Appeal Judge Rips Trial Judge’s Conduct Towards Self-Represented Defendant

A Superior Court Judge has tossed out a Small Claims Court judgment for a long list of reasons which primarily involve the inappropriate manner in which the trial judge dealt with the self-represented defendant throughout the course of the trial.

The reasons for granting the appeal span 92 paragraphs. The conduct of the trial judge becomes increasingly unbelievable as the reasons unfold. The decision is worth a read in its entirety and the findings include the following:

The trial judge had not read any of the material before the trial;

The trial judge gave the defendant “two minutes” to explain a legitimate motion he was bringing at the outset of trial;

The trial judge repeatedly interrupted during those two minutes “in a most unhelpful manner”;

The trial judge prevented the defendant from making his points and made sarcastic and unhelpful comments;

The trial judge refused to hear the motion at the outset of the trial and then dismissed the motion at the conclusion of the trial without any argument or further discussion on the merits;

When the defendant commenced his cross-examination of one of the plaintiff’s witnesses the “trial judge took over completely”;

The defendant objected when one of the plaintiff’s witnesses went off on an irrelevant tangent. In response to the objection, the witness stated “I’m talking do you mind?” The trial judge failed to consider the objection and instead told the defendant to “be quiet please”;

The son of one of the plaintiff’s witnesses was coaching the witness from the body of the court room. When the defendant objected the trial judge stated “you’ve been interjecting and interrupting far more than anybody else” (although the judge did ultimately caution the son);

The trial judge refused to allow the defendant to tender evidence pertaining to issues that had been properly pleaded;

When the trial judge granted a 45 minute lunch break he advised the defendant to spend the time getting organized. After the lunch break when the defendant made a small error and apologized the trial judge sarcastically stated “it’s a good thing we only gave you 45 minutes to get organized”;

The trial judge allowed the plaintiff’s witnesses to fence with the defendant during his cross-examination of them;

The trial judge treated the defendant in a manner that was “rude and threatening”;

The trial judge demanded that the defendant explain the basis of his defence during the defendant’s cross-examination of a plaintiff witness;

When the defendant asked for a few minutes in the late afternoon to collect his thoughts, the trial judge noted that “I gave you 45 minutes at lunch. It didn’t seem to do much good.”;

The defendant was not permitted by the trial judge to properly provide his evidence on the witness stand. Instead, what transpired is something that “can only be fairly described as a cross examination by the trial judge.”; and

The trial judge allowed the plaintiff to give evidence from the body of the court after the plaintiff had closed its case and while the defendant was in the witness box attempting to present his own evidence.

The appeal judge found that the comments made to the defendant during the course of the trial were “gratuitous, sarcastic and denigrating” and that the conduct of the trial judge “crossed the line”.

Fortunately for the defendant, not only was the judgment set aside, but costs of the appeal were awarded in his favour in the sum of $8,344.75, over $2,000 more than the amount of the judgment that the plaintiff was initially awarded at the conclusion of trial.


  1. Small Claims Court judges are usually, to my understanding, retired or semi-retired lawyers & are not well-paid, so if this is correct, I suppose the public gets what it pays for. At least it’s better than JPs, the overwhelming number of whom have never even attended law school. Perhaps it would be best to appoint only young lawyers as JPs for a limited term only (a few years?), & similarly ensure that Small Claims Court judges are lawyers with at least 10 years & no more than 30 years of experience exclusively as litigators. I wonder whether this particular judge is still sitting, & whether anyone took steps to have his/her appointment reviewed. This kind of conduct is appalling to anyone with a concern for the due administration of justice, & respect for the system.

  2. This particular (deputy) judge is no longer sitting as of September, 2015, having reached the mandatory retirement age of 75 years last month.

  3. In Ontario, Deputy Judges of the Small Claims Court are practitioners, i.e. lawyers, with some practice experience. They have judicial independence, so their tenure cannot be reviewed based on particular decisions. But – fortunately – their decisions can be appealed.