Lloyd et al. v. Bush et al. [Indexed as: Lloyd v. Bush]
110 O.R. (3d) 781
2012 ONCA 349
Court of Appeal for Ontario,
Goudge, R.P. Armstrong and Lang JJ.A.
May 28, 2012
Courts -- Judges -- Bias -- Expert witness called by plaintiff testifying during examination-in-chief that he could not reconcile his observations with defendant's records -- Trial judge erring in finding that plaintiff was making allegation of fraud that was not pleaded in statement of claim -- Trial judge repeatedly refusing to accept assertions by counsel for plaintiff that he was not alleging fraud -- Trial judge also making adverse credibility finding against plaintiff before end of trial on basis of "falsified" curriculum vitae despite fact that defence counsel had not asked plaintiff about alleged falsification during cross-examination -- Trial judge advising counsel that his credibility finding [page782] might be of significance to them in light of their ongoing settlement discussions -- Trial judge's actions giving rise to reasonable apprehension of bias.
The plaintiff was seriously injured in a collision with a propane truck. She had no memory of the accident. The central issue at trial was the defendant Town's liability for failure to provide proper winter maintenance on the road in question. An expert witness for the plaintiff testified that he had reviewed the Town records indicating that the road had been ploughed and that a rock/salt mixture had been used prior to the accident and that he was unable to reconcile those records with police photographs of the accident scene. The trial judge took the position that the plaintiff was making an allegation of fraud that was not pleaded in the statement of claim. He repeatedly refused to accept counsel's assertions that he was not alleging fraud. The action was dismissed. In his costs endorsement, the trial judge referred to "the allegation of fraud" which was "never fully explained or retracted and was not borne out by the evidence". The trial judge also made an adverse credibility finding against the plaintiff before the end of the trial on the basis of an allegedly "falsified" curriculum vitae, despite the fact that defence counsel had not asked the plaintiff about the alleged falsification during cross-examination, and advised counsel that his credibility finding might be of significance to them in light of their ongoing settlement discussions. The plaintiff appealed.
Held, the appeal should be allowed.
The trial judge erred in finding that counsel for the plaintiff was making an allegation of fraud. The expert witness was raising issues of credibility and reliability, not fraud. There were many reasons why the records of the Town or its snowplough operators could be inaccurate, starting with a simple mistake. Moreover, counsel for the plaintiff was an officer of the court and made it clear that the plaintiff was not advancing a case of fraud against the Town. That should have been the end of it. A fully informed reasonable observer would conclude that at that relatively early point in the trial, the trial judge had closed his mind to the central issue in the case and would not decide it fairly. The trial judge also erred in spontaneously expressing his belief, mid-trial, that the plaintiff's credibility had been significantly compromised by the "falsified" curriculum vitae and in inviting the parties to take that adverse credibility finding into account in their settlement discussions. It was the trial judge who raised the issue of the "falsification" of the document, not defence counsel. The trial judge's reference in open court about the plaintiff's negative credibility raised a reasonable apprehension of bias, particularly when considered in conjunction with his interjection about the allegation of fraud and its apparent impact on his perception of the plaintiff's case. A new trial was required.
APPEAL from the judgment of R.F. Scott J. dated January 27, 2010, 2010 ONSC 669 (S.C.J.) dismissing an action for damages for personal injuries.
Cases referred toR. v. Schofield (2012), 109 O.R. (3d) 161, [2012] O.J. No. 777, 2012 ONCA 120, 289 O.A.C. 25, consd Other cases referred to Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), [2010] O.J. No. 5435, 2010 ONCA 856, 272 O.A.C. 177, 17 Admin. L.R. (5th) 245; Chippewas of Mnjikaning First National v. Ontario (Minister of Native Affairs), [2010] O.J. No. 212, 2010 ONCA 47, 265 O.A.C. 247, [2010] 2 C.N.L.R. 18 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91]; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, 68 D.L.R. (3d) 716, 9 N.R. 115; Kelly v. Palazzo (2008), 89 O.R. (3d) 111, [2008] O.J. No. 412, 2008 ONCA 82, 233 O.A.C. 160, 290 D.L.R. (4th) 315, 168 C.R.R. (2d) 256, 164 A.C.W.S. (3d) 780 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 152]; [page783] Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 217 O.A.C. 269, 43 C.R. (6th) 175, 39 M.V.R. (5th) 123, 152 A.C.W.S. (3d) 825 (C.A.) [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 10]; R. v. G. (A.), [2000] 1 S.C.R. 439, [2000] S.C.J. No. 18, 2000 SCC 17, 184 D.L.R. (4th) 238, 252 N.R. 272, 132 O.A.C. 1, 143 C.C.C. (3d) 46, 32 C.R. (5th) 45, 45 W.C.B. (2d) 455, affg 1998 7189 (ON CA), [1998] O.J. No. 4031, 114 O.A.C. 336, 130 C.C.C. (3d) 30, 21 C.R. (5th) 149, 40 W.C.B. (2d) 28 (C.A.); R. v. Roy, 1976 1396 (ON CA), [1976] O.J. No. 912, 32 C.C.C. (2d) 97, 1 W.C.B. 13 (C.A.); R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 151 D.L.R. (4th) 193; Sorger v. Bank of Nova Scotia (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1, [1998] O.J. No. 2071, 160 D.L.R. (4th) 66, 109 O.A.C. 130, 79 A.C.W.S. (3d) 869 (C.A.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20
