McCallum v Edmonton Frame and Suspension, 2016 ABQB 271

Court of Queen ’ s Bench of Alberta Citation: McCallum v Edmonton Frame and Suspension

(2002) Ltd, 2016 ABQB 271 Date: 20160512 Docket: 1503 15440 Registry: Edmonton Between: Gary McCallum Appellant - and - Edmonton Frame and Suspension

(2000) Ltd Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an appeal from the decision of PCJ Haymour delivered on September 17, 2015, following a trial in Provincial Court, Civil Division. The trial was held over two days: May 22, 2015 and September 17, 2015. Judge Haymour granted the Plaintiff, Edmonton Frame and Suspension

(2000) Ltd. (“Edmonton Frame”), $225.00, plus costs totaling $400. He dismissed the Defendant Gary McCallum’s counterclaim for $265.00. [ 2 ] The Defendant, Gary McCallum, appeals the whole of the decision.

Background [ 3 ] The basic narrative is that sometime in late December, 2013, Mr. McCallum took his 1995 Dodge Sirius to Edmonton Frame as Mr. McCallum believed that the frame needed straightening. He had not previously dealt with Edmonton Frame. [ 4 ] The car had been given to him by his brother. It had been in an accident, which had caused some significant damage to the passenger side of the car. It had apparently sat untouched for about two years. His brother then made some minor repairs. The car was then involved in another accident, and sat unrepaired and unused for about 10 years. [ 5 ] Mr.

McCallum had some experience working on cars and helped his brother work on it. After working on the car, he felt that he could not quite get the passenger side wheel to come into proper alignment. He concluded that the frame needed straightening. Mr. McCallum contacted Edmonton Frame and made arrangements to take the car into Edmonton Frame’s shop. [ 6 ] On the way to the shop, Mr. McCallum, accompanied by his brother, blew a tire. He believed that the angle the tire was at was out of whack and that is what caused the tire to break away from the bead.

A spare tire was put on, and they were able to get it to the shop. [ 7 ] When the car was put up on the rack at the shop, Mr. McCallum said that Edmonton Frame’s mechanic told him the steering knuckle needed to be replaced and that a frame alignment would be needed. According to Mr. McCallum, the frame alignment would damage a cross-member because the frame straightening machine would be clamped on it during the alignment process. Edmonton Frame’s witness, Vit Plesner, denies that he told Mr. McCallum that there would be damage to the cross-member. [ 8 ] According to Mr.

Plesner, the cross-member was already damaged. This was one of the contentious issues at trial, although at the end of the day, Mr. McCallum believed following the meeting that the cross-member would have to be replaced because of damage to it during the frame alignment while Mr. Plesner believed that it needed replacement regardless of the frame alignment. Ultimately, the trial judge did not decide the point, concluding that it was unnecessary for him to do so. [ 9 ] The inspection showed that there was also a control arm and parts of the suspension that needed replacing. [ 10 ] Mr. McCallum and Mr.

Landry had a discussion about the cost of the parts, and Edmonton Frame agreed to find used parts. To save money, Mr. McCallum planned to install the steering knuckle, control arm and suspension parts himself. [ 11 ] It does not appear that there was any firm discussion about price, and no estimate nor work authorization appear to have been prepared or signed. [ 12 ] Mr. McCallum and his brother drove the car away, waiting for the parts to arrive. When the parts arrived from the auto wrecker, they were the wrong ones. Edmonton Frame obtained the correct parts, and Mr.

McCallum picked them up. [ 13 ] He and his brother installed the steering knuckle assembly, suspension parts and the control arm, and made some further adjustments to the car. There were still problems with the steering as the steering wheel was “out of phase”. Mr. McCallum testified that despite that problem, the car drove straight. [ 14 ] Mr. McCallum was then of the view that a frame alignment was not required as the replacement steering knuckle seemed to fix the problem. [ 15 ] Mr.

