COURT FILE NO.: 557/07
DATE: 20080225
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, MOLLOY and swinton JJ.
B E T W E E N:
CHRISTOPHER MICHAEL CIULLA and 2015928 ONTARIO LTD.
Applicant
- and -
CITY OF TORONTO and the TORONTO LICENSING TRIBUNAL
Respondents
D. Russ Makepeace for the Applicant
Rosanne Giulietti for the Respondent City of Toronto
HEARD AT TORONTO: Jan. 17, 2008
JENNINGS J. :
[1] This is an application for judicial review of the decision of the Toronto Licensing Tribunal (“the Tribunal”) dated August 16, 2007, in which the tow truck operator licenses of the Applicants were revoked.
[2] The sole issue raised by the Applicants on the hearing of this matter is whether the failure of the Tribunal to grant an adjournment in the circumstances hereinafter set out, constituted a denial of natural justice or procedural fairness.
background
[3] The Applicants were issued a tow truck driver’s license and a tow truck owner’s license. As a result of a report forwarded to the Tribunal from the City’s Municipal Licensing and Standards Investigations Branch alleging that the Applicants had been convicted of 21 By-law and Highway Traffic Act offences related to the operation of a tow truck, the Tribunal held a hearing to determine if the licenses should be suspended, revoked or have conditions placed upon them. The hearing was originally scheduled for May 18, 2006, but as two witnesses for the City could not attend on that day the hearing was adjourned on consent and rescheduled for June 14 and 21, 2007.
[4] On June 14, 2007, the agent retained by the Applicants to represent them on the hearing, one Blaha, failed to appear when the matter was called at 9:30 am. Mr. Blaha had participated in choosing the rescheduled hearing dates. He had the Applicants’ file and was expected by the Applicants to be present. The Tribunal adjourned the hearing until 11:00 am to allow the Applicants and the Tribunal’s registrar to attempt to locate Mr. Blaha. All efforts to do so failed.
[5] The Tribunal then asked for submissions from the parties. The City took the position that two of its police witnesses, who were present, could not appear on the second scheduled date of June 21 and as a result counsel wished to proceed with the hearing.
[6] The Applicant Ciulla made it clear to the Tribunal that he was not ready to proceed on his own because his agent had the file. He asked that the matter be adjourned to a date when the two officers were available.
[7] After further discussion and consideration the Tribunal determined that in the absence of any representation from the agent as to why he was absent it would embark upon the hearing to the limited extent that the two witnesses who could not attend on the second scheduled date would be examined in chief. Mr. Ciulla would be given the right to cross-examine the witnesses “without prejudice to [the agent’s] right to cross-examine them subsequently”.
[8] The Tribunal went on to say:
If those two witnesses absolutely cannot be in attendance next week, then arrangements can be made for Mr. Blaha to cross-examine those two witnesses at an official examiner’s office, at [the Applicants’] own expense, and the transcripts of those cross-examinations can be entered as evidence before this Tribunal.
(Transcript, p.2-14)
[9] The two police officers were called and gave evidence in chief. Each was cross-examined by the Applicant Ciulla, following which the hearing was adjourned until June 21.
[10] On June 21, Mr. Blaha appeared and apologized for not being present on June 14, explaining that he thought the hearing would be the following day, June 15.
[11] The Tribunal Chair then entered into the following dialogue with Mr. Blaha:
Mr. Blaha, before we begin, are you aware of the order that was made last week with respect to your right to cross-examine the witnesses that were here last week?
MR. BLAHA: Yes, I am. I don’t see any need, from what the defendant has told me that took place. He will be testifying at a later time.
We spent a lengthy time together going over what the officers had said. So I’m content.
THE CHAIRPERSON: You’re content not to proceed with further cross-examination of those two witnesses?
MR. BLAHA: No, I understand.
THE CHAIRPERSON: All right.
(Transcript, pp.3-4 to 3-5)
[12] The City then called five further witnesses, four of whom were cross-examined by Mr. Blaha, who had no questions to put to the witness called to prove the convictions and the report forwarded to the Tribunal. The convictions and the contents of the report were not disputed.
