Date: 19990708
Docket: A-441-97
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
ROTHSTEIN J.A.
BETWEEN:
OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "MELINA & KEITH 11"
Appellant
| -and- |
GERALD'S MACHINE SHOP LIMITED
Plaintiff
Heard at St. John's, Newfoundland on Thursday, July 8, 1999
Judgment delivered at St. John's, Newfoundland on Thursday, July 8, 1999
REASONS FOR JUDGMENT BY THE COURT
Date: 19990708
Docket: A-441-97
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
ROTHSTEIN J.A.
BETWEEN:
OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "MELINA & KEITH 11"
Appellant
| -and- |
GERALD'S MACHINE SHOP LIMITED
Plaintiff
REASONS FOR JUDGMENT
(Delivered from the Bench at St. John's, Newfoundland
on Thursday, July 8, 1999)
BY THE COURT:
[1] This is an appeal from a judgment of the Trial Division rendered on May 12, 1997. The appeal raises the issue of proper timing for the making of a nonsuit motion, and the role of the trial judge on the motion.
[2] As the issues involve the conduct of the trial, for ease of reference, the respondent will be referred to as the plaintiff and the appellant as the defendant.
[3] The plaintiff provided labour and materials to the defendant's ship for the purpose of outfitting the ship for scallop dragging and for other modifications. The defendant did not pay the plaintiff. The plaintiff sued the defendant for $48,092.75.
[4] The defendant's position was that the price was excessive. In addition, the defendant counterclaimed that the plaintiff had represented that the work would take five days but instead took five weeks. The defendant said that it lost profit of approximately $60,000.00 for the period the ship was out of service in excess of the five days represented by the plaintiff.
[5] The action was set down for trial at St. John's, Newfoundland for three days, commencing May 12, 1997.
[6] On April 28, 1997, counsel for the defendant commenced an unrelated criminal trial, defending a bank employee on a charge of fraud. At the arraignment in February 1997, the Crown estimated that the criminal trial would take three days. However that trial took 12 days, ending on May 13, 1997. On May 7, 1997, when defendant's counsel realized that the criminal trial and the Federal Court trial might overlap, he contacted plaintiff's counsel to request a consent to an adjournment. Plaintiff's counsel refused. Defendant's counsel then made a motion before the learned trial judge by conference call on May 8, 1997, for an adjournment. Plaintiff's counsel argued that the plaintiff would be prejudiced by a delay. The trial judge refused the adjournment.
[7] As a result, defendant's counsel turned the case over to a junior lawyer in his firm. The junior lawyer had only one to two years' experience at the time. The junior lawyer was not familiar with matter and the situation was further aggravated because the defendant's witness was at sea and the junior lawyer could not meet with him until the morning of the trial.
[8] The action came on for trial on May 12, 1997. When the defendant's witness testified, he did not deal with the counterclaim, that is to say, he did not give evidence as to any representation by the plaintiff that the work on the ship would take only five days or as to the amount of profit lost as a result of the ship being out of service for more than five days.
[9] When counsel for the plaintiff began cross-examining the defendant's witness, he asked the defendant's witness questions about his gross revenue from scalloping in prior years. The trial judge seems to have thought that this cross-examination was directed to the counterclaim and, after only one and one half transcript pages of cross-examination, intervened:
| [THE COURT]: So I'm sure where we're headed here, you presented no evidence on the counterclaim, have you? |
| MR. MORRISON [Counsel for the defendant]: No, my Lord. |
[10] The trial judge then asked defendant's counsel if the counterclaim was being abandoned. Defendant's counsel said the counterclaim was not being abandoned.
| THE COURT: Are you abandoning that? |
| MR. MORRISON: Well, I wouldn't say we're abandoning the claim, but -- |
[11] The trial judge then pursued the matter of abandonment.
