Pettit v. The Corporation of the City of London, 2015 ONSC 125

COURT FILE NO.: 379/2010

DATE: 2015/01/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEVEN RAYMOND PETTIT

(Plaintiff)

And:

THE CORPORATION OF THE CITY OF LONDON

(Defendant)

BEFORE: Justice I. F. Leach

COUNSEL: William L. Dewar, for the plaintiff

Kelly M. Dawtrey and G. Belch, for the defendant

HEARD: January 5, 2015

ENDORSEMENT

(Plaintiff motion for directions – Order of presentation)

[1] The trial of this wrongful dismissal action, by a judge alone, commenced before me yesterday.

[2] At the outset of trial, the plaintiff sought an order giving directions for the conduct of the trial, and directions concerning the order of proceedings in particular.

[3] Counsel submissions concerning the request occupied the balance of the first day of trial, after which further progress was delayed temporarily until tomorrow, (January 7, 2015), while I necessarily was called upon by the London trial co-ordinator to deal with other matters.

[4] This endorsement provides my ruling on the plaintiff’s request, before continuation of the trial tomorrow morning.

Nature of plaintiff request

[5] The plaintiff sought an order directing a departure from what might be regarded as the “general” or “ordinary” three stage pattern for the submission of evidence at trial, whereby:

i. the plaintiff calls his, her or its evidence first, in relation to all issues, (subject to defence cross-examination in relation to all issues, and possible plaintiff re-examination);

ii. the defendant then calls his, her or its responding evidence, in relation to all issues, (subject to plaintiff cross-examination in relation to all issues, and possible defence re-examination); and

iii. in appropriate cases, after the close of the defence evidence, the plaintiff may call reply evidence, (sometimes called “rebuttal” evidence), for the limited purpose of responding to “new matters” raised by the defence evidence, (with defence cross-examination and possible plaintiff re-examination being similarly limited in focus and scope).

[6] Instead, the plaintiff sought an order whereby the presentation of evidence would follow a four stage procedure similar to that directed in Murphy v. Williams, [1997] O.J. No. 1292 (Gen.Div.), another wrongful dismissal case, at paragraphs 9-13, whereby:

i. the plaintiff would begin by producing his entire case in support of the propositions that he was in fact employed by the defendant, that his employment was terminated without notice and without pay in lieu of notice, and his allegations that he sustained damages;

ii. once the plaintiff has closed his case on those elements, (and only then), would the defendant then be called upon to lead its evidence in support of its position with respect to termination for just cause, and in rebuttal of the issues with response to employment, dismissal without notice or pay in lieu of notice, and on the question of damages;

iii. the defendant having adduced all of its evidence on the aforesaid issues, the plaintiff then would be allowed to call his responding evidence on the issue of just cause, and in reply on the issues of wrongful dismissal and damages; and

iv. the plaintiff having finished calling its responding evidence “in defence” on the issue of just cause, and in reply on the issues of wrongful dismissal and damages, the defendant then would be allowed the usual right of reply with respect to the issue of just cause, but not with respect to the issue of damages or the other elements that the plaintiff must have established in chief in the first instance.

[7] Counsel submissions made it clear that ancillary to and/or inherent in the plaintiff’s request was the corresponding imposition of limits on the scope of permissible cross-examination at each of the four stages outlined above.

[8] For example, the plaintiff sought a direction that defence counsel not be permitted, during the first of the four suggested stages outlined above, to embark on cross-examination of the plaintiff in relation to any issues concerning the plaintiff’s alleged termination for just cause; cross-examination which would not be prevented completely throughout the trial, but rather postponed to the suggested third stage of the proceedings.

[9] The plaintiff’s request was opposed by the defendant.

The Law – General Principles

[10] As noted by Justices Fuerst and Sanderson, in their text on Ontario Courtroom Procedure, (3d ed.), at pp. 1090-1091, the fundamental concept of trials, with limited exceptions, is that each party calls all of its evidence at one time and in sequence, which includes calling a witness only once to give all of his or her testimony.

[11] This is why the calling of reply evidence is “not routine”, except in civil trials where there is a counter-claim or cross-application. The party who calls evidence first is entitled to call reply evidence only where the opposing party, in its evidence, has “raised some new matter”, which the party first calling evidence “had not opportunity to deal with, or could not have reasonably anticipated”.

[12] In particular, the “splitting” of a party’s case, (by failing to exhaust one’s evidence in the first instance, and attempting instead to first rely on prima facie proof before attempting to adduce evidence that merely confirms or reinforces the party’s case once the prima facie proof has been shaken by the case of an adversary), is not permitted.

