Procedural Fairness requires an opportunity for cross-examination: Terra Scapes Landscape Construction Inc. v. Ashtaryeh, 2022 ONSC 4178

The recent Ontario Divisional Court decision in Terra Scapes Landscape Construction Inc. v. Ashtaryeh, 2022 ONSC 4178 brings important attention to procedural fairness and the right to cross-examination.

The Appellant appealed a judgment from the Small Claims Court challenging the fairness of the trial process and the adequacy of the Deputy Judge’s reasons. Specifically, the Appellant claimed that the Deputy Judge made palpable and overriding errors in their assessment of the evidence.

The dispute was over an unpaid landscaping invoice between the plaintiff, Terra Scapes Construction Inc. (“Terra”), and the defendant property owner (the “Appellant”). Both parties were self-represented at the Small Claims Court proceeding.

The Appellant alleged unfairness as the Deputy Judge failed to inform and direct the self-represented litigants of their right to cross-examination, even in the face of conflicting evidence submitted by the parties.

Trial fairness requires the parties have an opportunity to cross-examine each other. Without this, there is no basis for distinguishing contradictory testimonial evidence. Despite there being no cross-examination in this case, the Deputy Judge chose to prefer the Terra’s evidence to that of the property owner.

The Divisional Court referenced the Small Claims Court mandate, which ensures that the Court handles a large volume of cases in an efficient and economical manner. However, the Divisional Court found that the absence of cross-examination of either party was a significant gap in the proceeding, giving rise to unfairness in the trial. The unfairness was further solidified by the fact that the Respondent, Terra, was given an opportunity to explain the evidence he was entering onto the record, whereas the Appellant property owner was not provided with the same. As such, the proceeding was held to be unfair and a breach of procedural fairness. A new trial was ordered before a different Deputy Judge of the Small Claims Court.

Formal cross-examination is not required in every matter before Small Claims Court. In Earthcraft Landscape Ltd. v. Clayton, 2002 NSSC 259,the Court specified that the main concern is whether the evidence has been tested in some form, by cross-examination or otherwise: “it is the substance, rather than the form of cross-examination that is required.”

In conclusion, testing the evidence submitted by the parties is crucial to the overall fairness of the proceeding. As long as parties have an opportunity to do so, and the presiding judge is provided an opportunity to detail why one version of facts is preferred from the other, then procedural fairness would be considered achieved.

This article was written with the assistance of our Articling Student Melisa Delibasic.