Summary Judgement (SCSM)

Van de Vrande v. Butkowsky, 2010 ONCA 230 (CanLII)

[1] ROULEAU J.A.: -- Rule 12.02 of the Rules of the Small Claims Court, O. Reg. 258/98 allows a party to bring a motion to strike out or amend a document. Pursuant to this rule, the appellant, Dr. Irwin Butkowsky, brought a motion for summary judgment in an action brought against him by the respondent, Robertus Van de Vrande. The trial judge granted the motion, finding that the appellant was immune from suit and that the action was brought beyond the applicable limitation period. The Divisional Court set aside the order, finding that the trial judge had erred by making findings of fact on the motion.

[2] The appellant appeals from the order of the Divisional Court. In so doing, he raises the question of the availability of a motion for summary judgment under the Small Claims Court Rules. For the reasons that follow, I have concluded that the procedure of a motion for summary judgment is not available under the Small Claims Court Rules but that the motion judge's decision is nonetheless sustainable under rule 12.02. Facts

[5] The Divisional Court set aside the motion judge's order. Applying the jurisprudence emanating from Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, it found that, on a motion for summary judgment, the motion judge was not entitled to make findings of fact. She therefore erred in granting summary judgment pursuant to the doctrine of expert witness immunity, as doing so required rejecting the respondent's argument that the appellant had gone beyond his role as assessor and was therefore not entitled to such immunity. Similarly, in granting summary judgment because the action was commenced after the applicable limitation period, the motion judge erred in finding that the cause of action had not become discoverable prior to the coming into force of the Limitations Act, 2002 on January 1, 2004. Issues

[6] The appellant raises the following two grounds of appeal: (1) whether a motion for summary judgment is available under the Small Claims Court Rules; (2) whether the trial judge erred in finding that the two-year limitation period in the Limitations Act, 2002 was applicable and that the appellant was immune from suit as an expert witness.

[7] For the reasons that follow, I would allow the appeal. Analysis (1) Availability of a motion for summary judgment

Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599 (CanLII)

[1] Sean Bruyea appeals from the order granted by the motion judge that dismissed his claim pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Prior to hearing the appeal, the court invited the parties to address the issue whether a deputy judge of the Small Claims Court has jurisdiction to make an order under s. 137.1.

[2] On the appeal, we heard submissions from the parties on the jurisdictional issue along with their submissions on the merits of the appeal. The parties requested the opportunity to file further written submissions on the jurisdictional issue and we acceded to that request. The court also invited the Attorney General of Ontario to make submissions on the jurisdictional issue. We have received and reviewed all of those written submissions. Both parties and the Attorney General of Ontario argue in favour of a conclusion that deputy judges do have jurisdiction to make an order under s. 137.1.

[8] As I mentioned at the beginning of these reasons, prior to the hearing of the appeal, the court raised the issue whether a deputy judge of the Small Claims Court has jurisdiction to make an order under s. 137.1. For the reasons that follow, I conclude that they do not.

[28] In the end result, it would have been open to the Legislature to expressly provide in s. 137.1 that deputy judges of the Small Claims Court could grant orders under that section. The Legislature chose not to do so in the same fashion that, in wording s. 137.1 as it did, it did not give that authority to masters or case management masters. For its own reasons, the Legislature clearly concluded that this new jurisdiction should only be exercised by a judge. It is not for this court to strain the language of the section to provide a power to deputy judges that the Legislature did not, itself, plainly choose to provide.

[29] For these reasons, I conclude that deputy judges of the Small Claims Court do not have authority to grant orders under s. 137.1 of the CJA.

Courts of Justice Act, RSO 1990, c C.43

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.