McCallum testified that when he took the car back to Edmonton Frame, he said “I don’t think that we need to do that frame alignment anymore. I think the steering knuckle—you found that. That was the problem, for sure, and we only need to go ahead and do a wheel alignment. And I left that with him at that point.” [ 16 ] A couple of days later, Edmonton Frame contacted Mr. McCallum to tell him the car was ready. Mr. McCallum had given a deposit of $700 and says he expected to get some money back. He was surprised to find there was a bill for a further $634. Mr.

McCallum paid that amount on MasterCard, as he realized he would not get the car from the shop unless he paid. He intended to dispute the amount later. [ 17 ] Mr. McCallum testified that he had some issues with the car after he got it back, none of which were resolved by Edmonton Frame. He tried to resolve his dispute over the bill, to no avail. He had the car looked at by Derrick Dodge. He made complaints to the Better Business Bureau. He complained to MasterCard that the work had not been authorized and that Edmonton Frame had damaged the vehicle.

MasterCard reversed the payments to Edmonton Frame. [ 18 ] The reversal of the payments resulted in Edmonton Frame commencing this action against Mr. McCallum for the amount of the reversed MasterCard payments. [ 19 ] Mr. McCallum counterclaimed for $265, alleging in his Dispute Note that there had been “overcharges for parts and labour not required.” His evidence at the trial and submissions on appeal focused on damage he claimed to have been caused by Edmonton Frame while they worked in the car, resulting in oil leaks. [ 20 ] Mr. Landry testified on behalf of Edmonton Frame.

His mechanic, Vit Plesner, did the initial inspection when Mr. McCallum first brought the car into the shop. His inspection showed that the lower control arm had collapsed, and the front cross-member was collapsed. [ 21 ] Mr. Landry testified that when Mr. McCallum brought the car back, Edmonton Frame aligned the frame, installed the front cross-member and then did a wheel alignment.

[ 22 ] Mr. Landry testified that Edmonton Frame had not damaged the car, and denied that its work caused any oil leaks. His evidence, in response to questioning from the judge, was that he personally saw the car when it was up on the alignment hoist and saw oil leaks from the axles, seals and transmission. He said that the car wasn’t in the shop to do those repairs, so he left the leaks unfixed. [ 23 ] Mr.

McCallum presented no specific evidence as to what parts were unnecessary or what parts he had been overcharged for, focusing much of his evidence on the fact that the wrong parts were initially supplied. [ 24 ] It is evident that the invoicing was not clear as there were two invoices in different amounts, and there was some difficulty at trial reconciling them with the payments made by Mr. Landry. [ 25 ] There was a dispute over the ordering of the parts, the damage to the cross-member and the cause of the oil leaks. [ 26 ] At trial, Edmonton Frame brought the damaged cross-member to show the damage to it.

According to Edmonton Frame, that proved that there had been damage to it and that it needed replacement. According to Mr. McCallum, it had not been previously damaged and was damaged by what he claims was an unnecessary frame alignment. At one stage in the trial, he appeared to dispute that a frame alignment had been done at all. [ 27 ] There was no written estimate and no signed work order or authorization by Mr. McCallum. [ 28 ] The essential disputes at the trial, once the invoicing was sorted out, were whether or not the frame alignment was required, whether Mr.

McCallum had authorized Edmonton Frame to do that work, and whether Edmonton Frame had done any damage to the car while doing the work it did. [ 29 ] It is clear from reviewing the197-page transcript that the trial judge conducted the trial in a manner that limited the parties from offering hearsay evidence and from offering expert opinions in areas they were not qualified as experts. The trial judge required the parties to follow procedures such as not interrupting each other. Because of the restrictions on hearsay and opinion evidence, neither Mr. McCallum nor Mr.

Landry were permitted to give much of the evidence they wanted to give at the trial. [ 30 ] There were problems with the evidence going in smoothly as Mr. Landry did not have his glasses with him and was unable to easily read the invoices he was relying on. Mr. McCallum had hearing difficulties and struggled to hear and understand the evidence. [ 31 ] The Defendant’s expert was present, but apparently left at some time before giving evidence. According to Mr. Landry’s Notice of Appeal, that was because the expert “became frustrated with the process”.

