Judging the judge

Trial judge’s interference in conduct of trial results in new trial being ordered

When Derrick Lennox was terminated from his employment as groundskeeper with Arbor Memorial Services Inc., he brought an action for wrongful dismissal against his employer.

Arbor took the position that Mr. Lennox was terminated for cause. It alleged that Mr. Lennox misled Arbor about needing to take time off work in order to look after his daughter when the true reason was to cover for his wife who provided management services to another cemetery.

Mr. Lennox worked for Arbor since 1986, initially on a part-time basis and later full-time. Originally he was employed at Arbor’s Scarborough, Ont., location until 1995 when he transferred to their Peterborough, Ont., location.

In 1996 Mr. Lennox volunteered by becoming a board member of Emily Cemetery, a small rural cemetery near Peterborough. Shortly thereafter, Mr. Lennox’s wife began her own cemetery management company. Her company provided management services to Emily Cemetery, including hiring the backhoe operator to dig the graves, providing the grass-cutting and flower services and arranging burials.

From April to August 1997 Mr. Lennox took parental leave from Arbor. During that time Mr. Lennox was observed by an employee of Arbor overseeing the filling of a grave at Emily Cemetery. When Arbor management confronted him he stated that he was not working at other cemeteries while on parental leave, but was looking after his daughter. He informed them that he was a volunteer for Emily Cemetery. He did not disclose the fact that it was his wife’s funeral services business that served Emily Cemetery.

On Jan. 12, 1998, Mr. Lennox received a call at work from his father. His father was looking after his daughter and called to inform him of a problem at Emily Cemetery. Mrs. Lennox could not be reached so Mr. Lennox decided to go to the cemetery himself to deal with the problem.

To justify his leaving work, he informed his supervisor at Arbor, Mr. Horler, that he needed to leave to watch his daughter as his wife was unavailable and his father was unable to do so all day.

However Mr. Lennox told a co-worker that he needed to leave work to take care of a problem at Emily Cemetery. His co-worker reported this to Mr. Horler. As a result Mr. Horler went to Emily Cemetery where he confronted Mr. Lennox. Mr. Lennox admitted that he was there to service a burial and stated that his family problem had been taken care of earlier. Mr. Horler suspended him as a result.

The next day, the regional property manager contacted Mr. Lennox at home and asked him to justify his absence the day before. Mr. Lennox gave the same explanation that he gave Mr. Horler. He stated that when Mr. Horler saw him at the Emily Cemetery, his wife had gone to get coffee, which was not true. Mr. Lennox was subsequently terminated.

In his decision the trial judge spent a significant portion of the judgment discussing Arbor’s personnel policy manual despite the fact that the manual was not pleaded and not produced until the trial judge insisted upon its production at trial. The trial judge concluded that Arbor did not follow the discipline procedure contained in its manual by not providing a series of warnings. Instead it chose to rely on the provision dealing with the instant dismissal for dishonest conduct.

The trial judge held that although Mr. Lennox was dishonest, his conduct was not such as to warrant instant dismissal as opposed to the progressive discipline regime set out in the manual. Mr. Lennox was awarded damages representing nine months’ salary in lieu of notice.

Arbor appealed the finding of wrongful dismissal and the award of damages on two grounds. The first was the proper application of the law in respect to just cause for dismissal. The second and main ground of appeal was that the trial judge interfered to such an extent in the conduct of the trial that the image of judicial impartiality was destroyed, thereby denying Arbor a fair trial.

The Court of Appeal agreed with Arbor that the trial judge appeared to assist Mr. Lennox, thereby creating an appearance of unfairness. The trial judge intervened unduly in the presentation of the case and became a protagonist for Mr. Lennox.

The Court cited several examples, such as the trial judge redirecting lines of questioning, which Mr. Lennox’s counsel sought to pursue and which the trial judge viewed as unhelpful and strategically ill-advised. The trial judge also engaged in extensive cross-examination of two of Arbor’s witnesses and challenged their credibility. The trial judge also required the production of Arbor’s policy manual despite the fact that neither Arbor nor Mr. Lennox relied on the manual in pleadings or at trial.

As a result of the excessive interference by the trial judge in assisting Mr. Lennox there was an appearance of unfairness. Despite the requests of Mr. Lennox to decide the issue between the parties, the Court of Appeal was not prepared to either confirm or reverse the trial judge’s findings. A new trial was ordered.

For more information:

Lennox v. Arbor Memorial Services Inc., Ontario Court of Appeal, Docket No. CA C34772, Nov. 29/01.

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