R. Steven Baldwin, for appellants. Kirk F. Stevens and Stuart Zacharias, for respondents.
The judgment of the court was delivered by
R.P. ARMSTRONG J.A.: -- Introduction
[1] This appeal raises the reasonable apprehension of bias of the trial judge in respect of two matters: (i) his conclusion that counsel for the plaintiffs/appellants had improperly raised an allegation of fraud against the Town of Greater Napanee without having pleaded such allegation in the statement of claim; and (ii) his comments on the credibility of the plaintiff/ appellant, Leslie Gail Lloyd, before the trial was concluded. Although the appellants raised other issues, it is unnecessary to deal with them to decide this appeal.
[2] As it is my view that it is necessary to order a new trial, I will refer only to the evidence that leads me to that conclusion. [page784] The Background
[3] On the morning of January 3, 2003, Leslie Gail Lloyd drove her car from the home of her husband's parents on County Road 9, southwest of Napanee. She was intending to pick up her sister-in-law in Napanee and drive her to the local hospital. It was snowing and it had been snowing during the night. The road was snow-packed. After driving a very short distance (about 400 metres), Ms. Lloyd and her automobile were involved in a horrendous accident with a loaded propane truck driven by the respondent David Bush.
[4] Ms. Lloyd has no memory of the events related to the accident. She suffered permanent head injuries and several lower extremity musculo-skeletal fractures. She was taken to the Kingston General Hospital and was later moved to a rehabilitation hospital from which she was discharged on July 30, 2003.
[5] It is not expected that she will be able to return to employment and she is unable to independently care for her children, both of whom she gave birth to after the accident.
[6] Ms. Lloyd and her husband, Jason Lloyd, commenced this action against the driver of the propane truck (Mr. Bush), the owner of the propane truck, the County of Lennox and Addington, and the Town of Greater Napanee.
[7] On the first day of the trial, counsel for the County brought a Rule 20 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion to dismiss certain claims against the County and the Town in the statement of claim, which alleged failure to properly design the road and related issues. The trial judge granted the motion and dismissed those claims with costs to be assessed at the conclusion of the trial. The only remaining issue in relation to the County and Town concerned proper winter maintenance of the road. The Town had a contractual obligation with the County to provide the winter maintenance. After the judge announced his decision on the motion for summary judgment, counsel for the Town indicated that the Town was prepared to carry the defence of the County and counsel for the County then withdrew from the trial.
[8] After the commencement of the trial, the action was settled with the driver and the owner of the propane truck. The trial continued against the Town and the County. After 19 days of trial over a two-month period, the action was dismissed with a costs award of $401,276.43 in favour of the Town and County. The Lloyds now appeal to this court in respect of both liability and costs. [page785] The Accident
[9] On the day of the accident, it had begun to snow at around 2:00 a.m. There was a light snowfall at the time of the accident. The meteorological evidence established that there was an accumulation of three to five centimetres of snow by 10:00 a.m. with an additional accumulation of 0.5 centimetres between 10:00 and 11:00 a.m. The accident happened at about 10:35 a.m. The evidence established that County Road 9 was snow-packed but not icy. The temperature was approximately minus 7 degrees Celsius.
[10] Since Ms. Lloyd has no memory of the accident, the only witness with direct evidence of it was David Bush, the truck driver. Mr. Bush testified that he left the propane depot between 7:00 and 7:30 a.m. While on his delivery route, he travelled west on County Road 9. He testified that as he approached the "S" curve at Rankin's Corners, it was snowing pretty hard, the roads were covered with one or two inches of snow and the centre line of the road was not visible.
[11] The "S" curve is on a hill which rises from east to west. As he was going up the hill at 40 to 45 miles per hour, he noticed a car coming towards him. The driver of the car, Ms. Lloyd, apparently lost control and descended the hill on his side of the road. One or two seconds later, Ms. Lloyd's car hit his truck. In response to these events, Mr. Bush tried to apply his brakes and clutch. Both vehicles ended up in the ditch on the south side of the road. There was damage to both vehicles with extensive damage to Ms. Lloyd's car -- the photographs indicate that it was a complete write-off. Ms. Lloyd was lucky to have survived the crash. Mr. Bush was taken to the Napanee Hospital, where he was treated for a variety of injuries. The Trial
[12] When the action settled between the appellants and Mr. Bush and the owner of the propane truck, the focus of the case was directed to the liability of the Town for failure to provide proper winter maintenance on County Road 9. There was a contract between the County and the Town under which the Town provided winter maintenance on the County roads. It was therefore Town employees who were responsible for the maintenance of County Road 9 on January 3, 2003.
