Citation: Brown v. Newton, 2009 NSSC 388
Date: 20091214
Docket: Bwt No. 312077
Registry: Bridgewater
Between:
Thomas K. Brown
Appellant
v.
Walter O. Newton
Respondent
Judge: The Honourable Justice Glen G. McDougall
Heard: November 24, 2009, in Bridgewater, Nova Scotia
Final Written November 26, 2009 from W. Harry Thurlow
Submissions: December 4, 2009 from Rubin Dexter
Written Decision: December 15, 2009
Counsel: Rubin Dexter, on behalf of the Appellant
W. Harry Thurlow, on behalf of the Respondent
By the Court:
[1] This matter comes before the court by way of an appeal from a decision of an adjudicator of the Small Claims Court.
[2] The grounds for appeal are stated to be:
(1) error in law; and
(2) a failure to follow the requirements of natural justice.
[3] The particulars of the error or failure which forms the grounds of appeal are:
1. The presiding Adjudicator both erred in law and failed to follow the rules of the natural justice in that the Adjudicator failed to permit the Appellant to call the Respondent as a witness as part of the presentation of the Appellant’s case-in-chief;
2. In failing to permit the Appellant to call the Respondent as a witness as part of the presentation of the Appellant’s case-in-chief, the presiding Adjudicator failed in his duty to ensure that the Appellant had a fair trial and was able to fully present his case.
Background:
[4] Thomas K. Brown (the “appellant”) filed a notice of claim against Walter O. Newton, Q.C. (the “respondent”) in the Small Claims Court of Nova Scotia on the 18th day of November, 2008.
[5] The claim was for $8,259.84. The reason for the claim was “Walter Newton was hired as a high-profile lawyer but his work did not come close to the level that was expected.” This was later amended at the commencement of the hearing after discussion with the adjudicator assigned to hear the claim to add “and was thereby negligent”.
[6] The basis for the claim was an allegation of negligent legal representation on the part of the respondent. The respondent had acted as legal counsel to the appellant during the course of a dispute between the appellant and his two siblings regarding the assets of their deceased father’s estate. The respondent attempted to negotiate a settlement with the proctor for the estate. At one point he thought he had succeeded and when the proctor advised that there was no deal an application was made to the Supreme Court seeking an order to first find that a settlement had been reached and then to enforce the terms of the alleged agreement.
[7] Because the respondent was required to give evidence to enable the court to find that a settlement agreement had indeed been reached the respondent stepped aside as counsel in favour of another lawyer. The respondent provided an affidavit and also was permitted to offer vive voce testimony to challenge some of the evidence contained in the proctor’s affidavit which was filed in opposition to the application. The estate, too, hired independent counsel to represent it at the hearing.
[8] After hearing and considering the evidence and the submissions of counsel, the Honourable Justice Gregory Warner ruled that no agreement or settlement had been reached and so denied the application.
[9] The appellant’s claim against the respondent arises out of that failed application and the respondent’s alleged negligent conduct that lead up to it.
[10] As indicated previously the claim went to hearing in the Small Claims Court. The appellant represented himself. The respondent was represented by legal counsel.
[11] After giving his evidence the appellant closed his case. Counsel for the respondent elected not to call evidence. Apparently this surprised the appellant who expected the respondent to testify in his own defence. This would have provided the appellant an opportunity to cross-examine.
[12] In his “Report of Findings” the adjudicator stated “[T]o the best of my recall I did not prohibit the claimant from calling the defendant.” He also goes on to say:
The Claimant [now the appellant] had indicated that he had completed his case and I turned the matter over to the Defense. The Defense indicated that they did not wish to call evidence. The Claimant seemed surprised at this and in response to questions in this regard, I advised the Claimant to the effect that the Defense is not obligated to call evidence.
Submissions were then made by both parties and as I stated above I dismissed the claim without costs.
Issue:
[13] The issue for this court to decide is:
By not explaining to the self-represented claimant that he could have called the defendant to testify as part of his case-in-chief, did the Learned Adjudicator err in law and was there a failure to follow the rules of natural justice?
[14] In the case of R. v. B.C.H. (1990), 58 C.C.C. (3d) 16 (Man. C.A.), at p. 22, Justice Twaddle stated:
The legal system in Canada is mainly adversarial. It works best when each side is represented by a qualified advocate. Inevitably, a litigant in person is at a disadvantage. In strict theory, this should not be so, but it is a fact and there is no use denying it.
[15] The Small Claims Court was created by statute. Section 2 of the Small Claims Court Act, R.S.N.S. 1989, c. 430 (hereinafter the “Act”) gives the purpose for the creation of the court. It reads:
2. It is the intent and purpose of this Act to constitute a court wherein claims up to but not exceeding the monetary jurisdiction of the court are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice.
[16] It is clear from a reading of the Act that it is primarily concerned with providing an informal and inexpensive forum for lay persons to seek redress for civil disputes. Although lawyers are not prohibited from appearing on behalf of litigants it is clear from reading section 16 of the Act that the court is intended to be a “people’s” court. Section 16 reads:
16. A claimant or a defendant may appear at a hearing in person or by agent and may be represented by counsel.
[17] I have no statistical information on the percentage of litigants who appear in person or by agent but I suspect they represent the majority of those who utilize the services of the court.
[18] I also suspect, although once again I have no statistical data to back this up, that with increase in the monetary jurisdiction of the court over the past number of years the number of lawyers representing one or other or both of the parties is also on the rise. No doubt the expense of legal representation can be justified by the potential amount of awards that can be made.
[19] In cases where both sides are represented by competent legal counsel the presiding adjudicator would normally be less concerned with explaining the basic rules of procedure and evidence to the parties.
