COURT FILE NO.: DC-16-0130-00
DATE: 2018 02 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Barbara Januszewigz and Mark Januszewigz
K. Dryla, Counsel for the Appellants
Defendants (Appellants)
- and –
GFC Landscaping Interlock Ltd.
J. Choe, Counsel for the Respondent
Plaintiff (Respondent)
HEARD: October 20, 2017
REASONS FOR JUDGMENT
D.E HARRIS J.
[1] Procedural defects in this trial require that the proceedings below be vacated and a new trial ordered. The deputy trial judge appeared to prejudge the case at the very outset of the trial. Furthermore, she excluded one of the appellants during much of the trial in clear violation of the Rules of Civil Procedure. The result of these errors was a trial unfair to the appellants.
[2] The evidence led at trial was relatively brief. On June 17, 2014, the appellants, defendants at trial, entered into a written contract with the respondent GFC Landscaping Interlock Ltd., plaintiffs at trial, for the construction of a patio at their home in Burlington. The contract stipulated that GFC would install a 1200 square foot patio adjacent to the defendants’ residence and set out a number of conditions for its construction. The contract also provided for a one year warranty on workmanship.
[3] Work was done on the patio in early July 2014. A last installment cheque was written by the defendants to the plaintiff company. After heavy rainfall between July 12 and 14, 2014, water began to accumulate on the patio near the side of the house and seeped into the basement. The appellants claimed that these problems were caused by GFC’s failure to build the patio with the contract’s required gravel depth. The defendants contacted GFC, which returned to the property to conduct repairs over a number of days.
[4] However, the appellants, not satisfied with the quality of work, stopped payment on the cheque which constituted the final 60 percent installment due to GFC upon completion. The plaintiff GFC brought an action for breach of contract, seeking the outstanding amount of the final installment as well as punitive damages. The defendants brought a counter-claim to recoup the cost of repairing the patio using another company.
[5] The trial was heard before Deputy Judge Smith of the Milton Small Claims Court, and a decision rendered on October 27, 2016. Deputy Judge Smith granted the plaintiff’s action, awarding judgment in the amount of $8,475, plus pre and post-judgment interest. The claim for punitive damages was dismissed. The counter claim by the appellants was dismissed as the trial judge was not satisfied that the defendant homeowners had paid another contractor to repair the work.
[6] The central issues at trial were the date the project was completed and whether the patio had been constructed in accordance with the contract’s conditions related to depth. The parties disputed the date of completion. The defendants argued the project had not been completed by the time of flooding, and as such, the final installment was not due. Work done by GFC following the flooding was done in order to fulfill the contract. The plaintiff argued that the patio had been completed prior to flooding, and as such, payment for completion was required. All further work had been completed under the one year warranty.
[7] The contract stipulated that the patio’s base was to be 8” with ¾” crushed gravel and limestone screenings. At trial, the appellants relied upon the report of an expert civil engineer to argue that the gravel at the site was only 4” deep, whereas the contract required a depth of 8”. The deputy judge held that the expert could not be relied upon because he inspected the patio when it was under construction to repair the deficiencies.
[8] Deputy Judge Smith found that the project had been completed on July 12, 2014. She agreed with the respondent’s position that the work done to address water accumulation was work done under the warranty. The breach of the patio depth stipulation was not made out. The appellants were held to owe GFC the final installment.
GROUNDS OF APPEAL
ISSUE #1: PREJUDGMENT OF THE CASE
[9] The appellants argue that the trial judge prejudged or appeared to prejudge the issue in the case at its very outset. They point to the following passages:
THE COURT [speaking to counsel for the plaintiff]: And the, the essence of your client’s claim is a contract was entered into and work was performed and all of the monies were paid but the last deposit was paid and then there was a stop payment.
MR. SUTER [counsel for the plaintiff]: That’s exactly right, Your Honour.
THE COURT: Yeah. There’s kind of strict liability on a stop payment, right. So, this could, this could potentially take a lot less time than you think. So, but anyway we’ve got, we’ve got the two actions so I guess we might as well stop then if that' s what you want. I’m going to finish at four.
MR. SUTER: … So, we’re making a claim for the damages claimed in the claim basically the damages being the non-payment of the, of the invoice.
THE COURT: Yeah, that’s why said [sic], that’s the one that’s the five-minute trial.
MR. SUTER: Well…
THE COURT: Kind of strict liability if you put a stop payment on a cheque there’s liability.
MR. SUTER: To the defendant.
THE COURT: It's a two-minute deal.
MR. SUTER: Well, subject to the defendant's claim ...
THE COURT: Yeah. So, I mean I'll hear some testimony on domain [sic] action but I don't want to hear a whole lot because there's not much...
MR. SUTER: Okay. Okay.
THE COURT: There's really no way to squirm around a stopped payment.
MR. SUTER: Okay.