[13] The general rationale for the prohibition on “case splitting” is that “a defendant is entitled to know the case which he has to meet when presenting his defence, and it is not open to a plaintiff, under the guise of replying, to reconfirm the case which he was required to make out in the first instance or take the risk of non-persuasion”. See Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., [1967] O.J. No. 1067 (C.A.), at paragraph 7, which emphasized the principle in the context of a case where there was “a single issue to be tried”, and the burden of proof rested with the plaintiff.

[14] The rationale obviously might suggest a complete reversal in the “ordinary” order of evidence presentation in circumstances where the defendant, rather than the plaintiff, bears the onus of proof in relation to the single issue, or all issues; i.e., in situations where it is the plaintiff who arguably has an entitlement to know the case the plaintiff “has to meet” when presenting his evidence.

[15] For example, such logic and such an approach is reflected in the provisions of Rule 52.07 dealing with the order of presentation in jury trials, and specifically, the indication in Rule 52.07(2) that the trial judge may “reverse the order of presentation” in cases “where the burden of proof in respect of all matters in issue in the action lies on the defendant”. [Emphasis added.]

[16] A principled approach reflecting application of the above rationale nevertheless becomes more complicated where there are numerous issues to be decided in an action, and the burden of proof is divided between the parties, depending on which issue is being considered.

[17] In such cases, trial judges have been invited to weigh competing considerations of principle, convenience and order, (in the exercise of their broad discretion to determine the conduct of a trial, ensure fairness, and see that justice is done), and in some cases have found that a modification of the ordinary procedure for the leading of evidence, and corresponding rights of cross-examination, was appropriate.

[18] For example, the plaintiff in this case points by way of analogy to the Supreme Court of Canada’s decision in Jerome v. Anderson, 1964 CanLII 71 (SCC), [1964] S.C.R. 291. That was a libel case, which confirmed the discretion of a trial judge to modify, rather than completely reverse, the order of evidence presentation, with corresponding restrictions on the timing of certain cross-examination, where a defendant bears the onus of proof in relation an issue, but not all issues. In particular, the Supreme Court endorsed a passage from Gatley on Libel and Slander, 4^th ed., which pp.561-562, which reads as follows:

Where there is a plea of justification on the record, it is within the discretion of the court to allow the plaintiff either to give all the evidence he intends offer in rebuttal at the outset, or to postpone giving such evidence and leave it to the defendant to make out his plea, and then given evidence on any matters which are properly admissible to rebut the plea. There is no hard and fast rule, and the practice is based on general convenience. If the judge does consider that the plaintiff should be allowed to reserve his answer to the plea of justification, the defendant’s counsel cannot offset that by asking questions on that issue in order to draw the plaintiff’s witness. In any event, the plaintiff is not entitled to call some evidence in rebuttal in the first instance, and reserve the remainder for reply to the defendant’s case.

[Emphasis added.]

[19] As the plaintiff notes, similar modifications to ordinary procedures for the presentation of evidence have been adopted from time to time in the context of wrongful dismissal actions where a defendant employer raises a defence of termination for cause, in respect of which the burden of proof unquestionably lies on the employer.

[20] The rationale for doing so is outlined in cases such as Murphy v. Williams Operating Corp., supra, which includes the following remarks of the trial judge at paragraphs 4-8:

The defendant, in a very able submission by counsel, argues that the general rule, that a party who takes another party to court should produce its case in total in the first instance, should not be modified in this case. The defendant says that the general rule is one well founded in practicality and should be interfered with only under very stringent circumstances. …

… I have concluded that his is one of those unusual cases where I should exercise my discretion and call upon the defendant to adduce its evidence in support of the issue of just cause before calling upon the plaintiff to respond.

It is usually possible for a plaintiff to anticipate the case to be made against him and to attempt to meet that case before it is made, but there are two arguments against forcing a plaintiff to do so in a case such as this.

In the first place there is the argument of convenience. The plaintiff not being absolutely certain of the evidence to be led against him will, of course, be forced to anticipate every possible submission by the defendant and will then call evidence which may prove to have been unnecessary in the event.

The second argument is based upon principle. Where the onus is on the defendant and where it is incumbent upon the defendant to establish a case, especially a case which, although not in the course of a criminal trial, involves conduct which is derogatory to the plaintiff and which allegations would in fact constitute criminal conduct, it is only fair to allow the plaintiff to hear the allegations first before compelling him to respond to them.

[Emphasis added.]

[21] The trial judge then went on to direct, “under the circumstances”, the modified procedure I have described above, in paragraph 6 of these reasons.

