Tuesday, April 26, 2016

Powers of Court in Small Claims Court

Hervieux v. Huronia Optical, 2016 ONCA 294:


[4]            R. 12.02 provides 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.

2.1 In the case of a motion, order that the motion be stayed or dismissed.

3. Impose such terms as are just.

(3) The court may, on its own initiative, make the order referred to in paragraph 1 of subrule (2) staying or dismissing an action, if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court's process.


[5]            On February 21, 2014, the deputy judge allowed the appellants' motion and dismissed the respondent's claim because of the respondent's failure to file expert evidence supporting his claim on the issues of standard of care and causation, concluding that: "Absent such evidence, and no prospect of such evidence being secured, it is reasonable for this court to invoke the provisions of Rule 12.02(1) [and] (2) of the Small Claims Court, and I do so." (Emphasis added.)


[6]            On March 19, 2015, the appeal judge allowed the respondent's appeal on the bases that the deputy judge had made an error of law and exceeded his jurisdiction in treating the appellants' motion as a motion for summary judgment and dismissing the respondent's claim under r. 12.02(1), because the claim was not inflammatory, a waste of time, a nuisance or an abuse of the court's process. The appeal judge held that it was a denial of natural justice to dismiss the respondent's claim under r. 12.02(1), and that the deputy judge should have given the respondent, a self-represented litigant, another opportunity to provide expert reports.




[7]            The appellants submit that the appeal judge made several errors in reversing the deputy judge's dismissal of the respondent's action. The appellants argue that the appeal judge erred in finding that the deputy judge effectively granted summary judgment when the deputy judge merely and correctly applied the provisions of r. 12.02. The appellants complain that the effect of the appeal judge's decision is that deputy judges will not have the jurisdiction to dismiss actions in which plaintiffs have failed to comply with an order to produce expert reports and, as a result, they will not be able to enforce deadlines for the delivery of documents, including expert reports, under r. 12.02 of the Small Claims Court Rules.


[8]            I disagree that the appeal judge's order has that wide-reaching effect.


[9]            There is no question that a deputy judge has the jurisdiction to alter the time deadlines otherwise provided under the Small Claims Court Rules and even to dismiss an action. In particular, in accordance with the provisions of r. 13.05(1) and (2)(a)(vi), it was open to the deputy judge during the settlement conferences to require the respondent to provide his expert evidence to the appellants in advance of the trial. Further, under r. 13.05(2), if the circumstances warranted it, the deputy judge, with written reasons, could have stayed or dismissed the action.

[10]        It would also be open to a deputy judge in the appropriate case to dismiss an action under r. 12.02 for a party's failure to comply with a court production order or any other order. 


[11]        Indeed, it was open to the deputy judge in the present case to invoke r. 12.02 if the circumstances supported any of the criteria listed in that rule.  However, for the reasons that follow, I agree with the respondent's submissions that the circumstances of this case did not warrant the dismissal of the action under r. 12.02.



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