Jam v. Juergens Exteriors, 2019 ONSC 7534

CITATION: Jam v. Juergens Exteriors, 2019 ONSC 7534

DIVISIONAL COURT FILE NO.: 52/18

DATE: 20191230

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN: Jeffery Jam, Appellant (Defendant)

AND:

Juergens Exteriors Inc., Respondent (Plaintiff)

BEFORE: Grace J.

COUNSEL: K.A. Cura, for the Appellant

J. Conway, for the Respondent

HEARD: November 27, 2019

ENDORSEMENT

A. Introduction

[1] Mr. Jam appeals from the final order of Deputy Judge Michael Cormier of the Small Claims Court dated December 18, 2018 awarding Juergens Exteriors Inc. (“JEI”) judgment in the amount of $14,378.16 and costs totaling $7,335.[^1]

[2] The grounds of appeal can be broken down into two categories: (i) first, those relating to the fairness of the trial conducted by the deputy judge. Counsel for Mr. Jam submits that his frequent interventions and comments made the trial procedurally unfair and give rise to a reasonable apprehension of bias; and (ii) those relating to the basis for the judgment granted by the trial judge. The appellant maintains that the deputy judge made findings of fact that were a product of palpable and overriding errors.

B. Standard of Review

[3] Where, as here, issues of procedural fairness are advanced, a standard of review analysis is not required. While some cases mention a standard of correctness, they must be read in the context of Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. The decision maker must act in an objective and fair manner.

[4] When dealing with questions of fact, the standard is, as the appellant recognizes, palpable and overriding error: Housen v. Nikolaisen, [2007], 2 S.C.R. 235 at para. 10.

[5] I will deal with the categories of alleged errors in turn.

C. Procedural Fairness/Reasonable Apprehension of Bias

[6] Section 25 of the Courts of Justice Act mandates the approach that is to be taken when dealing with matters within the monetary jurisdiction of the Small Claims Court. It reads:

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.

[7] It should be self-evident, however, that the provision does not permit a deputy judge to conduct a process which is or becomes, procedurally unfair.

[8] At all levels of court in Ontario there is a strong presumption of impartiality: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. The party seeking to rebut the presumption bears a heavy burden: R. v. Dowholis (2016) 2016 ONCA 801, 133 O.R. (3d) 1 (C.A.), at para. 18. Furthermore, the conduct of the decision-maker must be viewed in context. As Doherty J.A. said in R. v. Stewart (1991), 1991 11753 (ON CA), 62 C.C.C. (3d) 289 (Ont. C.A.) at p. 320:

No trial is perfect…It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence combine to create an overall appearance which is incompatible with our standards of fairness.

[9] The test that is to be borne in mind has been frequently stated: would a reasonable person, properly informed and viewing the matter realistically and practically, conclude that the decision-maker decided the case fairly: Yukon Francophone School Board v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at paras. 20-21?

[10] In this case, the appellant raised the nature, number and extent of the deputy judge’s interventions. On that topic, useful guidance was provided by the Court of Appeal in R. v. Ibrahim, 2019 ONCA 631 at paras. 96-97. To the extent important to this case, the court wrote:

…The law affords trial judges wide latitude in discharging trial management responsibilities… As this court said in R. v. Hamilton… “When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial. This assessment is made from the perspective of a reasonable observer present throughout the trial”. (citations omitted)

This inquiry should be undertaken with a view to the duty of the trial judge to manage the trial, and a consideration of the purpose and context of the interventions. As this court has noted, “[t]here is a strong presumption that a trial judge has not unduly intervened” and there may be proper reasons why a trial judge may find it necessary to intervene… However, even where there is a proper basis… the right to intervene must be exercised with caution so as not to undermine the fairness of the trial. [citations omitted]

[11] The fact a “trial was not a model of judicial decorum” does not necessarily mean that a reasonable apprehension of bias has been established: R. v. Ibrahim, supra at para. 112.

[12] In this case, JEI sought payment of the principal sum of $14,803.18 for work performed and materials installed on the roof of Mr. Jam’s residence on Acorn Place in London, Ontario. Mr. Jam filed a lengthy defence denying any obligation to pay. In part he said,

…we have never come across a contractor as inept, unqualified and fraudulent as the plaintiff…

[13] The trial commenced on June 14, 2018. Both parties were represented by paralegals at that time. They agreed with the deputy judge that the trial could be completed in one day. In fact, cross-examination of the plaintiff’s only witness, Kurt Juergens, was not nearly complete when court adjourned. The parties had introduced all the evidence by the end of the second day (July 25, 2018) and later provided written argument. While JEI continued to utilize the services of a paralegal throughout, Mr. Jam chose to self-represent at the commencement of the second day of trial.