[13] There were a number of witnesses who drove on County Road 9 either before or after the accident and who testified to the road conditions that morning. Most of the witnesses indicated that the road was snow covered but the majority were unable to [page786] say whether the road was sanded and/or salted. Some of the witnesses said that there did not appear to be either sand or salt on the road, while one witness indicated that he observed a snowplough discharging sand or salt shortly before the accident.
[14] Counsel for the appellants submitted at trial that if the road had been properly sanded and salted, the road would have been bare to centre bare and the yellow centre line would have been visible to Ms. Lloyd. According to this theory, Ms. Lloyd probably lost control of her car as she braked abruptly when she saw the propane truck because she believed that the truck was in her lane or too close to the centre of the road. Accordingly, had she been able to see the yellow line, she would not have braked, crossed the line and the accident would not have happened.
[15] The Town called a number of its employees, including two snowplough operators who had ploughed County Road 9 before the accident. The snowplough/sanders were out and working by 4:00 a.m.
[16] Wayne Dixon, a snowplough operator, testified that he had ploughed and sanded the road three times prior to the accident. The third occasion was at 10:10 a.m., when he proceeded through the "S" curve at Rankin's Corners. He said that Rankin's Corners was a problem area and that he would have laid down more sand and salt mixture on that part of the road. He said that the snow was hardpacked and it was therefore not possible to get all of the snow off the road.
[17] Doug Abrams testified that on the morning of the accident, he also ploughed, salted and sanded County Road 9 -- once in each direction at about 6:00 a.m.
[18] The trial judge accepted the evidence of Mr. Dixon and Mr. Abrams. He concluded, at para. 86 of his reasons:
From the evidence that was heard at the trial, I found that by the time that the ploughs were working at 4:00 a.m., there had been an accumulation of snow of approximately 2 to 2.5 centimetres. This snow became snow packed and could not be removed in its entirety by the ploughs due to the "plough shoes". From 4:00 a.m. that morning, the area of River Road known as Rankin's Corners was ploughed/salted and sanded at least five times by the two plough operators with the last ploughing/salting and sanding prior to the accident taking place shortly after 10:00 a.m. that morning.
[19] In respect of the issue concerning the proper sanding and salting of the road, the trial judge concluded, at para. 126 of his reasons:
The only issue as it relates to Napanee is that it used a sand and salt mixture rather than a salt mixture. Given all of the circumstances and a careful review of all of the evidence, the only conclusion is that Napanee (and the County) met or exceeded the Minimum Standards required of it (them) from a common law and statutory perspective. As it relates to the use of sand and [page787] salt mixture versus salt, I find specifically that the sand and salt mixture was appropriate.
[20] The trial judge assessed the damages as follows: $280,000 in general damages for Ms. Lloyd; $2,449 for loss of past earnings; $930,694 for loss of future earnings; $29,200 per year for three years for supervising and attendant care at night and $2,000 per year thereafter for contingencies; and $129,129 for renovations to the existing dwelling. It is unclear what precise amount he assessed for extraordinary costs of care, but he stated that he "agree[d] with the revised findings of Ms. Madras and Professor James Pesando". The trial judge assessed $120,000 in Family Law Act, R.S.O. 1990, c. F.3 damages to Ms. Lloyd's husband.
[21] The trial judge dismissed the action and awarded costs to the County and to the Town in the total amount of $401,276.43, including disbursements and applicable taxes. The Appeal
[22] The appellants raise the following issues on appeal: (i) the trial judge erred in refusing the appellants' motion to amend their statement of claim; (ii) the trial judge failed to consider material evidence relevant to liability and damages; (iii) the trial judge erred in defining the duty and standard of care that the municipality owed to the appellants; and (iv) the conduct of the trial judge gave rise to a reasonable apprehension of bias. In order to decide this appeal, it is only necessary to deal with the fourth issue.
Did the conduct of the trial judge give rise to a reasonable apprehension of bias?
[23] The appellants allege that certain comments and interventions made by the trial judge in the course of the trial give rise to a reasonable apprehension of bias. Counsel for the appellants refers to a number of incidents. Two of the incidents are cause for concern. The first relates to the trial judge's conclusion that counsel for the appellants improperly raised an allegation of fraud against the Town. The second relates to the trial judge's comments made, before the conclusion of the trial, concerning the credibility of Ms. Lloyd. I shall review each of these incidents, [page788] but before doing so, I observe that the threshold for finding a reasonable apprehension of bias is an extremely high one.
[24] In Chippewas of Mnjikaning First National v. Ontario (Minister of Native Affairs), [2010] O.J. No. 212, 2010 ONCA 47, at para. 229, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91 and Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), [2010] O.J. No. 5435, 2010 ONCA 856, at para. 23, this court noted that the well-settled test for establishing a reasonable apprehension of bias was set out in de Grandpré J.'s dissenting judgment in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, at pp. 394-95 S.C.R.:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." @7 . . . . . .
