Summary judgment not available in Small Claims Court

The Court of Appeal rarely rules on Small Claims Court matters, however, today in Van de Vrande v. Butkowsky, 2010 ONCA 230, the Court ruled that Summary Judgment is not available in Small Claims Court. That said, the Court held that motions to strike, as structured in the Small Claims Court rules serve a similar but not identical purpose.

The Court held:

1) Availability of a Motion for Summary Judgment

[8] With respect to the availability of a motion for summary judgment, the appellant argues that such a motion can be read into the Small Claims Court Rules. He argues that the absence of explicit reference to such a motion in the Small Claim Court Rules is a gap. In attempting to fill this gap, he refers to r. 1.03(2), which reads as follows:

If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[9] In arguing for the availability of a motion for summary judgment, the appellant emphasizes s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that Small Claims Court should proceed in a summary manner. He therefore argues that, pursuant to r. 1.03(2) of the Small Claims Court Rules and s. 25 of the Courts of Justice Act, r. 12.02 should be read broadly, as allowing a motion for summary judgment. With respect to the applicable test, he argues that reference should be had to r. 76.07 (since repealed on January 1, 2010) of the Rules of Civil Procedure, which governs motions for summary judgment under the simplified procedure, and allows a motion judge to make findings of fact.

[10] The respondent argues that such motions are not available under the Small Claims Court Rules. He submits that the silence of the Small Claims Court Rules is a deliberate omission, not a gap to be filled. In the respondent's view, a motion for summary judgment is as foreign to the proceedings of the Small Claims Court as examinations for discovery and not to be read into the Small Claims Court Rules. In the respondent's view, both the motion judge and Divisional Court erred in applying tests for motions for summary judgment to a r. 12.02 motion.

[11] In my view, the Divisional Court erred in applying the jurisprudence and principles emanating from r. 20 of the Rules of Civil Procedure. This rule deals with a summary judgment motion in an action that is brought in Superior Court pursuant to the rules that apply to that court. I do not view the failure to provide for summary judgment motions as a gap in the Small Claims Court Rules, but rather a deliberate omission. It is not up to the court to read in such a provision, particularly in light of the fact that r. 12.02 specifically addresses the ability to bring a motion in the nature of those contemplated by rr. 20, 21 and 76 Rules of civil Procedure. If a motion for summary judgment of the kind provided for in r. 20 is to be created, it is a matter for the Rules Committee and not the courts.

[12] The error may in part result from the appellant's motion having been framed as seeking an order for "summary judgment" rather than an order to "strike out" the respondents claim pursuant to r. 12.02.

[13] In my view it is neither useful nor appropriate to apply the jurisprudence emanating from the application of rr. 20 and 76 of the Rules of Civil Procedure to assist in the interpretation of r. 12.02 of the Small Claims Court Rules.

[14] Rule 12.02 of the Small Claims Court Rules allows a party to bring a motion to strike a document, including a claim, before trial. It is therefore more akin to a r. 21 motion than a r. 20 motion. It is, however, worded differently than any of rr. 20, 21, or 76 of the Rules of Civil Procedure.

[15] Rule 12.02 of the Small Claims Court Rules reads as follows:

12.02(1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court's process.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be stayed or dismissed,

2. In the case of a defence, strike out the defence and grant judgment.

3. Impose such terms as are just.

[16] In contrast, r. 21 of the Rules of Civil Procedure reads in relevant part as follows:

21.01(1) A party may move before a judge,

...

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

(2) No evidence is admissible on a motion,

...

(b) under clause (1)(b).

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

...

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

[17] There are several important differences between r. 21.01 of the Rules of Civil Procedure and r. 12.02 of the Small Claims Court Rules. First, where a rule 21 motion can be brought to strike a pleading, a r. 12.02 motion can be brought to strike any document. Second, the prohibition on admitting evidence contained in r. 21.01(2) is absent from r. 12.02. Third, where r. 21.01(3) allows an action to be struck on the very narrow grounds of its being frivolous, vexatious, or an abuse of process, r. 12.02(1)(c) adds the criteria of inflammatory, waste of time, and nuisance.

[18] Further, r. 12.02 applies in a somewhat different context than the Rules of Civil Procedure. Section 25 of the Courts of Justice Act, provides that in Small Claims Court proceedings the court is to "hear and determine in a summary way all questions of law and fact." The court can make "such order as is considered just and agreeable to good conscience". In addition, r. 1.03(1) of the Small Claims Court Rules, provides that the rules shall be "liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merit in accordance with s. 25 of the Courts of Justice Act."

[19] Conceptually, I view r. 12.02 as being situated somewhere between the rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in r. 20 of the Rules of Civil Procedure where the responding party must put his "best foot forward". It is more akin to a r. 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be "inflammatory", a "waste of time" or a "nuisance."

[20] In my view, the references to actions that are inflammatory, a waste of time, or a nuisance was intended to lower the very high threshold set by r. 21.01(3)(d)'s reference to actions that are frivolous, vexatious, or an abuse of process.

[21] It bears remembering that r. 12.02 motions will often be brought and responded to by self-represented litigants who lack the extensive training of counsel. The test to be applied on such a motion ought to reflect this, and avoid the somewhat complex case law that has fleshed out the Rules of Civil Procedure.