CITATION: Chanachowicz v. Winona Wood Limited, 2016 ONSC 160

COURT FILE NO.: DC-15-0004-00

DATE: 20160107

ONTARIO

SUPERIOR COURT OF JUSTICE

(SMALL CLAIMS COURT APPEAL)

B E T W E E N:

PETER CHANACHOWICZ

Peter Chanachowicz, in person

Appellant

• and -

WINONA WOOD LIMITED

G. Falletta, for the Respondent

Respondent

HEARD: October 23 and December 16, 2015

REASONS FOR JUDGMENT

[On appeal from a Decision of Deputy Judge S. Gillis of the Small Claims Court at Orangeville delivered December 16, 2014]

HILL J.

INTRODUCTION

[1] The Appellant appeals a judgment requiring him to pay $6,893.62 together with pre-judgment interest from August 1, 2013 and costs as fixed by the trial judge and further appeals the dismissal of his Defendant’s Claim.

[2] Mr. Chanachowicz represented himself at trial, and as the Appellant before this court.

[3] The Appellant raised a number of grounds of appeal. Two grounds are determinative of the appeal being allowed:

(1) the fairness of the proceeding as conducted by the Small Claims Court Judge (SCCJ)

(2) the exclusion of evidence sought to be admitted by the Appellant at trial.

FACTUAL OVERVIEW

[4] The Respondent’s original claim for breach of contract damages related to a land-clearing construction job in Mattawa Township. The claim was for unpaid monies, beyond the $35,000 paid by the Appellant, said to be due and owing pursuant to the terms of the written contract of June 22, 2013 between the parties.

[5] The contract provided for clearing, grubbing and mulching of vegetation from a part of the Appellant’s rural property. The hourly-rate contract included hourly charges for use of the mulcher and excavator machines brought to the property. A term of the agreement was that “[a]ll trees removed are salvage owned by Winona Wood Limited”.

[6] The substance of the Defence at trial was a dispute as to the number of billable machine operator hours actually worked as well as the assertion that the machines sent to the property by Winona were not appropriate for efficient completion of the job resulting in excess or inflated hours recorded and charged by Winona. It was pleaded that unnecessary chainsaw man hours were billed because of machine breakdown or unfitness.

[7] In his Defendant’s Claim at trial, the Appellant pleaded that the contract was not fulfilled in part because of costs of $10,200 (plus tax) referable to mulching logs cut but not removed by Winona as agreed to.

THE TRIAL EVIDENCE

[8] Gareth Lowe, the sole owner of Winona, testified for the Respondent at trial along with Matthew Vargo, one of Winona’s employees who worked on the Appellant’s property on the contracted job in 2013.

[9] The Appellant testified at trial. His efforts were unsuccessful to have the court admit the witness statement of Tammy Vargo (a heavy equipment operator employed by Winona at the Appellant’s property) and the expert report of Robert Baker of Baker Forestry Services, Nursery and Consulting.

[10] Consistent with the pleadings a number of subjects were explored in the questioning and evidence at trial including:

(1) the accuracy of the photos of the Appellant’s property shown to Mr. Lowe prior to the June 27, 2013 contract insofar as this related to such matters as the scope of work, the choice of machinery sent to the job-site, and the informal discussions regarding an overall budget of $25,000 - $30,000 for the work to be completed

(2) whether the Appellant was billed excessive machine uptime hours taking into account:

(a) whether the machines and crew assigned to the clearing job were equal to the task of efficient and economical clearing of the land

(b) the question of the accuracy of the reported meter readings of hours operated on the machines

(c) whether the Respondent could justifiably charge for time when machinery was in cool-down mode given that the contract expressed the machine hourly rates to be “when clearing land”

(3) when, in terms of “Balance on completion”, the contract was ‘completed’ – whether it was when the Appellant asked the plaintiff’s crew to stop, whether it was when the plaintiff was to have removed the felled logs salvage, or at some other point

(4) whether the plaintiff was in breach of the contract for failing to remove the salvage logs from the Appellant’s property.

THE TRIAL MANAGEMENT APPROACH OF THE TRIAL JUDGE

Imposition of a Timetable

[11] Near the outset of the December 16, 2014 trial, when the trial judge inquired as to the expected length of the proceeding, counsel for Winona stated, “I can’t see it taking longer than half an hour between my two witnesses”. The Appellant did not respond with a time estimate while indicating that he had a number of documents to be admitted some of which were on DVDs.

[12] The proceeding then paused briefly to allow the trial judge to review the pleadings because he had “not [been] able to find them”.

[13] The trial judge then observed: “I am just anxious to get started with the case”. Counsel for Winona made an opening. The Appellant elected to defer his opening until his case commenced.

[14] The record suggests that, by about 10:30 a.m., Mr. Lowe began his evidence in-chief. After some time (Transcript (Tr.) – pp. 12 to 24), the court took over questioning of Mr. Lowe (Tr. - pp. 24-33). The witness’ in-chief testimony then continued (Tr. – pp. 33-39) until the court again posed a number of questions (Tr. – pp. 39-44). During continuation of the in-chief testimony (Tr. – p. 50), the court asked counsel, “how much longer will you be with Mr. Lowe, do [you] believe?” The response was “a couple [of] minutes”. In light of that response, the court directed that the in-chief examination be completed before the mid-morning break. The examination continued (Tr. – pp. 51-56) and was completed at which point the court directed a recess “for 15 to 20 minutes”.

[15] It appears that the Appellant’s cross-examination of Mr. Lowe began shortly before noon and continued (Tr. – pp. 58-82) when the trial judge observed that it was 12:53 p.m. and that the lunch break would start at 1:15 p.m. The judge further stated:

We will take one hour, but we are going to have to budget our time here because I am not parting with this. This case will conclude today by 4:30 allowing me to render a decision by five o’clock. That is my custom. I do not reserve decisions. It is just not what I do. So, I am going to ask – I understand that you are a layman, sir, but you are an educated, sophisticated one, and I am going to ask you to pick up the pace of the questions, not be repetitive, and proceed as expeditiously as you can in your line of cross-examination. Because if we break, if we return at two o’clock, I want this cross-examination to be finished by three.