The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[25] There is a strong presumption in favour of the impartiality of a trier of fact: see, for example, Chippewas, at para. 243; Kelly v. Palazzo (2008), 2008 ONCA 82, 89 O.R. (3d) 111, [2008] O.J. No. 412 (C.A.), at para. 20, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 152; Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 217 O.A.C. 269 (C.A.), at para. 39, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 10; R. v. G. (A.), 1998 7189 (ON CA), [1998] O.J. No. 4031, 114 O.A.C. 336 (C.A.), at para. 42, affd 2000 SCC 17, [2000] 1 S.C.R. 439, [2000] S.C.J. No. 18; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, at paras. 32 and 114.
[26] Determining whether a reasonable apprehension of bias arises requires a highly fact-specific inquiry. According to Chippewas, at para. 230:
The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial[.][page789]
[27] In Chippewas, the court warned, at para. 243, that "[i] solated expressions of impatience or annoyance by a judge as a result of frustrations . . . do not of themselves create unfairness".
[28] I now turn to the two incidents in issue. (i) The "fraud" allegation
[29] To appreciate how this issue arose, it is necessary to review the record in some detail. I start with the evidence of David Bender, a professional engineer called by counsel for the appellants. He was qualified by the court to give expert evidence relating to practices and procedures of winter maintenance for municipal roads in Ontario.
[30] It was Mr. Bender's opinion that the three-to-one sand/ salt mixture applied to the road surface on January 3 did not have sufficient salt. He would have applied salt alone to the road before the snowstorm started. He had reviewed the Town records concerning the ploughing, salting and sanding operation, including the notes of the two snowplough operators. He was asked in examination-in-chief if he had verified the accuracy of the Town's records. He responded: "No, I'm accepting it the way it is. I have nothing to verify it with. That's the limit of information I had to look at." He further testified as follows: A. That was basically the analysis of the documents. I looked at what was being done with what was evident as far as the roadway was concerned and the roadways were snow covered. There was no evidence of any melt on the roadways so at that point I began to wonder just -- really what may have been put down but I didn't question . . . Q. Yes. A. . . . procedure because this is what the information was that I had at the time.
[31] In his review of the police photographs taken of the accident scene, he indicated that he did not see any evidence of the sand/salt mixture that had been put down. He said he would have expected that there would have been some evidence of it. He indicated that he had no way to determine whether it actually was done or not. Finally, in examination-in-chief, the witness was asked the following question and gave the following answer: Q. And again, how do you compare the photograph -- well -- from what you understood the town said had occurred, you compared that to the photographs? A. Well the town said they were applying a sand/salt mixture with a high percentage of sand -- of the mixture was sand, I would have expected some brown discoloration if there had been sand spread [page790] through that curve at that sort of spread rate, especially on three passes but I don't see any evidence of any brown discoloration. There is some road dirt which you see on any road but I just don't see the . . .
[32] After Mr. Bender's evidence was completed, the trial judge asked him a number of questions concerning the records of the Town with respect to the snow removal operation on January 2 and 3 with specific reference to the diaries and notes of various Town employees. In response to questions by the trial judge, Mr. Bender testified that if the road had been ploughed, sanded and salted as indicated by these records, he would have expected the road to have been "down to bare pavement".
[33] The trial judge then asked him if he agreed that the implication of his evidence was "that their notes aren't correct". The witness replied in the affirmative. The judge then said: "That somebody is not -- has made these notes up because otherwise it would have been as you say?" Mr. Bender responded: "I cannot justify or reconcile the notes with what I see in the photographs." The photographs indicate that the road was snow covered.
[34] Having finished questioning Mr. Bender, the trial judge turned to counsel for the plaintiffs and the following exchange took place:
THE COURT: So I understand. Counsel, are you -- do you agree with this man's comments because it goes to costs ultimately if you're alleging a fraud and costs are at the highest level if you can't sustain that.
MR. BALDWIN: Your Honour, I make no allegation of fraud in this law suit.
THE COURT: Well what are we listening to then?
MR. BALDWIN: Your Honour, I'm just listening to the evidence. That's all that --
THE COURT: Well excuse me. If you'd like to step out just for a moment sir. You can put him either outside or in the jury room.
WITNESS EXITS COURT
THE COURT: You understand the implication here, don't you?
MR. BALDWIN: Apparently not, Your Honour.
THE COURT: Well the implication is that these people -- whoever wrote these notes, aren't telling the truth because they don't -- because he says otherwise this wouldn't have happened.
MR. BALDWIN: Your Honour, we only have the evidence and we haven't heard . . .
THE COURT: No. No Counsel. We have his evidence where he implicates that there was a fraud involved here. Do you understand me now? [page791]
MR. BALDWIN: I understand Your Honour's comments.
THE COURT: Alright.
MR. BALDWIN: I make no such allegations. We're having a trial. I haven't heard from the municipality yet. I haven't heard from the municipal witnesses.
THE COURT: You certainly didn't plead them. All I'm saying is . . .
MR. BALDWIN: I didn't plead which Your Honour?
THE COURT: You didn't plead fraud in your . . .
