Mr. Cannon commenced an action against his landlord, Cemcor Apartments Inc. (“Cemcor”) for negligence regarding the maintenance of the parking lot of his apartment building, which he alleged resulted in him slipping on ice in the lot and breaking his leg. Although the terms of the lease indicated that Cemcor was responsible for maintaining the parking lot, Cemcor entered into a contract with Myles Property Management Inc. to clear the snow and ice from the parking lot. At trial, Mr. Cannon’s claim was dismissed in part because Justice Cornell found that when considering the realities of winters in Northern Ontario, Cemcor had established a reasonable policy for winter maintenance for the parking lot and that the parking lot was adequately cleared on the day of the accident, but for the “isolated slipper spot” on which Mr. Cannon fell. Mr. Cannon appealed Justice Cornell’s decision, arguing that Cemcor did not follow a reasonable policy on the day of his fall as the entire parking lot should have been cleared as opposed to being partially cleared. Mr. Cannon also appealed the trial decision arguing that Justice Cornell’s numerous interventions during the trial, exhibited a reasonable apprehension of bias.

The three judge panel at the Ontario Court Of Appeal found that Justice Cornell made no factual errors in his analysis of the evidence regarding the claim of negligence. The remainder of the Court of Appeal’s decision focused on Justice Cornell’s interventions during the cross-examination of the witnesses for the defence and during counsel’s closing submissions.

The Court of Appeal found that the trial judge’s interventions during counsel’s closing arguments were not inappropriate.

Focusing on the cross-examination of the defence witnesses, the Court of Appeal acknowledged that Justice Cornell made several interventions during the cross-examination of these witnesses, some of which were appropriate to caution witnesses on the limits of their evidence and for Justice Cornell to ensure the relevance of counsel’s line of questioning. However, the Court of Appeal found that many of Justice Cornell’s interventions were unnecessary and interfered with the flow of the evidence. It was clear to this court that there was tension between Justice Cornell and Mr. Cannon’s counsel. In particular, the Court of Appeal found Justice Cornell’s tone to be at times rude and condescending, thereby affecting the overall tone of the trial. Despite this, the Court of Appeal concluded that Justice Cornell’s interventions did not meet the level required to displace the presumption of judicial impartiality. Further, the Court found that these interventions did not favour the Defendants over the Plaintiff.

The Court of Appeal felt that the trial would have proceeded more smoothly had Justice Cornell intervened less, but disagreed that his interventions rendered the trial unfair or created a reasonable apprehension of bias. The Court of Appeal therefore dismissed Mr. Cannon’s appeal and awarded $15,000 in costs to the respondents.

Although this case was a success for the Defendants in this lawsuit, its a reminder to all counsel of the high burden that needs to be met to successfully accuse a judge of bias during a trial. It is always a challenge dealing with the unpredictability of how evidence at a trial will unfold.  Where a judge takes an active role during the trial, the challenges imposed on counsel are that much greater.  With that said, as the Court of Appeal affirms, it will take a pretty significant amount of intervention by a trial judge to create an appealable error.

Suzanne Clarke is a partner and member of the General Liability practice group. If you have a question about this blog or a slip and fall file, please contact Suzanne.