Deputy Judge Who Allows Trial to Continue in Absence of One Party Overturned on Appeal

A Deputy Small Claims Court Judge who made the decision to allow a trial to continue on its second day notwithstanding that one of the parties failed to show up has been overturned by the Divisional Court.

The trial which was originally scheduled for only one day, took place over two days. The first day of trial was August 28, 2013. On that day the court heard from two witnesses. The first witness gave evidence in chief and was cross-examined by the defendants. The second witness then gave their evidence in chief. At this time it was determined that a second day of trial would be necessary. The second date was scheduled for July 2, 2014.

The defendants misidentified the date for the continuation of trial and as a result failed to attend on the second date. The court paged the defendants in the courthouse when they failed to show. However, the court did not make any attempt, by telephone or otherwise, to ascertain why the defendants had failed to show. Instead, the presiding deputy judge made the decision that the trial would continue in the absence of the defendants. Ultimately, the court awarded judgment in favour of the plaintiffs.

On appeal to the Divisional Court it was held (among other things) that the trial judge’s decision to proceed to conclude the trial and make findings of fact on an incomplete evidentiary record, without giving any due regard to the defendants’ unexplained absence constituted a palpable and overriding error. The Divisional Court ordered that the matter be sent back for another trial, before a different judge.