The trial judge eventually adjourned the trial to a date some four months later to allow the parties to obtain and exchange expert reports and any other documentary evidence they intended to adduce, before the recommencement of the trial. [ 32 ] When the trial resumed, no expert reports had been exchanged by either party. Vit Plesner and Jeremy Landry testified on behalf of Edmonton Frame, although neither had physically performed the frame alignment. Mr.

McCallum’s brother testified about his observations but was restricted to his observations and was not allowed to give opinion evidence as he was not qualified as an expert. Mr. McCallum’s questioning of his brother did not go as planned by Mr. McCallum as he was not permitted to ask his brother leading questions. [ 33 ] Mr. McCallum’s intended witness from Derrick Dodge did not attend and testify. According to Mr. McCallum, that was because the mechanic had become frustrated with the process while watching the proceedings during the first portion of the trial. [ 34 ] Mr.

McCallum was not permitted to introduce documents he sent to the Better Business Bureau complaining about Edmonton Frame, or replies from the Better Business Bureau. The trial judge ruled them irrelevant and inadmissible. [ 35 ] In an oral decision following the trial, Judge Haymour allowed Edmonton Frame’s claim in the amount of $225 which he concluded was the proper amount owed after sorting out the invoicing. Neither party takes issue with that calculation, although it is significantly less than what Edmonton Frame claimed. Mr.

McCallum appears to have accepted that if he was required to pay for the frame alignment and was awarded nothing on his counterclaim, the $225 represented the balance owed. [ 36 ] Judge Haymour reviewed the evidence. He stated at page 189, lines 39 to page 190 line 4: I am satisfied Mr. McCallum left it in the control of the experts at Edmonton Frame and Suspension to determine whether a frame alignment was also necessary. I am satisfied on the evidence of the plaintiff that they did have a frame alignment completed and replaced the cross member as a result.

I am not going to make a determination whether the cross member was initially damaged or was damaged in the process of the frame alignment being conducted, but I am satisfied it had to be replaced as part of the frame alignment requirement. The frame alignment was done and it is satisfactory. [ 37 ] He considered credibility issues, and held at page 190, lines 6-8: Where the evidence of Mr. Gary McCallum conflicts with the evidence of Mr. Landry, I prefer the evidence of Mr. Landry over that of Mr. McCallum and I do so due to a number of inconsistencies in Mr.

McCallum’s evidence. [ 38 ] Judge Haymour proceeded to detail what he determined to be inconsistencies in Mr. McCallum’s testimony, focusing on the circumstances surrounding payment and getting the car released to him and the manner in which Mr. McCallum gave his evidence and his failure to cross-examine Edmonton Frame’s witnesses. [ 39 ] At page 191, lines 10-11, he stated: Under the circumstances I am satisfied that the plaintiff has made out their claim and that they are entitled to judgment against the defendant.

[40] Costs of $300 were awarded, as well as the $100 filing fee. [41] Mr. McCallum appealed the decision. [42] In his Notice of Appeal, Mr. McCallum described his complaints with the manner in which the trial was conducted. He alsocomplained about information given to him from the clerks’ office in relation to a potential warrant (or subpoena) for a witness, but Mr.McCallum did not pursue that because of the witness’s statement to him that he would not return. [43] Mr.

McCallum describes “an air of fear” created by the trial judge and the impact that had on him in the presentation of hiscase, and described the trial process as “harsh”. [44] He felt that hearing from the mechanic that actually did the frame alignment was crucial to his defence, and Mr. McCallumfelt thwarted in his defence when Edmonton Frame decided not to call the mechanic. [45] Mr.

McCallum disputes the trial judge’s credibility findings, stating in his Notice of Appeal: The first court date on May 22, 2015 had the judge very upset with the Plaintiff for repeatedly failing to bring documents to the stand,which set out a bad tone for the start of the hearing. When the Defendant was on the stand and tried to present evidence that the Plaintiffwas already in the possession of, the Plaintiff stated they were not aware of it. The judge asked where the evidence came from, and theDefendant said that it was emailed and the judge asked for a copy of the email itself, which was not brought in.

