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Fairness - Cross-Examination. Gloczi et al v. Dupont/Lansdowne Holdings Inc.
In Gloczi et al v. Dupont/Lansdowne Holdings Inc. (Div Court, 2024) the Divisional Court dismissed an RTA s.210 eviction appeal, here where the tenants did not attend the LTB hearing and argued that they did not receive "any of the correspondence sent by the landlord and the Board about the hearing".
The tenants argued further that "(t)hey were denied procedural fairness when the Board relied on evidence introduced by the landlord’s paralegal, who was not subject to cross-examination", which the court assessed on Baker principles:Were the tenants denied procedural fairness when the Board relied on Board documents and correspondence introduced by the landlord’s paralegal?
[6] The tenants submit they were denied procedural fairness because the Board’s conclusion was based on evidence introduced by the landlord’s paralegal. It submits there was no opportunity to cross-examine the paralegal because she was attending as a legal representative. In any event, she did not have firsthand knowledge of the correspondence. There was also no witness to testify to the Board’s procedures with respect to its correspondence. By contrast, the tenants themselves were subject to cross-examination on their evidence that they did not receive the communications.
[7] I do not accept that the Board’s reliance on the evidence from the paralegal and about the delivery of Board documents amounted to a breach of procedural fairness. Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras 23-27, sets out the factors to be considered in determining whether the requisition level of procedural fairness has been accorded. I address the factors below.
The nature and importance of the decision and the process followed in making it
[8] The decision being made was important. Losing a home is a very serious matter, especially for the tenants, who suffer from disabilities, speak a different language, and have a limited income.
[9] The process followed for making the decision allowed the tenants to testify at a review hearing after they did not appear at the original hearing date. While the Board relied on evidence that was admitted without cross-examination, the tenants did not seek to cross-examine the landlord’s paralegal. Additionally, as discussed further below, the disputed documents were a reliable form of evidence.
The nature of the statutory scheme
[10] The RTA is remedial legislation with a tenant protection focus. But the Board is also a high-volume tribunal. It is expected to proceed in an expeditious but fair manner. Section 183 of the RTA specifically requires the Board to adopt “the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues to be heard on the matter.” The Board’s procedure can include, in appropriate circumstances, admitting evidence that is unsworn and from a legal representative. Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (SPPA), the Board is empowered to admit documents, whether or not proven under oath or admissible as evidence in court. Rule 1.6 of the Board’s Rules of Procedure specifically provides that the Board may exercise its discretion to permit a party’s legal representative to give evidence where appropriate.
Legitimate expectations of the person challenging the decision
[11] In my view, it was not legitimate for the tenants to expect the Board not to rely on the disputed documents. The documents were not of a type that is usually controversial or subject to credibility assessments. The Board permitted the introduction of four documents. The first was a Board notice of termination accompanied by a certificate of service attesting that the tenants were personally served on June 9, 2022. The tenants would have been aware from the notice that arrears were owing. The landlord’s legal firm then sent two letters to the tenants: the first, dated July 28, 2022 advised the tenants that the landlord had filed an application with the Board; the second, dated February 13, 2023, advised the tenants of the upcoming hearing. The Board also mailed a notice of hearing on February 13, 2023 and a copy of the March 10, 2023 order.
[12] With respect to the letters from the legal firm, the tenants did not seek to cross-examine the landlord’s paralegal at the hearing. They were not precluded from doing so. The commentary to rule 5.2-1 of the Law Society of Ontario Rules of Professional Conduct provides that “there are no restrictions on the advocate’s right to cross-examine another lawyer.” The tenants submit that, in any event, her evidence would not reflect firsthand knowledge since she was not the writer of the letters. Nonetheless, she presumably could have answered questions about procedures at the firm for preparing and mailing correspondence if the tenants thought that information was important.
[13] However, as the Board noted, none of the legal correspondence was returned as undeliverable. The tenants did not put forward any theory of why these documents, which normally would be considered reliable, were plausibly not delivered in this case. They did not propose any questions that would have been asked on cross-examination that would have materially affected the assessment of the evidence.
[14] The circumstances here are distinguishable from Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083. The disputed evidence in that case was much less reliable than the disputed evidence here. A tenant was evicted because she allegedly committed an illegal act by throwing a rabbit off her 15th floor balcony to its death. The tenant and another witness testified that the rabbit jumped. The only evidence of an illegal act was from a police officer who read the notes of another police officer who had attended the scene after the incident. Neither police officer had witnessed the incident. The complainant who had provided a statement to the police did not testify. This court found that in those circumstances, it was unfair to allow the landlord to test the tenant’s credibility while the tenant had no opportunity to test the credibility of the complainant.