MR. BALDWIN: No. I pleaded improper and inadequate maintenance.
THE COURT: Alright. But do you understand what he's saying here?
MR. BALDWIN: I understand Your Honour's comments.
THE COURT: He's saying -- do you understand his comments and the implication of his comments and do you understand what that means?
MR. BALDWIN: Well Your Honour one of the things we don't know and the witness isn't here to -- but one of the things we don't know is we don't even know the application rate of the materials on the road.
THE COURT: That may be fine and dandy. All I'm saying is based on what we know now and based on what he has said as your expert . . .
MR. BALDWIN: Yes.
THE COURT: Are you agreeing with his comments as counsel?
MR. BALDWIN: I agree with his evidence Your Honour. It's the evidence that we lead (sic).
THE COURT: Are you agreeing with his comments as it relates to the implication of fraud?
MR. BALDWIN: He didn't make that comment Your Honour.
THE COURT: Excuse me. I just said, I find that he is making that implication.
MR. BALDWIN: Your Honour, I'm not . . .
THE COURT: What about that, don't you understand? (Emphasis added)
[35] The colloquy between the trial judge and counsel for the appellants continued for another two and a half pages in the transcript with the trial judge insisting that an allegation of fraud was being made by the appellants without having pleaded it. The trial judge referred to the allegation as "the evidence is cooked on the other side".
[36] The exchange with the trial judge ended as follows:
MR. BALDWIN: I understand his evidence to be that if there was an application of salt and or sand mixed, at an application rate that might have been 570 kilograms per kilometre and it went through there five times that [page792] morning, that there's not consistent with the photograph. That's what I understand the evidence to be.
THE COURT: Alright. You're okay with that then, alright?
MR. BALDWIN: Well Your Honour, that's our evidence.
THE COURT: No, no. I just -- I don't like the kind of implications in a trial where they come -- you know -- where they say, the evidence is cooked on the other side. I just don't like that.
MR. BALDWIN: Your Honour, I've never . . .
THE COURT: If that's the case . . .
MR. BALDWIN: . . . I haven't said that. All I do is I lead the evidence Your Honour.
THE COURT: You lead the evidence and I'm the Trier of Fact.
MR. BALDWIN: Yes.
THE COURT: And I came to the conclusion that there was an implication there and you're not listening to that, obviously and I wondered whether or not you wanted . . .
MR. BALDWIN: I'm trying to understand Your Honour.
THE COURT: . . . I wanted to know whether you wanted to address it now or just let the witness go and that's fine.
MR. BALDWIN: I'm not sure how to address it Your Honour.
THE COURT: Okay, fair enough. We can address it later, if necessary. That's what costs are about. That's all I'm trying to imply, alright? That might have ended the issue. However, it did not.
[37] Mr. Bender testified on April 16, 2009. Mr. Amey, a witness for the Town, testified more than a month later on May 26, 2009. During his examination-in-chief, counsel for the appellants objected to a question on the basis it raised an issue not covered by the pleadings. The trial judge made the following response to counsel for the appellants:
There was an allegation that wasn't in your pleadings that was brought out by one of your experts, that there was some type of civil fraud involved with not putting sand on the road. When counsel for the appellants replied that there was no allegation of fraud, the trial judge responded:
You weren't listening to your expert then, were you, that day, when he said that they must have cooked their books. That's what he said. (Emphasis added) [page793] Then the following exchange took place.
MR. BALDWIN: No, Your Honour, I don't agree that that's what the witness said.
THE COURT: That was the implication of what he said, and that's what I took it, and I told you about that, that day, sir. So I'm going to hear this evidence. It's something that, as I indicated to you at that time, we'll address with costs if it's not borne out. (Emphasis added)
[38] When he delivered his reasons for judgment dismissing the action, the trial judge said, at para. 89:
There was a suggestion or innuendo by the plaintiffs during the trial that the plough operators and the other witnesses to the plough operators were at best mistaken in their evidence about the ploughing/salting and sanding that morning or had fabricated such evidence. Based on all of the relevant evidence, this suggestion holds no merit.
[39] In his costs endorsement [2007 ONCJ 288, [2007] O.J. No. 2700 (S.C.J.)], the trial judge referred to a number of aggravating features associated with this action, which were raised by the costs submissions of counsel for the County and the Town. The third aggravating item in this list is the following [at para. 20]:
Although not pleaded by the plaintiffs, there was an innuendo or allegation of fraud by the plaintiffs during the course of the trial namely that the snow plow operators had fabricated their evidence. This allegation was never fully explained or retracted and was not borne out by the evidence at trial.
[40] The trial judge made the following comments in respect of item 3, at para. 28 of his costs endorsement:
Regarding item 3, the allegation of fraud, I was concerned when confronted by it during the course of the trial as the plaintiffs and their counsel were clearly aware of this allegation of fraud prior to the commencement of trial and had not moved to amend their Statement of Claim. This resulted in both the court and the defendants being "blindsided". At that time, I had a discussion with counsel that were the plaintiffs to pursue such a claim without success, the matter of costs may have an impact despite success otherwise.