[16] In response, the Appellant stated, “I’ll do my best, Your Honour”. Cross-examination continued (Tr. – pp. 83-94) until the court noted that it was 1:07 p.m. Questioning again proceeded (Tr. – pp. 94-101) when the court stated:

We are now going for luncheon recess. I will rise until two o’clock. We will proceed. This cross-examination with take exactly not more than one hour more and we will start at two o’clock. It will be over by three, because you just – I gave lay persons every latitude and every chance to prove their case, but you are belabouring points which, frankly, to my mind, are not assisting me in the deliberation of the case. So, we are back at two o’clock and you will have one hour to complete cross-examination.

[17] Before adjourning, the court asked counsel if he had other witnesses for the plaintiff’s case. The response was that there remained a single witness who would only take “literally five minutes”. When the Appellant then sought to have the court direct Mr. Lowe “to give short ‘yes’ or ‘no’ answers”, the trial judge declined to do so observing that:

No, I do not think he is having any – I do not have any difficulty with his answers. I am having a little difficulty with your questions. I am having a real difficulty. The repetition of them, and the confusion which they tend to lead to.

[18] It appears that court resumed at about 2:00 p.m. when the Appellant’s cross-examination of Mr. Lowe continued, together with discussion of the admissibility of documentary evidence the Appellant proposed to introduce (the Tammy Vargo, Rob Baker material) (Tr. – pp. 104-153). At one point, the trial judge stated: “you have exactly seven - - eighteen minutes before your cross-examination, sir, is over”. Subsequently, the trial judge stated:

… you are in control of the questions, which it is now three o’clock, so you had better draw to your conclusion within five extra minutes I will give you.

[19] Cross-examination then continued (Tr. – pp. 154-158) until the Appellant posed the question to the witness, “Did you threaten to abandon the job if I were not to give you the cheque?” Counsel for Winona objected on the basis that such an allegation had not been pleaded. The Appellant submitted that it had. The witness provided a response before counsel renewed his objection. As the Appellant began to respond, “Paragraph seven in my…”, he was cut off by the trial judge who stated:

So, it is now 3:07 and the cross-examination is now concluded. You may sit down. And I make this ruling in light of the rules of the senior Court that speaks to the important principles of proportionality, and that is to say that all steps in the process of a trial, and I remind everyone that the Trial Judge is in control of that process that is before him or her, is charged with an obligation and is entitled to, at some point in the proceedings, indicate that the cross-examination is no longer of any assistance. It is repetitious, it is in a sense badgering, and frankly, this all goes to a principle that is enshrined in the rules of proportionality. Whatever further time could have been spent after 3:07 p.m., is not going to assist me in the slightest, in my view, with respect to my determination of the issues. I reminded the defendant on several occasions to that effect and made several rulings to the effect that I was not being assisted by the approach that was taken or the questions that were made, and so the cross-examination is concluded.

[20] Asked if there was any re-examination, counsel for Winona responded, “I have a couple of questions”. After 8 questions (Tr. – pp. 160-162), Mr. Lowe’s evidence was completed.

[21] Matthew Vargo then testified in-chief for the plaintiff (Tr. – pp. 163-168) with cross-examination of the witness by the Appellant commencing at about 3:15 p.m. (Tr. – pp. 168-179). At a point in mid-questioning, he was interrupted by the trial judge who stated:

All right. It is 3:30. There is no further questions of this witness. We are done for the same reasons. For the same reasons, but I will have to repeat myself, in terms of any reasonable princip[le] of proportionality, you have wasted the time of this Court in this cross-examination. There is no doubt that this was a time plus contract, was not a fixed price contract at all. And from that, all these questions, we have the root of total irrelevance.

[22] As the Appellant attempted to make a submission (“Your Honour…the timestamp…”), he was again cut off by the court saying:

Do you want to take the witness box? Are you going – because you have one half hour to give your evidence.

(Tr. – p. 180)

The trial judge did not inquire of plaintiff’s counsel as to whether he wished to re-examine Mr. Vargo.

[23] At about 3:30 p.m., the Appellant took the witness box to commence his evidence. Interspersed in the in-chief presentation (Tr. – pp. 181-197), were questions and observations by the trial judge and various rulings. At a point, the court stated that the Appellant could proceed “for ten more minutes, until four o’clock, because on the principle of proportionality, you are not assisting me in my work”. Subsequently, the court stated:

I do not think anymore testimony is going to help, actually. Chanachowicz, I think – I think you may as well resume your place at counsel table. I do not think there is anything that you can assist me with except by way of repetition.

[24] These comments led to the Appellant asking if he could present his claim. The court agreed:

You want to proceed to your claim? You can proceed to your claim, if you wish.

Proceeding now to the defendant’s claim. Yes, please give me your evidence with respect to schedule B of the defendant’s claim.

[25] In the next few minutes (Tr. – pp. 199-206), as the Appellant sought to explain the issue with the cut trees not removed by Winona, the trial judge interjected on approximately 30 occasions. Then, in mid-sentence, the Appellant was cut off with the court stating:

It is now 4:04 and that concludes your evidence. I am not hearing any more evidence because it is not assisting me in the slightest. I am sorry. I endeavour - - I have endeavoured the entire day to give you every opportunity to give some clear evidence in support of anything that you wanted to say but whether by way of your defence or the defendant’s claim and I am left now at 4:05 p.m. without the assistance that I have asked of you. You are a lay person, but you are an intelligent man, you are a sophisticated man, and I do not know why you have not been able to assist the Court, but you have not much done so. You can resume your place at counsel table, please.