THE COURT: There's strict liability on that.
[10] I agree that this raises a concern that a reasonable person, in the shoes of the appellants, would perceive that the trial judge was likely to determine the case against them. Because of my disposition of the second issue raised below, I need not determine whether this concern rises to an apprehension of bias in the circumstances. I will nonetheless discuss this issue below.
[11] The Supreme Court has stated the test for a reasonable apprehension of bias many times, including most recently in Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282:
20 The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows:
... what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [Citation omitted; Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting)]
22 The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. In Valente, Le Dain J. connected the dots from an absence of bias to impartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind: see S.(R.D.), at para. 49, per L’Heureux-Dubé and McLachlin JJ.
23 In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence in the ability of a judge to be genuinely open:
... public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.
The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasis added; paras. 57-58.]
24 Or, as Jeremy Webber observed, “impartiality is a cardinal virtue in a judge. For adjudication to be accepted, litigants must have confidence that the judge is not influenced by irrelevant considerations to favour one side or the other”: “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger” (1984), 29 McGill L.J. 369, at p. 389.
(Emphasis in Original)
[12] The species of bias at issue here concerns prejudgment of the case: see Re Downer and the Queen, 1977 1990 (ON SC), [1977] O.J. No. 417, at paras. 7-10.
[13] I believe the concern about an apprehension of bias here is derived from several circumstances. The trial judge expressed her view at the beginning of the case, having only read the pleadings and having not heard any evidence. In coming out so strongly for the respondent even before the evidence began, the appearance was left that the trial judge had made up her mind and needed only to fill in the details in her judgment. She said, essentially, that there was no genuine issue for trial and that the appellants were presumed liable.
[14] Second, there was a definitive tone to her remarks. If the trial judge had expressed a tentative opinion, which it appeared she was fully willing to reassess and put aside based on the evidence and submissions, the appearance would have been markedly different: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 41-43.
[15] It is true that the stopped payment was not the ultimate issue in the final analysis. The issue, as articulated by the trial judge, was whether the contract had been completed or was still ongoing at the time of the stop payment. The problem is that the deputy judge seemed to believe at the start that the stopped payment was the central issue. When she expressed an unequivocal opinion with respect to it, she was in essence expressing the opinion that the defendants were liable. As this was at a point before any evidence or argument, her comments would inevitably leave a negative impression on a reasonable, informer observer.
[16] There is a natural perception that a judge, once having expressed a firm opinion, will be reluctant to revise this opinion because it will make them look weak and indecisive.
[17] In summary, there was a realistic concern raised by the trial judge’s remarks. It could well be that her expressed views were only preliminary and she was able to put them aside and decide the case fairly and impartially, with an open mind. But the ultimate test, as the authorities stress, is a question of appearances.
ISSUE #2: ERROR OF LAW IN EXCLUDING THE MALE APPELLANT FROM THE COURTROOM
[18] The appellant husband, a named defendant party in the proceeding, was excluded from the courtroom by the trial judge during the evidence of the owner of the respondent company, the key witness for the plaintiff.
[19] The background to this issue is as follows. At the beginning of the case, the trial judge commented that there were a lot of people in the courtroom. Counsel for the respondent said that his client’s wife was present as well as an insurance adjuster. The paralegal acting for the appellants then addressed the court:
MR. HOGAN: And on my side I would have two people in courtroom here that would give testimony and that is main defendant here and her husband.
THE COURT: Okay. So, the husband needs to go out. If he’s giving testimony in addition to...
MR. HOGAN: Yes, he will be.
THE COURT: ...your female client here, he has to go out. Okay. And just give me a second here.
[20] It does not appear that the husband left the courtroom because during the evidence in chief of the owner of the GFC contracting company, Mr. Flammini, the trial judge excluded him once again:
THE COURT: Excuse me sir, I’m sorry to interrupt you. Mr. Hogan [paralegal for the defendant appellants], are both of these individuals giving testimony today?
MR. HOGAN: Yes Your Worship [sic], or your Honour, I am sorry. [At the beginning of the trial, Mr. Hogan had referred to the trial judge as “Your Worship” and she had corrected him.]
THE COURT: All right. You can only have one instructing principle [sic] with you. So, one of these people have [sic] to leave the room.
MR. HOGAN: Okay
A. A BREACH OF RULE 52.06 OF THE RULES OF CIVIL PROCEDURE
[21] The exclusion of the appellant husband was a clear violation of Rule 52.06 of the Rules of Civil Procedure. The pertinent subsections of this Rule state as follows:
52.06 Exclusion of Witnesses
Order for Exclusion
52.06(1) The trial judge may, at the request of any party, order that a witness be excluded from the courtroom until called to give evidence, subject to subrule (2).