[22] In my view, a number of considerations flow directly and indirectly from the above general statements of principle.

[23] First, such authority clearly confirms that the adoption of such a modified procedure is a matter of trial judge discretion, as opposed to something that should be implemented routinely simply because a defendant may bear the onus of proof on one of numerous issues. To the contrary, such modifications and departures from the “general rule” are something generally reserved for “unusual” cases.

[24] Second, the Supreme Court’s emphasis on “convenience” is a general one.

[25] Certainly, one aspect of convenience might be the avoidance of calling unnecessary witnesses by a party effectively forced to address, in advance, all possible aspects of a case it has yet to learn.

[26] But adoption of a modified procedure also may entail complications, confusion, inefficiencies and resulting inconvenience of a different sort.

[27] For example, as the Supreme Court makes clear, the rule against “case splitting” must still be applied in relation to each issue. In particular, if a party leading evidence first somehow embarks on the presentation of some evidence in relation to an issue, that party must then lead all of its evidence in relation to that issue.

[28] In my view, that in turn highlights the risk of certain practical complications, (with associated implications for convenience and the maintenance of order), inherent in adopting the sort of modified procedure contemplated by such possibilities. In particular:

• A trial that proceeds initially with contemplated application of such a procedure effectively might require a dramatic shift in procedure mid-trial; e.g., if a party “crosses over the line” in the presentation of its evidence, and touches upon matters or issues that were to be addressed only by way of its later responding presentation of evidence.

• Should that happen, the opposing party arguably would be entitled to insist that the party crossing over the line must then present all its evidence on the issue, and/or seek confirmation that the opposing party’s rights of cross-examination have been expanded accordingly, regardless of the court’s earlier ruling.

• This in turn raises the spectre of such “line crossing” arguments being raised repeatedly, especially in cases where the issues to be addressed and proved by one side or the other are not clearly discrete and capable of “bright line” demarcations.

[29] Such practical concerns were underscored in Campbell v. Jones, [2001] N.S.J. No. 595 (S.C.), wherein the court emphasized that an important factor in deciding whether to adopt such a modified procedure is careful consideration of “how cleanly the plaintiff’s evidence can be divided as between the issues proposed to be addressed during the plaintiff’s case and those proposed to be addressed in rebuttal”. In particular, “potential for confusion must be regarded where a procedure may follow burden and the order of witnesses and evidence may shift back and forth”.

[30] Pursuit of a principled approach, in relation to making a party with the burden of proof on an issue lead its evidence first, therefore may lead to a good deal of practical confusion and inconvenience in cases with numerous issues, some of which may be inextricably intertwined, but also cast the associated burdens of proof on different and opposing parties.

[31] This was so in Saturley v. CIBC World Markets Inc., [2011] N.S.J. No. 162, (S.C.), a wrongful dismissal case where a defence of termination for cause was advanced by the defendant employer, but the case involved another cause of action and unusual issues on damages, in respect of which the plaintiff bore the onus of proof. In rejecting the request for adoption of a modified procedure similar to that employed in Murphy v. Williams Operating Corp., supra, the court made the following observations and findings at paragraphs 23-24:

Splitting a case may possibly work justice when the split issue is clearly separated from the other issues of fact. That is not the case here. Evidence on cause will go to the alleged tort, and to some of the claims of damages.

An order of presentation that permits [the plaintiff employee] to split his case risks complications about when he must present evidence that goes to more than one issue. These complications would put us at risk of procedural unfairness.

There is also a risk of procedural unfairness in confining [the defendant employer’s] response to rebuttal.

These risks are to be weighed against the single benefit: the party who does not bear the onus on one issue gets to hear first the case it must meet on that issue.

[Emphasis added.]

[32] Third, the “argument based upon principle” for adoption of such modified procedures is in turn premised on a particular plaintiff not having the ability, (“usually possible” in civil cases), “to anticipate the case to be made against him and to attempt to meet that case before it is made”. It is that unfairness which militates in favor of a deviation from the “general rule”.

[33] However, the strength of the rationale falls away where the plaintiff does have the ability to anticipate the defendant’s case with reasonable certainty.

[34] For example, as noted in Milsom v. Corporate Computers Inc., [2002] A.J. No. 1572 (Q.B.), another wrongful dismissal case, at paragraph 4, “it may be that, because the defendant [has] provided particulars of its position to the plaintiff, the plaintiff should [deal] with all of the defence issues in its own case”.