[26] Before leaving the witness box, the Appellant inquired, “There will not be any cross-examination?” to which the trial judge replied:

No. I do not need it. Because when I say I do not need it, what that means is that nothing that you testified about requires a cross-examination in regard to the facts as best as I can determine those facts now at this point in the day’s work of this trial.

[27] The Appellant was not asked if he had further evidence to call.

Rulings Without Submissions

[28] During examination in-chief of Mr. Lowe, an issue arose as to whether the plaintiff could tender a particular email as an exhibit. The trial judge quite properly heard submissions from the parties and made a ruling (Tr. – pp. 44-50).

[29] At a number of points thereafter during the trial, the court purported to make admissibility rulings without first asking for submissions, for example:

(1) cross-examination of Mr. Lowe respecting the capability of a particular machine (Tr. – pp. 119-120 / “I am not permitting any further questions with respect to this line … No further questions along this line will be allowed”)

(2) an email between the Appellant and Matt Warfel (Tr. – pp. 127-128 / “At the very least it has to be in affidavit form … I will not have any regard to an email to a potential witness … not permissible”)

(3) cross-examination of Mr. Lowe about a mulching machine (Tr. – pp. 129-130 / “I am not allowing any questions … I am not permitting any. And besides which, strikes me to be spurious”)

(4) the coincidence that the machine log readings often ended with .9 (Tr. – pp. 137-138 / “That is not a proper question”)

(5) whether the plaintiff’s failure to remove cut logs amounted to a breach of the contract (Tr. – pp. 141-142 / “What has that got to do with the case? It has got nothing to do with the case … as I understand it, he [the plaintiff] had no obligation to remove the logs. Could be wrong but, you know, when you give your evidence …”)

(6) a hearsay ruling as the Appellant sought to explain what he learned from a Winona reference (Tr. – p. 182) / with the court not intervening when Mr. Lowe provided information related to him by the Appellant’s neighbour (Tr. – pp. 23-24 later repeated in the court’s reasons for judgment (Tr. – p. 216).

Comments Risking Pre-judgment Perception

[30] A live issue at trial was the accuracy of pre-contract photos given by the Appellant to Mr. Lowe said to be relevant to the scope of work and their informal discussions about an overall estimate to complete the work. Just prior to the luncheon break, during the ongoing cross-examination of Mr. Lowe, the trial judge told the Appellant that when he gave evidence he could relate whether the photos he provided were of his property or of his neighbour’s property. The court then added:

But right now I am tending to think that you did, in fact, give Mr. Lowe photographs not of your property, but of a neighbour’s for the purposes of misleading him. That is where my mind is right now, so I will be very anxious [to hear] from you to the opposite effect.

[31] During the Appellant’s cross-examination of Mr. Vargo, he attempted clarification of the relation between a time stamp on a photo and when work was being done on the property. Counsel for the plaintiff intervened to provide his own explanation (“Your Honour, this was when that was sent from my client to him”). The trial judge then observed:

Yes, I know. I know that. He is just misleading me.

(Tr. – p. 179)

[32] During cross-examination of Mr. Lowe to establish that he had in fact received some photos of the Appellant’s property although earlier suggesting in his testimony that all photos received from the Appellant were of a neighbouring property, the court and the witness disagreed that he had earlier said “all” (Tr. – p. 109). The clear implication of Mr. Lowe’s earlier evidence was that that was the case (for example Tr. – p. 35 “… so the pictures that were provided were substantially different”; see also testimony at Tr. – pp. 36-38, 68, 71, 73, 77; Plaintiff’s Claim, para. 9; Statement of Defence of Winona, para. 5).

Comments By The Court

[33] During the Appellant’s cross-examination of Mr. Lowe suggesting that the witness, even before executing the contract, planned to use the subject of the accuracy of the photos of the property provided by the Appellant to explain non-completion of the contract in case something went “wrong”, without objection by the plaintiff’s counsel, the court interrupted to state, “That is a nonsensical question … Do not answer the question” (Tr. – p. 78).

[34] Subsequently, in this case where credibility was an issue, the court queried why the Appellant was cross-examining Mr. Lowe about photos sent from him to the Appellant. When the Appellant sought to explain the relevance, the trial judge stated that he had ruled that the topic was irrelevant to any determination he had to make. No such ruling had in fact been made. When the Appellant further submitted that the line of cross-examination sought to establish that Mr. Lowe had made a false statement in his affidavit, the court responded, “So, he is incorrect on a statement in his affidavit” (Tr. – pp. 88-90).

[35] At another point when the Appellant was probing whether a video on the plaintiff’s website had been deliberately disabled during the trial, the court remarked that, “These are peripheral, wild allegations” (Tr. – pp. 114-115).

[36] When the Appellant cross-examined Mr. Lowe respecting preservation of the cut logs to avoid staining (“Did you take any measures to save those logs from staining?”), the court stated: “Oh my. What a tarpaulin over your entire property, perhaps you are envisaging?” (Tr. – p. 152).

[37] The Appellant submitted that the trial judge assisted Mr. Lowe in cross-examination by providing evidence on his own relating to the issue of the machine cool-down mode (Tr. – p. 132 / “And outside ambient temperature”). Although Mr. Lowe described his machines as having an hour meter “just like a car with a speedometer” (Tr. – p. 26), when the Appellant, it seems quite accurately, cross-examined the witness suggesting that the meter was “like an odometer in your car”, the trial judge stated, “No, actually that’s inappropriate as a premise…” (Tr. – p. 135).

[38] When the Appellant commenced his testimony, he sought to make a correction respecting an earlier factual submission of plaintiff’s counsel. The trial judge stated:

No, not starting there … No, you are not starting there because it is totally irrelevant to the case.

