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Fairness - Civil Litigation. Earle v. Toro Roofing Inc.
In Earle v. Toro Roofing Inc. (Div Court, 2024) the Ontario Divisional Court dismissed an appeal from the Small Claims Court, here in a renovation dispute.
Here the court considers 'procedural fairness' in a civil trial context:Was Ms. Earle denied procedural fairness?
[6] Ms. Earle submits she was denied procedural fairness on many grounds. These include: (1) that she was not given the opportunity to re-examine herself after she was cross-examined by the respondents; (2) that she should have been accommodated with an in-person trial with real-time captioning to assist with her hearing disability; and (3) that the deputy judge did not clearly explain that she was required to enter documents she wanted to rely on as exhibits.
[7] I conclude the trial was not procedurally unfair. There is no dispute that Ms. Earle did not re-examine herself, but determinations of procedural fairness are context specific. The confusion about her re-examination arose after a decision was made to change the order of witnesses. The third day of trial, May 3, 2023, was supposed to start with the cross-examination of Ms. Earle. Because she was recovering from a cold and was having difficulty speaking, the deputy judge accepted a suggestion from counsel for the respondents that the parties proceed with the examination of his expert, who was supposed to proceed later in the day. After it became clear Ms. Earle was able to speak to cross-examine the expert, the trial proceeded to her cross-examination that afternoon. At the end of the day, counsel for the respondents advised that he wished to review two more documents with Ms. Earle on cross-examination when the trial resumed.
[8] The next trial date was over three months later. Counsel for the respondents had in the meantime decided not to ask any further questions on cross-examination and had his own witness ready to testify. The deputy judge did not specifically recall that there was no formal conclusion to Ms. Earle’s cross-examination and neither party raised it. Ms. Earle did not ask to re-examine herself at that time.
[9] Ms. Earle did attempt to raise the issue with the deputy judge after the evidence of all the witnesses was completed and the deputy judge was asking the parties about the time needed for closing submissions. Ms. Earle was having difficulty expressing clearly what she was requesting, and it appears the deputy judge did not understand. Ms. Earle asked for the opportunity for “rebuttal.” The deputy judge understood it as a request to lead rebuttal evidence, which she denied.
[10] I appreciate that Ms. Earle ultimately did not have the opportunity to re-examine herself. This was not a breach of procedural fairness in all the circumstances. The trial was scheduled for one day but took four days. Ms. Earle’s evidence took 2.5 of those days. She had ample opportunity to present her case. She did not raise any complaint about an inability to lead important evidence in closing submissions. Re-examination is a narrow opportunity to respond to new issues raised in cross-examination that could not have been anticipated. Ms. Earle has not described any re-examination evidence she wanted to introduce that would have been admissible and important. This ground of appeal is dismissed.
[11] Ms. Earle also submits the trial was unfair in that she was not provided with an in-person trial with real-time captioning. This was not a breach of procedural fairness nor a failure of the duty to accommodate Ms. Earle’s disability. The first day of the trial was conducted in-person, without any real-time captioning. Ms. Earle did not raise any complaint then. When the parties returned for the second day of trial, she requested real-time captioning. The deputy judge advised the technology was not available in the courthouse that day and ordered the next trial day to proceed by Zoom so real time captioning could be provided. There is no transcript from that discussion but nothing in the deputy judge’s endorsement suggests the move to Zoom was against the plaintiff’s wishes. When the next day of trial was started on Zoom, Ms. Earle was provided with closed captioning. She did not raise any complaint or concern with the process, nor has she pointed this court to any situations where she had difficulty understanding during the trial. A conversion to Zoom with closed captioning was a reasonable accommodation in the circumstances.
[12] I also reject Ms. Earle’s submission that the deputy judge breached procedural fairness by not clearly explaining she was required to enter any documents she wanted to rely on into evidence as an exhibit. In my view, the deputy judge did explain this. In response to a question from Ms. Earle, the deputy judge stated that Ms. Earle should not read any documents into the record because the deputy judge could read them on her own. But she also advised Ms. Earle she should refer to the document and explain why she had included it. Ms. Earle appeared to understand this explanation because she said she would “go through what [she had] in the binder.” The deputy judge then gave Ms. Earle a break to organize her remaining testimony. The deputy judge explained that Ms. Earle would be required to point to documents she relied on and there was no breach of procedural fairness. . Rebello v. Ontario (Community Safety and Correctional Services)
In Rebello v. Ontario (Community Safety and Correctional Services) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an earlier dismissal "of her lawsuit alleging that the Ontario Provincial Police breached common law and statutory duties they owed to her by failing to meaningfully investigate complaints".
Here the court, while considering an appellant-raised 'procedural fairness' argument in a civil Charter and tort context, refers to the doctrine as one of 'natural justice':[6] Third, the appellant contends that the motion judge denied her procedural fairness by ordering that the parties must attend the motion hearing in person and then by holding the hearing when she failed to attend. As held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 21, the content of procedural fairness is to be decided in the specific context of each case. In the context of this case, we do not agree that the motion judge’s conduct of the proceeding resulted in any unfairness.
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[14] We conclude that the motion judge exercised his discretion reasonably, and that the appellant’s allegation of a breach of natural justice has no merit.
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