[20] This would not be the case where either or both parties are self-represented. In either of these last two scenarios an adjudicator must be prepared to explain the procedure that will be followed and some of the basic rules of evidence.
[21] It is always a fine line between offering information and giving legal advice. The adjudicator has to be vigilant not to cross the line or to even create the perception of crossing the line.
[22] It is akin to walking a high-wire without the security of a safety net or even a guarantee that the wire will remain taut. The information an adjudicator should provide will vary from case to case and from party to party. In doing so the adjudicator must be mindful of not taking or being perceived of taking sides. His or her role is to ensure that all parties have the opportunity of fairly presenting their case. In short, the adjudicator must maintain an even-playing field.
[23] As Justice McLachlin, (as she then was) said in R. v. Harrar, [1995] 3 S.C.R. 562, at para 45:
At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view.... Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.
[24] Now granted, Chief Justice McLachlin’s comments were made in the context of a criminal trial but in my opinion they still have application to a civil proceeding.
[25] In the case under appeal, based on the adjudicator’s “Report of Findings”, he states “[T]o the best of my recall I did not prohibit the Claimant from calling the Defendant”. He goes on to say:
The Claimant had indicated that he had completed his case and I turned the matter over to the Defense. The Defense indicated that they did not wish to call evidence. The Claimant seemed surprised at this and in response to questions in this regard I advised the Claimant to the effect that the Defense is not obligated to call evidence.
[26] Certainly the learned adjudicator cannot be faulted for what he did nor what he offered by way of explanation to the appellant. But, should he have done more? Should he have explained to the appellant that he could ask to re-open his case for the purpose of calling the respondent as part of his case-in-chief as is provided for in Civil Procedure Rule 54.06 which says:
54.06 In addition to cross-examination in accordance with the rules of evidence about a hostile witness, a party may call and cross-examine a party who is adverse in interest or a person who is, when the person is called, an officer, director, or employee of a party who is adverse in interest.
[27] In my view the answer to this question is yes, he should have. Even if it involved the need for an adjournment this could have been accommodated without significant inconvenience or hardship to the respondent. Unless there is an express provision in the Act or the Regulations to the contrary the Civil Procedure Rules, although adopted for use in the Supreme Court of Nova Scotia, may be used for guidance or even direction on procedural issues which is in keeping with the stated purpose of the Act referred to earlier. (See section 2)
[28] In the “Statement of Principles on Self-Represented Litigants and Accused Persons” adopted by the Canadian Judicial Council in September of 2006 the first two recitals in the preamble state:
Whereas the system of criminal and civil justice in Canada is predicated on the expectation of equal access to justice, including procedural justice, and equal treatment under the law for all persons;
Whereas the achievement of these expectations depends on awareness and understanding of both procedural and substantive law;
....
[29] Under the heading C. “Responsibilities Of The Participants In the Justice System”, there is contained the following statement:
All participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.
[30] Following this statement there are a number of stated principles for, firstly, both the judiciary and court administrators including the following:
1. Judges and court administrators should meet the needs of self-represented persons for information, referral, simplicity, and assistance.
[31] Under the sub-heading “For the Judiciary” the following four principles are listed:
1. Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
2. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.
3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.
4. The judiciary should engage in dialogues with legal professional associations, court administrators, government and legal aid organizations in an effort to design and provide for programs to assist self-represented persons.
[32] This is only a statement of principles but it serves to provide guidance and advice to anyone privileged to preside over a court of law in this Province. It should not, however, be used as a way to impose a standard of perfection on trial judges. That is expecting too much. As Chief Justice McLachlin said in R. v. Harrar, supra, and I will paraphrase, the object is to ensure a fair trial not the most advantageous trial possible or the perfect trial but one which satisfied the public interest in getting at the truth while preserving basic procedural fairness to the parties.
[33] By not exploring further the reasons for the appellant’s surprise when he learned that the respondent had decided not to call evidence and by failing to provide additional information that might have alerted the appellant to the possibility of calling the respondent and to cross-examine him as part of the case-in-chief, the appellant was denied natural justice.
[34] Consequently, I have decided to allow the appeal and to remit the matter back for a rehearing before another adjudicator upon the following conditions:
(1) Within 30 days of the issuance of the order allowing the appeal, the appellant is to file an amended notice of claim providing further particulars of the alleged negligence against the respondent such that the respondent is adequately apprised of the case that is being made out against him. If the respondent feels it is necessary he, too, may file an amended defence in accordance with the requirements and deadlines set out either in the Act or the Regulations.
(2) The appellant shall be required to have issued and will arrange service of a subpoena requiring the respondent to attend the new hearing unless counsel for the respondent earlier provides an undertaking from his client committing himself to appear, prepared to testify either at the instance of the appellant or as part of the defence should the defence decide to call evidence.
(3) The appellant shall not be permitted to subpoena or call any other witnesses to testify unless it is to rebut the evidence of the respondent and only if permitted to do so by the adjudicator hearing the matter.
[35] The last condition is designed to guard against any possibility that the appellant might split his case. (Reference is made to the decision of the Honourable Justice F.C. Edwards of the Nova Scotia Supreme Court in Bidart v. MacLeod, 2005 N.S.S.C. 100). It would be unfair to the respondent to allow the appellant to subpoena or call any other witnesses that were not there to testify on his behalf at the first hearing. Rebuttal witnesses are another matter. It was open to the appellant to ask for an adjournment to call rebuttal evidence after the first hearing if the respondent had called evidence. I will not hinder his procedural right to do so if he feels it is necessary but I will leave it to the adjudicator hearing the matter to decide whether or not to grant it.
[36] I note that the adjudicator, in dismissing the claim when it was originally heard, did so without costs. I believe it is appropriate under the circumstances to expect each of the parties to this appeal to bear their own respective costs.
Justice Glen G. McDougall