(Tr. – p. 181)

[39] The Appellant then proceeded to give the background to meeting Mr. Lowe and checking with one of the references of Winona. When the Appellant provided some information as to what that reference (AECON) told him, the court stated: “That is called hearsay … So, my pen stopped at the end of AECON Construction gave a favourable quote…” (Tr. – p. 183).

Allowing Commentary By Plaintiff’s Counsel

[40] At points during cross-examination, Mr. Lowe was argumentative without being checked by the court. At one point, when the witness responded, “You’re kidding me, right?”, plaintiff’s counsel interjected to say to his witness, “If you don’t, just say you don’t. Just answer the question” (Tr. – p. 107).

[41] At another point during the Appellant’s cross-examination of Mr. Lowe when the question was posed, respecting a mulching head on an excavator, “It’s a preferred configuration to mulch vertically, rather than lying on the ground?”, without making a formal objection, plaintiff’s counsel stated: “You’re giving evidence or you’re asking a question?” (Tr. – p. 118).

[42] Subsequently, again without formal objection or court intervention, counsel for the plaintiff, stated: “Are you giving evidence or are you asking a question?” (Tr. – p. 148).

Opportunity For Closing Submissions

[43] Once the evidence was terminated by the court, the trial judge immediately gave his oral judgment without extending an opportunity to the parties to make submissions. At one point in the reasons for judgment, the court stated, “Mr. Lowe’s counsel, and I did not ask for submissions, but I am sure was bound to argue that…”.

EXCLUSION OF EVIDENCE

Exclusion of Tammy Vargo’s Evidence

[44] Prior to trial, the Appellant served and filed the September 15, 2014 typed and signed statement of Tammy Vargo. Her statement provided information about operations on the Appellant’s property as well as information touching on the accuracy of the machine hour reading logs.

[45] During the Appellant’s cross-examination of Mr. Lowe about the accuracy of the machine hours charged by the plaintiff, the Appellant sought to challenge the witness’ account as contradicted by Ms. Vargo’s statement. Counsel for the plaintiff described Ms. Vargo’s statement as “a self-serving statement”. When the court asked who Ms. Vargo was, and the Appellant began to respond (“Tammy Vargo …”), he was cut off by the court saying:

Well now, wait. Tammy Vargo. Who is she? Counsel, who is she?

[46] Counsel for the plaintiff described Ms. Vargo as the “ex-wife” of his next witness and a former employee of Winona who had “worked on site”. Counsel added with respect to the witness statement:

It’s not a sworn affidavit … I would submit that this is not admissible. So, it’s just a statement and we don’t have her here as a witness to corroborate anything stated in this.

[47] Without asking the Appellant for submissions, the court ruled:

THE COURT: Yes, I cannot rely on this statement.

APPELLANT: There was a…

THE COURT: Because counsel for the plaintiff cannot cross-examination – cannot cross-examine Tammy Vargo who, I guess, is a disaffected and disenchanted wife of…

THE WITNESS [LOWE]: Exactly.

THE COURT: …of an employee that was on site.

THE WITNESS: Exactly.

THE COURT: Could you imagine the motivation she may have had to write any statement at all about her ex-husband? I am not going down that route. This is a court of law. I will have no regard to anything in that statement and I turned it over. I am not even looking at it.

(Tr. – pp. 138-140)

[48] The Appellant was effectively prevented from informing the court of additional relevant facts:

(1) Tammy Vargo’s name was on the Respondent’s Form 13A List of Proposed Witnesses (dated June 10, 2014) describing Ms. Vargo as the “plaintiff’s foreman”

(2) there was a November 14, 2014 Superior Court of Justice order granting the Appellant’s pre-trial motion allowing him to tender Tammy Vargo’s written statement at the trial.

[49] At this point, when the Appellant sought to explain that the plaintiff had earlier agreed to have Ms. Vargo’s statement admitted, he was again interrupted by the court stating:

You have my ruling. It stays and stands. Getting into a gossip match, for heaven’s sakes.

(Tr. – p. 140)

[50] Subsequently, in an exchange relating to the Appellant’s defence, the trial judge said: “… you have got the statement of Mr. Vargo’s estranged wife, which I would not for a moment read…” (Tr. – p. 193).

Exclusion of Rob Baker’s Evidence

[51] Prior to trial, the Appellant served and filed Mr. Baker’s June 23, 2014 brief report which described the contents of what he saw in various photographs provided to him and provided an opinion respecting the adequacy of the observed equipment for the clearing project and an opinion respecting the staining of trees once felled.

[52] During the Appellant’s cross-examination of Mr. Lowe relating to the inadequacy of the Winona equipment brought to the job site, the trial judge inquired, “are you calling any experts?” The Appellant responded that he had an expert’s report which had been served. Counsel for the plaintiff objected on the basis that it was not clear from Mr. Baker’s report what photographs he had examined – “He could have called him today to substantiate that”. The Appellant responded by saying, “The pictures and the full report were filed with the Court and you have the same” and the material was “on the file”.

[53] Subsequently, during the Appellant’s case, the trial judge stated: “…you have not got experts here…you have the report, and the report I have read it. I have compared it to what Mr. Lowe has to say.” This exchange then transpired:

APPELLANT: And the report says that…

THE COURT: Yes, I know what the report says…

APPELLANT: Right.

THE COURT: …and I reject it. And besides which, a report is a notice that you intend to call the expert. If it were a – if it were a doctor’s report, under our Evidence Act of Ontario, a doctor’s report can be received into evidence for its contents – the truth of its contents, but an expert of an engineer or an arborist, or something of that nature, that report does not go into evidence, unless the Court is satisfied with its veracity and its – and is confident with respect to it, and the witness – the expert should be called to give evidence in respect…

APPELLANT: His credentials were attached.

THE COURT: …to – I know. But that does not make the day.