| THE COURT: Well, if you got no evidence to support it, it's definitely [sic] something that either is abandoned or I'll be in a position to simply say that. |
| MR. MORRISON: Well, I just believe that Mr., my learned friend, Mr. Sinnott, is getting into that area, so -- |
| THE COURT: He's not going to prove your case unless you have some evidence to prove it. |
| MR. MORRISON: Well, my lord, all we can say is we may not have presented any evidence on the point but we're not abandoning the claim as such, that's all. |
[12] The judge then raised the matter of costs in relation to the counterclaim.
| THE COURT: Costs are a factor then? |
| MR. MORRISON: In the abandonment of the counterclaim? |
| THE COURT: If you don't present evidence, you maintain the claim, I would think that some costs arise as a result of that. |
| MR. MORRISON: As a result of the counterclaim? |
| THE COURT: Well, now you're going to put Mr. Sinnott to the test of examining on something on which you have no evidence, it's entirely up to you, I just want to be sure where you are, that's all. |
[13] Defendant's counsel then made a somewhat ambiguous statement relative to the calling of evidence on the counterclaim, but indicated that the claim was not being abandoned.
| MR. MORRISON: Indeed. Well, it wasn't our intention to, you know, present any evidence on the counterclaim at this, you know, but nonetheless, we hadn't abandoned the claim as such, if there are cost ramifications, if that is of issue, I-- |
[14] As can be seen, there is ambiguity in the position taken by defendant's counsel. It is not clear whether defendant's counsel intended not to call evidence on the counterclaim, whether, as a result of the judge's intervention, he thought his right to call evidence on the counterclaim had been forfeited, whether he was treating the counterclaim as a separate matter with respect to which he intended to call evidence later or whether he thought he would deal with it in re-examination, in view of plaintiff's counsel's questions in cross-examination. What is clear, however, is that even though defendant's counsel seems to have been confused as to the import of the judge's intervention, the counterclaim was not being abandoned, notwithstanding the judge putting pressure on defendant's counsel to do so.
[15] Having failed to convince defendant's counsel to abandon the counterclaim, the trial judge interrupted him:
| Well, I should direct a nonsuit on that element of the claim. |
[16] Counsel for the plaintiff, realizing that the trial judge was pursuing the matter of nonsuit on the counterclaim because of questions he had asked pertaining to the defendant's gross revenue from scalloping, indicated that his questions had not been asked for purposes of the counterclaim:
| SINNOTT, Q.C.[Counsel for the plaintiff]: Well, I should ask for a nonsuit but I just assumed that it hadn't been dealt with and I'm not asking these questions because of the counterclaim, your lordship. |
[17] Not receiving from plaintiff's counsel the nonsuit motion that he was directing, the judge continued:
| THE COURT: Well, let's try to clean up the action, do you ask for a nonsuit on that portion. |
| SINNOTT, Q.C.: I ask for a nonsuit on the counterclaim, your lordship. |
| THE COURT: So directed. There's no evidence to support the counterclaim, it's nonsuited. |
[18] The cross-examination of the defendant's witness continued for 22 transcript pages and then, at about 4:30 p.m., the trial judge asked how much longer the plaintiff would be in cross-examination. Plaintiff's counsel indicated he would cross-examine past 5:00 p.m. The trial judge then said that he would like to finish the case that day.
| THE COURT: Um-hm, I'd like to see us finish that this afternoon. Are you able to argue tonight? |
[19] Defendant's counsel indicated that he and plaintiff's counsel had discussed the matter and that they anticipated doing the closing arguments the following morning, i.e. the second of the three days set aside for the trial.
[20] The trial judge then told counsel "I think we should try to finish this tonight".
[21] There was then a 15 minute adjournment. Upon resuming, counsel for the plaintiff continued his cross-examination for another 17 transcript pages. Immediately upon the conclusion of cross-examination, the trial judge asked plaintiff's counsel to argue. After plaintiff's counsel argued, defendant's counsel argued. Without adjourning, the trial judge then gave judgment for the plaintiff for $39,175.00 plus GST, interest, and costs.
[22] In this Court, there is little jurisprudence dealing with nonsuit. However, there is authority from the Ontario Court of Appeal on the issue which is instructive. See, for example, McKenzie v. Bergin, [1937] O.W.N. 200 (C.A.). See also The Trial of an Action1 at 149.
