DATE: 2005-12-02
DOCKET: C42623
COURT OF APPEAL FOR ONTARIO
CRONK, ARMSTRONG and LANG JJ.A.
B E T W E E N :
RICHARD SARGENT and MARVLYN SARGENT
Alan L. Rachlin, for the appellants
Appellants (Plaintiffs)
- and -
PLAZA ONTARIO MARBLE AND TILE INC. and STEVE AZZAZ
Christopher Beckett, for the respondent
Respondents (Defendants)
Heard: November 25, 2005
On appeal from the judgment of Justice Gordon I. Thomson of the Superior Court of Justice, sitting with a jury, dated October 8, 2004.
BY THE COURT:
[1] The appellant appeals a jury verdict in a civil negligence case in which the jury found no liability on the part of the respondent Steve Azzaz for the personal injuries sustained by the appellant Richard Sargent (“Sargent”) when he fell down a flight of stairs at a house that was under construction. Sargent asserts that the trial judge interfered excessively in the evidence of Sargent at trial and, in his questioning of Sargent, appeared to show bias against him.
[2] We agree that trial fairness was compromised in this case, necessitating a new trial.
[3] Sargent claimed that he fell down the stairs when he lost his footing on debris (a “knockout” created from Sargent’s work on door fittings in the house) that was located at the top of the stairs. The central issues at trial concerned whether this debris was on the stairs and, if so, how it came to be there.
[4] Sargent testified at trial. After his direct examination, cross-examination and re-examination were completed, the trial judge posed a series of questions to Sargent. The entirety of the challenged exchange was as follows:
THE COURT: Alright. Mr. Sargent, you told us that your practice was that when you took the – the drill in your hand and you put it up against the door and you drilled the hole, and the drill bit went through the door and the hole saw cut the hole, and you then take the – then you bring the knockout back through the hole? Is that what happens? Or, do you take it off on the other side?
A. No, with – with a door, if you – if you just push from one direction, from the back side and go all the way through, you’ll get a blowout.
THE COURT: Okay.
A. In other words . . .
THE COURT: I understand that, but do you . . .
A. So , you have to . . .
THE COURT: Do you . . .
A. You have to . . .
THE COURT: Do you bring the knockout back through to take it off, or do you take it off on the other side?
A. I take it off on the other side.
THE COURT: Did you drill from the – from the – from the outside, in?
A. I drill from the, uh, inside out and the outside in, and then put it behind the door.
THE COURT: Alright. So, the outside – so, the last part that you drill, you drill from the – from the outside, in . . .
A. Yeah, it’s not, um – it’s not one way or the other. It’s never always one way.
THE COURT: It is never – but, I take it what you always do is when you take the knockout off the drill bit – and the hole saw – the hole saw is a – is a – is a round metal . . .
A. Yes.
THE COURT: . . . thing that is shaped much like a cup or a glass. It has teeth on one end . . .
A. Yes.
THE COURT: . . . it has a drill bit through the middle of it. I am sure some of the men in the – the jury have got some idea. The drill bit drills a hole to centre the hole saw. The hole saw goes through, cuts the – cuts the – the – whatever the door is composed of. It eventually comes out one side or the other. You take the knockout off . . .
A. Yes.
THE COURT: . . . because it is loose . . .
A. It’s in the drill.
THE COURT: . . . basically sitting on the drill bit.
A. It’s in the drill, yeah.
THE COURT: . . . okay, outside of the hole saw, for the most part, or at least part of it is.
A. Yes, part of it is, yes.
THE COURT: Yeah. And is it your practice that you always put it behind the door?
A. Yes.
THE COURT: So that means that the door that you put it behind in – in bedrooms one, two, three and the washroom would not be out so it would be exposed to anyone kicking it . . .
A. That’s right.
THE COURT: . . . in the open doorway. And it is behind the door, and it is put behind the door for a reason.
A. That’s right.
THE COURT: Is it put so that it would roll, or is it put so that it is flat?
A. On the flat.
THE COURT: On the flat. So, if it is put on the flat and it is behind the door, how possibly could it not be there when you did the search?
A. Don’t know. Like, I – it is absolutely beyond me that I cannot – could not find that one knockout.
THE COURT: Alright. Is it possible that . . .
A. It made no sense.
THE COURT: . . . that at one point in time you did not put it behind the door, that it was out on the other side? Is that a possibility?