ANALYSIS

Active Trial Management

[54] A trial court has inherent jurisdiction “to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner”: R. v. Cunningham, 2010 SCC 10, at para. 18; Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at paras. 237, 252 (leave to appeal refused [2010] S.C.C.A. No. 91); R. v. Horan (2008), 2008 ONCA 589, 237 C.C.C. (3d) 514 (Ont. C.A.), at para. 33; Marchand (Litigation guardian of) v. Public General Hospital of Chatham, [2000] O.J. No. 4428 (C.A.), at para. 68 (leave to appeal refused [2001] S.C.C.A. No. 66).

[55] Active trial management is an essential judicial duty in furtherance of the complementary objectives of effective, fair and efficient trial process. The court’s management authority, settled within a broad discretion, ensures that pursuit of these objectives is a harmonious and balanced exercise.

[56] Active trial management is an integral aspect of overall case management. Of course, “[c]ase management is not an end in itself” as “the ultimate aim of a court is attainment of justice and no principle of case management can be allowed to supplant that aim”: Queensland v. J.L. Holdings Pty Ltd. (1996), 189 C.L.R. 106 (H.C. Aust.), at p. 154; R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.), at p. 146. This is so whether the proceeding is criminal, quasi-criminal, or private civil litigation.

[57] A trial judge must not only ensure that a trial is fair but also must maintain the appearance of fairness in order to ensure the credibility of its verdict and to maintain public confidence in the administration of justice: R. v. Brouillard (1985), 17 C.C.C. (3d) 193 (S.C.C.), at p. 199. Failure in this regard amounts to a miscarriage of justice.

[58] Depending on the circumstances, within the bounds of what is fair and reasonable, a trial judge may engage in firm, robust and continuous trial management to anticipate problems before they arise, to avoid undue delay and an unnecessarily protracted proceeding, to maintain order and momentum, to ensure that admissible evidence only is presented in a clear and organized manner focused on the real issues, and to have regard both to unnecessary expense not being incurred and to judicious use of limited resources.

[59] As recognized by the trial judge, attention to these factors through active trial management is necessarily, in some measure, about keeping a case within a temporal range of the time which it should reasonably take to fairly try the relevant issues:

Counsel and … the trial judge have a responsibility to manage the processes having regard to the principle of proportionality as a vital prerequisite to an efficient and effective justice system.

(GasTOPS Ltd. v. Forsythe, 2012 ONCA 134, at para. 97)

Judicial proceedings are not designed on the basis of a cost-benefit analysis, but there surely must be an element of proportionality that informs the manner in which trials are conducted. In this case, there has been a significant expenditure of resources with no benefit that I have been able to discern. The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants.

(R. v. Omar (2007), 2007 ONCA 117, 218 C.C.C. (3d) 242 (Ont. C.A.), at pp. 252-3)

[60] In “the real world of trial management, perfect solutions are unattainable”: R. v. Quansah, 2015 ONCA 237, at para. 127. And practically speaking, “no trial is perfect”: R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600 (C.A.), at para. 72 (notice of discontinuance filed: [2009] S.C.C.A. No. 186).

[61] Because, at times, an otherwise simple or objectively straightforward case may be “rendered unduly and unnecessarily complex by the litigants” (Remo Imports Ltd. v. Jaguar Cars Ltd., 2007 FC 64, [2007] F.C.J. No. 99, at para. 7), a trial judge must be vigilant to provide clear and reasonable directions.

[62] What trial management tools are most appropriate is a fact-sensitive exercise of discretion having regard to the totality of the circumstances including the presence of self-represented litigants, the sophistication of the parties, the issues framed by the pleadings, the degree of organization of the case, time estimates provided to the court, the existence of agreed facts or admissions, etc. Approaches may include the following:

(1) at the outset, secure clear statements from the parties as to what aspects of the pleadings are live issues for trial and the means by which burdens of proof will be discharged

(2) seek presentation of a witness and exhibit list and the relevance of same to issues in the case

(3) obtain estimates from the parties respecting the time for witness examinations and oral arguments

(4) identify admissibility of evidence issues and determine whether an offer of proof or voir dire is required or whether the issue is really a matter of weight

(5) set time limits for oral argument

(6) maintain control of questioning, and in particular cross-examination, to limit the evidence to what is admissible and relevant to real issues in the proceeding, while avoiding repetitive or cumulative evidence

(7) exercise judicial intervention in addition to clarify evidence and relevance, and to avoid confusion or mistreatment of witnesses.

[63] Some of these approaches warrant additional comment.

[64] Judicial intervention should be undertaken without commandeering the case, without evidencing pre-judgment or disbelief/belief in a witness’ testimony, a closed mind or engaging in conduct giving an appearance of favouring either party. “[I]t is the quality of the intervention rather than the quantity that matters”: R. v. Freeland, [2013] EWCA Crim 927, at para. 9. Wherever possible, judicial intervention respecting the questioning of a witness should be reserved until the witness’ testimony is at an end: The Chippewas of Mnjikaning, at para. 237; R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at pp. 230, 233 (leave to appeal refused [1986] 1 S.C.R. xiii); Stucky, at paras. 61, 63-5, 69, 78, 84, 89; DPP v. Heaphy, [2015] IECA 61, at paras. 14, 16.

[65] Persistent interference by a trial judge might well cause any reasonable bystander to conclude that the accused did not have a fair trial: R. v. Hinchey (1997), 111 C.C.C. (3d) 353 (S.C.C.), at pp. 358, 403; R. v. Schmaltz, 2015 ABCA 4, at para. 19; Lennox v. Arbor Memorial Services Inc. (2001), 56 O.R. (3d) 795 (C.A.), at p. 800; Majcenic v. Natale, [1968] 1 O.R. 189 (C.A.), at p. 204.