The judge becamefrustrated with both parties, and ordered a second trial date and ordered full disclosure of all documents by all parties. The Defendant hadan expert witness available in court that was not called. The expert witness had left, being frustrated with the process and stated that theywould not come back. The judge commented that I should have not dismissed the witness, to which I responded that I had not. Additionally, I had informed the Court that I am deaf in my left ear, and my hearing in my right ear was failing.

During my testimony,with the witness stand being on the right side of the judge, this put my left ear towards him. Several times I had to turn and ask for thingsto be repeated due to my hearing issues, and I was chastised for “not facing the front.” [46] Mr.

McCallum expressed concern that the trial judge may have confused him for a career criminal who bears the same name,stating: I can think of no other reason for him to be as intimidating as he was, especially when the concept of small claims court is supposed tobe more “friendly” and forgiving, than that of a criminal court or Queens Bench. [47] He concludes his Notice Appeal as follows: It is also my belief that during the first trial, the judge did not order the witnesses out of the court room, and with my expert witnesshearing the testimony of the Plaintiff, caused him to be very upset with the statements being made, and he witnessed the frustrations ofthe proceedings including the intimidation being done by the judge.

This was the major cause of my expert witness deciding to leave andrefusing to return. The Plaintiff never provided any evidence that a frame repair was done. His invoice states that the work performed was on the wrongside of the car where the issue was requested to be examined. The Plaintiff never provided an estimate of the repairs, and proceeded tofix the car without authorization. If this decision stands, then it sets a dangerous precedent where by automotive repair shops can proceedto do work, including unauthorized work on a vehicle, and demand payment.

This is contrary to every respectable business practicestandards in place. Standard of Review [48] The standard of review with respect to appeals from Provincial Court Civil Division to the Court of Queen’s Bench has beendiscussed in several cases. [49] In Palmer v Van Keulen, 2005 ABQB 239, Marceau J stated at paragraphs 11 – 12 [11] The standard of review applied by a civil appellate court was recently outlined by Wittmann J.A., as he then was, in Schoff v. RoyalInsurance Co. of Canada (2004), 348 A.R. 366, 2004 ABCA 180 .

Writing for the Court, Wittmann J.A. stated at para. 18: The standard of review that applies to factual inferences is palpable and overriding error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235,2003 SCC 33 at para. 25. An appellate court may intervene where the inference made by the trial judge is not supported by theevidence: Housen v. Nikolaisen at para. 22.

At para. 36, Wittmann J.A. continued stating: The standard of review on a pure question of law is correctness; the standard on a question of mixed fact and law, where the issue is theapplication of a legal standard to a set of facts, is subject to a standard of palpable and overriding error, unless it is clear that the trialjudge made some extricable error in principle with respect to the characterization of the standard or its application, in which case theerror may amount to an error of law, subject to the standard of correctness: Housen v. Nikolaisen, paras. 26-36. [12] In 527353 Alberta Ltd. v.

Stedelbauer Chevrolet Oldsmobile

(1975) Ltd. (2001), 2001 ABQB 909 , 302 A.R. 316 (Q.B.) at321, Slatter J. applied the palpable and overriding error standard to findings of fact, and the correctness standard to questions of law.Therefore, the relevant question for any civil appeal, regardless of from which court the decision originates, is whether the questionappealed from is a question of fact or law.

[50] In Koopmans v Joseph, 2014 ABQB 395, Greckol J stated at paragraph 10: [10] The standard of review to be applied on an appeal from a decision of the Court under the Provincial Court Act, RSA 2000, c P-31,is stated by Moen J. in Kieller v Sentinel Self-Storage Corp, 2008 ABQB 783 at para 39, 1 Alta LR (5th) 130: The standard of review to be applied by a civil appeal court is correctness in relation to questions of law (Housen v. Nikolaisen, 2002SCC 33 , [2002] 2 S.C.R. 235; R. v. Sehn, 2005 ABCA 203 , 371 A.R. 14) and palpable and overriding error in termsof findings of fact (Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802; 527353 Alberta Ltd. v. StedelbauerChevrolet Oldsmobile

(1975) Ltd. (2001), 2001 ABQB 909 , 302 A.R. 316 at 321 (Q.B.)) and factual inferences (Housen atpara. 25). A palpable and overriding error occurs where the trial judge makes a manifest error, ignores conclusive or relevant evidence,misunderstands the evidence or draws erroneous conclusions from it (Toneguzzo-Novell (Guardian ad litem of) v. Burnaby Hospital, (SCC), [1994] 1 S.C.R. 114 at para. 13, 110 D.L.R. (4th) 289, cited in MacCabe v. Westlock Roman Catholic SeparateSchool District, 2001 ABCA 257 at para. 21, 293 A.R. 41).