A. I guess it’s a possibility.
THE COURT: Is it also a possibility that in moving around that it might have been kicked over and maybe down the stairs?
A. No, not – if it’s gonna go anywhere, it would go into the bedroom.
THE COURT: Well, okay. But, bedroom number one is right at the top of the stairs, is it not?
A. Yes.
THE COURT: Okay. So that if it was knocked . . .
A. There was padding there.
THE COURT: Okay. I thought the padding was not down in the hallway.
A. No, it was rolls of padding.
THE COURT: Okay. But, are you telling me there was no pathway through?
A. Uh, what do you mean?
THE COURT: No pathway through the rolls so it could go down the stairs?
A. No. No, I’m just saying there was two rolls of padding sitting in the . . .
THE COURT: Okay. So . . .
A. . . . in the – in the bedroom.
THE COURT: So it possibly could have gone down the stairs, correct?
A. Well, that’s a possibility.
THE COURT: That is fair. Everything is possible. I understand all of that. We are just trying to find out where on the probability something happened. It is also possible, I suppose, on the logical extension, the janitor could have picked it up downstairs and brought it back up. I mean, anything is possible . . .
A. Yes.
THE COURT: . . . right?
A. Yes, sir.
THE COURT: Sure. My concern, though, and I am sure the jury’s is, if you always put it on its side behind the door, why was it not there when you left?
A. I – I don’t know.
THE COURT: Okay.
A. That’s why I – I kept on looking for it. You know, it – it just didn’t make any sense that I would have three and not four in – in – in a – in a period of – of just half an hour.
THE COURT: And at the end of the day, all four, apparently, were accounted for?
A. Yes.
[5] No objection was taken at any point by the appellants’ trial counsel to this questioning. At the conclusion of the questioning, the trial judge inquired if counsel had any questions arising from his exchange with Sargent. Neither counsel posed any further questions.
[6] In McFarlane v. Safadi, 2004 ONCA 12644, [2004] O.J. No. 1763, at paras. 31 and 32, this court emphasized the fundamental principle that the hallmark of a fair trial is that the trial judge preside with impartiality and neutrality between the parties. The court stated:
The judge must not cross the line and become a participant in the litigation. When he or she does so, his or her impartiality and neutrality are lost. It is at that moment that the trial ceases to be fair.
See also Majcenic v. Natale (1968), 1967 ONCA 267, 1 O.R. 189 (C.A.) and R. v. R.D.S., 1997 SCC 324, [1997] S.C.J. No. 84.
[7] In this case, in many instances, the questions posed by the trial judge were framed as leading questions, a form of questioning that characterizes cross-examination. Much of the content of the questions was focused on the key question at trial arising from the appellants’ theory of the case, namely, how the debris – the door “knockout” created by Sargent during his work on the premises – came to be on the stairs and, implicitly, on the equally critical issue of who bore responsibility for the presence of the debris on the stairs that Sargent claimed triggered his fall and, hence, his injuries. These questions went to the heart of liability: the core issue for determination by the jury. They were also related to Sargent’s credibility, a significant issue in this trial.
[8] In our view, the trial judge’s questioning went beyond the scope of seeking clarification of Sargent’s testimony. While some of the trial judge’s questions concerned matters that had been explored during Sargent’s earlier testimony, many questions posed by the trial judge had not previously been posited to Sargent by either trial counsel. It is significant that these questions were posed by the trial judge, rather than by counsel.
[9] We do not accept the respondent’s argument that the trial judge’s questioning necessarily advantaged the appellant. Indeed, in our view, it may well have had the opposite effect. Given the important content of the questions, the fact that the questions raised – for the first time – several issues not explored by trial counsel, and the fact that the trial judge was the questioner, the impugned questioning may well have had a serious prejudicial effect on the jury. At the very least, these factors called into question the appearance of impartiality and neutrality required to ensure the fairness of the trial. As this court indicated in McFarlane, the fact that this may have been completely unintended is no answer to the impairment of trial fairness.
[10] Accordingly, for the reasons given, the appeal is allowed, the trial judgment is set aside and a new trial is ordered. The appellants are entitled to their costs of this appeal on the partial indemnity scale, fixed in the amount of $6,801.79, inclusive of dis-bursements and Goods and Services Tax. In all the circumstances, each party shall bear their own costs of the first trial.
RELEASED:
“DEC –2 2005” “E.A. Cronk J.A.”
“EAC” “Robert P. Armstrong J.A.”
“S.E. Lang J.A.”