Park v. Lee Park v. Wawanesa Insurance Company Park v. Belitz et al. [Indexed as: Park v. Lee]
98 O.R. (3d) 520
Court of Appeal for Ontario,
Winkler C.J.O., Sharpe, R.P. Armstrong JJ.A.
September 15, 2009
Civil procedure -- Trial -- Trial judge erring in dismissing self-represented plaintiff's action on his own motion before plaintiff's evidence-in-chief was completed on basis that plaintiff's evidence was incoherent and incapable of proving case on balance of probabilities -- Plaintiff's right to fair trial denied.
The trial judge dismissed the self-represented plaintiff's action before his evidence-in-chief was completed on the basis that the plaintiff's evidence was incoherent and incapable of proving the case on a balance of probabilities. The plaintiff appealed.
Held, the appeal should be allowed.
A trial court has the jurisdiction to control its own process, but that jurisdiction does not extend to dismissing cases without hearing the available evidence and submissions. The plaintiff's right to a fair trial was denied.
APPEAL from the judgment of B. Wright J. of the Superior Court of Justice dated May 27, 2008 for the dismissal of an action.
Paul J. Cahill, for appellant Chung Jin Park. David Bierstone, for defendants/respondents Eileen Belitz et al. Brian C. Atherton, for respondent Wawanesa Mutual Insurance Company.
[1] Endorsement BY THE COURT: -- The appellant, acting in person at trial, advanced claims in three actions that had been ordered to be tried together for damages for personal injury arising from two accidents and the alleged negligence of a dentist. [page521]
[2] The appellant was ill-prepared for trial. Apart from himself, he had no witnesses and he had failed to take the steps required to make his medical reports admissible. However, the defendants had undertaken to call evidence, including the respondent Belitz.
[3] The appellant refused the trial judge's offer to adjourn the case. He then attempted to explain his claims in an opening statement and took the stand to give evidence. After about two hours of his evidence in-chief, but before it was completed and without having the defendants comply with their undertakings to call evidence, the trial judge on his own motion dismissed all three actions. He did so on the basis that he found the appellant's evidence to be incoherent and incapable of proving the case on a balance of probabilities. The trial judge stated:
The court has an inherent jurisdiction to control its own process. To allow the plaintiff to proceed in his own fashion would be futile and continue to waste valuable resources.
[4] Two of the three actions have now been settled and the appeal relates only to the claims arising from the motor vehicle accident involving the respondent Belitz.
[5] In our view, the trial judge should have adopted the course suggested by counsel for Belitz after the trial judge indicated that he was considering the dismissal of the claim. Counsel stated:
It appears that there is no choice but to let Mr. Park complete his case and then proceed with cross-examination of him and then for us to call Dr. Lee and Mr. Belitz as witnesses.
[6] Failure to take this course amounted to a denial of the appellant's right to a fair trial. A trial court has the inherent jurisdiction to control its own process, but that jurisdiction does not extend to dismissing cases without hearing the available evidence and submissions. However hopeless the plaintiff's case may have seemed after two hours, the trial judge erred by interrupting the appellant before he had completed his evidence, before he had been given the full opportunity to present his case and before the respondents had honoured their undertaking to call the defendant Belitz.
[7] Accordingly, we allow the appeal and order a new trial. Costs are fixed in the amount of $20,000, all inclusive, but any outstanding costs orders in favour of the respondents are to be set off against this amount.
Appeal allowed.