[66] Always having regard to the perceptions a self-represented litigant may reasonably have, a trial judge generally has greater liberty during argument or closing submissions to challenge a party’s position or to express preliminary thoughts on issues: R. v. Sanghera, 2015 BCCA 326, at para. 59 (appln for leave to appeal filed [2015] S.C.C.A. No. 375); Schmalz, at para. 54.

[67] Robust trial management cannot eliminate elements of a fair trial for the sake of efficiency – for example, the right to be heard includes the opportunity to make submissions. The right to be heard, the audi alteram partem rule, is a fundamental component of natural justice: Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722, at paras. 60-62; R. v. Taillefer et al. (1978), 42 C.C.C. (2d) 282, at p. 84; R. v. Dodson (2000), 142 C.C.C. (3d) 134 (Ont. C.A.), at p. 142; Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), [1995] 2 S.C.R. 781, at para. 29.

[68] Effective cross-examination is recognized “as the core of a fair trial” (R. v. Henry, 2005 SCC 76, at para. 3) and the right to cross-examine witnesses, while not absolute, should be without significant and unwarranted restraint: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at p. 206. That said, prolix, repetitive, confusing, abusive, irrelevant, unstructured and misleading cross-examinations are subject to judicial control: Lyttle, at paras. 44-5; R. v. Mack, 2012 ABCA 42, at para. 58 (Affd 2014 SCC 58, [2014] 3 S.C.R. 3); R. v. Allooloo, 2010 NWTCA 7, at para. 6 (leave to appeal refused [2010] S.C.C.A. No. 389); R. v. Ertmaed (2006), 2006 BCCA 365, 211 C.C.C. (3d) 49 (B.C.C.A.), at p. 71; R. v. Pires (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.), at p. 466; R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.), at p. 327; R. v. Osolin (1994), 86 C.C.C. (3d) 481 (S.C.C.), at p. 517; Delaware v. Van Arsdall 475 U.S. 673, 679 (1986); R. v. Proverbs (1983), 9 C.C.C. (3d) 249 (Ont. C.A.), at p. 262.

[69] As to the imposition of time limits on the examination of witnesses, these authorities are instructive:

We do not consider that it is allowable, in advance, to place any restriction on the length of time to be consumed by cross-examination. The rulings of the trial Judge should be made when questions are put or about to be put and should be confined to the propriety of the question or questions in issue.

(R. v. Bradbury (1973), 14 C.C.C. (2d) 139 (Ont. C.A.), at p. 141)

Setting rigid time limits in advance for cross-examination is rarely appropriate – as experience has shown in civil cases; but a timetable is essential so that the judge can exercise control and so that there is a clear target to aim at for the completion of the evidence of each witness. Moreover the judge can and should indicate when cross-examination is irrelevant, unnecessary or time wasting. The judge may limit the time for further cross-examination of a particular witness.

(emphasis of original)

(Protocol issued by the Lord Chief Justice of England and Wales, “Control and Management of Heavy Fraud and Other Complex Criminal Cases” (22 March 2005), at ‘6. The Trial, v) Controlling prolix cross-examination)

[70] While some jurisdictions have recently favoured time limits for the cross-examination of vulnerable witness (Begg v. Her Majesty’s Advocate, [2015] HCJAC 69; R. v. Lubemba, [2014] EWCA Crim 2064), capping the duration of examinations is inappropriate. A trial court may inquire into the anticipated length of an examination (R. v. A and Others, [2007] EWCA Crim 2485, at para. 41) and even set “reasonable and flexible target[s]”: Report of the Review of Large and Complex Case Procedures (Nov. 2008), The Honourable Patrick LeSage and M. Code (as he then was), at pp. 73-74.

[71] A trial judge is entitled to the presumption of integrity, which includes the presumption of impartiality: R. v. Lindsay, 2011 BCCA 99, at para. 36 (leave to appeal refused [2011] S.C.C.A. No. 265); R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 19. That said, “[a] fine balance is to be drawn by judges who are expected both to conduct the process effectively and avoid creating in the mind of a reasonable, fair minded and informed person any impression of a lack of impartiality”: “Ethical Principles for Judges”, Canadian Judicial Council, at p. 33; The Chippewas of Mnjikaning, at para. 238. “The test for pre-judgment is whether a reasonable observer would conclude that the trial judge was engaged in premature decision making”: Schmaltz, at para. 54.

[72] Essential to the application of active trial management is maintenance of respect and civility through judicious demeanour: The Chippewas of Mnjikaning, at paras. 235-242. The court must preserve its neutrality and act with restraint in conducting a proceeding. Frustration with litigants or their questions or positions should not result in editorializing, sarcasm, ill-considered or discourteous language from a trial judge. Of course, dismissive or mocking conduct by the court is unacceptable: R. v. Duong (2007), 2007 ONCA 68, 217 C.C.C. (3d) 143 (Ont. C.A.), at p. 170; Freeland, at paras. 13, 15 (trial judge’s remark “about putting his pen down was, in our view, discourteous and should not have been made…”).

Application of Principles

[73] In my view, the trial judge’s failure to permit the self-represented Appellant to make submissions at the conclusion of the trial is itself a sufficiently egregious error, and denial of fundamental justice, upon which to allow the appeal.

[74] The Respondent rightfully conceded that the trial court erred in not allowing the Appellant an opportunity to be heard. While the processes of the Small Claims Court may be “summary” in nature, neither expressly or implicitly can there be any suggestion that a litigant can be deprived of the right to make submissions before a verdict is rendered. The trial judge was legally obliged to extend this opportunity to the self-represented Appellant. Instead, the Appellant’s evidence was cut off in mid-sentence, he was informed that there would be no cross-examination, he was instructed to go and sit down, and the trial judge immediately commenced an oral judgment.

[75] Although the Respondent submitted that it was unlikely that submissions by Mr. Chanachowicz would have impacted upon the ultimate decision of the court, the error here rendered the trial unfair and resulted in a proceeding which appeared unfair.