[23] The authorities indicate that the trial judge should have been guided by the following rules: 1) he should not, of his own motion, have directed a nonsuit; 2) the motion for nonsuit on the counterclaim should not have been made until the end of the defendant's evidence. Procedural fairness requires that the judge should have left it to the plaintiff to decide whether to bring a motion for nonsuit on the counterclaim and that any motion for nonsuit should not have been entertained until after the defendant's evidence was completed. In the case at bar, the trial judge erred, first, in directing plaintiff's counsel to ask for a nonsuit on the counterclaim, and second, in ruling on the nonsuit before the defendant's evidence was completed.
[24] The transcript indicates that the judge clearly was anxious to dispose of the case. However, the case had been scheduled for three days, so it is obvious there were no other conflicting commitments for the judge if the case did not finish the first day. There is no reason why argument could not have taken place the next morning as counsel had thought would be the case, except for the trial judge's apparent anxiety to get the case completed that evening. Indeed, that is what appears to have been at the root of the judge, on his own motion, directing plaintiff's counsel to ask for a nonsuit and then summarily and prematurely disposing of the counterclaim.
[25] The nonsuit issue was raised by the judge with no prior notice to either counsel and counsel were not given the opportunity to consider the matter. In surprising counsel with the nonsuit issue and giving them no time to consider it, the judge appears to have taken advantage of the ambiguity of the situation and the inexperience and confusion of junior counsel. It was the refusal of the judge to grant an adjournment that caused the case to be turned over to junior counsel. The judge should not have cut off junior counsel. Instead, he should have suggested that junior counsel consult with senior counsel, who had, a few minutes earlier returned from his criminal trial and, to the judge's knowledge, was present in the courtroom, on the issue of the counterclaim and the necessity of evidence to support it, rather than directing and deciding a premature nonsuit motion.
[26] Trials must be dealt with efficiently, but always consistent with fairness. Efficiency was not at the root of the procedural ruling here. When, for no justifiable reason, a judge hurries through a trial by employing improper procedure, the process will be seen as unfair. That is the case here.
[27] We would also observe in passing that the trial judge's analysis respecting the plaintiff's claim is cursory. In finding equal responsibility between the parties for a misunderstanding relative to a portion of the work, we have a concern that the judge did not take the time and effort to try to establish the question of liability, which of course, is the reason the parties came to court in the first place. Further, it is not clear from his reasons what rationale was used by the trial judge to reduce the plaintiff's claim by some $9,000.00.
[28] It is regrettable that the parties must be put to the expense of a new trial in these circumstances but, in our view, that is what is required in this case. The appeal will be allowed with costs according to column three of the Federal Court Tariff. The judgment of the Trial Division will be set aside and the case will be remitted to the Trial Division for a new trial before a different judge.
"Julius A. Isaac" C.J.
"Gilles Létourneau"
J.A.
"Marshall E. Rothstein"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-441-97
STYLE OF CAUSE: OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "MELINA & KEITH II"
- and -
GERALD'S MACHINE SHOP LIMITED
PLACE OF HEARING: St. John's, Newfoundland
DATE OF HEARING: July 5, 1999
REASONS FOR JUDGMENT
OF THE COURT:
DELIVERED BY: Rothstein, J.
DATED: July 8, 1999
APPEARANCES:
Mr. Richard S. Rogers for the Appellant
Mr. John R. Sinnott, Q.C. for the Respondent
SOLICITORS OF RECORD:
Mr. Richard S. Rogers for the Appellant
Williams, Roebothan, McKay & Marshall
P. O. Box 5236, 209 Duckworth Street
St. John's, NF
A1C 5W1
Mr. John R. Sinnott, Q.C. for the Respondent
Lewis, Sinnott, Shortall & Hurley
P. O. Box 884, 140 Water Street
St. John's, NF
A1C 5L7
__________________
1 Sopinka J, D.B. Houston, M. Sopinka, The Trial of an Action (Toronto: Butterworths, 1998)