Transfer SCSM to Superior Court (General)

Courts of Justice Act, R.S.O. 1990, c. C.43

107 (1) Where two or more proceedings are pending in two or more different courts, and the proceedings,

(a) have a question of law or fact in common;

(b) claim relief arising out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason ought to be the subject of an order under this section,

an order may, on motion, be made,

(d) transferring any of the proceedings to another court and requiring the proceedings to be consolidated, or to be heard at the same time, or one immediately after the other; or

(e) requiring any of the proceedings to be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

Transfer from Small Claims Court

(2) A proceeding in the Small Claims Court shall not be transferred under clause (1) (d) to the Superior Court of Justice without the consent of the plaintiff in the proceeding in the Small Claims Court.

(3) A proceeding in the Small Claims Court shall not be required under subclause (1) (e) (ii) to be asserted by way of counterclaim in a proceeding in the Superior Court of Justice without the consent of the plaintiff in the proceeding in the Small Claims Court.

(4) The motion shall be made to a judge of the Superior Court of Justice.

(5) An order under subsection (1) may impose such terms and give such directions as are considered just, including dispensing with service of a notice of readiness or listing for trial and abridging the time for placing an action on the trial list.

(6) A proceeding that is transferred to another court under clause (1) (d) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court.

(7) Where an order has been made that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.

Kreppner v. HMQ, 2019 ONSC 6667 (CanLII)

[1] The moving parties are Her Majesty the Queen in Right of Ontario represented by the Ministry of Finance (the “Crown”) and the Municipal Property Assessment Corporation (“MPAC”). The Crown is a defendant in four actions pending in the Small Claims Court (three in Oshawa and one in Belleville). MPAC is a defendant in the action brought by the responding party, Josef Kreppner, but not in the other three actions.

[2] Each of the responding parties is a plaintiff in one of the four actions commenced in the Small Claims Court.

[19] The issues on these motions are (i) whether I should exercise my inherent jurisdiction to transfer the four Small Claims Court actions to the Superior Court of Justice; (ii) if the actions are transferred, whether they should they be transferred to Toronto; and (iii) if the actions are transferred, whether they should they be consolidated.

[21] In Vigna v. Toronto Stock Exchange, (1998) O.J. No. 4924 (Div. Ct.) the Divisional Court heard an appeal from the decision of the application judge on an application by the defendant for the transfer of an action from the Small Claims Court to the Superior Court. A transfer of the action under s. 107(1)(d) of the Courts of Justice Act could not be made because s. 107(2) provides that a proceeding in the Small Claims Court shall not be transferred to the Superior Court without the consent of the plaintiff in the proceeding in the Small Claims Court and the plaintiff did not consent. The Divisional Court held that a judge has the necessary jurisdiction to transfer an action from the Small Claims Court to the Superior Court, without the plaintiff’s consent, under the judge’s inherent power as a Superior Court judge to control the process of the Courts. The Divisional Court provided guidance concerning the circumstances under which this jurisdiction should be exercised:

We do not mean it to be taken that a transfer should be made in every case where it is requested. It is important for the court to scrutinize the issues raised where such a request is made to determine whether those issues are capable of being justly and fairly resolved by the procedures available in Small Claims Court. In many if not most cases the Small Claims Court procedures will suffice. This particular case is, in our view, one of the exceptions where the issues raised are of such a nature and complexity that the available procedures are insufficient for their just and fair determination on the merits.

The Divisional Court held that in the circumstances[1], this was one of the rare cases where an order transferring an action from the Small Claims Court to the Superior Court should be made.

[22] In Farlow v. Hospital for Sick Children, (2009) O.J. No. 4847, T. P. Herman J. held that the decision as to whether the court should transfer an action from the Small Claims Court to the Superior Court involves the balancing of various factors including (i) the complexity of the issues; (ii) the importance of expert evidence to a determination of the case; (iii) the need for discovery; (iv) whether the case involves issues of general importance; and (v) the desire for a just and fair determination. Justice Herman held that balanced against these factors is the principle that a court should rarely exercise its discretion to transfer a case and he observed at para. 21:

In general, if a litigant chooses to pursue a case in Small Claims Court, that choice should be respected. Of particular concern in this case is the potential that the transfer to a higher court may increase the costs for the litigants and have a negative impact on access to justice [citation omitted].

