Sarah Shannon

The appellants successfully appealed a Small Claims Court judgment on the basis of procedural unfairness.

The parties could not agree on costs.

The appellants sought substantial indemnity costs of $11,616.60, while the respondent argued each party should bear its own costs.

The Divisional Court awarded the appellants costs on a partial indemnity scale, fixed at $11,635.12, finding the amount proportionate and within the reasonable expectations of the parties.

The self-represented appellants appealed a Small Claims Court judgment on the basis of procedural unfairness.

At trial, the respondent was permitted to call witnesses despite failing to provide a witness list in advance.

The trial judge did not advise the appellants of their right to object or request an adjournment, nor did he explain that their Statement of Defence was not evidence.

The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge failed in his duty to assist the self-represented litigants and compounded the unfairness by drawing an adverse inference from their failure to testify.

The appellants, who were self-represented at trial, appealed a Small Claims Court judgment on the basis of procedural unfairness.

At trial, the respondent was permitted to call witnesses without having delivered a witness list in advance.

The trial judge did not advise the self-represented appellants of their right to object or request an adjournment, nor did he explain that their pleadings were not evidence.

The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge failed in his duty to assist a self-represented litigant, which resulted in a denial of natural justice and a miscarriage of justice.