[76] In any event, regrettably, there is an accumulation of other facts which collectively call into question the fairness of the trial as well as the appearance of the fairness of the proceeding.

[77] I do not disagree with the trial judge’s observation that the Appellant appears to be an educated individual. It is apparent that English is his second language. Mr. Chanachowicz is clearly intelligent. There is no evidence, however, that he has any legal training or experience appearing before the courts.

[78] The claims before the trial court were relatively straightforward. The quantum of damages claimed by the respective parties were not significant. But to litigants before the court, fair resolution of their disputes was important. The trial judge’s sense that the trial should be completed in a day was entirely reasonable.

[79] Not simply from the advantage of hindsight, but as a prudent practice in presiding over litigation involving one or more self-represented litigants, the court should routinely, at the outset of trial, provide instructions and information about trial procedure, perhaps including the scope of the Browne and Dunn rule (which became an issue late in the trial in this case), caution about adherence to the pleadings, preliminary review of what the parties consider the live issues to be, the expected manner of their discharge of proof of essential facts, discussion of admissions and agreed facts and documentary exhibits and testimonial evidence of witnesses not appearing, information to a defendant that he can prosecute his Defendant’s Claim in part through cross-examination of plaintiff witnesses, consultation about a trial timetable, etc.

[80] Having spent time with the Appellant on parts of two days in this appeal, he is clearly, like so many self-represented litigants, fixated on certain themes and immersed in the minutiae and detail of parts of the story. Some of his focus is quite relevant, other aspects less so, and parts not at all relevant. Lack of structure and focus can soon frustrate the trier of fact as clearly occurred in this case. This is why a preliminary discussion of the case is so important before evidence is called. Indeed, where, as in the present case, there was a Defendant’s Claim, the trial judge could well have exercised his discretionary trial management authority to have both parties provide openings before evidence was called.

[81] The trial transcript, and the Appellant’s appearance before this court, evidence that he is polite and respectful of the process.

[82] While the trial judge gave some subtle indications between the 10:00 a.m. start of the trial and 12:53 p.m. (just before the luncheon recess) that he was conscious of the pace of the evidence (see paras. 13-14 above), including taking on a significant part of Mr. Lowe’s examination in-chief, he did not drill down on the timetable issue until he unilaterally announced that the Appellant’s cross-examination of Mr. Lowe was to be completed by 3:00 p.m., and that the evidence would conclude by 4:30 p.m. because his custom was not to reserve judgment and he wanted to give a decision “by five o’clock”.

[83] Context is important here:

(1) while plaintiff’s counsel had informed the trial judge that his 2 witnesses would take ½ hour, the in-chief testimony of Mr. Lowe lasted approximately 1 hour between roughly 10:30 and 11:30 a.m.

(2) by 12:53, the Appellant had not cross-examined Mr. Lowe for longer than his in-chief testimony took to present

(3) the trial judge expected that Mr. Lowe’s cross-examination could reasonably last until 3:00 p.m. leaving 1 ½ hours until the announced 4:30 stop-time – a time period which would include the plaintiff’s second witness, potentially an afternoon break, and the entire case of the Appellant including his Defence Claim

(4) there was no consultation or invitation for submissions about timing before the court set, not targets, but an inflexible schedule.

[84] Apart from the problems of the trial judge purporting to place restrictions in advance on the length of time of examinations, the imposition of a timetable came approximately half-way through the court day. This is precisely the problem of not, at the outset of the case, coming to terms with flexible targets for the completion of witnesses’ testimony. Further, even with firm and fair trial management, and the best intentions of all involved, a trial may, for one reason or another, not complete in a day. It is inappropriate for a trial judge, in a Procrustean bed-like approach, to make the duration of a trial conform to the judge’s invariable personal preference not to depart from the courthouse with a continuation or a reserved judgment.

[85] The inflexibility of the trial judge’s approach became even more readily apparent when the Appellant’s cross-examinations of Mr. Lowe and Mr. Vargo were terminated by the court before the Appellant had completed those examinations. Although, prior to the lunch break, the trial judge indicated that the case was to conclude by 4:30 p.m., the court subsequently informed the Appellant that his evidence, which commenced shortly after 3:30 p.m. would end by 4:00 p.m.

[86] The Appellant submitted that his carefully planned examinations were improperly curtailed when the trial judge micro-managed his questioning, interfered at critical points causing lines of examination to collapse, and repeatedly nudged him toward the witness box, all in the context of an unfairly imposed timetable. The Respondent submitted that while the trial judge became frustrated he correctly applied proportionality principles and correctly characterized the Appellant’s cross-examination of Mr. Lowe as repetitive and irrelevant in some respects. The short time that remained for the Appellant to present his own case was “his own fault”. My review of the trial transcript leads me to conclude that while there was some unnecessary repetition of questioning subjects by the Appellant, there is no support for the trial judge’s finding that the Appellant was “badgering” the witness or for the court’s apparent belief that characterization of the parties’ agreement as “a time plus contract” exhausted the justiciable issues for trial including such issues as inflation or inaccuracy of billed hours and what constituted completion of the contract.

[87] The trial record supports the Appellant’s submission that the presentation of his case was unreasonably curtailed by the imposition of inflexible time limits. This reality and the denial of an opportunity to make final closing submissions rendered the trial unfair and, to a reasonable and informed observer, it would appear that the trial had that character particularly within the broader context of other unfortunate features of the case including:

(1) rulings by the court from time to time without seeking submissions from both parties

(2) unfortunate language used by the court: “spurious”. “that is a nonsensical question”; “These are peripheral, wild allegations”; “What a tarpaulin over your entire property…?”; “So, my pen stopped…”; “I want to hear your real evidence”

(3) against the background of judgment immediately after terminating the evidence, without closing submissions, various observations before the evidence was completed risked perception of pre-judgment – “It has got nothing to do with the case … Could be wrong…”; “I am tending to think that you did, in fact, give Mr. Lowe…”; “He is just misleading me”

(4) while closely regulating the Appellant’s conduct of the case, the trial court did not check plaintiff’s counsel’s interventions (paras. 40-42 above) or reign in Mr. Lowe who slipped in evidence during discussion between the court and the litigants (para. 19 above and para. 47 below)

(5) the summary, and erroneous, exclusion of witness statement evidence advanced by the Appellant as described more particularly below.