In terms of findings of mixed fact and law where the issue is theapplication of a legal standard to a set of facts, the standard of review is palpable and overriding error.

However, if the trial judge madean extricable error in principle with respect to the characterization of the standard or its application, the error may amount to an error oflaw, which is subject to the standard of correctness: Housen at paras. 26-36. [51] Trial unfairness was discussed most recently in Malton v Attia, 2016 ABCA 130, which is a decision handed down after thisappeal was argued before me. [52] In that case, the appellant had a number of criticisms of the trial judge’s conduct during the trial.

The Court of Appeal dealtwith some of their complaints at paragraphs 28 and 30: [28] The appellants allege a breach of audi alterem partem, the principle that a decision maker must give parties the opportunity to beheard and must fully hear each party’s case before rendering judgment.

Where procedural unfairness at trial is alleged, the task of thereviewing court is to assess whether the appellants were afforded the procedural opportunities required by law: see Baker v Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193. [30] Finally, the appellants argue that the conduct of the trial judge, including the tone of her comments in court and in her writtenjudgments as well as the numerous adverse findings made against them, when considered cumulatively, give rise to a reasonableapprehension of bias.

Appellate review for a reasonable apprehension of bias involves scrutiny of the record to determine if a fullyinformed and reasonable observer could reasonably apprehend, having thought the matter through, that the judge was not fair andimpartial: R v S(RD), (SCC), [1997] 3 SCR 484; Wewaykum Indian Band v Canada, 2003 SCC 45 , [2003] 2SCR 259 at paras 57-60, 76-78. [53] Thus Mr.

McCallum’s allegations that he was denied procedural fairness are to be reviewed on the basis of correctness, asmatters of law. [54] Conduct that might be described or categorized as giving rise to a reasonable apprehension of bias would appear to attract areasonableness standard. [55] The exclusion of evidence by the trial judge is reviewed on the correctness standard as evidentiary matters are matters of law. [56] Issues of credibility and the sufficiency of evidence are reviewed on the basis of palpable and overriding error. Grounds of Appeal [57] Mr. McCallum’s arguments are essentially that: 1.

The trial was unfair because of the manner in which it was conducted by the trial judge; 2. The trial judge erred in excluding evidence that Mr. McCallum considered crucial to his case, being opinions from himself and hisbrother and correspondence with the Better Business Bureau and with MasterCard; 3. The trial judge erred in disbelieving Mr. McCallum; 4. The trial judge erred by not requiring Edmonton Frame’s mechanic to testify and by finding that the work had been done to his carwithout the direct evidence of the mechanic who did the work; and 5.

The trial judge erred by not excluding witnesses at the first part of the trial, as his intended expert from Derrick Dodge becamefrustrated by what he saw of the trial and refused to participate further. Analysis 1. Trial unfairness

[58] A key issue here is whether a civil trial in Provincial Court Civil Division is rendered unfair by the trial judge insisting oncompliance with the rules of evidence. No authority is cited by Mr. McCallum for his proposition that Provincial Court trials are to beconducted in a “friendly and forgiving” manner. [59] Here, it is clear from a review of the transcript that the trial judge held both parties to the same rules. He did not let them offeropinions where they were not properly qualified to do so. [60] Neither Mr. McCallum nor his brother are mechanics.