[15] The disputed evidence in the current case was of an entirely different order. It was not the third hand version of a hotly contested incident, but documents from the Board and a legal firm that were not returned as undeliverable. This does not mean the Board was required to accept the tenants received the correspondence, but it was not a breach of procedural fairness to admit the documents without cross-examination.
Respect for the procedural choices of the decision-maker
[16] The Board is entitled to control its own process. As set out above, it is expected to proceed in an expeditious manner and is entitled to admit unsworn evidence in appropriate circumstances.
Conclusion on procedural fairness
[17] Overall, because of the nature of the disputed documents, it was open to the Board to admit them into evidence. It also remained open to the tenants to provide evidence or a proposed explanation as to why or how they did not receive the correspondence. This could have included, for example, information about how mail was received in the building, or a lack of security related to mail. The tenant Ms. Glonczi did testify that she had lost the key to the mailbox “a couple of weeks” before the sheriff attended the unit on April 14, 2023. But the Board noted the letters from the legal firm would have been sent well before this time period. The Board found that, while the tenants may not have fully understood the documents, it was “highly improbable” that none of the letters, the notice of hearing, and the order of the Board were received. It was entitled to admit the documents and reach this conclusion. Doing so did not amount to a breach of procedural fairness. . Arvanitopoulos v. Wawanesa Mutual Insurance Co.
In Arvanitopoulos v. Wawanesa Mutual Insurance Co. (Div Court, 2024) the Divisional Court dismissed a JR against an IA s.128 umpire "appraisal hearing and outcome", here on procedural fairness grounds in the nature of aggressive cross-examination:[3] In the fall of 2022, the parties participated in an appraisal proceeding under s. 128 of the Insurance Act, R.S.O. 1980, c. I.8. The purpose of an appraisal is to help the parties fix the value of the insured claims. In the appraisal, the parties sought to agree upon or fix the values of the damage to the house and contents, and to determine the alternative living expenses reasonably incurred by the applicants due to the insured fire event.
[4] In Intact Insurance Co. v. Laporte (c.o.b. Warrior Gear), 2024 ONCA 454, the Court of Appeal recently described an appraisal process in this way:[4] A s. 128 settlement process is meant to be an easy, expeditious, collaborative, and cost-effective way of settling disputes about appraisals: Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, 467 D.L.R. (4th) 480, at para. 36. It begins with each party appointing an appraiser of their own. If the appraisers cannot resolve the matter between them, an umpire whom they have appointed will determine the matter. ....
Preliminary Note
[6] The applicants submit that this multi-day appraisal, that took multiple years in its establishment, was anything but the easy, expeditious, collaborative process it was supposed to be. Rather, they say they and their witnesses were bullied by an overly aggressive appraiser for the insurer. They submit that they were subjected to a most unfair resolution in which the umpire decided the key values based on his own site visit and ignoring the evidence and submissions of both parties.
[7] I have nothing good to say about the behaviour of the insurer’s appraiser John Valeriote. He did not deny the evidence that he threatened the livelihood of the applicants’ expert witness. He weakly contests the evidence that he acted as an unrestrained bully throughout the hearing.
[8] On the facts of this case, for the reasons that follow, I do not find that that Mr. Valeriote’s misconduct deprived the applicants of procedural fairness. Despite that conclusion, umpires should understand their right and, indeed, their obligation to ensure that all appraisal participants behave with respect and decorum befitting a legal proceeding - especially one that is supposed to embody a collaborative process.
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[14] In an application for judicial review, the court will consider whether the proceeding under review was conducted in accordance with the principles of procedural fairness with reference to the factors discussed by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, paras. 23-28.
[15] In addition, on an application for judicial review, the court exercises a supervisory role. Rather than looking to correct substantive errors on an appeal, the court’s role on judicial review is to ensure that the decision maker performed his or her statutory assignment properly – both reasonably and fairly.
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Procedural Fairness
[21] The essence of natural justice, and its progeny doctrine of procedural fairness, is that each party to a proceeding has the right to know the case they have to meet and to adduce the evidence and argument necessary to do so. The formality of the process for hearing from the parties required for procedural fairness can vary such as simple discussion or an exchange of letters, all the way to a formal trial subject to the rules of evidence with all of its strictures and procedural glory.
