DATE: 20040324

DOCKET: C39956

COURT OF APPEAL FOR ONTARIO

LABROSSE, LASKIN and GOUDGE JJ.A.

B E T W E E N:

CLARENCE JOHN ROSS

David A. Reid for the respondent

Plaintiff (Respondent)

• and -

BRIAN HERN and DIANE HERN

Michael E. Mitchell and Anne-Marie Tymec for the appellants

Defendants (Appellants)

Heard: March 11, 2004

On appeal from the judgment of Justice Chester C. Misener of the Superior Court of Justice dated April 11, 2003.

BY THE COURT:

[1] The plaintiff (respondent) Clarence John Ross sued the defendants (appellants) Brian and Diane Hern for one-third of the proceeds of a winning Lotto 6/49 ticket in the amount of $500,000.00. The issue at trial was whether Brian Hern had purchased the winning ticket for himself or in partnership with the defendants. The trial judge found that it was bought in partnership and ordered that the plaintiff was entitled to one-third of the proceeds. The defendants appeal the decision.

[2] The issue on this appeal deals with the interventions of the trial judge during the evidence of the parties.

[3] The trial judge was very involved in the examination-in-chief and cross-examination of the plaintiff. He had lengthy discussions with the plaintiff in an attempt to understand the intricacies involved in buying lottery tickets. Many questions were of doubtful relevance and other questions had no relevance to the issue to be determined.

[4] In 98 pages of transcript, there were a total of 238 questions or interruptions by the trial judge during the evidence of Mr. Ross.

[5] The witness, Diane Hern, is the wife of the defendant Brian Hern. The trial judge again asked many questions. Certain questions were confrontational and others of doubtful relevance. He also made gratuitous comments and conducted eight pages of pure cross-examination. At the end of her evidence, the trial judge commented: “Amazing, just amazing.” There was nothing amazing about her evidence. Indeed, the trial judge says nothing to suggest otherwise in his reasons for judgment.

[6] In 69 pages of transcript, there were 235 questions or interruptions by the trial judge during the evidence of Diane Hern.

[7] With respect to the defendant Brian Hern, the trial judge jumped into the arena before counsel had a chance to develop his examination. He interfered with counsel’s questioning and cross-examined the defendant over some ten pages. The trial judge at one point told the witness: “Well I want you to listen to the question because I’m interfering too much in Mr. Reid’s cross-examination.” This was not an overstatement. The witness was not refusing to answer questions and was not being evasive.

[8] In 125 pages of transcript, there were a total of 295 questions or interruptions by the trial judge during the evidence of Mr. Hern.

[9] Although the trial judge interrupted the testimony of each party a significant number of times, the interruptions of the plaintiff were different from those of the defendants. When he was interrupting Ross, it was generally to clarify testimony or seek further information. The interruptions of the defendants, however, were of a different tone. The trial judge tended to be sarcastic and condescending toward the defendants, and numerous times he appeared to badger them into giving the answer for which he was looking.

[10] Even if one only considers the sheer number of questions and interruptions that went on during the giving of the evidence in this trial, the trial judge acted inappropriately. The trial judge interrupted so much that the parties were not able to present the case as they saw fit. The trial judge was an active participant in the case. He was not an impartial arbiter.

[11] It has always been accepted that on occasion it is not only desirable but necessary that the trial judge question a witness for the purpose of clarification of the evidence. However, it is appropriate to recall the words of this court in Majcenic v. Natale, 1967 267 (ON CA), [1968] 1 O.R. 189 (C.A.), where the court addressed the issue of interventions by a trial judge. At p. 205, the court stated:

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.

[12] In the present case, the trial judge crossed the line set out in Majcenic. The questions were not only numerous but were of such a character as to amount to an unwarranted interference with counsel’s conduct of the trial. The trial judge effectively took the case into his own hands and out of the hands of counsel: see J.M.W. Recycling Inc. v. Attorney-General of Canada (1982), 1982 1947 (ON CA), 35 O.R. (2d) 355 at p. 362 and Farrar v. Farrar (2003), 2003 15943 (ON CA), 63 O.R. 141 (C.A.) at paragraph [25].

[13] This court has stated on numerous occasions that in appeals based on undue interventions in the examinations of witnesses, the test is not so much prejudice but whether the image of impartiality was destroyed: see for example Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 1995 1069 (ON CA), 23 O.R. (3d) 362 (C.A.). This is such a case.

[14] For these reasons, I would allow the appeal, set aside the judgment below and direct a new trial. The costs of the first trial are to be in the discretion of the judge presiding at the new trial. The defendants are entitled to their costs of this appeal, fixed at $10,000.00, all inclusive.

Released: MAR 24 2004 Signed: “J.-M. Labrosse J.A.”

JML “I agree John Laskin J.A.”

“I agree S.T. Goudge J.A.”