While they had done some work on cars, the nature of that work wasnot described to the Court, and they did not purport to be experts in any area relevant to the trial. [61] I can see no error on the trial judge’s

part in concluding that neither was qualified to give expert opinion evidence on theproblems with the car, what was needed to be done to repair it, nor how the repair work had damaged the car. [62] Neither side was allowed to give hearsay evidence, and both sides were required to give direct evidence only. [63]

Section 36 of the Provincial Court Act, RSA 2000 c P-31 states: 36(1) For the purposes of a hearing, the Court (

a) is not bound by the laws of evidence applicable to judicial proceedings, and (

b) may admit any oral or written evidence that it, in its discretion, considers proper, whether admissible in a court of law or not.

(2) Nothing is admissible in evidence at a hearing (

a) that would be inadmissible by reason of any privilege under the law of evidence, or (

b) that is inadmissible by any Act. [64] Trial judges are accordingly given considerable latitude in the manner in which they conduct trials. It is frankly a novelproposition that a trial judge committed a reviewable error, or conducted an unfair trial, by requiring the parties to follow the rules ofevidence. [65]

Section 36 permits a judge to relax the ordinary rules of evidence, but does not require him or her to do so. [66] Here, a review of the transcript shows that the trial judge applied the same rules to both parties. This is not a case ofdifferential treatment between the parties, and there is no suggestion of any apprehension of bias or actual bias on the part of the trialjudge. [67] I can understand Mr. McCallum’s frustration and disappointment that he was not permitted to present his case in the mannerhe considered appropriate and helpful.

It is obvious that he struggled during the trial to follow the trial judge’s requirements concerningthe giving of evidence and conduct of the trial. [68] However, the only times during the trial that the trial judge did not permit Mr. McCallum to present his case as he saw fitwere when the trial judge had made adverse rulings against Mr. McCallum on admissibility issues. I find no errors of law in any of therulings made by the trial judge. [69] Trial judges in the Provincial Court Civil Division are afforded wider discretion as to evidentiary rulings than are trial judgesin the Court of Queen’s Bench.

That being said, trial judges in any court are given some latitude as to the manner in which they run theircourtrooms. Indeed, in the Court of Queen’s Bench, it is not uncommon for trial judges to hear evidence and rule later on itsadmissibility and the weight to give it. [70] That is frankly a challenging process, as once the evidence is heard, it is sometimes difficult to completely disabuse oneself ofany consideration of it. I do not think it can be said to be an error, or unfair, for a trial judge to refuse to hear presumptively inadmissibleevidence such as hearsay or opinion evidence.

Inadmissible evidence is just that: inadmissible. It should be given no weight. [71] Two of the keys to a fair trial, in my view, are consistency and predictability. The trial judge sets the tone of the trial, and solong as the parties are advised as to the judge’s expectations, the trial judge makes consistent rulings and applies the rules equally to bothparties, there is usually nothing to complain about.

If the trial judge then makes an error of law in making a ruling, that is not unfair, butmay constitute a reviewable error. [72] Here, my review of the transcript shows that the trial judge advised the parties as to his expectations regarding thepresentation of evidence.

He was consistent in his approach, and he applied the rules equally to both parties. [73] The fact that a different trial judge might have run the trial differently, or taken a different approach to the rules of evidence,does not make this trial unfair. [74] As noted in Malton v Attia at paragraph 31, self-represented parties to litigation are expected to become familiar with relevantlegal practices: [31] The role of a trial judge can be especially challenging when one or both parties appearing before the judge is self-represented.

TheCanadian Judicial Council, recognizing the increased presence of self-represented litigants in the courts, has stated that judges “haveresponsibility to ensure that self-represented persons are provided with fair access and equal treatment by the court”:

Preamble,Statement of Principles on Self-represented Litigants and Accused Persons, cited by this Court in Williams v Williams, 2015 ABCA 246, 602 AR 376 at para 38. In Williams, this Court went on to note that promoting equal justice can mean that judges provide

information about the law and evidentiary requirements to self-represented parties. On the other hand, the Principles also state that self- represented litigants are expected to familiarize themselves with relevant legal practices and to prepare their own case. [ 75 ] I do not think that parties can appear in Civil Division and expect the trial judge to relax the rules of evidence or to conduct the trial in an informal way.

