Small Claims Court Appeals

Jurisdiction on Appeal and Judicial Review

Stamm Investments Limited v Ryan, 2016 ONSC 6293 (CanLII)

[14] It is true that the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) does not preclude judicial review from decisions of judges of the Small Claims Court. A Small Claims Court judge derives jurisdiction from a statute (the CJA), and exercises a statutory power of decision. By virtue of s. 2 of the JRPA, the Divisional Court has the power to grant relief in relation to jurisdictional errors and errors of law on the face of the record made by Small Claims Court judges. This Court has confirmed that power on at least three occasions (see, Peck v. Residential Property Management Inc., (2009) O.J. No. 3064, Pardar v. McKoy, 2011 ONSC 2549 (CanLII), [2011] O.J. No. 2092 and R. v. Casalese, [1981] O.J. No. 1332.)

[19] With this background in mind, I turn to the decision of the motions judge. He obviously erred in stating that there is no “judicial review” of the judgment of the Small Claims Court. There is, but it is rarely available. He also erred in stating that an appeal was available to a single judge, having regard to the amount of the claim. In fact, Rule 68.01(2) contemplates that applications for judicial review will ordinarily be transferred without an order. But in the unusual circumstances of this case, Parayeski J. was correct in refusing to transfer the matter to Hamilton. This is clearly a case that should not occupy the time of a panel of this court a second time. The judicial review at issue is nothing more than a disguised appeal in a situation where the legislature has denied any such right to the moving party. It cries out for the Court to exercise its discretion to decline relief. It was appropriate for the motions judge to deny the applicant the opportunity to take up the court’s time with a frivolous application, and it is incumbent on us to do the same.

Standard of Review

Ashrafi v. Carraro, 2019 ONSC 6326 (CanLII)

[18] At pages 1112 to 1116 of Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 3d ed (Toronto: LexisNexis Canada 2017) the learned authors set out principles governing standards of review in appellate matters.

[19] The appellate standard of review where the ground of appeal is that the trial judge erred in law is correctness. In contrast the standard of review for findings of fact is that the error must be a “palpable and overriding error”, meaning plain to see and affecting the result.

[20] Errors of mixed fact and law, where the question of legal principle is not readily extricable, are subject to the test of palpable and overriding error.

[21] The learned authors additionally note at para. 12.225 of The Law of Civil Procedure in Ontario, 3d ed, supra:

Other than standard form contracts, the exercise of applying the principles of contractual interpretation is a question of mixed fact and law because contracts are to be interpreted in a …[factual] matrix; however, the standard of appellate review for standard form contracts is the correctness standard for issues of law.

Kean v. Popert, 2019 ONSC 6410 (CanLII)

[17] An appeal from a final order of the Small Claims Court lies to a single judge of the Divisional Court where the amount is in excess of $2,500. The amount in this matter is $25,000, and therefore I have jurisdiction to hear this appeal: see ss. 19(1)(a), 19(1.2)(a) and 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[18] On an appeal, the appellate court has the following powers, as set out in s. 134(1) of the Courts of Justice Act:

Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[19] In order to resolve this issue, I must first determine the nature of the purported error and then, the applicable standard of review.

[20] If the purported error is a question of fact, then the standard of review is palpable and overriding error. If the purported error is a question of law, then the standard of review is correctness. If the purported error is a question of mixed fact and law, then the standard of review falls on a spectrum between correctness and a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235.

Edelenbos v. Bandula, 2015 ONSC 354 (CanLII)

[14] The standard of review of a judge’s decision was canvassed in Litwinenko v. Beaver Lumber Co., (2008) O.J. No. 2133. Divisional Court Justice S. Greer, stated at paras. 9 and 10:

[9]  The standard of review of the Judge’s decision in the Appeal before us was set out by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2011 D.L.R. (4th) 577.  On a question of law, the test is a matter of correctness, in which case the appellate court is free to replace the opinion of a trial judge with its own. 

[10]  On issues involving findings of fact, a judge is not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”, as set out in Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), (1976) 2 S.C.R. 802.  Further, if a judge has considered all of the evidence that the law requires him or her to consider and still comes to the wrong conclusion, this amounts to an error of mixed fact and law and is subject to a more stringent standard of review than that of palpable and overriding error.

Nicolou v. McLennan & Associates, 2013 ONSC 1622 (CanLII)

[6] The authorities are clear that I cannot overturn the decision of the Small Claims Court judge unless at least one of two situations exist:

1. Findings of fact are not to be reversed unless the trial judge made a “palpable and overriding error”, or

2. The trial judge erred in law.

[7] In Clarksburg Contractors Ltd. v. Saks, [2012] O.J. No. 4115 (S.C.J.), Quinlan J. sets out the standard of review that the Divisional Court undertakes in appeals from Small Claims courts proceedings:

Proceedings in Small Claims Court

21 Before dealing with the standard of appellate review, it should be borne in mind that the trial at first instance was a Small Claims Court trial. The Courts of Justice Act provides the following overarching comments concerning proceedings in the Small Claims Court:

"The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.

22 Housen v. Nikolaisen provides guidance on the standard of review for findings of fact by judges. As the court stated:

The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error".

23 The Supreme Court quoted the comments of Laskin J.A. in Gottardo Properties (Dome) Inc. v. Toronto (City):

Deference is desirable for several reasons: to limit the number and length of appeals, to promote the autonomy and integrity of the trial ... proceedings on which substantial resources have been expended, to preserve the confidence of litigants in those proceedings, to recognize the competence of the trial judge ... and to reduce needless duplication of judicial effort with no corresponding improvement in the quality of justice.

Standard of Review

24 It is well-established that the test to be applied on the review of a deputy judge's decision is as follows:

a) the standard of review for findings of fact and inferences of fact is such that they cannot be reversed unless the trial judge has made a palpable and overriding error; and

b) the standard of review on pure questions of law is one of correctness.

Grounds for Appeal

Sufficiency of Reasons

Edelenbos v. Bandula, 2015 ONSC 354 (CanLII)

Sufficiency of Reasons

[15] The Supreme Court of Canada addressed the issue of sufficiency of reasons in R. v. Shepherd, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869. As Binnie J. stated at para. 55 (i):

The delivery of reasoned decisions is inherent in the judge’s role.  It is part of his or her accountability for the discharge of the responsibilities of the office.  In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

Misapprehended the Evidence, Fundamental and Palpable Error

Frith v. Cable Bridge Enterprises Limited, 2013 ONSC 6436 (CanLII)

[17] The standard of review for decisions in the Small Claims Court is determined by the principles outlined by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33 (CanLii) (CanLII), [2002] SCR 235. On a pure question of law, the standard of review is that of correctness. The standard of review for findings of fact are mixed fact and law are reviewable only for palpable and overriding error.