[35] Similarly, in Saturley v. CIBC World Markets Inc., supra, the court found that the benefit of having the party who does not bear the onus on one issue getting to hear first the case it must meet on that issue was “not as great as may first appear”. In particular, the court made the following findings and observations at paragraph 26:

I do not agree that [the plaintiff] is so deeply in the dark about [the employer’s] position on just cause that masses of relevant evidence he has to give will be appropriate rebuttal. Through extensive discoveries and the particulars, [the plaintiff] should have a fair appreciation of the evidence to be presented against him on just cause. He might be surprised, but that is what rebuttal is for.

[Emphasis added.]

Application

[36] With the above principles and observations in mind, I turn to the circumstances of the matter now before me.

[37] In that regard, plaintiff counsel quite properly and sensibly, (as strongly recommended in a number of the cases, such as Milsom v. Corporate Computers Inc., supra, at paragraph 24), has moved at the commencement of trial for clarification and confirmation of the approach to be followed.

[38] This obviously prevents later unnecessary confusions and disputes about unfairness that might be difficult or impossible to address and remedy completely, after the fact.

[39] However, it also obviously leaves me in a situation where I must rely largely on the pleadings, and the general submissions of counsel as to the nature of the evidence expected. Both in turn have an impact on the relative merit of arguments relating to principle or fairness, and/or arguments concerning anticipated convenience.

[40] Based on such information, I am not inclined to exercise my discretion so as to authorize and direct a departure from the general or ordinary procedure for the presentation of evidence described above in paragraph 5 of these reasons.

[41] In particular, it seems to me that arguments of principle and convenience warranting such an unusual departure from the “general rule” are not particularly strong in this case, and in some respects operate in the other direction.

[42] As far as arguments of principle are concerned, I agree with plaintiff counsel that the allegations relied upon by the defendant, in support of its “termination for cause” defence, involve allegations of conduct which, on their face, are not only derogatory to the plaintiff, but might indeed be characterized as involving criminal conduct, (to echo the observations made in Murphy v. Williams Operating Corp., supra, at paragraph 8).

[43] However, in my view, this is not a case where the plaintiff is substantially unaware of the case he has to meet in that regard.

[44] To the contrary, in addition to normal considerations of disclosure that follow from the documentary and oral discovery permitted by our Rules of Civil Procedure, (which have been exercised in this substantial litigation during the four years it has taken to bring the matter to trial), the nature of the allegations of misconduct relied upon by the defendant employer, and the nature of the evidence relied upon by the employer in support of those allegations, has been made clear from the outset through the manner in which this dispute arose.

[45] In particular, as the plaintiff himself pleads and relies upon in his statement of claim, (at paragraph 15), the defendant terminated his employment relying on certain “adverse findings” made against the plaintiff, after “an investigation undertaken by the defendant”, in relation to “certain allegations made against the plaintiff by a particular employee”.

[46] The plaintiff makes further specific allegations, in the same paragraph:

• That the witnesses interviewed during that investigation did not include appropriate witnesses “to explain and counter” the particular allegations made by the particular complainant employee;

• That the investigation failed to “apprehend and appreciate the collateral motive and private agenda of the particular employee who had made such allegations”; and

• That the plaintiff was denied “a reasonable opportunity to adequately respond to and explain such allegations”.

[47] In its statement of defence, the defendant indicates and confirms, in paragraphs 11-13, its position that the plaintiff was dismissed for just cause “for inappropriately touching and/or grabbing a fellow employee under his supervision on three separate occasions between 2004 and 2009”, and that he “knew or ought to have known that inappropriately touching a fellow employee in the manner in which he did would not be tolerated in the workplace”, having regard to considerations including the plaintiff’s completion of specified training, and the fact that the plaintiff “had been previously advised that such behaviour was unwelcome and inappropriate”.

[48] The defendant also makes clear, in paragraph 14, its reliance upon “the findings of an external, independent investigator who conducted a fair, complete and thorough investigation into the plaintiff’s misconduct”, in the course of which the investigator is said to have “interviewed the complainant, the Plaintiff and several witnesses”, and the Plaintiff is said to have been “provided with ample opportunity to respond to and explain all of the allegations against him”.

[49] On its face, all of these allegations strongly suggest to me that the plaintiff, for a number of years now, has had considerable knowledge and details of the very particular type of misconduct relied upon by the defendant employer in support of its alleged termination for cause.

[50] However, that impression was reinforced by indications, during the course of counsel submissions, that the plaintiff and his counsel have been provided with all documentation compiled during the course of the investigation carried out by the independent investigator retained by the defendant, including signed witness statements.