[22] In this case, despite the conduct of Mr. Valeriote, as the representative of the insurer, the evidence of the applicants and their expert witness is that they knew the issues and had the opportunity to present truthfully the evidence they wished to present. At paras 23-41 the court walks through their assessment of the evidence substantiating this conclusion. The court continues:[55] While the award does not provide any detail at all as to how the umpire came to his final conclusion, it is self evident that he reduced the agreed value of the goods by a factor of more than 50% to reflect his finding on the salvageable state of the goods or as a compromise of the parties’ positions. The insurer’s appraiser agreed and signed the appraisal.
[56] Appraisers appointed by parties are generally not lawyers. They bring valuation expertise to the insurance claim. If the appraisers cannot agree, they appoint an umpire who is empowered to bring the appraisers to a resolution that he and at least one of them accept. The umpire is expected to have expertise and to bring it to bear. Here, the umpire did nothing unilaterally. He told the appraisers of his concern and invited them to attend with him. He then told them of his finding and invited submissions. He explained the process in his award. This was as it should be.
The Building Loss Value
[57] There was competing evidence brought by the appraisers to the umpire. The applicant provided a detailed current costing. The insurer relied on reports obtained shortly after the fire, remediation estimates, amounts actually paid, and an engineering report written in 2022 as a result of site visits ordered by the court. The insurer submitted it had fully indemnified the applicants by paying $312,038.04 toward the building claim.
[58] It is apparent from the award that the umpire accepted the insurer’s position.
[59] The values determined are questions of fact. The applicants seem to be arguing that because only they submitted an up-to-date costing, the umpire was bound to accept their position. That is not the law however. The umpire was entitled to accept as fact the more limited scope of work and other materials submitted by the insurer.
[60] Judicial review is generally not available on facts unless the decision maker fundamentally misapprehends the evidence or fails to take into account relevant evidence before it. The court is not to reweigh the evidence: see Vavilov, at paras. 125-126. I see no basis to reweigh the evidence in this case. . Shahin v. Intact Insurance Company
In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.
Here the court considered a procedural fairness argument, where the insurer's medical expert was not available for cross-examination by the appellant:[3] Ms. Shahin submits the hearing was procedurally unfair in several ways. Her central submissions are as follows: First, the Tribunal unfairly relied on the evidence of Intact’s expert, Dr. West. Dr. West, a neuropsychologist, prepared a report in which he diagnosed Ms. Shahin with an adjustment disorder but did not find her to be catastrophically impaired. He testified in-chief at the hearing but when the time originally allocated for his cross-examination was used to hear a motion, he never re-attended to be cross-examined. Ms. Shahin submits the Tribunal unfairly failed to insist he attend for cross-examination and breached procedural fairness by relying on his evidence in its decision.
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Did the Tribunal breach procedural fairness by relying on the evidence of Intact’s expert when he was not cross-examined?
[9] Ms. Shahin submits the Tribunal breached procedural fairness by not requiring Dr. West to re-attend for cross-examination. Dr. West had provided nearly 100 transcript pages of untested oral evidence. He initially re-attended but left when a motion brought by Ms. Shahin used the time allocated for his cross-examination. He did not respond when he was contacted to reattend. In Ms. Shahin’s submission, it is impossible to know that his unchallenged evidence did not influence the adjudicators. Further, in their reasons, the adjudicators cited the transcript of his evidence and relied on his report.
[10] Intact submits that the references to Dr. West’s evidence did not prejudice Ms. Shahin. It emphasizes that the Tribunal did not rely on Dr. West’s opinion regarding whether Ms. Shahin sustained a catastrophic impairment. Intact also submits that Ms. Shahin’s counsel strategically delayed cross-examining Dr. West by bringing a motion on the day that was allocated for Dr. West’s cross-examination.
[11] In my view, the Tribunal breached procedural fairness. Both parties rely on Baker, at paras. 23-27, for the factors to determine the level of procedural fairness owed in the circumstances of a particular case. In this case, those factors point to a high level of procedural fairness. This is most clearly evidenced by the nature of the hearing itself, which proceeded as a full, contested, oral hearing, with witnesses, including experts, examinations, and, apart from Dr. West, cross-examinations. The issues in the case were of substantial financial importance to Ms. Shahin.
[12] Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record. ....
