Jurisdiction (Monetary)(LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	450
Page Categories:	[Hearing Process (LTB)], [Ontario Small Claims Court], [Jurisdiction]
Citation:	Jurisdiction (Monetary)(LTB), CLNP 450, <6y>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2022/08/19

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Residential Tenancies Act, 2006

207 (1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court. 2006, c. 17, s. 207 (1).

(2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

Gordon et al. v. 837690 Ontario and Tyco et al., 2022 ONSC 1028 (CanLII)

CanLII Logo Find in document Gordon et al. v. 837690 Ontario and Tyco et al., 2022 ONSC 1028 (CanLII) Document History (0) Cited documents (54) Treatment (1) CanLII Connects (0)

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Date: 2022-02-14 File number: CV-19-00028402-A1CP Citation: Gordon et al. v. 837690 Ontario and Tyco et al., 2022 ONSC 1028 (CanLII), <https://canlii.ca/t/jmmph>, retrieved on 2022-08-19

CITATION: Gordon et al. v. 837690 Ontario and Tyco et al., 2022 ONSC 1028

COURT FILE NO.: CV-19-00028402-A1CP

                                                                                                                             DATE:  20220214

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Timothy Gordon, Angela Thomson, John Ng-Lun, John Sitter and Fadiya Shamasha, Plaintiffs

AND

837690 Ontario Limited, Defendant

AND

Tyco Integrated Fire & Security Canada, Inc. o/a Johnson Controls, Troy Life & Fire Safety Ltd. and MK Electric Ltd. and A.P.I. Alarm Inc., Third Parties

BEFORE: Justice S. Nicholson

COUNSEL: Harvey T. Strosberg, Q.C., Sharon Strosberg and Justin Smith for the Plaintiffs

                       Chris Stribopoulos, Mario Delgado, Christine Galea, Travis Walker and Balraj Sihota for the Defendant

                       Lindsay Lorimer, Rachel Cooper and Connor Campbell for the Third Party, Tyco Integrated Fire & Security Canada Inc. o/a Johnson Controls

                       Natasha O’Toole for the Third Party, Troy Life & Fire Safety Ltd.

                       M. Jennifer Cosentino for the Third Party, MK Electric Ltd.

                       Christina Calalang for the Third Party, A.P.I. Alarm Inc.

HEARD: November 22 and 23, 2021

Proceedings under the Class Proceedings Act, 1992

REASONS ON CERTIFICATION MOTION

NICHOLSON J.:

[1] On November 12, 2019, a fire broke out in the parking garage of the Westcourt Place, an apartment building in downtown Windsor, Ontario. The City of Windsor has declared the building structurally unsafe. Accordingly, the building’s residential and commercial tenants were required to vacate and remain displaced to this day.

[2] In this proposed class action, the representative plaintiffs include residential tenants and commercial tenants. Timothy Gordon is a residential tenant and is also alleged to have sustained personal injuries as a result of the fire. Angela Thomson resided with Mr. Gordon and seeks to represent a proposed Family Class asserting claims under the Family Law Act, R.S.O. c. F. 3, (“FLA”) for loss of care, guidance and companionship for his injuries. John Sitter is a criminal lawyer who leased commercial space at Westcourt Place.

[3] The Defendant 837690 Ontario Limited is the owner and property manager of Westcourt Place. I will hereinafter refer to the Defendant as “Westcourt”.

[4] Westcourt has commenced third party claims against Tyco Integrated Fire and Security Canada (“Tyco”), Troy Life and Fire Safety Ltd. (“Troy”), MK Electric Ltd. (“MK”) and A.P.I. Alarm Inc. (“API”). Tyco was hired to inspect and maintain the fire suppression and alarm system for the building. Troy was hired to provide monitoring support for the building’s life and safety systems, MK was hired to repair the alarm and life and safety system, and API was a subcontractor of Troy. The Third Parties have all delivered statements of defence in the main action.

[5] The Plaintiffs seek to certify this class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). Westcourt opposes certification. The Third Parties do not oppose certification per se, but object to their inclusion in the common issues trial.