[44] In Farlow, the court was clear that factors that may favour a transfer of an action from the Small Claims Court to the Superior Court of Justice must be balanced against the principle that, in general, if a litigant chooses to pursue a case in the Small Claims Court, that choice should be respected. A particular concern is that the transfer to a higher court may increase costs for the litigants and have a negative impact on access to justice. In the Court of Appeal decision in Crane, the panel was alert to concerns relating to access to justice and held that the exercise of a judge’s discretionary jurisdiction to transfer a case from the Small Claims Court to the Superior Court of Justice should rarely be exercised.

Farlow v. Hospital for Sick Children, 2009 CanLII 63602 (ON SC)

[1] HERMAN J.: -- The defendants have brought a motion to transfer this action from Small Claims Court to Superior Court and, once transferred, to exempt the action from simplified procedure.

[18] A judge of a superior court has the inherent power to transfer a matter from the Small Claims Court to the Superior Court in appropriate circumstances (Vigna v. Toronto Stock Exchange, (1998) O.J. No. 4924, 115 O.A.C. 393 (Gen. Div.), at para. 7). It is, however, a discretion that should be rarely exercised (Crane Canada Co. v. Montis Sorgic Associates Inc., (2006) O.J. No. 1999 (C.A.)).

[19] The decision as to whether the court should transfer an action involves the balancing of various factors.

[20] Courts have considered the following factors in deciding that a transfer may be warranted: (i) the complexity of the issues; (ii) the importance of expert evidence to a determination [page218] of the case; (iii) the need for discovery; (iv) whether the case involves issues of general importance; and (v) the desire for a just and fair determination (Vigna v. Toronto Stock Exchange; Livingston v. Ould, [1976] O.J. No. 953, 2 C.P.C. 41 (H.C.J.); Crane Canada Inc. v. Montis Sorgic Associates Inc., (2005) O.J. No. 6247, 156 A.C.W.S. (3d) 63 (S.C.J.), at para. 8, affd (2006) O.J. No. 1999 (C.A.)).

[21] Balanced against these factors is the principle that the court should rarely exercise its discretion to transfer a case. In general, if a litigant chooses to pursue a case in Small Claims Court, that choice should be respected. Of particular concern in this case is the potential that the transfer to a higher court may increase the costs for the litigants and have a negative impact on access to justice (Livingston v. Ould; Crane Canada Co. v. Montis Sorgic Associates Inc.). Factors

(i) Complexity of the issues

[41] The fact that the Farlows have only claimed $10,000 is not an indication of the gravity of the claim. The allegations that the Farlows have raised are serious. The reputations of the hospital and the individual defendants are at stake. The defendants are entitled to an opportunity to make a full answer and defence. The existence of oral discovery and the framework for the use of expert evidence in the Superior Court will increase the likelihood that the court's ultimate disposition is based on a full and proper airing of all the evidence.

[67] In Baker v. Chrysler Canada Ltd., (1998) O.J. No. 1709, 112 O.A.C. 277 (Gen. Div.), the defendants sought an exemption from the simplified procedure in an action with 50 plaintiffs, each of whom had a claim for $25,000 or less. The defendants submitted that it would only be just if they had the benefit of discovery. Farley J. did not grant them leave, observing that the cut-off for simplified procedure was purely a monetary one; it was not based on complexity, credibility or any other reason.

[68] In Gibbons v. York Fire & Casualty Insurance Co., [1997] O.J. No. 4125, 47 O.T.C. 200 (Gen. Div.), the plaintiff instituted a claim under the simplified procedure. The defendant moved to have the action exempted from simplified procedure so that it would have full rights of discovery and cross-examination. McDermid J. dismissed the motion, noting that the removal of discovery from certain claims is exactly what was intended by the simplified procedure rule. He expressed his opinion that "the policy underlying the simplified procedure rules is sound and ought not to be rendered impotent by creating so many exceptions to its application that these rules are left without any force or effect" (at para. 8).