[14] It is clear from the transcript that the dispute between the parties was not a dispassionate disagreement about the nature, extent and quality of the work the plaintiff had performed and the defendant’s obligation, if any, to pay for it. Matters had become personal. Mr. Juergens and Mr. Jam took turns speaking out during the other’s testimony. Both individuals spoke over or around the paralegals they had retained despite demonstrations of skill by their agents.

[15] Some of the deputy judge’s interventions came in that context. Mr. Jam, in particular, apologized several times for his behavior. However, silence did not always reign thereafter. In fact, Mr. Jam’s decision to self-represent on the second day was not much of a surprise. His first day commentary was so frequent that the deputy judge suggested twice – albeit inadvisably – that Mr. Jam terminate his agent’s services if he wished to continue making the points he offered directly to the court.

[16] The cross-examination of Mr. Juergens seemed to have progressed quite far on the first day. The end should have been in sight. Unfortunately, with Mr. Jam at the helm, the journey quickly turned off course. Early examples include questions concerning Mr. Juergen’s age, education, complete work history, a previous bankruptcy, whether he (Mr. Juergens) was married and whether Mr. Juergens had a criminal record. A clearly exasperated trial judge finally told Mr. Jam:

What matters to me is the roofing job that was done.

[17] Thereafter, the questions posed by Mr. Jam became somewhat more focused. Nonetheless, there continued to be a great deal of dialogue that included the deputy judge. In Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 at para. 233, O’Connor A.C.J.O. and Blair J.A. explained when a trial judge may appropriately intervene. They said the reasons included:

…the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

[18] The transcript in this case occupied almost 380 pages. For nearly 100 pages the deputy judge made relatively few comments. Thereafter, things changed. Activity was particularly pronounced during the cross-examination of Mr. Juergens. Some of the comments were appropriate. Mr. Jam succumbed to the temptation to speak several times despite the fact he had retained an agent. That should not have happened more than once. Nonetheless, Mr. Jam’s frustration was understandable. Essentially, the deputy judge instructed the plaintiff to obtain a letter concerning the existence of a warranty (i) in the middle of the cross-examination of Mr. Juergens; (ii) thus necessitating an adjournment of the trial; and (iii) despite being told that the defendant simply wished to carry on without such a document.

[19] The hearing continued several weeks later. Mr. Juergens’ cross-examination did not commence for some time. Instead, the first twenty pages or so of that day’s transcript were devoted to Mr. Jam’s plan to call an “expert” as part of his case. During the lengthy exchange, the deputy judge instructed the plaintiff’s agent and Mr. Jam to discuss:

…exactly how and when it’s [the expert evidence] going in and what weight it will have.

[20] That, with respect, was an extraordinary statement to make. The issue was one for the trial judge to address and to decide.

[21] Commentary was initially kept to a minimum when the long-awaited cross-examination finally resumed. However, after about seven pages and for the next sixty pages, the deputy judge interjected, mused and commented as Mr. Jam attempted to complete his questioning of Mr. Juergens. Occasionally, the intervention was entirely appropriate. Mr. Jam needed direction when it came to things such as relevance. However, the running commentary was largely continuous, despite the deputy judge saying at one point:

…It may seem like I like to talk a lot, but I actually don’t. I prefer to just sit here and just write, so I can make a decision.

[22] The deputy judge’s active participation continued. Ten pages later Mr. Jam correctly pointed out that he had played a limited role. He said:

Okay. So, I’ll just say I really haven’t gotten that much of my say in, right? I mean, it’s not – I am not trying… to delay this. I am trying to go as fast as I can.

[23] Very soon afterward, the cross-examination abruptly ended. The deputy judge stayed largely silent during the somewhat lengthy re-examination that followed.

[24] Mr. Jam was also frequently interrupted when he testified in-chief. That portion of the transcript is what one might have expected during submissions delivered to a particularly interventionalist and inquisitive judicial officer.