Order not to Apply to Party or Witness Instructing the Lawyer
52.06(2) An order under subrule (1) may not be made in respect of a party to the action or a witness whose presence is essential to instruct the lawyer for the party calling the witness, but the trial judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.
[22] There is no general discretion to exclude a party from a trial. Rule 52.06 of the Rules of Civil Procedure precludes it. The leading case is Liu Estate v. Chau, 2004 8234 (ON CA), [2004] O.J. No. 306 (C.A):
23 I need not decide whether it is open to a trial judge to invoke rule 2.03 and dispense with compliance with rule 52.06(2). In this case, the rationale for excluding Ms. Chau was that credibility was in issue. The concern, one can assume, is the possibility that Ms. Chau would tailor her evidence so that it would be consistent with that of her husband. That was not a sufficient basis for dispensing with the rule. See Changoo at paras. 13 - 17. Excluding a party because of the possibility she will tailor her evidence does not give proper weight to the true basis for the party’s right to be present. As Borins D.C.J. said in Baywood Paper Products Ltd. v. Paymaster Cheque-Writer (Canada) Ltd. (1986), 1986 2699 (ON SC), 57 O.R. (2d) 229 (Ont. Dist. Ct.), at 239, “[t]he presence of a party at the examination for discovery, like the presence of a party at trial, is consistent with due process and the right to protect his or her interests by observing the conduct of the examination.”
24 Given the fundamental nature of the right to be present, the circumstances in which a trial judge would be justified in ordering that a party not be present during a part of the trial would have to be exceptional. For example, a real probability of intimidation (Changoo at para. 12) …
(Emphasis Added)
[23] There was nothing remotely exceptional here which would have permitted the trial judge to exclude the husband. Furthermore, the triggering circumstance in subsection (1) requires that an exclusion order only be made if requested by the opposing party. This is no doubt to ensure that an order is made for reasons associated with valid adversarial interests.
[24] There was no request by the respondent in this case. Nor were there submissions or evidence to lay a foundation for the exclusion order. The subject was raised on the trial judge’s own initiative. I conclude, therefore, that the order was made in violation of Rule 52.06.
B. WAS THERE A MISCARRIAGE OF JUSTICE?
[25] In Liu Estate, the Court of Appeal in approaching the erroneous exclusion of the party from the trial, applied the no substantial wrong or miscarriage of justice provision in Section 134(6) of the Courts of Justice Act, R.S.O. 1990, chap. C. 43 and dismissed the defendants’ appeal. The defendant wife had been excluded but had only been out of the courtroom during the evidence of her co-defendant husband who was represented by the same counsel and whose interests were identical. The Court of Appeal concluded that there was no substantial wrong occasioned.
[26] Was there a substantial wrong in this case? The cases emphasize that the major concern in excluding a party is the appearance of unfairness. In Liu at paragraph 27, Justice Rosenberg likened the importance of the presence of a party in a civil case to the importance of the presence of the accused in a criminal case. He paraphrased one of the leading criminal cases on this point, R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496 (C.A.), at p. 537 per Martin J.A, saying:
Parties have the right to be present, not only to hear the case put against them, but as a matter of fairness and openness and to avoid “a justifiable sense of injustice” because they were deprived of “the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial.”
[27] In Hertrich at paragraph 99, Justice Martin holds that there is no need to show actual prejudice, holding that a miscarriage of justice occurs when there is an appearance of injustice. A few years later, relying upon Hertrich, Chief Justice Dickson in R. v. Barrow 1987 11 (SCC), [1987] 2 S.C.R. 694, at para. 22 said the presence of the accused “is of enormous importance to the perceived fairness of the Canadian criminal justice system.” Also see paras. 35-37.
[28] The appearance left by the exclusion is the ultimate test for whether a substantial wrong has been brought about. As in Lui, helpful guidance can be derived from the analogous criminal jurisprudence. Section 686(1)(b)(iv) of the Criminal Code R.S.C. 1985, c. C-46 is the procedural curative proviso which applies in a criminal case when an accused is excluded from the courtroom: see R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, (C.A.), at paras. 48-51; R. v. Simon, 2010 ONCA 754, [2010] O.J. No. 4723, at para. 123; R. v. Schofield, 2012 ONCA 120, [2012] O.J. No. 777, at paras. 25-32; R. v. T. (L.W.), 2008 SKCA 17, [2008] S.J. No. 75, at paras. 27-33.
[29] Some of the considerations from this jurisprudence which transfer to the civil context are whether the exclusion was deliberate or inadvertent, how much and what part of the proceedings were missed by the excluded party, whether counsel initiated the exclusion or concurred with it, and whether it is reasonable to assume that the exclusion had some effect on the conduct of the defence.