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[18] The Tribunal referred to Dr. West’s evidence both to support its conclusions that the accident did not cause Ms. Shahin any injury and that her impairment did not rise to the level of catastrophic. The Tribunal of course also relied on substantial other evidence in support of these conclusions. Still, Dr. West’s evidence infected the Tribunal’s conclusions on the central issues governing its decision. In these circumstances, the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness. . Reisher v. Westdale Properties [for numbered case cites see main link]
In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court considers how the acceptance of hearsay evidence (absent the ability to cross-examination) is allowed by the SPPA and did not result in procedural unfairness in this case:[45] On behalf of Jeanette Reisher, it is submitted that there was a denial of procedural fairness. In its decision of June 6, 2022, the Landlord and Tenant Board included the observation that:The Landlord’s Property Manager testified that in addition to the two tenants who testified at the hearing, there are three additional tenant[s] who have complained about the tenant’s behaviour but were too afraid to testify at this hearing.[37] [46] This statement indicates reliance on hearsay evidence which was accepted in the absence of any opportunity to question or cross-examine those tenants as to their complaints. The Statutory Powers Procedure Act, which applies to the proceedings of the Landlord and Tenant Board, provides as follows at s. 15(1):Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious. [47] The breadth of this section allows for the admission of hearsay evidence:In proceedings before most administrative tribunals hearsay evidence is freely admissible and its weight is for a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice…[38] The court closely-analyses this evidence at paras 48-56.
. Westdale Properties v. Reisher
In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal on being of "devoid of merit", in part due to the failure of the LTB to allow adequate 'testing' (cross-examination) of evidence:[40] I disagree. A failure to accord procedural fairness may raise a question of law: see Harper v. Sauve, 2022 ONSC 5754 at para. 11. A tenant facing eviction may have a legitimate expectation that they will be able to test “key evidence” that is relied upon to support an eviction order: see Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 at para 44. Here, the LTB emphasized the fears of three tenants who did not attend the hearing. . Carr v. Brown
In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but excluding the tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting the tenant's to cross-examine on direct examination that they had been excluded from hearing [para 32].
The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals. The case is an example of how administrative law can degrade justice in Ontario.
. Terra Scapes Landscape Construction Inc. v. Ashtaryeh
In Terra Scapes Landscape Construction Inc. v. Ashtaryeh (Div Court, 2022) the Divisional Court granted a Small Claims Court appeal on fairness grounds, here for failure to allow cross-examination:Procedural Fairness
[23] The Appellant submits that the proceeding before the deputy judge was unfair because he was not given an opportunity to cross-examine the Respondent. The Respondent disagrees.
[24] In considering the procedural fairness issue, it is necessary to keep in mind the particular mandate and context of the Small Claims Court, as highlighted by the Court of Appeal in Maple Ridge Community Management Limited v. Peel Condominium Corporation, 2015 ONCA 520, at paras. 34-35:The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.
Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient. [25] In Riddell v. Huynh, 2021 ONSC 7112, Kristjanson J. of this court observed that the emphasis on accessible, affordable justice is reflected in the provisions that govern Small Claims Court hearings. Under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, 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.” Under s. 25, a “deputy judge has discretion to admit as evidence relevant documents and oral testimony regardless of whether or not the evidence is given or proven under oath or affirmation or admissible in evidence in any other court.”
[26] The Respondent relies on Earthcraft Landscape Ltd. v. Clayton, 2002 NSSC 259, at para. 14, in which the Nova Scotia Supreme Court held that the absence of cross-examination was not a breach of the principles of natural justice. In that case, the court observed that there were no authorities squarely on the issue of whether the principles of natural justice require a Small Claims Court to provide for formal cross-examination. While there was no cross-examination, the adjudicator had put the issues raised by each party to the other and effectively cross-examined the witnesses. The court found that “it is the substance, rather than the form, of cross-examination that is essential.”
[27] The parties were not able to direct me to any Ontario cases addressing the question of whether the failure to provide for cross examination in a trial before the Small Claims Court is a breach of procedural fairness.
[28] In Chanachowicz v. Winona Wood Ltd., 2016 ONSC 160, Hill J. found that the conduct of the trial by a deputy judge of the Small Claims Court was a miscarriage of justice, and set aside the judgment. In that case, the deputy judge had curtailed the defendant’s cross-examination of the plaintiff’s witnesses, erroneously excluded evidence, and did not permit the defendant to make closing submissions. The failure to permit the self-represented defendant to make closing submissions was found to be a sufficiently egregious error and denial of fundamental justice to allow the appeal.
