In this interesting case, the Divisional Court set aside a Small Claims Court judgment primarily because the presiding Deputy Judge did not direct the self-represented litigants to their right to cross-examine their opponent witnesses, or alternatively for failing to undertake any substantive cross-examination of their own.
The appellate judge was clearly mindful that Small Claims Court trials are rather unique in that it is a high-volume courthouse that has as its mandate the cost and time effective resolution of disputes through summary type trials, where rules of evidence are typically far more lax. However, in coming to its conclusion, the appellate court said this: “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.”
The appellate judge was swayed by the fact that there were several conflicts in the evidence over some critical elements in the case, and that in the absence of cross-examination, the basis for preferring one version of events over the other was “not clear.” A new trial was ordered, to proceed before a different Deputy Judge.
The Take-Away
Based on this decision, the appellate court made it clear that formal cross-examinations are not required in every trial before the Small Claims Court (see para 35), but when there is a substantive conflict in the testimonial evidence, the evidence needs to be tested so that the presiding judge can explain why they preferred one version of events over the other. The “testing” can be achieved either through cross-examination type questioning by the presiding Deputy Judge, or through cross-examination type questioning by the opposing party, or both. As long as the controverted evidence is “tested” in some meaningful manner to permit the presiding judge to explain why one version is preferred, the goal of cross-examination and procedural fairness has been achieved, at least in the context of a Small Claims Court trial.
Terra Scapes Landscape Construction Inc. v. Ashtaryeh, 2022 ONSC 4178
https://www.canlii.org/en/on/onscdc/doc/2022/2022onsc4178/2022onsc4178.html