Gerald's Machine Shop Ltd. v. Melina & Keith II ( The )
A-441-97
Isaac C.J., Létourneau and Rothstein JJ.A.
8/7/99
9 pp.
Practice-Non-suit-Appeal from trial judgment declaring non-suit of counterclaim-Plaintiff providing labour, materials to defendant ship for purpose of outfitting ship for scallop dragging-Defendant not paying plaintiff, believing price excessive-Additionally defendant counterclaiming for lost profit for period in excess of five days as plaintiff represented work would take five days, but took five weeks-When defendant's witness testified, not dealing with counterclaim-During crossexamination of defendant's witness Trial Judge intervening-Transcript indicating even though defendant's counsel apparently confused as to import of judge's intervention, counterclaim not abandoned, notwithstanding Judge's pressure on defendant's counsel to do so-At Trial Judge's instigation, plaintiff's counsel requesting, granted non-suit of counterclaim-Cross-examination of defendant's witness continuing thereafter-Appeal allowed-Although little case law in this Court dealing with non-suit, Ontario authorities instructive: McKenzie et al. v. Bergin et al., [1937] O.W.N. 200 (C.A.); Sopinka, John, et al. The Trial of an Action, 2nd ed. (Toronto: Butterworths, 1998)-Authorities disclosing following rules: (1) Trial Judge should not of own motion direct non-suit; (2) motion for non-suit on counterclaim should not be made until end of defendant's evidence-Procedural fairness indicating Judge should have left it to plaintiff to decide whether to bring motion for non-suit on counterclaim, and that motion for non-suit should not have been entertained until after defendant's evidence completed-Trial Judge erred in directing plaintiff's counsel to ask for non-suit on counterclaim, and in ruling on non-suit before defendant's evidence completed-Non-suit issue raised by Judge with no prior notice to either counsel and counsel not given opportunity to consider matter-In surprising counsel with non-suit issue, giving them no time to consider it, Judge appears to have taken advantage of ambiguity of situation, inexperience, confusion of junior counsel-Should not have interrupted junior counsel-Should have suggested junior counsel consult with senior counsel, who had returned from criminal trial, and to Judge's knowledge, present in courtroom, on issue of counterclaim, necessity of evidence to support it, rather than directing, deciding premature non-suit motion-Trials must be dealt with efficiently, but always consistent with fairness-When, for no justifiable reason judge hurries through trial by employing improper procedure, process seen as unfair-In finding equal responsibility between parties for misunderstanding relative to portion of work, Court of Appeal concerned Judge not taking time, effort to try and establish question of liability, reason parties came to Court in first place-Regrettable parties must be put to expense of new trial in these circumstances but necessary-Case remitted to Trial Division for new trial before different judge.