[13] Taking of the evidence was concluded on June 21, 2007. On June 28, 2007, the Tribunal released its decision concluding that the Applicants had not carried on business in accordance with law and with integrity and adjourning the matter to July 27, 2007, to hear submissions as to penalty.
[14] On July 27, 2007, Mr. Blaha again failed to appear, although the Applicant Ciulla stated that he was “under the assumption that he would be here”. After some discussion with Mr. Ciulla, and in the face of the City’s indication that it would be seeking revocation of the licenses, the Tribunal declined to proceed with the matter in the absence of representation for Mr. Ciulla, the latter having indicated that he would now seek legal counsel. The matter was further adjourned to August 16, 2007, when counsel for the Applicants appeared and made submissions.
[15] The Tribunal’s decision revoking the licenses followed.
standard of review
[16] Where a Tribunal’s decision is attacked on the basis of a denial of natural justice, it is not necessarily for the court to engage in an assessment of the standard review. See Gismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419 (Div. Ct.) at para.16.
analysis
[17] Although on the record it appears that the Tribunal attempted to balance the interests of moving the matter forward with the right of the Applicants to make full answer and defence, it does not appear to have embarked on any inquiry as to when, had an adjournment been granted on June 14, 2007, the matter could next be scheduled for hearing with the two officers present. Nor was there any inquiry made as to when the officers whose attendance on June 21, 2007 was not possible, could be available to give evidence and be cross-examined. In those circumstances, in my opinion, proceeding to take the officers’ evidence that day without making any of those inquiries was unfair to the Applicants. The Applicant Ciulla was not prepared to cross-examine and did not even have the file. The offer of a cross-examination at his expense at the office of the special examiner, should the officers not be present on June 21, is not, in my opinion, a suitable alternative, given that the officers’ evidence in chief was heard by the Tribunal. Further, the evidence of the first officer to testify was replete with irrelevancies and hearsay, which one would have hoped would have been the subject of objections by the agent retained by the Applicants.
[18] In my opinion the real issue is the effect on the denial of the request for an adjournment of the position taken subsequently by the Applicants’ agent that he required no cross-examination of either of the two witnesses who testified on June 14.
[19] It is correctly conceded by the respondent City that the serious nature of the hearing before the Tribunal called for a high standard of fairness on the part of the Tribunal. The standard of fairness is a flexible one which must be determined in the context of the case. See Baker v. Canada, [1999] 2 S.C.R. 817.
[20] Although I have said that in my opinion fairness required that the Tribunal embark on some inquiry as to when the officers could re-attend before the Tribunal to be cross-examined by the Applicant’s agent, Mr. Ciulla did himself cross-examine and not ineffectively. I have also observed, and it is clear from the Record, that the Tribunal on each occasion that the matter was before it made a real effort to ensure that the Applicants were treated fairly, culminating in its refusal to proceed with the matter of penalty in the absence of the Applicants’ agent, notwithstanding the Applicants’ desire to get the matter over with regardless. Finally, it appears from its reasons that the Tribunal gave no weight to much of the hearsay evidence introduced by the first witness, who was himself cautioned by the Tribunal to restrict his evidence to his factual observations.
[21] In that context, in my opinion, the clear rejection by the Applicants’ agent of any opportunity to further cross-examine the police officers and the failure to object to the Tribunal’s procedure in dealing with the two police witnesses appears to overcome any prejudice the Applicants might have suffered by reason of the initial denial of an adjournment. Put another way, at the end of the day, in my opinion, the Tribunal treated the Applicants fairly and did not deny them natural justice.
[22] For those reasons I would dismiss the application for judicial review.
costs
[23] The City asks for costs in the amount of $2,700 inclusive of GST and disbursements, which, in my opinion, is reasonable and is so ordered.
JENNINGS J.
SWINTON J.
