Ontario Appeal Court orders new trial in vehicle accident case because trial judge’s comments show bias
May 31, 2012 by Canadian Underwriter
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The Ontario Court of Appeal has ordered a new trial between a plaintiff injured in a winter road accident and the defendant municipalities because the judge’s comments during the trial raised a reasonable expectation of bias.
In Lloyd v. Bush, the Appeal Court found the trial judge, Ontario Superior Court Justice R.F. Scott, had improperly concluded the plaintiff’s expert witness had accused the defendants of “fraud,” when in fact the plaintiffs insisted on the record that they had not pleaded fraud. Also, before the trial had concluded, the trial judge made improper remarks about the plaintiff’s credibility on the basis of her curriculum vitae.
The plaintiff, Leslie Gail Lloyd, was involved in an accident with a loaded propane truck on Jan. 3, 2003. The road on which she was driving was snow-packed. As a result of the crash, she suffered permanent head injuries and several lower extremity musculoskeletal fractures.
Loyd sued the driver of the truck and the defendant municipalities, the Town of Greater Napanee and the County of Lennox and Addington. The appeal was based solely on whether or not comments by Ontario Superior Court Justice F.R. Scott had raised a reasonable apprehension of bias.
In one particular instance, the trial judge heard evidence from a professional engineer called by the plaintiff that the sand-salt mixture on the snowy roads did not contain sufficient salt. After asking a few questions of the expert witness, the trial judge had the following exchange with the plaintiff’s counsel.
“THE COURT: So I understand. Counsel, are you — do you agree with this man’s comments, because it goes to costs ultimately if you’re alleging a fraud and costs are at the highest level if you can’t sustain that.
“PLAINTIFF’S COUNSEL: Your Honour, I make no allegation of fraud in this lawsuit.
“THE COURT: Well what are we listening to then?
“PLAINTIFF’S COUNSEL: Your Honour, I’m just listening to the evidence. That’s all that…”
The judge repeatedly pressed counsel that his witness was alleging fraud. Each time, counsel responded that fraud was not being alleged. Elsewhere, the trial judge referred to the Town of Napanee as being accused of “cooking the books.”
The Appeal Court ultimately concluded the trial judge showed a reasonable expectation of bias because of his remarks.
“Corporate records, governmental records, medical records and any number of other institutional records are called into question every day in courtrooms across the country without raising an issue or inference of fraud against the particular institution,” the Appeal Court ruled.
“If the trial judge’s approach is correct, every time a particular expert testified that the recorded notes do not reflect what actually happened, it would be tantamount to an allegation of fraud against the author of the notes.
“What was raised here by the expert witness, Bender, were everyday issues of reliability and credibility, not fraud. When a witness, on behalf of a corporation, government, hospital or some other institution, makes a mistake in preparing a record, it does not follow that he or she is lying or that the particular institution has ‘cooked the books.’”
The Appeal Court’s full decision can be found at:
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