An Ontario court has ruled that an investor didn’t get a fair hearing in her small claims court suit against a brokerage firm, and it has ordered a new trial.

Shui Ying Mak sued TD Waterhouse Canada in small claims court alleging that a computer error at the firm triggered a margin call on her account in late November 2002, and that her accounts were liquidated to cover that call. Mak claims that the liquidation of her accounts by TD was unjustified, and she’s seeking damages for the financial losses she sustained.

The case has not been proven. It was heard by a small claims court judge, who tossed out her suit in August 2003.

Both TD Waterhouse and Mak were unrepresented by counsel at the small claims court trial. Mak was assisted at trial by her friend, Giora Moore. The defence was put forward by Steve Sims, a compliance officer for TD Waterhouse. Neither Moore nor Sims has any legal training.

However, Mak appealed that decision claiming she did not get a fair trial, and the Ontario Superio Court of Justice Divisional Court of agreed. “It is clear the trial judge committed a fundamental error in declaring a non-suit on his own motion without even giving the plaintiff an opportunity to make submissions,” the said court said in its decision, filed on May 12, 2005.

On appeal, counsel for TD argued that notwithstanding this error, the trial judge’s determination should be allowed to stand because the result was inevitable and there was therefore no substantial wrong or miscarriage of justice.

However, the court disagreed, saying, “In this case, it is not possible to say that there has been no miscarriage of justice. On the contrary, if the trial had been permitted to proceed in the normal course without the interventions of the trial judge, with Mr. Moore being given appropriate latitude to cross-examine witnesses and with the defence being called upon to present its case, the result might well have been different.”

The court found, “It is not possible to say at this point that Mrs. Mak’s cause of action has no chance of success … I find that the trial judge’s error in dismissing the case when and in the manner he did, resulted in a miscarriage of justice. The plaintiff is entitled to a new trial.”