[41] The trial judge in concluding his costs endorsement fixed the costs of the Town and in doing so said, at para. 34:
As it relates to Mr. Russell Palin, counsel for the defendant, the Town of Greater Napanee, he is entitled to his costs fixed on a partial indemnity basis with an increase in the counsel fee for [him] and his associates to reflect the offers to settle and the issue of fraud. Such increase is set at $15,000.00 over and above the partial indemnity amount.
[42] The trial judge erred when he concluded that the witness's testimony amounted to an allegation of fraud that had not been pleaded. This error occurred in part because the trial judge [page794] came to this conclusion on his own initiative. I do not understand on what basis the trial judge could say that "the plaintiffs and their counsel were clearly aware of this allegation of fraud prior to the commencement of the trial". I also do not understand on what basis the trial judge says "this resulted in both the court and the defendants being aeblindsided'". At the time that Mr. Bender gave his evidence, there was not a word of complaint or objection from counsel for the Town.
[43] There was no basis for the trial judge to suggest that the appellants were alleging fraud or alleging that the Town had "cooked its books". Accepting that the records were being called into question, whether they accurately reflected the amount and application rate of salt and sand that was spread on County Road 9, does not raise an allegation of fraud. This is particularly so at this point in the trial when the Town's witnesses had not yet testified.
[44] Corporate records, governmental records, medical records and any number of other institutional records are called into question every day in courtrooms across the country without raising an issue or inference of fraud against the particular institution. If the trial judge's approach is correct, every time a particular expert testified that the recorded notes do not reflect what actually happened, it would be tantamount to an allegation of fraud against the author of the notes. What was raised here by the expert witness, Bender, were everyday issues of reliability and credibility, not fraud. When a witness, on behalf of a corporation, government, hospital or some other institution, makes a mistake in preparing a record, it does not follow that he or she is lying or that the particular organization has "cooked the books".
[45] There are many reasons why the records of the Town or its plough operators could be inaccurate -- starting with a simple mistake in what they were writing down. In the case of Mr. Dixon, one of the snowplough operators whose records were reviewed by Mr. Bender, the trial judge had, during his evidence, speculated on why Mr. Dixon was having difficulty giving his evidence. At that time, the trial judge asked the witness to leave the room and then said:
I don't think he is trying to mislead anybody here. I think he has some memory of the event. He has some memory of the day. He doesn't have any short-term memory. That may be through advancement of age or through some chemical process of the brain.
[46] In any event, counsel for the appellant stood his ground and made it clear that he was not alleging fraud. In his responses to the trial judge, he was highly professional. Counsel for the [page795] appellants is an officer of the court. He made it as clear as it was possible to be that his clients were not advancing a case of fraud against the Town. In my view, that should have been the end of it.
[47] There was no basis for the trial judge to suggest that the appellants were alleging fraud or alleging that the Town had "cooked its books". The evidence about how much salt or sand or both it would take to produce bare pavement was a matter of professional opinion for the witness in the box and no more. This intervention by the trial judge was unacceptable.
[48] The pointed interjections by the trial judge in respect of the allegation of fraud are troubling. He characterized the plaintiff's evidence that the work reflected in the records was inconsistent with the state of the road surface as an assertion of fraudulent record-keeping by the Town. This was an entirely erroneous characterization of the evidence and of the plaintiff's position on this, the main issue in the trial. Coupled with the persistence with which the trial judge asserted this erroneous characterization, it clearly would have suggested the trial judge appeared to have the view that the plaintiff was asserting a position that could not possibly be true and doomed the plaintiffs' case. In my view, a fully informed reasonable observer would conclude that at this relatively early point in the trial, and particularly after the repetition of the error later in the trial, the trial judge seemed to have closed his mind to the central issue in the case and, "whether consciously or unconsciously, would not decide fairly". (ii) The trial judge's comments on the credibility of Ms. Lloyd
[49] This incident also needs to be considered in conjunction with the trial judge's mid-trial conclusion that the plaintiff had "falsified" her curriculum vitae. While the plaintiff's credibility was not in issue concerning liability, as she had no recollection of the accident, it certainly was important on the issue of damages.
[50] Ms. Lloyd gave her evidence on April 7, 2009. During the course of her examination-in-chief, her counsel reviewed her educational background. She testified that she attended the University of Ottawa for three years and she was one full course short of the qualification for a bachelor's degree.
[51] Ms. Lloyd testified in some detail about leaving university and her subsequent effort to complete her remaining full course credit through long-distance education while maintaining her employment. Towards the end of her examination- in-chief, later in the day, her counsel filed a number of documents, including a short CV, which indicated that she had received a bachelor's [page796] degree from the University of Ottawa in 2000. At that time, the following exchange took place between the trial judge and counsel for Ms. Lloyd:
THE COURT: Can you explain one thing on the education 2000 -- University of Ottawa, Bachelor of Social Sciences. I didn't think she had a Bachelor? Did she get -- did she -- I'm sorry, I saw the transcript but I didn't know; I thought she left early or something?
