrs. Lennox were expecting a baby, Mr. Lennox applied for parental leave from Arbor for an 18-week period from April to August 1997. During that time, Mr. Lennox was observed by an employee of Arbor overseeing the filling of a grave at Emily Cemetery. When he was confronted by Michelle Gibbons of Arbor, he said he was a volunteer on the Board of Emily Cemetery, that he was not working at other cemeteries while on parental leave from Arbor, but was looking after his daughter. He did not disclose at that time that his wife had a funeral services business that served Emily Cemetery.

[ 7 ] On January 12, 1998, Mr. Lennox received a telephone call from his father, who was looking after his daughter, advising him of a problem at the Emily Cemetery. As Mr. Lennox was unable to reach his wife, who was with the accountant, he decided he had to go to the cemetery to address the problem himself. In order to obtain permission to leave his job at Arbor, Mr. Lennox told his supervisor, Mr. Horler, that he could not reach his wife and that his father was watching his daughter, but could not do so all day. However, he had told a co-worker that he had to figure out a way to get away from work because he had to take care of a problem at Emily Cemetery. The co-worker reported this to Mr. Horler. As a result, Mr. Horler attended at the cemetery where he confronted Mr. Lennox at approximately 3:00 p.m. and asked him if he was performing any work at Emily. Mr. Lennox said he was there to service a burial and that his family problem had been taken care of earlier. Mr. Horler then suspended him.

[ 8 ] The next day, the Regional Property Manager, Mr. Hunter, called Mr. Lennox at home and asked him to explain his absence from work the day before and his attendance at Emily Cemetery. Mr. Lennox said the explanation was the same one he had given to Mr. Horler, that he had to help out his wife and look after his child. He also said that when Mr. Horler was at the cemetery, his wife had gone to get coffee, which was not true. Mr. Hunter then told Mr. Lennox that he was terminated.

The Reasons for Judgment

[ 9 ] In his reasons for judgment, after reviewing the factual background, the trial judge set out the issues in the following way [at p. 122 C.C.E.L.]:

The defendant's position is that Lennox is a dishonest employee. He lied about his whereabouts on January 12th, and more importantly, failed to tell the truth when confronted with his lies. The defendant invites me to infer that he was, in reality, running the cemetery business that was registered in his wife's name, and he failed to disclose that to Michelle Gibbons when she telephoned him in 1997. He was also dishonest in working during his parental leave and failed to disclose his wife's business in his conversation to Michelle Gibbons.

[ 10 ] The trial judge then made the following important findings [at pp. 123-25 C.C.E.L.]:

I have no hesitation in finding that Lennox lied to his employer on January 12th when he absented himself from work that day. He had a legitimate business reason for going to the Emily Cemetery and covering for his wife, however he lied to several employees of Arbor in explaining his whereabouts. He has still failed to acknowledge this deceit.

I find that Lennox's conduct is, albeit, less than laudatory [sic], does not constitute such dishonest conduct which would warrant a dismissal under the circumstances.

There is insufficient evidence for me to conclude that he was working during parental leave. . . .

Having considered Lennox's work description, length of service, reporting responsibilities, I conclude that he is entitled to damages representing nine months of salary benefits, less the proper deductions.

[ 11 ] The trial judge spent a significant portion of the judgment discussing the appellant's Personnel Policy Manual although that document was not pleaded and not produced until the trial judge insisted upon its production at trial. The trial judge concluded that Arbor did not follow the discipline procedure contained in its manual. Specifically, the company did not provide the respondent with a series of warnings, but instead chose to rely on the provision dealing with instant dismissal for dishonest conduct. He concluded that although Mr. Lennox was dishonest, his conduct was not such as to warrant instant dismissal as opposed to the progressive discipline regime set out in the manual.