[25] With that summary, I return briefly to the applicable principles. In R. v. John, 2017 ONCA 622 at paras. 49-50, Watt, J.A. offered this helpful guidance:

The limits of permissible judicial conduct are not absolute. They are relative, a function of the idiosyncrasies of the trial proceedings in which they emerge. And so it is that every alleged departure from the accepted standards of judicial conduct during a trial requires close examination to determine its effect on the fairness of the trial in which it occurred…

The analysis of judicial interventions is contextual. The interventions are not judged in isolation, rather in the context of the entire trial. We are to assess the record in its entirety and evaluate the interventions cumulatively, not as isolated occurrences… [citations omitted]

[26] At para. 53, Watt J.A. added:

Improperly limiting cross-examination of a witness is an error.

[27] At first blush, this aspect of the appellant’s argument seemed unlikely to succeed. The trial seemed to have been conducted in a “summary way”. A conversational approach was understandable, if not always appropriate.

[28] During the continuation of the plaintiff’s case during the second day of trial, certain comments of the deputy judge seemed reassuring. He acknowledged that he had “only heard half of the story”: see p. 197. The deputy judge indicated a preparedness to hear evidence on additional days if necessary. Unquestionably, the deputy judge thought he was acting fairly. In my view, he was not actually biased against Mr. Jam.

[29] The problem, however, is twofold. First, it seems the deputy judge had formed an impression that Mr. Jam’s refusal to make any payment to JEI was unwarranted. Although keenly interested in the evidence, the message delivered to Mr. Jam during the plaintiff’s case was clear: he faced a climb that was virtually insurmountable. Second, the process was unfair. The deputy judge took over the trial. The plaintiff’s agent did not need to object, the deputy judge did that for her. Interventions were often not made to focus, guide or clarify a meandering, irrelevant or confusing cross-examination but to challenge Mr. Jam on the entire theory of his defence.

[30] The nature, number and extent of the comments made by the deputy judge, when considered and assessed cumulatively, did not “ensure the trial [was] effective, efficient and fair to both sides”: R. v. Snow (2004), 2004 34547 (ON CA), 73 O.R. (3d) 40 (C.A.) at para. 24. Unfortunately, it had the opposite effect. A defendant who needed periodic direction was, instead, worn out by the constant interventions from the bench. The deputy judge’s actions reached the point where the appellant was deprived of his ability to complete an effective cross-examination of the plaintiff’s main witness. Furthermore, the second half of Mr. Jam’s direct examination was, once again, interrupted so frequently and to such an extent that I have no confidence his testimony was truly heard, considered or assessed. That may also explain why the reasons barely mentioned the evidence given by the person the appellant retained to complete the work.

[31] Having had an opportunity to read and re-read the trial transcript, I have concluded that the deputy judge’s actions unintentionally but substantially tainted the fairness of the proceeding. The comments of Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 AII E.R. 304 (C.A.) at p. 310 are apposite:

Even if [the trial judge] was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

[32] The problem in this case occurred during the trial. Unfortunately, as matters unfolded, well-intended activism became a reversible error. As Simmons J.A. wrote in Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 at para 65:

If a judge’s words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial. Therefore, on appeal, “a finding of actual or apprehended bias will ordinarily result in a new trial”. (citation omitted)

[33] In this case, the deputy judge departed from the role of fact finder, gate-keeper and decision-maker and assumed the position of a participant. Paradoxically, the nature and extent of the deputy judge’s interventions resulted in a process that was neither summary nor impartial. A reasonable person, properly informed and viewing the matter realistically and practically, would not conclude that the decision-maker decided the case fairly. The only available alternative is to set aside the decisions on the merits and costs and to order a new trial before a different deputy judge.

D. Appeal on the merits

[34] Given my conclusion above, it is not necessary to deal with the alternative ground of appeal. The unfairness of the process makes the basis for the decision wholly unreliable. In passing, I will also note that both sets of reasons contained an unacceptable number of obvious and avoidable errors. Even a cursory editing would have caught most of them.

E. Conclusion

[35] For the reasons given, the appeal is allowed, the decisions set aside and a new trial ordered before a different deputy judge.

[36] Short cost submissions not exceeding three pages each may be provided to me through judge’s administration by January 17 in the case of the appellant and January 31, 2020 in the case of the respondent.

“Justice A.D. Grace”

Justice A.D. Grace

Date: December 30, 2019

[^1]: The reasons on the merits are dated November 22, 2018.