Relief Not Plead

936464 Ontario Ltd. v. Mungo Bear Ltd., 2003 CanLII 72356 (ON SCDC)

[46] The Newfoundland Court of Appeal dealt with this very issue in Popular Shoes, supra. At paras. 24 and 25, Green J.A. had this to say:

Particularly in Small Claims Court, where claimants, as here, are often unrepresented, a liberal approach ought to be taken to the pleadings that are presented so as to ensure that access to proper adjudication of claims is not prevented on a technicality. Even in superior court, the basic rule of pleading is that a party must plead material facts and is not required, as a condition of relief, to be correct in fitting those facts, as a matter of pleading, into a particular legal pigeon-hole. This is particularly appropriate for litigation in the Small Claims Court where technicalities are to be avoided and unrepresented parties (as Popular and Mrs. Claeys were in this case) are required to express their claims in their own words. If a claimant by his or her pleading or evidence states facts which, if accepted by the trier of fact, constitute a cause of action known to the law, the claimant should prima facie be entitled to the remedy claimed if that is appropriate to vindicate that cause of action. The only limitation would be the obvious one that if the case takes a turn completely different from that disclosed or inferentially referenced in the Statement of Claim, thereby causing prejudice to the other side in being able properly to prepare for or respond thereto, the court may either decline to give relief or allow further time to the other side to make a proper response.

A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstances described in the Statement of Claim, to determine whether those facts constitute a cause of action known to the law, regardless of whether it can be said that the claimant, as a [page57] matter of pleading, has asserted that or any other particular cause of action. Subject to considerations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within the subject-matter jurisdiction of the court, ought to be granted.

[47] This passage commends itself to me as a practical approach to the manner in which justice is and must be dispensed on a day-to-day basis in our Small Claims Court, and I adopt it. In my view, the deputy judge was presented with facts, broadly within the umbrella of the circumstances described in the claim, which constituted a cause of action in quantum meruit. As such, she was entitled to grant a remedy on that basis. I would not, therefore, give effect to this ground of appeal.

Hydro One Networks Inc. v. Yakeley, 2010 ONSC 4770 (CanLII)

[11] It is clear from the transcript that there was no discussion between Hydro One and Mr. Yakeley at the initial meeting about a seasonal sag in the hydro lines which would have an effect on the ability to move the house. As the deputy judge stated in his reasons for judgment:

The key component missing, though, from the discussions was the expected sag of the tower conductors in the summer and that is the critical aspect, as I find it.

[12] In view of this finding the deputy Small Claims Court judge then moved to the issue of set off. He noted that Mr. Yakeley’s evidence was that his additional costs were $80,000 but that in the Small Claims Court the defendants’ claim was, at that point in time, limited to the monetary jurisdiction of the court of $10,000. He noted that had there been a defendants’ claim he would have awarded Mr. Yakeley $10,000. He then turned to the issue of set off. As he stated in his judgment:

In my view, set off is available to the defendant, notwithstanding that there is no defendants’ claim. In my view, that is still available to him. Given the specific facts of this case, there is no doubt that in law Mr. Yakeley is responsible to the plaintiff on the contract that he signed and so on that issue and that part of the issue alone, I find that the defendant is liable to the plaintiff in contract but is also entitled to rely on the principle of set off because of the representations or omissions that he did not get from Mr. Deugo relating to the sag issue.

[13] Set off is available to defendants by way of a defence. Section 111(1) of the Courts of Justice Act R.S.O. 1990, c. C.43 provides:

In an action for payment of a debt, the defendant may, by way of defence, claim the right to set off against the plaintiff’s claim a debt owed by the plaintiff to the defendant.

[14] The Courts of Justice Act R.S.O. 1990 c.C43 at para. 25 provides the following overarching comments as to proceedings in 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.

[15] As Karakatsanis, J. noted in Kulman v. Elio [2009] CanLii 10676 (O.N.S.C.D.C.) at para. 7:

The proceedings in the Small Claims Court are informal and parties are often unrepresented. The trial judge has some latitude to adapt the process provided it is fair to both parties.

[16] With respect to the formalities required in pleadings in Small Claims Court Heeney, J. stated in 936464 Ontario Ltd. v. Mungo Bear Ltd. (2003) 2003 CanLII 72356 (ON SCDC), 74 O.R. (3d) 45 at para. 45:

More important though is the fact that the case at bar was litigated in the Small Claims Court. The higher standards of pleading in the Superior Court are simply unworkable in a Small Claims Court, where litigants are routinely unrepresented, and where legal concepts such as the many varieties of cause of action are completely foreign to the parties. Essentially, the litigants present a set of facts to the Deputy Judge, it is left to the deputy judge to determine the legal issues that emerge from those facts and bring his or her legal experience to bear in resolving those issues.

[17] It is clear from the reasons of the deputy Small Claims Court judge that the representative of Hydro One was well aware of the effect of sagging wires at different times of the year. This was knowledge known to him and it is plain and obvious that the deputy Small Claims Court judge found a negligent misrepresentation with respect to this issue. It would have been a simple matter for the Hydro One representative to point out the serious consequences of a move of a structure such as this at certain times of the year. With no further information available to him Mr. Yakeley went ahead with his plans and incurred costs. The judge accepted his evidence that these costs could not be reversed or eliminated and he accepted Mr. Yakeley’s evidence that these costs were in the order of $80,000. Those costs were determined not for purposes of a counter-claim but informed the judge’s decision with respect to set off.

[18] In my view the issue of set off was raised sufficiently in the pleadings when Mr. Yakeley talked about the expenses he incurred. The plaintiff, which is a large corporation, with an in-house legal department, could have anticipated that these issues would be raised at trial based on the information in the pleadings. Furthermore, the deputy Small Claims Court judge flagged the issue of set off in his questions to Mr. Yakeley. Clearly the issue of set off was on the table and available for cross-examination by the plaintiff Hydro One. Questions about set off or his expenses were not pursued by the plaintiff nor did the plaintiff request an adjournment with respect to Mr. Yakeley’s evidence about his additional costs and expenses.

[19] There is no magic in the requirement to use the words “set off” in pleadings in Small Claims Court. To require a strict adherence to the rules of pleadings would be contrary to the role of the Small Claims Court in the administration of justice. In my view there was no error in law in applying set off principles based on the evidence which the deputy judge considered and accepted.

[20] In addition there were sufficient facts before the deputy Small Claims Court judge to find negligent representation based on the evidence of Hydro One’s own witness. A significant piece of information was not provided to the defendant and the defendant was not able to make a fully informed decision as to the best time of year to move the house.

[21] For these reasons the appeal is dismissed.