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OCA rules on discovery in Small Claims Court

|Written By Alex Robinson

The Ontario Court of Appeal has ruled that deputy judges in the Small Claims Court have jurisdiction to grant pre-trial inspections of property in certain circumstances.

Eric Sherkin says the Small Claims Court’s rules will need to be amended at some point as the sophistication increases in cases before it.

Lawyers say the decision in Riddell v. Apple Canada Inc. helps to clarify the issue of discovery-type motions in the Small Claims Court after varying rulings by deputy judges.

“I think having a Court of Appeal decision on it will be impactful,” says Eric Sherkin, a commercial litigation lawyer with Levine Sherkin Boussidan PC, who was not involved in the case.

The plaintiff in the case, Matthew Riddell, brought a $25,000 claim against Apple Canada Inc., alleging his iPhone had overheated and severely burned his right arm. The deputy judge in the proceedings granted Apple a pre-trial motion to inspect the iPhone, as it was the foundation of Riddell’s claim.

Riddell, who was self-represented in the proceedings, appealed the order to the Divisional Court. He argued that granting such motions in the Small Claims Court would hamper its ability to deal with matters quickly.

The Divisional Court upheld the order and found that Small Claims Court deputy judges have the discretionary authority to grant pre-trial inspections of property when it is warranted.

The Court of Appeal agreed.

“. . . [W]e do not accept the appellant’s submission that the recognition of the authority of Deputy Judges of the Small Claims Court to order the pre-trial inspection of property in exceptional circumstances will undermine the mandate of the Small Claims Court to hear and determine in a summary way those cases that come before it,” said the decision on behalf of Justices James MacPherson, Eleanore Cronk and Mary Lou Benotto.

“To the contrary, in our view, it will assist Deputy Judges of the Small Claims Court to fulfil this important function.”

At issue in the appeal was whether the pre-trial inspection of property was left out of the Rules of the Small Claims Court as a deliberate omission or because of a gap.

Under what’s called the “analogy rule,” — Rule 1.03 of the Rules of the Small Claims Court — the court can make an order referencing the Courts of Justice Act or the Rules of Civil Procedure when its own rules “do not cover a matter adequately.”

If the rules do not cover something, the court has to determine whether it was because of a gap in the rules or because of a conscious exclusion.

In a 2010 decision in Van de Vrande v. Butkowsky, the Court of Appeal found that summary judgment was left out of the rules as a deliberate omission and, therefore, could not be used in Small Claims Court.

The Court of Appeal found that, in this instance, it was a gap.

“Unlike Van de Vrande, we see no marker in the Rules of a deliberate legislative decision to omit such a procedure,” the decision said.

The court cited the reasons of a 2013 Small Claims Court decision in National Service Dog Training Centre v. Hall that found that a party that was not in possession of property that was vital to a case had its ability to prepare for trial restricted, creating an “unlevel playing field.”

In that decision, Deputy Judge Shelley McGill found that ordering a pre-trial inspection of property would not be “hostile to the objectives of the court” and that letting the party see the property was an “issue of fundamental fairness.”

“A party will not perceive the justice system as fair if it is denied the basic opportunity afforded to the other party,” McGill said in her decision.

“The playing field must be level or the administration of justice will fall into disrepute.”

The Court of Appeal found that this applied to the Riddell case and that the deputy judge’s order was “entirely justified.”

While lawyers say the decision brings some clarity to the issue of pre-trial inspection of property in Small Claims Court, some have concerns as to what the decision could mean for the court’s rules.

Jordan Farkas, a lawyer and founder of law firm Mr. Small Claims Court, says there might be confusion going forward as to when the courts will view something as a gap or an omission.

“It seems very subjective,” says Farkas, who was not involved in the case. “It seems that if the court views something as being fair and not covered in the rules, they’re going to call it a gap, and if the court views it as something that isn’t necessary for the administration of justice, they’re going to call it an omission.”

In a written statement to Law Times, Riddell said there is no gap in the rules for pre-trial inspections of property but a deliberate omission not to provide for it.

“In my view, it was not up to the OCA to read in such a provision, as if pre-trial discovery of personal property were deemed desirable in the jurisdiction of the Small Claims Court,” he says.

“It is a matter for the Civil Rules Committee and not the courts to decide and implement.”

Sherkin says that when the court’s monetary limit is raised again, the sophistication of the cases it hears will inevitably increase. And, eventually, the rules will need to be amended to clarify what are deliberate omissions, he says.

Farkas is also concerned with what the decision could mean for litigants who have limited resources and take on big companies. He says that the decision may open the door to more pre-trial production motions that could bog down self-represented litigants or clients with finite funds.

“My concern is that when you’re not representing a client that has the deep pockets of Apple, then they can be completely swamped with pre-trial motions,” he says.  

“If people are going to start bringing pre-trial motions galore, it will definitely undermine the summary way cases are decided.”

Sherkin says the Court of Appeal’s decision, however, does not go to the level of allowing discovery-type motions for every document in every matter.

“It’s not an automatic rubber stamp to grant it,” he says. “It just confirms that the Small Claims Court can order it if they believe it’s necessary in that specific case.”

Riddell is still considering his options, but he says he may seek leave to appeal the decision to the Supreme Court of Canada.

Monique Jilesen, the lawyer representing Apple in the case, declined to comment.

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