MOLLOY J.: (dissenting)
INTRODUCTION
[24] I adopt much of the preceding Reasons of Jennings J, as concurred in by Swinton J., particularly with respect to the background and the standard of review (paragraphs 1-16). I also agree with the conclusions at paragraphs 17 that: (a) the Tribunal failed to properly balance the interests of the parties in considering the adjournment request on June 21, 2007; (b) the Tribunal’s offer of cross-examination of the two officers before a special examiner subsequent to their testimony on June 21 was not a suitable alternative given that their evidence in chief was heard live before the Tribunal; and, (c) the evidence of the first officer to testify on June 21 was replete with irrelevancies and hearsay.
[25] However, I do not agree with the conclusion reached by the majority. My reasoning differs from that of my colleagues in three principle respects. First, in my view, proceeding even with the evidence in chief of the two officers before the Tribunal was unfair to Mr. Ciulla in all the circumstances, particularly in light of the nature of the testimony of one of those officers. Second, I do not see the statement made by Mr. Ciulla’s agent on the next appearance before the tribunal as having any mitigating effect on the breach of natural justice and procedural unfairness that had already occurred. Third, the fact that the Tribunal subsequently acted fairly towards Mr. Ciulla does not, in my view, undo what had been done. I will deal with each of these points in more detail.
EXAMINATION-IN-CHIEF OF MAIN WITNESS FOR THE PROSECUTION
[26] The role of counsel for a person accused is not merely to cross-examine on his client’s behalf. Effective defence counsel will also ensure that his client’s rights are protected with respect to the admission of evidence and by attempting to keep the testimony of witnesses called by the prosecution within acceptable boundaries.
[27] In this case, the first witness called by the prosecution after the Tribunal refused to adjourn was P.C. Alan Cohen. After some preliminary introductory questions, P.C. Cohen was asked to tell the tribunal; about his dealings with Mr. Ciulla on December 29, 2005. This started at p. 21 of the transcript. The officer then spoke completely uninterrupted until page 24 of the transcript when the Tribunal Chairperson asked for some clarification with respect to the charges laid. Throughout this monologue by the officer, he refers in some detail to times and specifics which suggests he was referring to notes or some other written report, but there is no mention of that and no objection is made.
[28] In addition, the officer made gratuitously hostile comments in the course of this portion of his evidence. For example, he stated at page 22, “I spoke to the defendant, who was very confrontational and aggressive, as he usually is, less than happy to deal with myself in general and it seems the police in general.” This was the type of improper statement one would expect to be the subject of an objection by defence counsel. Mr. Ciulla did not object and prosecuting counsel did not intervene.
[29] P.C. Cohen continued on at page 25 in a similar vein, stating:
Again at this time the defendant’s conduct and behaviour was what I would classify to be very unacceptable, and as the multiple dealings that I’ve had with this gentleman have been outrageous, and I’m going to go into further evidence as to his lack of professionalism and his abusive language, his lack of respect for the laws, whether it be the Highway Traffic Act or ---
[30] Again, there was no objection by Mr. Ciulla and no attempt to control the witness by the prosecutor. However, at this point the Chairperson intervened to admonish the officer, stating, “Constable, those are conclusions, and rather than reach conclusions which is what we do, just give us the facts.” The witness responded, “Sure, no problem” and then launched into an account of the first dealing he had with Mr. Ciulla, unprompted by any question by counsel. Indeed, when counsel attempted to interrupt and ask P.C. Cohen what he meant by the reference to the lack of respect for authority, the officer proceeded, in an unresponsive manner, from pages 26 to 38, to describe another occasion on which he dealt with Mr. Ciulla. Again, this was essentially an uninterrupted monologue which included editorial type comments by the officer to which no objection was made.
[31] Next, the officer started to describe his first interaction with Mr. Ciulla which he placed at sometime between November 2000 and January 2001 and went from that to an account of his interaction with him in August 2006. This went from pages 39-46 of the transcript, the only interruption being when the Chairperson asked if the officer had notes of the first incident, and he said he did not have them with him. During the course of his description of these two incidents, he made several references to things Mr. Ciulla said to others that could only have been hearsay since the officer was not present when they were said. No objections were made.