[88] In all of the circumstances, without the need to make a reasonable apprehension of bias finding, the Appellant has nevertheless established that the conduct of the trial was a miscarriage of justice.

Admissibility of Witness Statement Evidence

[89] Section 25 of the Courts of Justice Act, R.S.O. 1990, Chap. C.43 (as amended) (the Act) reads:

Summary hearings – The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.

[90] As a branch of the Superior Court of Justice, the Small Claims Court is a forum for the resolution of relatively minor civil disputes. Litigants are frequently self-represented. The adjudicative processes are meant to be as uncomplicated and streamlined as possible so that costs are modest and cases are not unduly protracted.

[91] Section 27 of the Act provides that:

27. (1) Evidence - Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.

(2) Idem - Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.

(3) Idem - Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible by reason of any privilege under the law of evidence; or

(b) that is inadmissible by any Act.

(4) Conflicts - Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

(5) Copies - A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity.

[92] Rule 18.02 (1) to (4) of the Rules of the Small Claims Court (Ont. Reg. 258/98) reads:

Written Statements, Documents and Records

18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.

(2) Subrule (1) applies to the following written statements and documents:

1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.

2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate.

Details about Witness or Author

(3) A party who serves on another party a written statement or document described in subrule (2) shall append to or include in the statement or document,

(a) the name, telephone number and address for service of the witness or author; and

(b) if the witness or author is to give expert evidence, a summary of his or her qualifications.

(4) A party who has been served with a written statement or document described in subrule (2) and wishes to cross-examine the witness or author may summon him or her as a witness under subrule 18.03 (1).

[93] The Appellant submitted that the witness statements of Tammy Vargo and Rob Baker were improperly excluded by the trial judge. While conceding that these documents were properly served under Rule 18, the Respondent argued that the trial court had a discretion to “order otherwise” and properly exercised that discretion to exclude the evidence. Further, it was submitted, that the contents of the documents would not reasonably have impacted upon the verdict.

[94] At trial, counsel for the Respondent submitted that Ms. Vargo’s signed, written statement was inadmissible because it was self-serving and not in the form of a sworn affidavit. The trial judge appeared to agree adding that:

(1) the witness was not present to be cross-examined by Respondent’s counsel

(2) he assumed she was a “disaffected and disenchanted wife” with motivation to lie.

It is not apparent, from his remarks, that the trial judge even read the witness’ statement.

[95] Given the authority of Small Claims Court Rule 18.02(1), both the court and counsel for the Respondent were incorrect that Ms. Vargo’s statement had to be a sworn document. The meaning to be attached to the complaint of Respondent’s counsel, that the statement was self-serving, is unclear. Had Respondent’s counsel wanted an opportunity to cross-examine Ms. Vargo on her statement, he could have summonsed the witness pursuant to Rule 18.02(4). Insofar as the Court’s “guess” that the witness was a disenchanted wife with a motive to lie, there was no evidence to support that remarkable inference.

[96] The excision of Ms. Vargo’s statement was based on legal and factual error, not a judicious exercise of discretion. The witness’ evidence was material on the issues of how the work was done and the accuracy of the billed machine hours.

[97] As to the expert report of the arborist, Rob Baker, the report was excluded and the Appellant was unable to rely on the report or make submissions as to how the witness’ evidence tied in with the rest of the evidence. The court concluded that the report was inadmissible in evidence as it only amounted to notice that the expert would be called to testify. Again, the court was in error as Rule 18.02(2)1. specifically contemplates admission of an expert report (“including the written report of an expert”). The expert’s report ought to have been admitted and its weight considered with the totality of the evidence.

[98] Though not stated in express terms by the court, to the extent that the trial judge’s decisions not to admit the witnesses’ statements were in part motivated by his ongoing concern to move the case along, the statement at para. 33 in the Horan case is apposite: “…excluding relevant and otherwise admissible evidence is an unusual exercise of the trial management power and … it should be plain and obvious that the circumstances require that remedy…”. Such was not the case here.

[99] It cannot safely be concluded that had the witnesses’ statements been admitted and considered in a properly conducted trial that the verdict would necessarily have been the same.

CONCLUSION

[100] The verdict and orders of the trial court are set aside and a new trial is ordered before a differently constituted Small Claims Court. The Superior Court of Justice Trial Coordinator in Orangeville shall, within 30 days of release of this Court’s costs judgement, contact the parties respecting an appearance date for a further Settlement Conference and to set a new trial date if necessary.

[101] The issue of costs will be determined following receipt of written submissions no longer than 5 pages in length:

(1) The Appellant will serve on counsel for the Respondent the written cost submissions within 21 days.

(2) Within a further 14 days, counsel for the Respondent shall serve his response.

(3) Within a further seven days the Appellant will serve any reply.

In addition to the above-described service, each party will file the costs submissions with the Superior Court of Justice Trial Coordinator in Brampton.

Hill J.

Released: January 7, 2016

CITATION: Chanachowicz v. Winona Wood Limited, 2016 ONSC 160

COURT FILE NO.: DC-15-0004-00

DATE: 20160107

ONTARIO

SUPERIOR COURT OF JUSTICE

(SMALL CLAIMS COURT APPEAL)

B E T W E E N:

PETER CHANACHOWICZ

Appellant

• and –

WINONA WOOD LIMITED

Respondent

REASONS FOR JUDGMENT

HILL J.

Released: January 7, 2016