Consistently applying the rules of evidence does not lead to an unfair trial. [ 76 ] It should be noted that the trial here was adjourned, and the parties essentially had a “second chance” to put in their evidence following the rulings and instructions given by the trial judge during the first segment of the trial. [ 77 ] Ultimately, Mr. McCallum’s appeal on the basis of trial unfairness is unsuccessful. 2. Excluding evidence [ 78 ] Improper exclusion of evidence is reviewed on the basis of correctness. [ 79 ] It is clear that Mr.

McCallum believed that correspondence with the Better Business Bureau and MasterCard were crucial to his case. As this evidence was not allowed to be introduced by the trial judge, there is limited information on the record concerning it. I presume that the Better Business Bureau reviewed correspondence from Mr. McCallum and Edmonton Frame and made comments favourable to Mr. McCallum. MasterCard apparently responded to correspondence and permitted Mr. McCallum to countermand the charges on his credit card. [ 80 ] Both Mr.

McCallum and his brother attempted to testify as to the causes of the problems with the car, the causes of damage to the car (oil leaks) and the need for the frame alignment after they did some of the work themselves. [ 81 ] As to the correspondence with the Better Business Bureau and MasterCard, the correspondence from Edmonton Frame to either of these entities might have been admissible, however Mr. McCallum’s own communications and any correspondence from the Better Business Bureau and MasterCard would not appear to be relevant or material. [ 82 ] Because of the discretion given to trial judges under

section 36 of the Provincial Court Act , the trial judge might have exercised a discretion to admit this evidence and determine the weight (if any) to give to it. However, no error of law has been shown to have been committed by the trial judge in refusing to admit what may have been the Better Business Bureau’s and MasterCard’s determinations of the dispute. What non-parties think about a dispute is essentially irrelevant. [ 83 ] Similarly, the trial judge might have allowed Mr. McCallum and his brother to offer opinions, and then determine the weight (if any) to give to them.

However, I can see no error of law in his refusal to admit this type of evidence, which traditionally is given no weight in court. [ 84 ] This ground of appeal fails. 3. Credibility issues [ 85 ] Credibility is generally best assessed by the trial judge, who has the advantage of seeing and hearing the witnesses. Here, the trial judge formed an unfavourable view of Mr. McCallum. Much of this assessment was based on what he appears to have considered to be questionable behaviour in Mr.

McCallum paying by MasterCard without expressing a dispute over the bill, while intending to dispute it later, after he had retrieved the car. The trial judge’s view was also informed by the manner in which Mr. McCallum gave evidence. [ 86 ] Both of these are relevant considerations, and a trial judge has a unique opportunity to see and hear the witnesses enabling him or her to observe the witness’s demeanour. [ 87 ] There is no basis on the record for concluding that the trial judge mistook Mr.

McCallum for anyone else, or that he took irrelevant matters into consideration. [ 88 ] Credibility findings are reviewed on the basis of palpable and overriding error. Mr. McCallum has not demonstrated any palpable or overriding error on the part of the trial judge. 4. Not requiring Edmonton Frame’s Mechanic to Testify [ 89 ] It would have been irregular and likely an error by the trial judge to have required either party to call a specific witness.

If the trial judge had concluded that the mechanic’s evidence was important, he could have drawn an adverse inference against Edmonton Frame. [ 90 ] It is unclear precisely why Mr. McCallum wanted the mechanic to testify, although he may have hoped to prove his case about damage done during the repairs and challenge whether the frame was actually aligned. [ 91 ] Mr. McCallum could have called the mechanic as his own witness. His unfamiliarity with the trial process and the calling of witnesses is unfortunate but does not make the trial unfair. Mr.

McCallum had a number of months between the segments of the trial to determine how best to present his case, and to seek out information and advice. It appears from a review of the transcript of the second segment of the trial that Mr. McCallum did not take advantage of the time to do so. [ 92 ] The trial judge was satisfied from the evidence of Mr. Landry, Jeremy Landry and Vit Plesner that the frame alignment had been done. It was clear that he concluded that Mr. McCallum left the decision to Edmonton Frame as to what work to do. It was

unnecessary for him to decide whether the cross-member had been damaged during the frame-straightening process or whether it was already damaged and needing replacement. Either way, it needed to be replaced, and was. [ 93 ] It is implicit from his credibility findings that he also accepted that the oil leaks were not proven by Mr. McCallum to have been caused by Edmonton Frame, or that Mr. McCallum had been overcharged for any of the replacement parts. [ 94 ] Even if this issue were reviewed on the basis of correctness, as an alleged error of law, Mr.

