“It has always been accepted that on occasion it is not only desirable but necessary that the trial judge question a witness for the purpose of clarification of the evidence. However, it is appropriate to recall the words of this court in Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 (C.A.), where the court addressed the issue of interventions by a trial judge. At p. 205, the court stated:
When a judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”. Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.
In the present case, the trial judge crossed the line set out in Majcenic. The questions were not only numerous but were of such a character as to amount to an unwarranted interference with counsel’s conduct of the trial. The trial judge effectively took the case into his own hands and out of the hands of counsel: see J.M.W. Recycling Inc. v. Attorney-General of Canada (1982), 1982 CanLII 1947 (ON CA), 35 O.R. (2d) 355 at p. 362 and Farrar v. Farrar (2003), 2003 CanLII 15943 (ON CA), 63 O.R. 141 (C.A.) at paragraph 25.
This court has stated on numerous occasions that in appeals based on undue interventions in the examinations of witnesses, the test is not so much prejudice but whether the image of impartiality was destroyed: see for example Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 1995 CanLII 1069 (ON CA), 23 O.R. (3d) 362 (C.A.). This is such a case.