The Conduct of the Trial

[ 12 ] In our view, the trial judge's conduct of the trial created an appearance of unfairness. We agree with the appellant's submission that the trial judge appeared to assist the respondent. The trial judge intervened unduly in the presentation of the case and, in effect, became a protagonist for the respondent. A review of the transcript demonstrates that the trial judge:

-- redirected lines of questioning which the respondent's counsel sought to pursue and which the trial judge viewed as unhelpful to the respondent and strategically ill- advised;

-- engaged in extensive cross-examination of two of Arbor's witnesses and challenged their credibility;

-- required the production of the appellant's policy manual, which was not part of the pleadings or productions, and therefore not part of the case before the court as prepared and conducted by counsel; and

-- sought more than an explanation or clarification of evidence brought out by counsel by questioning two Arbor witnesses (Mr. Horler and Ms. Gibbons) extensively about the policy manual.

[ 13 ] A trial judge is expected and entitled to take reasonable steps to ensure that the issues are clear, that evidence is presented in an organized and efficient manner and that the trial runs smoothly and proceeds in a timely manner. Trial judges are also entitled to intervene in the trial where there is need for clarification. However, there is a point at which judicial "intervention becomes interference and is improper": Majcenic v. Natale (1967), 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 at p. 203, 66 D.L.R. (2d) 50 at p. 64 (C.A.). Unfortunately, upon a review of the entire transcript, it appears that is what occurred in this case.

[ 14 ] The trial judge undoubtedly intended to ensure that the trial was conducted as efficiently and effectively as possible. However, both the nature and the extent of the interventions were such that the trial judge crossed the line and created the appearance of possible injustice.

[ 15 ] In Majcenic v. Natale, Evans J.A. quoted at p. 204 O.R., p. 65 D.L.R. from an earlier decision of this court, Boran v. Wenger, 1942 CanLII 306 (ON CA), [1942] O.W.N. 185, [1942] 2 D.L.R. 528 (C.A.), where Riddell J.A. said:

We think that it is the right of a litigant to have his case submitted to the trial tribunal as his counsel thinks advisable and in the interests of his client -- being governed, of course, by the rules governing trial which are well-established and recognized; the trial judge has no right to take the case into his own hands, and out of the hands of counsel.

We do not for a moment suggest that the trial judge has not the right -- it may often be the duty -- to obtain from the witnesses evidence in addition to that brought out by counsel -- but this is adjectival, to clear-up, to add to, what counsel has brought out.

Evans J.A. then added his own description of improper judicial intervention [at p. 204 O.R.]:

When a Judge intervenes in the examination or cross- examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that "justice not only be done, but appear to be done". Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

[ 16 ] In this case, the trial judge's interventions not only exceeded the acceptable limits; they were entirely directed at assisting the respondent. Consequently, they created an appearance of unfairness. In particular, the trial judge's preoccupation with the respondent's policy manual is a matter of concern. The trial judge diverted the trial away from the issues the parties sought to present and toward what he conceived to be the central issue. The reasons for judgment then dealt extensively with what the judge concluded was Arbor's failure to follow its policy manual with respect to progressive discipline and to correctly interpret the circumstances which could warrant instant dismissal in accordance with the manual.

[ 17 ] The respondent submits that we should affirm the judgment on the basis of McKinlay v. B.C. Tel, a case decided by the Supreme Court of Canada after the trial in the case at bar, where the court discussed the law of dismissal for cause where there has been dishonest conduct on the part of the employee. The Supreme Court effectively confirmed the legal validity of the conclusion reached by the trial judge in this case, that not all dishonest conduct creates just cause for dismissal without notice. However, the Supreme Court also held that the question of whether the particular conduct in all the circumstances of the case does amount to just cause for dismissal is a question of fact. Therefore, where errors have been made by the trial judge in the conduct of the trial, this court is not in a position to confirm or to reverse his finding on the crucial issue. A new trial is required.

[ 18 ] In the circumstances, the costs of the trial and of this appeal will be left to the new trial judge.

Order accordingly.