McCallum has not shown that the trial judge erred by refusing to call the mechanic, or not drawing any adverse evidence against Edmonton Frame for their not calling him themselves. I do not find that an express dismissal of the counterclaim was necessary. 5. Not excluding witnesses [ 95 ] There is no requirement that witnesses be excluded while witnesses before them give their testimony. That is a common practice, and is intended to avoid a witness from being influenced by what he or she has heard from other witnesses. [ 96 ] There is a common exception to that: the opinion evidence of expert witnesses.

Experts are not “fact” witnesses, but rather offer opinions based on their area of expertise and not their personal involvement with the dispute. They are commonly allowed to sit through the evidence of other witnesses. [ 97 ] As a result, it would not have been a reviewable error for the trial judge to fail or refuse to exclude witnesses. That is a matter of courtroom management. Failing to exclude witnesses would not, in my view, be an error of law. And failing to exclude an expert witness would be common practice and certainly not an error of law. [ 98 ] This ground of appeal also fails.

Conclusion [ 99 ] As can be seen from the above analysis, Mr. McCallum has not demonstrated the necessary errors of law relating to the evidence or any palpable and overriding errors relating to his credibility or fact findings. [ 100 ] The trial has not been shown to have been impacted by procedural errors, and no bias or reasonable apprehension of bias on the part of the trial judge has been made out. [ 101 ] Mr. McCallum’s appeal is accordingly dismissed. [ 102 ] Mr. McCallum’s disappointment in the result is understandable. The results might have been different if Mr.

McCallum had been able to secure the attendance of the expert from Derrick Dodge, as he had planned. However, his inability to do so is not visited on the trial judge, but rather Mr. McCallum’s unfamiliarity with the rules of evidence and court procedure. [ 103 ] Indeed, the trial might have been much different if the trial had been conducted by a different trial judge.

Another judge may have taken a different view of the witnesses’ credibility, and another judge might have run the trial in a less formal manner. [ 104 ] But litigants cannot go to court expecting something akin to TV justice; Canadian judges are legally trained and generally follow the rules of evidence and common rules of court practice.

Even if informality finds its way into a trial and hearsay and unqualified opinions are allowed to be expressed, those types of evidence carry little weight in any event. [ 105 ] Appeals are not do-overs of the trial and an unhappy party must demonstrate reversible error on the part of the trial judge. Mr.

McCallum has failed to do that. [ 106 ] My review of the transcript shows no reviewable error on the part of the trial judge on the evidence he heard and in the context of the credibility findings he made. [ 107 ] Self-represented litigants are almost always at a disadvantage when conducting trials for themselves. Here, both sides were on a level playing field: both were unrepresented by counsel. The trial judge played no favourites and applied the same rules to both parties.

He was not obliged to relax his standards to accommodate the parties’ lack of experience or familiarity with the rules of evidence and trial procedures. Costs [ 108 ] I did not ask the parties to address the issue of costs at the hearing. Mr. McCallum has spent a large amount of money, considerably in excess of the amount of the judgment and costs in Provincial Court, on the transcript necessary for the hearing before me. [ 109 ] Neither party was represented by counsel on this appeal, and in the circumstances, I consider it appropriate to have each party bear their own costs.

It was unnecessary for anyone other than Mr. Landry to appear for Edmonton Frame on the appeal. Heard on the 14 th day of April, 2016 Dated at the City of Edmonton, Alberta, this 12 th day of May, 2016.

Robert A. Graesser J.C.Q.B.A. Appearances: Gary McCallum, Appellant on his own behalf Les Landry, agent for the Respondent Edmonton Frame and Suspension

(2000) Ltd