[30] Reviewing the circumstances, there are several features which distinguish this case from Liu Estate and from the cases in which the criminal curative proviso has been applied. Most significantly, in this case the exclusion occurred during the in-chief evidence of the respondent Mr. Flammini, the owner of the GFC company and the key witness for the plaintiff. In fact, he was the only witness for the plaintiff with the exception of a police officer whose evidence was minor and very brief. The exclusion took place four pages into his evidence. Mr. Flammini’s evidence carried on for another 54 pages approximately.
[31] The husband appellant missed almost all of the respondent’s evidence. He also was not present for the evidence of his co-defendant wife and the evidence of the expert witness called on behalf of the defence. It should be noted that the trial judge discounted the evidence of this expert in her reasons for judgment. The appellants challenged the trial judge’s rejection of this evidence upon this appeal but, given my disposition, there is no need for me to decide this ground of appeal.
[32] There is an entirely different impact and appearance to the error in this case than in Liu Estate. The paralegal for the appellants was deprived of the instructions of the defendant husband during evidence that was central and directly opposed in interest. There was a lasting impression of unfairness.
[33] Some of the cases hold that there is no major problem where the exclusion is during legal argument or where the excluded party can later be informed about what they have missed. The exclusion here was during almost the entire trial, both the opposing witness and witnesses called on the appellants’ own behalf.
[34] The Section 686(1)(b)(iv) jurisprudence puts some weight on whether the exclusion was brought about by the judge or by counsel. The exclusion here was initiated by the deputy judge and was deliberate, not inadvertent. Counsel was a paralegal and did not object. There is no evidence that he knew about Rule 52.06. In any case, the paralegal may well have been reluctant to resist the deputy judge’s judicial authority. She had already corrected him with respect to her proper title. In these circumstances, I would not characterize the paralegal’s silence as real concurrence in the exclusion.
[35] Furthermore, in the two comments at the beginning of the trial and in the first part of the section quoted above at paragraph 20, the deputy judge seemed to focus on excluding the party because of the risk of tailoring evidence. This is the only real concern which may in a rare case justify exclusion. However, when she excluded the husband the second time, the deputy judge directed, “You can only have one instructing principle [sic] with you.” It is reasonable to assume that this was the true motivating reason. If so, this was completely arbitrary and without any possible justification.
[36] In addition, this was not a case like Liu Estate in which the trial judge had erred in balancing the interests of presence in the courtroom against the risk of tailoring of evidence. There was nothing to balance in this case. No authority existed for the making of the order.
[37] Counsel for the respondent argues that the exclusion of the husband did not prejudice the appellants as the husband’s interest was identical to the wife’s. While their interests may have been identical, it is difficult if not impossible to say whether the husband’s instructions to the paralegal acting for them would have been the same. His perspective and his knowledge of the underlying circumstances may well have added something to the defence of the action.
[38] The onus is on the respondent, following the identification of error and a breach of the Rules, to demonstrate that there was no substantial wrong or miscarriage of justice. The respondent is hampered by a lack of evidence on the point. In Liu Estate, the excluded party eventually testified and inferences could be drawn from her evidence. Here, it is much more difficult for the respondent to successfully invoke the harmless error argument because the appellant husband did not testify in the end. We cannot use his evidence to infer what his instructions would have been if he had been present at the trial.
[39] In any case, the appearance of unfairness cannot be easily dissipated given the circumstances. Even if the respondent could demonstrate a lack of actual prejudice, I would still have been strongly inclined to vacate the judgment below in order to maintain the integrity of the process. Under our system, the right of a party to be present at his own trial is of fundamental importance.
[40] It is also important to incorporate the circumstances which gave rise to the first ground of appeal. A reasonable, informed observer would view the exclusion of the husband in the same breath as the prejudgment committed by the trial judge at the very beginning of the trial. These two issues combine to compromise the appearance of fairness.
C. CONCLUSION
[41] The deputy judge’s prejudgment before any evidence or argument was heard and, more significantly, her exclusion of the husband during the trial, rendered the appearance of this proceeding unfair. A new trial is required.
[42] There were several other grounds of appeal argued which need not be considered given this result. In terms of remedy, counsel for the appellant asked me to resolve this litigation in favour of her clients. However, the grounds for reversal I have found, and the other grounds argued as well, are not of a nature which could logically lead to this result. The reasons for reversal are procedural, not substantive.
[43] One would hope that after all the time and money spent on this litigation, an expenditure far more than was at issue in the original dispute between the parties, cooler heads will prevail and this matter will be settled without another trial being necessary.
[44] The appeal is allowed and a new trial ordered. The parties will forward written cost submissions of no more than two pages within three weeks of the release of this judgment.
D.E HARRIS J.
Released: February 1, 2018
COURT FILE NO.: DC-16-0130-00
DATE: 2018 02 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Barbara Januszewigz and Mark Januszewigz
Defendants (Appellants)
- and –
GFC Landscaping Interlock Ltd.
Plaintiff (Respondent)
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: February 1, 2018