Bizarre conduct leads to new trial

Alberta judge sided with employee, made biased remarks before employer could even take the stand
By Todd Humber
|Canadian Employment Law Today

An Alberta court has overturned a lower court’s decision because of what can only be described as bizarre conduct by the judge in that case.

The Alberta Court of Queen’s Bench found the trial judge’s behaviour and conduct in

Limoges v. Investors Group Financial Services Inc.

denied the employer its basic right to a fair and impartial tribunal.

In ruling on that case the Provincial Court, Civil Division judge made “serious transgressions” that the Alberta Court of Queen’s Bench found were “fatal” to the trial.

Gail Limoges was employed as a sales representative with Investors Group from 1996 to 1999. She signed a contract stating her status would be that of an independent contractor and her remuneration would be based solely on commission from sales. It also included a provision that the clients brought in by her were, and would remain, clients of the firm in the event she left.

In November 1999 her employment was terminated, allegedly for cause. She sued Investors Group, claiming entitlement to additional commissions for which she had not been paid and for commissions generated after her departure from the firm.

At the beginning of the trial the judge told Limoges her suit would best be cast as an action for unjust enrichment rather than wrongful dismissal. At the end of the trial, the Provincial Court awarded her $7,500 — the maximum it has the authority to award.

Investors Group appealed the verdict, alleging the trial judge’s conduct of the trial denied it its basic right to a fair trial by an impartial tribunal.

In the appeal Justice Martin of the Alberta Court of Queen’s Bench called the original trial “remarkable.”

“The trial judge chose to ignore the rules of evidence and procedure,” said Justice Martin. “He failed to observe even the most basic legal principles designed to ensure a fair trial and to maintain the impartiality of the tribunal.”

Justice Martin was critical of the lower court judge for making critical findings of fact before the employer could present its evidence or even cross-examine Limoges and her witnesses.

“(The trial judge) then used those premature and poorly conceived findings to threaten the defendant with punitive costs if it did not settle with the plaintiff immediately,” said Justice Martin. “When (Investors Group) refused to accept this suggestion, the trial judge denigrated the testimony of the defendant’s corporate officer before he had heard it all.”

Following the opening statements outlining the employee’s case, and within minutes of Limoges beginning her testimony, the trial judge said:

“I think you may have been treated very shabbily by your employer … I think you have been treated very shabbily.”

Shortly after making that statement the trial judge asked Investors Group’s corporate officer if the plaintiff’s assets were worth more than $7,500 to the company. The company answered that question by referring to its corporate policy with regard to that issue and advised he did not even know how many of the plaintiff’s former clients were still with the company. The trial judge interjected and said:

“… that is what we are going to find out and costs will be in the balance. If you run her over the coals on costs, wasting everybody’s time, she will be compensated with costs very generously, I can tell you that. Do you want to discuss settlement with her now? I am going to suggest you talk settlement.”

The trial judge then adjourned the court to give the two sides the chance to settle. Thereafter, on being told Investors Group had only agreed to pay an outstanding commission of $1,685, the trial judge said, “it is pretty harsh treatment, is it not, counsellor?”

Moments later he continued: “Well, there is no question she was treated rather shabbily, gentlemen, to say the least. Three years and no notice whatsoever.”

Counsel for Investors Group replied that Limoges was told in January 1999 that she wasn’t meeting deadlines, that she wasn’t meeting any of the expectations and she was on probation. She was given ways to try and get her standards up, which she did not achieve.

The trial judge replied by upping his criticism of the company, stating he had no doubt she was treated “extremely” shabbily.

“This is hardly the conduct I would expect of a reputable corporation,” the trial judge. “And it seems to me that this is one of these corporations that treats employees as independent contractors, which is a bunch of nonsense.”

When the trial judge made those comments the first witness, Limoges, was still giving her initial testimony.

“The (trial) judge was therefore in no position to have formed any opinion regarding the defendant’s treatment of the plaintiff,” said Justice Martin. “To have reached such a conclusion beyond doubt, on the basis of this incomplete, disputed and yet unchallenged testimony was simply wrong.”

The trial judge again urged Investors Group to settle, stating that he would settle the manner if it didn’t. Justice Martin said while it is appropriate in many cases for judges to urge settlement, it was inappropriate in this case.

“The clear implication was that if counsel did not capitulate and offer more than what it had previously thought was reasonable, the trial judge would make them pay for it at the end of the case,” said Justice Martin.

Prior to adjourning for the day — and after hearing only some testimony from the plaintiff and nothing from the company — the trial judge stated Limoges was terminated without cause and without notice.

“This was an important finding of fact, yet it was based only on the plaintiff’s incomplete direct testimony, even though it had been strongly disputed by the defendant’s counsel in the course of informal discussions with the judge,” said Justice Martin.

When the trial resumed the following week, Limoges continued her direct testimony. As she was itemizing a $40 claim the trial judge interjected, telling her not to worry about nickel and dime amounts.

“You are going to be over $7,500 here anyway, I can see that,” he said. “I have already concluded and I stated last day, I find you were treated extremely shabbily but I will deal with that in my judgment.”

He went on to tell Limoges “I would say it warrants punitive damages and I am sure you would agree.”

Things didn’t get any better when the defense started presenting its case. Investors Group outlined its reasons for using independent contractors instead of employees in carrying out business. While explaining the reasons, the trial judge interrupted stating that it was “nonsense” and “absolute nonsense.”

The Alberta Court of Queen’s Bench said there was no doubt the original trial was not fair, and any independent observer would reach the same conclusion.

“Like all other people, judges are fallible,” said Justice Martin. “They too have bad days and they too make mistakes. If the conduct of this trial had been the result of a bad day or a mistake, it would be understood and forgiven. Sadly, that is not the situation … this was not a complicated case. However, it was conducted in such a manner that both sides were denied a fair trial. It is beyond salvation.”

The court ordered a new trial and, interestingly, commended the counsel for Investors Group on “maintaining a highly respectful and professional demeanour toward the court throughout what must have been for him a very difficult trial.”

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