Order for Production

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Date Retrieved:	2024-04-20
CLNP Page ID:	13
Page Categories:	[Rule 18 - Evidence at Trial (SCSM Rules)], [Ontario Small Claims Court], [Small Claims Court Procedures]
Citation:	Order for Production, CLNP 13, <3U>, retrieved on 2024-04-20
Editor:	Sharvey
Last Updated:	2023/01/30

Elguindy v St. Joseph’s Health Care, 2016 ONSC 2847 (CanLII)

[9] The purpose of the Small Claims Court is to provide expeditious and low cost resolutions of monetary disputes (CJA, ss. 23-30). In keeping with that purpose, there is no provision in the SCC Rules for discovery generally in the Small Claims Court. Where the plaintiff’s claim or the defendant’s defence is based in whole or in part on a document, a copy of the document must be attached to the pleading (SCC Rules 7.01(2) 2; 10.01(4) 2.). A settlement conference is mandatory in every defended action (SCC Rule 13.01(1)). At least 14 days before the date of the settlement conference, each party is required to serve and file a copy of any document not attached to their pleading that they intend to rely on at trial, including an expert report (SCC Rule 13.03(2)).

[10] SCC Rule 13.05(1) provides that a judge conducting a settlement conference may make an order relating to the conduct of the action that the court could make. Rule 13.01(2)(a) sets out some examples of orders a judge may make including (vi) “directing production of documents”. This is the only place in the SCC Rules that deals with production of documents beyond those the parties intend to rely on and it arises only as part of a settlement conference.

[13] In our view, the Judge clearly had jurisdiction at the settlement conference and pursuant to SCC Rule 13.05(2)(a)(vi) to order the Applicant to produce his expert reports dealing with the standard of care of the Respondents. There is no issue that in a medical negligence action such reports are necessary to succeed at trial. Further, they must be produced at least 14 days before the settlement conference: SCC Rule 13.03(2). In the face of the Applicant not providing such reports, it is appropriate to order their production before trial.

[20] In Lemont, Deputy Judge Winny was dealing with a motion under the SCC Rule 15 for production of non-party documents. The moving party submitted that the Small Claims Court had jurisdiction to make the production order, either under the SCC Rules dealing with motions or at a settlement conference. The Deputy Judge dismissed the motion for a number of reasons including that rule 30.10 of the Rules of Civil Procedure did not apply in Small Claims Court, both because of rule 1.02(1) of those rules and because SCC Rule 1.03(2), the analogy rule, can only be applied where the SCC Rules fail to cover a matter adequately and that cannot be said in respect of discovery in the Small Claims Court. In addition, Deputy Judge Winny further held that the settlement conference context of SCC Rule 13.05(2)(a)(vi) did not permit the Rule to be interpreted to mean that non-party production motions are a proper part of the settlement conference process.

[21] By contrast, in Dave’s Auto Detailing v. Guilbault Certiguard, [2013] O.J. No. 4082, Deputy J. P. Lepsoe, on the consent of both the parties and the third party, ordered production of third party records. After referring to Lemont, the Deputy Judge stated “I am satisfied that it is proper for this court in some circumstances to make an appropriately tailored order, such as the one herein, particularly with the advice and consent of counsel to that non-party.”

[22] Given that Dave’s Auto was on consent of all parties, including the third party and the Deputy Judge provided no reasoning concerning his jurisdiction to make the third party production order, it is of no assistance in dealing with the issue before the court.

[23] On the other hand, I am in complete agreement with Deputy J. Whinny’s reasons in Lemont. In the absence of discovery in the Small Claims Court, there is no gap in the SCC Rules which would permit incorporation of rule 30.10 of the Rules of Civil Procedure. Nor is there any provision in the SCC Rules for third party production orders, either on a motion or at a settlement conference. As noted, the only provision in the SCC Rules permitting an order for production of documents is SCC Rule 13.05(2)(a)(vi) which, in the context of a settlement conference, only permits an order for production by a party to the action as part of the settlement conference.

[27] Finally, because I have found there is no jurisdiction in the Small Claims Court to issue a third party order for production, it is not necessary to address the issue of prejudice to the third parties raised by the Respondents.

[28] For the above reasons, therefore, I hold that the Judge did not have the jurisdiction to issue that portion of the Order requiring third party production of the Applicant’s medical records.

Burke v Lauzon Sound and Automation Inc., 2016 CanLII 16474 (ON SCSM)

12. Counsel for the respondent (who was not counsel at the time of the correspondence referred to above) contests the jurisdiction of the Small Claims Court to make an order for production, at least where it is sought by motion. She relies in particular on the decision of Deputy Judge Winny in Petrykowski v. 552562 Ontario Ltd., [2010] O.J. No. 1048, 2010 CarswellOnt 11112 (Sm. Cl. Ct.).

13. In Petrykowski, Winny, D.J. stated as follows:

An order for the production of documents may be requested of a settlement conference judge, but the procedures of this court do not contemplate a pretrial motion for the production of documents. Such motions would import a discovery process that is neither contemplated by nor intended under the Small Claims Court Rules.