MR. BALDWIN: One course not completed Your Honour, yes.
THE COURT: Okay. Thanks.
REGISTRAR: Exhibit Number Six?
MR. BALDWIN: Yes, thank you.
[52] There was no further comment in respect of this reference in the CV to a bachelor's degree. Ms. Lloyd was not cross-examined on it. She was not asked to explain why the CV showed her as having obtained a bachelor's degree from the University of Ottawa.
[53] Ms. Lloyd's husband testified right after her on April 7, 2009. His evidence was not completed on that day. It was subsequently interrupted to accommodate the schedule of two other witnesses. Mr. Lloyd's evidence in examination-in-chief and cross-examination continued and was completed on April 14, 2009. At the conclusion of his evidence, the trial judge asked the following questions of Mr. Lloyd:
THE COURT: Thank you. Just before you step down, Exhibit #6 is a Curriculum Vitae. Can you take a look at the exhibit?
A. Yes.
THE COURT: Did you assist in any way in the preparation of that CV?
A. Did I?
THE COURT: Yes.
A. Yes, I'm sure I would have.
THE COURT: And under "Education" it indicates that she has a Bachelor of Social Sciences.
A. Yes.
THE COURT: She doesn't have a Bachelor of Social Sciences, does she?
A. No, she was attempting to complete her Bachelor of Social Sciences at that point in time.
THE COURT: And did she use that CV to get the job at Corbyville Detention Centre?
A. I would presume so. [page797]
THE COURT: You understand where I'm going?
A. No sir.
THE COURT: Well there may have been other people out there with a Bachelor of Social Sciences and who didn't get the job because she indicated that she had a Bachelor of Social Sciences.
A. During the interview she told the interviewer that she had not completed it.
THE COURT: Were you at the interview?
A. No.
THE COURT: All right. That's what she told you.
A. Correct.
[54] In re-examination, Mr. Lloyd testified that his wife's employer was pressing her to finish her degree, which confirmed that the employer fully appreciated that Ms. Lloyd had not yet completed the requirements for graduation. The combination of Ms. Lloyd's candid honesty about being a full course credit short, Mr. Lloyd's acknowledgement of his assistance with her curriculum vitae and the evidence supporting the position that Ms. Lloyd's employer knew she was short the credit, may explain why defence counsel made no attack on the plaintiff's credibility on the basis of the CV. It is with this context that a reasonable person would approach the trial judge's expressed mid-trial belief that the plaintiff's credibility had been significantly compromised by the "falsified" CV.
[55] Several weeks later, at the opening of court on May 25, 2009, the trial judge dealt with some minor housekeeping issues before continuing with the evidence. After dealing with these matters, he alluded to the fact that Ms. Lloyd's counsel had filed a CV that showed she had a bachelor's degree when, in fact, she was one full course credit short. He made the following statement:
. . . I reviewed my notebooks over the break and I can tell you that there's a couple of things that may be of significance to you in your ongoing settlement discussions. Firstly, no matter how I deal with the issue of liability in, with respect to damages I have to assess damages. And I made a credibility issue with respect to the plaintiffs on a matter of curriculum vitae that was falsified and it may affect damages, I haven't decided that yet. I haven't decided this case yet but I can tell you that that may or may not be of interest to you at this stage.
That's the unusual aspect of this type of trial is if, even if you can't find on liability you still have to assess damages which may have implications to your own insurers, at the end of the day. But the shoe hasn't dropped yet so we'll continue on. Thank you unless you need some time to talk we'll get started. [page798]
[56] On what basis the trial judge thought it was appropriate to make the above statement before the conclusion of the trial, it is impossible to fathom. There is nothing in the transcript to indicate what prompted this statement. It appears to come out of the blue. Neither counsel for the appellants nor counsel for the respondents were able to provide any explanation for it.
[57] Whatever the state of the settlement discussions may have been, the trial judge was not part of them -- at least on the record before us. Why he felt he should telegraph to the parties that he had apparently made an adverse finding of credibility against the plaintiffs does raise a legitimate concern. The fact that he said he had not yet decided whether this credibility issue would affect his assessment of damages does not lessen the concern. He had already expressed an opinion about the plaintiff's credibility on an important issue in the case -- her academic qualifications, which related to her future loss of income.
[58] There is also another aspect to the interventions by the trial judge. It was the trial judge who raised the issue of the falsification of the document without counsel for the Town and County raising the issue in cross-examination of Ms. Lloyd or her husband.
[59] The trial judge waited for her husband to testify to take up the issue with him. This clearly became the trial judge's issue at that point. Ms. Lloyd was thoroughly cross- examined by both defence counsel and neither one of them asked about her allegedly falsified CV.
[60] The trial judge, in fact, referred to this evidence in his reasons for judgment as follows [at paras. 138, 142-43]:
An incident arose during the course of the trial that impacted on the credibility of the plaintiffs. @7 . . . . .