[29] In respect of cross-examination, Hill J. noted, at para. 68, that: “[e]ffective cross-examination is recognized as the core of a fair trial and the right to cross-examine witnesses, while not absolute, should be without significant and unwarranted restraint.” (Internal citations and quotations omitted.) The curtailing of cross-examination by the defendant was an element of the unfairness of the trial as a whole. Hill J. provided the following guidance on the conduct of a trial involving self-represented litigants before the Small Claims Court, at paras. 78-79:The claims before the trial court were relatively straightforward. The quantum of damages claimed by the respective parties were not significant. But to litigants before the court, fair resolution of their disputes was important. The trial judge’s sense that the trial should be completed in a day was entirely reasonable.
Not simply from the advantage of hindsight, but as a prudent practice in presiding over litigation involving one or more self-represented litigants, the court should routinely, at the outset of trial, provide instructions and information about trial procedure…, caution about adherence to the pleadings, preliminary review of what the parties consider the live issues to be, the expected manner of their discharge of proof of essential facts, discussion of admissions and agreed facts and documentary exhibits and testimonial evidence of witnesses not appearing, information to a defendant that he can prosecute his Defendant’s Claim in part through cross-examination of plaintiff witnesses, consultation about a trial timetable, etc. [30] In this case, while recognizing that the Small Claims Court must hear and determine all questions of law and fact “in a summary way” and making allowances for the informality and efficiency necessitated in proceedings before it, I nonetheless find that the deputy judge’s failure to allow cross-examination was a breach of procedural fairness.
[31] In the circumstances of this case, the absence of cross-examination of either party was a significant gap giving rise to unfairness in the trial. That is because there was conflicting evidence as to how the changes to the project came about, whether they were requested by the Appellant and whether the Respondent brought to the Appellant’s attention that the changes would result in non-compliance with the grading plan. The Respondent testified that the changes were all made at the Appellant’s request. The Appellant testified that he provided feedback about aesthetics, such as the location of trees and plants, and not about grading, for which he relied on the Respondent’s expertise.
[32] The deputy judge found that the evidence as to who initiated the changes and whether the Respondent informed the Appellant that they were contrary to the plan was “lacking.” She nonetheless inferred that since there would be no reason for the Respondent to make the changes, the changes were made at the Appellant’s request. In order to make this inference, however, the deputy judge had to reject the Respondent’s evidence that he did not request changes to the grading plan. In making her findings, the deputy judge clearly preferred the evidence of the Respondent over the evidence of the Appellant. However, in the absence of cross-examination, the basis for preferring the Respondent’s evidence is not clear.
[33] Similarly, in awarding damages of $27,580 to the respondent, the deputy judge accepted that this represented the amount owing under the Contract. However, the Appellant disputed the amount owing. The Appellant’s evidence was that, even leaving aside the issue of the changes to the scope and plan, the balance owing was $21,676.08 and not $27,580, as the Respondent claimed. Again, there was conflicting evidence on a key issue. Neither party had the opportunity to test the other party’s assessment of damages through cross-examination. In awarding the Respondent the entire amount, the deputy judge must have preferred the Respondent’s evidence; she simply accepted that the amount sought by the Respondent was the balance due on the contract. The documents in evidence showed, however, that the Appellant disputed the balance owing, even without taking into consideration the grading issue and the additional costs.
[34] In my view, where there is conflicting testimonial evidence, trial fairness requires that the parties be afforded an opportunity to cross-examine each other’s witnesses. In this case, in preferring the Respondent’s evidence over the Appellant’s, the deputy judge in effect made credibility findings without explicitly stating so. Without cross-examination, however, the basis for finding one party more credible than the other is not apparent. The approach of the deputy judge was inappropriate and led to unfairness in the proceeding.
[35] This is not to suggest that procedural fairness requires formal cross-examination in every trial before the Small Claims Court. I agree with the finding in Earthcraft that it is the substance, rather than the form of cross-examination that is required. The issue is whether the evidence has been tested, whether by cross-examination by the opposing party or by questions from the adjudicator. In this case, the deputy judged posed a few questions, however, they related to the parties’ positions, and cannot be considered a testing of the evidence. Each party’s evidence was untested by cross-examination or otherwise.
[36] In addition, I find that the unfairness was compounded by the fact that Mr. Lof was given an opportunity to explain each of the documents that the Respondent sought to have entered into evidence and the Appellant was not. The Appellant’s documents were entered only as an after-thought, after the evidentiary portion of the hearing had been concluded. Moeover, there is nothing in the Judgment to suggest that the deputy judge considered the documents, or if she did not consider them, why they were not relevant.
[37] Accordingly, I find that the proceeding before the deputy judge lacked procedural fairness and that the Judgment must be set aside.
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