[51] Moreover, defence counsel expressly confirmed that the defendant was not intending to rely upon any evidence of alleged misconduct discovered after the plaintiff’s termination. It was, rather, intending to rely only upon the evidence of misconduct compiled by the investigator and available to the defendant at the time of the plaintiff’s termination, all of which has been disclosed to the plaintiff and his counsel for some time now.

[52] In the circumstances, it therefore seems to me, based on the information available, that the plaintiff and his counsel actually have very substantial indications and details of the case to be met, in terms of the defendant’s reliance on alleged termination for cause.

[53] More to the point, that disclosed information appears to be more than sufficient for the plaintiff to lead all of his evidence intended to counter the defendant’s allegations and the evidence on which the defendant intends to rely – particularly if the essence of the plaintiff’s case is that the alleged and particularized instances of inappropriate touching simply never happened.

[54] To the extent that there is a possibility that the plaintiff and his counsel might encounter incidental surprises, (e.g., because one or more witnesses to be called by the defendant might go “off script” to some extent, owing to the passage of time or for other reasons), it seems to me that is a possibility inherent in all cases where there is disclosure of anticipated witness evidence documented by earlier statements.

[55] However, if there are indeed material deviations from the earlier statements, which appear to have or threaten an adverse impact on the plaintiff’s case, and such evidence is not found within the four corners of the information compiled and documented by the independent investigator, originally relied upon by the defendant, and previously disclosed to the plaintiff and his counsel, it seems to me that such matters inherently are the sort of situations to be addressed by proper reply evidence in the usual manner; i.e., as “new” matters that could not have been reasonably anticipated by the plaintiff, in the initial presentation of his evidence addressing all issues in the case.

[56] To some extent, the above considerations and realities not only undermine the “argument in principle” for deviating from the normal course, but also arguments based on convenience.

[57] In particular, because the plaintiff has significant indications of the particular allegations and evidence relied upon by the defendant in relation to its “termination for cause” defence, it will not be necessary for the plaintiff, out of an abundance of caution, to lead evidence from a wide array of witnesses in relation to matters, occasions or incidents which the defendant does not intend to raise, and upon which the defendant does not intend to rely.

[58] Beyond this, however, in my view this is a case similar to Saturley v. CIBC World Markets Inc., supra, in that there is no clear line of demarcation between evidence concerning issues to be proved by the plaintiff and issues to be proved by the defendant, which in turn makes adoption of the procedure suggested by the plaintiff fraught with difficulty and probable complications of the sort mentioned above.

[59] In particular, as I indicated during the course of submissions, it seems to me that evidence relevant and necessary to the plaintiff’s proof of all the damages he seeks is inextricably linked to evidence relevant to the employer’s “termination for cause” defence.

[60] In that regard, I note that the relief sought by the plaintiff, (in paragraph 1 of his statement of claim), includes “damages for mental distress” and “damages in aggravation thereof and punitive damages”.

[61] Moreover, in paragraphs 20 to 22, the plaintiff expressly indicates that, in support of those particular claims for damages, he relies extensively upon such matters as the alleged flawed investigation carried out by the employer in relation to the particular allegations of misconduct by the plaintiff, the employer’s acceptance of the findings of that investigation, and the employer’s allegedly excessive and inappropriate decision to terminate for cause in response to the findings resulting from that investigation.

[62] In the circumstances, I do not see how the plaintiff possibly can lead all of his evidence relating to damages, while at the same not touching on such matters. Nor do I see how defence counsel could be prohibited from exercising rights of cross-examination in relation to such matters while the plaintiff led his evidence on damages, without working a substantial injustice in the other direction.

[63] Embarking on the course of procedure suggested by plaintiff counsel would, I think, therefore inevitably result in ongoing uncertainty as to what evidence could and could not be led by the plaintiff without “crossing over the line”, similar ongoing disputes as to whether particular lines of defence cross-examination were permissible, and eventual disputes about whether the plaintiff had an obligation to raise certain evidence in his initial presentation.

[64] In my opinion, any principled benefit to letting the plaintiff have a complete view of the defendant’s evidence at trial concerning “termination for cause”, before being obliged to lead his own evidence in that regard, would be more than offset by the inconvenience and confusion likely to result from proceeding in the manner suggested by the plaintiff.

[65] For all these reasons, in the exercise of my discretion, I therefore reject the plaintiff’s suggestion and request, and direct instead that the presentation of evidence follow the “ordinary” or “general” procedure described above in paragraph 5 of these reasons.

“Justice I.F. Leach”

Justice I F. Leach

Date: January 6, 2015