Riddell v. Apple Canada Inc., 2017 ONCA 590 (CanLII)

[1] The primary issue on this appeal concerns the important question whether Deputy Judges of the Small Claims Court have jurisdiction to order the pre-trial inspection of property in a proper case. If such jurisdiction exists, the second issue on appeal is whether that jurisdiction was properly exercised in the circumstances of this case.

[2] The Divisional Court, for clear and cogent reasons, answered both of these questions in the affirmative. We agree with the Divisional Court’s conclusions and its reasoning on these issues.

[8] Second, and relatedly, we do not accept the appellant’s submission that the recognition of the authority of Deputy Court 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. To the contrary, in our view, it will assist Deputy Judges of the Small Claims Court to fulfil this important function in accordance with s. 25 of the Courts of Justice Act, R.S.O. 1990, c. 43. In this regard, we agree with, and endorse, the comments of Deputy Judge S.M. McGill of the Small Claims Court in National Service Dog Training Centre Inc. v. Hall, 2013 CanLII 41924 (ON SCSM), [2013] O.J. No. 3216, at paras. 30-31:

The only Small Claims Court Rule expressly dealing with the inspection of personal property is part of the final phase of the process – trial. Rule 17.03 authorizes a trial judge to inspect any real or personal property in the presence of the parties. The lack of pre-trial inspections of property represents a gap in the Small Claims Court rules that has disparate impact on the parties. The party in possession of the property experiences no side effects whatsoever while the non-possessory party has its ability to prepare for trial severely restricted. An unlevel playing field is the result which is not just, fair or agreeable to good conscience.

Ordering a pre-trial inspection of the property is not hostile to the objectives of the court, it is central to principles of natural justice. This is an issue of fundamental fairness which the court must be allowed to address in the context of controlling its own proceedings and to support the most just, agreeable and in good conscience determination. A question about the condition of the property cannot be determined on the merits if only one side is allowed to collect relevant evidence. A party will not perceive the justice system as fair if it is denied the basic opportunity afforded to the other party. The playing field must be level or the administration of justice will fall into disrepute. [Emphasis added.]

[9] We are also satisfied that the test for the invocation of the power to order the pre-trial inspection of property, set out above, was met here. In this products liability case, the appellant seeks damages for what he alleges were personal injuries caused by the negligent manufacture of an iPhone by the respondent. He claims that the iPhone overheated and caused severe burns to his right arm. He declared his intention to lead expert evidence at trial regarding the iPhone and the overheating event in order to establish his case. Yet he refused, absent a court order, to permit an independent third party expert to inspect the iPhone prior to trial, at no cost to him, to assist the trial judge in determining the central matter in dispute between the parties.

[10] In these circumstances, Deputy Judge Stabile’s impugned pre-trial inspection order was entirely justified. Trial fairness, the interests of justice and the proper exercise of the trial judge’s functions under r. 17.03 of the Rules all compelled this result.

[11] The appeal is dismissed. Given the novel and public interest dimensions of the issues raised on appeal, this is not an appropriate case for an award of costs.

Matthew Riddell v. Apple Canada Inc., 2018 CanLII 51171 (SCC)

The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C63349, 2017 ONCA 590 (CanLII), dated July 10, 2017, is dismissed without costs.

Fiuza v Creekside Real Estate Group Inc., 2019 CanLII 45625 (ON SCSM)

3. The Small Claims Court is a statutory court and not a court of inherent jurisdiction: Polewsky v. Home Hardware Stores Ltd. (2003), 2003 CanLII 48473 (ON SCDC), 66 O.R. (3d) 600 (Div. Ct.), at para. 15 & 28. Therefore this court possesses only those powers conferred on it by the legislature expressly or impliedly: R. v. 974649 Ontario Inc., 2001 SCC 81 (CanLII), [2001] 3 S.C.R. 575 at para. 26.

8. The Court of Appeal’s decision in Riddell v. Apple Canada Inc., supra, affirms the Divisional Court’s holding that in exceptional cases where it is essential for a proper determination of the case at trial, a pretrial order for inspection of property can be made by this court under Rule 32 of the Rules of Civil Procedure. It does not deal with document discovery in the Small Claims Court.

9. In Burke v. Lauzon Sound and Automation Inc., [2016] O.J. No. 2914 (Sm. Cl. Ct.), Deputy Judge Lepsoe declined to follow several first instance decisions to the contrary and held that this court did have jurisdiction to entertain motions for production of documents. The decisions to the contrary include that of Deputy Judge Searle in Norquay Developments Ltd. v. Oxford County Housing Corp., [2010] O.J. No. 274 (Sm. Cl. Ct.). See also the decision of Deputy Judge McNulty in Crocker v. Ventawood Management Inc., [2013] O.J. No. 4588 (Sm. Cl. Ct.), dealing with a motion for relief quite similar to what is requested on this present motion.