[32] At page 47 of the transcript, P.C. Cohen referred to the incident he considered the “most disturbing” at which point prosecuting counsel interrupted him to ask why he called it “most disturbing”. The officer then launched into what can fairly be described as a diatribe against Mr. Ciulla for another two and one-half pages, including statements like, “it’s a privilege to be a tow truck driver”, “this went far beyond what I could ever consider reasonable”, and “this incident by far just turns my stomach in regard to just the lack of professionalism”.
[33] In my opinion, Mr. Ciulla was seriously disadvantaged by not having counsel during this examination in chief of the main prosecution witness. The witness was permitted to testify extensively on matters where it was unclear if he was relying on notes or memory, he gave hearsay evidence without even clarifying where that evidence came from, he refused to stick to giving only factual accounts of what occurred and repeatedly gave his opinion as to the matters at issue in the hearing, he was unresponsive to questions asked and he displayed extreme hostility against Mr. Ciulla. This was not a situation where providing a right for counsel to cross-examine at a later date could undo the harm that had already been done.
POSITION SUBSEQUENTLY TAKEN BY MR. CIULLA’S AGENT
[34] Once it is recognized that procedural fairness required an adjournment, I do not see why anything said by Mr. Ciulla’s agent on the next date before the Tribunal has any relevance.
[35] Cross-examining the officers before a special examiner is no substitute for live cross-examination, especially where the Tribunal heard the evidence in chief of the officers live and especially in light of the extreme prejudicial effect of the testimony of one of the officers. Given that the offer of conducting a cross-examination before the special examiner was not an acceptable alternative, the fact that Mr. Ciulla’s agent declined that offer on the next appearance before the tribunal is immaterial. It cannot be seen as altering or ameliorating the breach that had already occurred. Further, the fact that Mr. Ciulla’s agent did not object to what had already taken place is neither here nor there. The Tribunal had already made its decision and there was no obligation on the agent to ask the Tribunal to reverse it, even if that were possible, given the fact that the damage was already done.
SUBSEQUENT FAIRNESS OF THE TRIBUNAL
[36] Similarly, I do not see the subsequent fairness of the Tribunal as remedying the breach of natural justice that had already occurred when the Tribunal failed to properly consider the adjournment request. The Tribunal did discount some of the hearsay evidence given by P.C. Cohen, but not all of it. The Tribunal did caution the officer to stick to facts rather than offering his opinion, but that was early in the officer’s testimony. Thereafter, the officer continued to testify in the same manner without any restraints being placed on him. Much of the evidence was improper and ought not to have been heard at all. It was highly prejudicial to Mr. Ciulla, who was disadvantaged by being without counsel. It is simply not possible after the fact to determine the extent to which that may have inclined the Tribunal against Mr. Ciulla.
[37] As was stated by my colleagues in the majority decision, and conceded by counsel before us, the stakes were high for Mr. Ciulla and this required a high standard of fairness. The Tribunal was required to be fair all the way through the hearing. Its conduct of the hearing after the first day when the adjournment was refused, was appropriately respectful of Mr. Ciulla’s rights. However, that does not alter the unfairness of forcing him on without counsel on that pivotal first day.
CONCLUSION
[38] The fundamental question is whether or not Mr. Ciulla had a fair hearing. In my opinion, with the greatest of respect for my colleagues, this hearing was not fair. I would have ordered a new hearing before a differently constituted Tribunal.
MOLLOY J.
Released: February 25, 2008
COURT FILE NO.: 557/07
DATE: 20080225
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, molloy AND SWINTON JJ.
B E T W E E N:
CHRISTOPHER MICHAEL CIULLA and 2015928 ONTARIO LTD.
Applicant
- and -
CITY OF TORONTO and the TORONTO LICENSING TRIBUNAL
Respondents
REASONS FOR JUDGMENT
JENNINGS and SWINTON JJ. (Concurring)
and
MOLLOY J. (Dissenting)
RELEASED: February 25, 2008