The right to make submissions at the end of a trial

On September 10, 2007, in the Brampton Small Claims Court in Ontario, there was a case heard in which a purchaser of a home had sued the sellor for removing fixtures from the house and damaging the floor and roof in the process. I represented the purchasers.

After all the witnesses had been heard, I said to the deputy judge that I wish to make a submission. He in turn replied that since the defendant was unrepresented and unfamiliar with the legal issues involved, it would be unfair for me to present my client’s argument since the defendant wouldn’t know how to respond in a meaningful way.

If the deputy judge’s premise was valid, it could be construed to mean that an assistant crown attorney would not be permitted to make his submissions on the innocence or guilt of a defendant if the latter was unrepresented and unfamiliar with the intracies of law. Somehow, this seems ludicrous.

There is no doubt in my mind that my clients were denied a fair trial, notwithstanding the fact that they did get an award that represented a fair portion of what they claimed.

In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada addressed the issue of procedural fairness. It said in part;

“The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure appreciation of the context of the particular statute and the rights affected that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive”

The court also said in part;

“…..the duty of procedural fairness relate(s) to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly……”

In Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, the Supreme Court of Canada said in part;

“It is certainly not every breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy.”

The Court also said in part;

“Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.”

The question that comes to the fore is; did the deputy judge deny the plaintiffs in the Brampton case, a fair hearing by refusing to permit their advocate to make submissions?

The answer can be found in City National Leasing Ltd. v. General Motors of Canada Ltd. (1986), 54 O.R. (2d) 626. In that case, the Ontario Court of Appeal dealt with the issue of a court refusing to permit an advocate to make submissions. The court said in part;

"To have proceeded to make such a finding after having indicated to counsel that he need not hear argument on the matter, was an error, however inadvertent, which denied the appellant and the intervenant a fair hearing. As a result, we think this Court has no choice but to disregard, as we here do, his reasons for that finding."

My clients have grounds to appeal on the basis that they were denied a fair hearing and based on the decisions of the Supreme Court of Canada and the Ontario Court of Appeal, they would get a new trial. However, I have advised against an appeal, as the costs incurred with an appeal would outweigh the increase of their initial award.