In the course of applying for the job at the youth facility, Leslie, prepared a resume which indicated that she had a Bachelor of Social Sciences. The resume was filed, inadvertently perhaps, as Exhibit 6.
Jason testified that he had assisted Leslie with the preparation. He also testified that Leslie had disclosed the falsehood about the degree during the course of her interview for the position at the youth facility and had been hired in any event. The implication being that she did not take unfair advantage over her employer or the other job applicants. The volunteered confession during the job interview struck me as very unusual and did not have a "ring" of truth. I concluded from this credibility flaw that although not to be over emphasized in my analysis, it was one of many factors that I must consider when weighing the evidence of the plaintiffs -- particularly evidence which was largely subjective in nature, as offered by the plaintiffs without independent verification. [page799]
[61] The seemingly gratuitous statement of the trial judge concerning the credibility of Ms. Lloyd in the context of settlement discussions before the conclusion of the trial was not appropriate.
[62] This intervention raises a serious issue concerning the trial judge's impartiality. A recent case of this court, R. v. Schofield (2012), 109 O.R. (3d) 161, [2012] O.J. No. 777, 2012 ONCA 120, raised a somewhat similar issue. Although a criminal case, I find this judgment provides a useful analysis of the situation presented here.
[63] The appellant was charged with four counts of sexual assault. After the Crown's case was in, the appellant testified, followed by the evidence of his wife. After his wife's testimony, the court rose for the lunch break. During the lunch break, the trial judge requested both counsel to attend in his chambers. In this meeting, the trial judge expressed his opinion about both the weakness of the appellant's testimony and some problems with the Crown's case and urged counsel to try to resolve the case.
[64] While the primary ground of appeal related to the appellant's exclusion from what was part of his trial, this court also considered a second issue regarding the contents of the discussion. MacPherson J.A., writing for the court, said, at para. 21 of his reasons:
In my view, there is a second, and equally serious, problem with . . . the actual contents of the discussion and, in particular, the trial judge's negative comments about the appellant's just-finished testimony. Those comments, even if they had been made in the presence of the appellant, seriously compromised the trial judge's impartiality, particularly since this was a judge-alone trial.
[65] MacPherson J.A. referred to an earlier judgment of this court in R. v. Roy, 1976 1396 (ON CA), [1976] O.J. No. 912, 32 C.C.C. (2d) 97 (C.A.). In that case, a trial judge called counsel into his chambers, made comments about the evidence and encouraged counsel to consider a plea resolution. No resolution was achieved, the trial continued and the accused was convicted. This court set aside the conviction and ordered a new trial. Brooke J.A., writing for the court, said at pp. 98-99 C.C.C.:
A judge conducting a trial without the intervention of a jury is of course the trier of fact and determines the question of guilt or innocence. In my opinion he cannot initiate such a discussion after entering upon the trial and hearing evidence and still preserve the appearance of impartiality and being of an open mind, which qualities are so essential to a fair trial and the meaning of the presumption of innocence. The fact that he initiates such a discussion and sends counsel to the accused with talk of pleas of guilty and terms of sentence could reasonably result in apprehension by the accused that the judge presiding at his trial had reached some conclusions about the case. It does not hurt to repeat again that justice must appear to be done. This is not limited simply to what is seen from the floor of the courtroom or by the [page800] public but includes what transpired here. It is also vital that justice must appear to be done, to the accused man in particular. In those circumstances we think the trial lacked this quality and therefore it cannot stand. (Emphasis added)
[66] While the case at bar is a civil action, there is no reason to distinguish this case on that basis. Whether a trial is of an accused in a criminal case or of a plaintiff in a civil proceeding, both are entitled to an impartial adjudication. See Sorger v. Bank of Nova Scotia (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1, [1998] O.J. No. 2071 (C.A.), at p. 9 O.R.
[67] In my view, the reference made by the trial judge in open court concerning the negative credibility of Ms. Lloyd raised a reasonable apprehension of bias, particularly when considered in conjunction with the trial judge's interjection with respect to the allegation of fraud and its apparent impact on his perception of the plaintiffs' case. Conclusion
[68] For the above reasons, I am satisfied that the appellants have met the test for reasonable apprehension of bias. I would allow the appeal, set aside the judgment below and order a new trial.
[69] The result of setting aside the judgment below is that the costs of the action awarded to the County and the Town are set aside. However, the County is entitled to the costs of its successful Rule 20 motion, which dismissed certain claims in the statement of claim alleging improper design and related issues. There was no appeal from that motion. I would fix the costs of the motion at $1,200, inclusive of disbursements and applicable taxes. Costs of the Trial
[70] In the circumstances of this case, it is my view that each party should be responsible for their own costs at trial. Costs of the Appeal
[71] I would award the appellants the costs of the appeal on a partial indemnity scale. If the parties cannot agree, then they may make written submissions. The appellants shall make their submissions limited to five pages double-spaced within 15 days of the release of these reasons. The respondents shall make their reply submissions limited to five pages double- spaced within ten days of the receipt of the appellants' submissions.
Appeal allowed.