Vista v. Double T, 2011 ONSC 3454 (CanLII)

[1] Double T Earth Moving Ltd. (hereinafter referred to as “Double T”) brought action against Vista Sudbury Hotel Inc. (hereinafter referred to as “Vista”) in the Small Claims Court for payment of unpaid invoices. Vista filed a defence to that action.

[2] Vista subsequently brought an action in the Superior Court of Justice against Double T for breach of contract alleging that Double T did not complete the work for which it was paid, and improperly completed other work which caused damage to it. Double T has made a counter claim in the Superior Court action for the same unpaid accounts and for further loss of profits attributable to its dealing with Vista. With respect to the claim for unpaid accounts, Double T pleaded in its counterclaim that the same claim is outstanding in the Small Claims Court and its intention to proceed there unless the matter was ordered traversed to the Superior Court.

[8] I do not accept Vista’s position in this regard. It is asking that a proceeding in the Small Claims Court be transferred to the Superior Court of Justice, and it is asking that by virtue of that transfer it be heard at the same time, or in the course of the Superior Court Action which was brought by Vista. Indeed, Vista speaks of an effective “consolidation” of the actions in the Superior Court in paragraph (e) of the grounds of its motion. Although Double T has asserted its claim by way of counterclaim, it did not attorn to the jurisdiction of the Superior Court and specifically pleaded its right to continue and complete its proceedings in the Small Claims Court.

[9] I might also point out that section 107(3) of the Courts of Justice Act provides that a proceeding in a Small Claims Court shall not be required under sub clause (1)(e)(ii) to be asserted by way of counterclaim in a proceeding in the Superior Court of Justice without the consent of the plaintiff in the proceeding in the Small Claims Court. Although Vista has not requested a stay of the Small Claims Court action, the effect of an order transferring the matter to the Superior Court would be to force Double T to assert its claim against Vista by way of counterclaim contrary to the spirit and intention of section 107(3).

[10] In my view, an order is being sought under section 107(1)(d).

[11] Section 107(2) provides that a proceeding in the Small Claims Court shall not be transferred under clause (1)(d) to the Superior Court of Justice without the consent of the plaintiff in the proceeding in the Small Claims Court. Double T, the plaintiff, has not consented.

[12] Vista relies on the case of Vigna v. Toronto Stock Exchange 28 C.P.C. (4th) 318, where the Divisional Court held that it is open to a judge of the Superior Court to transfer a matter from the Small Claims Court to the General Division in appropriate circumstances without the consent of the plaintiff in the Small Claims proceeding. The court held, in that case, that the court is to scrutinize the issues raised in the case to determine whether those issues are capable of being justly and fairly resolved by the procedures available in the Small Claims Court. However, that case is distinguishable because the Divisional Court specifically found that the relief claimed did not fall under section 107(1)(d) and the consent of the plaintiff was not required.

[13] Vista has not cited any case which would allow for relief under Section 107(1)(d) absent the consent of the plaintiff in the Small Claims Court proceeding. That is probably for good reason. Section 107 clearly contemplates coincident actions in the Small Claims Court and the Superior Court of Justice that may involve common parties, common issues of fact and common issues of law. The section clearly contemplates the existence in these two courts of separate actions involving claims for relief arising out of the same transactions or occurrences. It would be fair to assume that the drafters of this legislation were also aware of section 138 which seeks to avoid multiplicity of actions. Notwithstanding, the legislation prohibits the requested order unless the plaintiff in the Small Claims Court action consents.

[14] One might reasonably conclude that policy considerations concerning the right of a Small Claims Court plaintiff to get his or her matter heard expeditiously and inexpensively in the Small Claims Court was thought to override concerns about res judicata, potentially conflicting findings, and multiplicity of proceedings.

[15] In my view, where the effect of the requested order is to force the plaintiff in the Small Claims Court action to adjudicate his or her claim in the Superior Court in concert with another Superior Court action, or as a counterclaim in a Superior Court action, the consent of the plaintiff is a precondition to transfer. Absent Double T’s consent in this instance, I am unable to make the requested order.