The Facts:

[6] I will recite the facts only briefly. These facts are only accepted for the purpose of the certification motion.

[7] Westcourt Place is a residential and commercial building located at 99 Chatham Street East and 251 Goyeau Street in Windsor, Ontario. There are 154 residential units and 22 commercial units, as well as underground parking and storage.

[8] On November 12, 2019, at approximately 6:35 am, Westcourt lost power. The representative plaintiff, Timothy Gordon, was trapped in an elevator. A fire started in the southwest corner of parking level B2. The fire was not contained until approximately 11 am. Six automobiles were destroyed by the fire. Smoke and other discharge were spread throughout the building, including into units.

[9] The Plaintiffs’ expert, Roar Engineering, investigated and concluded that the fire originated along a section of electrical busway that ran along the ceiling of the parking garage, over a parked vehicle immediately below. Roar Engineering concluded that the probable cause of the fire was the failure of the main busway.

[10] The tenants were all required to evacuate the building. The City of Windsor has determined that substantial remedial work is required to be completed before the building is inhabitable again. That work has not yet been completed and the tenants remain displaced. Some tenants have cancelled their leases, others have not.

[11] Mr. Gordon was taken from the building to hospital. He alleges that he sustained personal injuries from severe smoke inhalation and near fatal levels of carbon monoxide in his blood.

[12] Although the tenants have been displaced, Westcourt has taken steps to assist them. They have now agreed to remove, clean and store, at its expense, personal property of the tenants.

[13] It is the position of Westcourt that the leases are now frustrated.

Preliminary Issue—Jurisdiction:

[14] The first issue is with respect to this court’s jurisdiction--namely, whether the Ontario Superior Court of Justice has jurisdiction over this matter given the provisions of the Residential Tenancies Act, 2006, SO 2006, c 17 (“RTA”). The relevant sections of the RTA are as follows:

168(1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobiliere in French.

(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

…

207 (1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.

(2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

[15] Accordingly, by operation of sections 168 and 207 of the RTA, the Landlord and Tenant Board (“LTB”) has exclusive jurisdiction over landlord/tenant matters up to $35,000, the current jurisdiction of the small claims court. The Superior Court has jurisdiction with respect to claims over $35,000. The parties agree that this is only in respect of residential tenancies, not commercial tenancies.

[16] In Bisaillon v. Concordia University, [2006] 1 S.C.R., the Supreme Court of Canada, per Lebel J., described that a class action is a “procedural vehicle” whose use neither modifies nor creates substantive rights. It cannot serve as a basis for legal proceedings if the various claims it covers, taken individually, would not do so. He concluded at para. 22 that the class action procedure cannot have the effect of conferring jurisdiction on the Superior Court over a group of cases that would otherwise fall within the subject-matter jurisdiction of another court or tribunal.

[17] In Dorman v. Economical Mutual Insurance Company (2020), 151 O.R. (3d) 791, 2020 ONSC 4004, Belobaba J. dismissed a proposed class action against automobile insurers in relation to statutory accident benefits under the Insurance Act. He relied upon Bisaillon in holding that the Superior Court of Justice did not have jurisdiction to certify a class action given the exclusive jurisdiction of the Licence Appeal Tribunal. The Court of Appeal dismissed an appeal from this decision, seeing “no error in the motion judge’s analysis” (Dorman v. Economical Mutual Insurance Co., 255 O.R. (3d) 338, 2021 ONCA 314 (ONCA)). Leave to appeal to the Supreme Court of Canada has now been granted (2022 CanLII 1933 (SCC)).

[18] In Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801, Perell J. dealt with a motion to dismiss a proposed class action. The proposed plaintiffs, tenants in residences operated by the housing corporation, asserted a class action to require the housing corporation to repair the buildings in which they lived. Notably, the claims were quite modest, in the amount of $500 per claim for each of three separate claims (negligence and two separate Charter claims). Perell J. found that the claims were properly the subject matter of the RTA and that exclusive jurisdiction lay with the Board as the claims were under the small claims court jurisdiction of $10,000. He stated at paras. 43 and 44, as follows:

[43] It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiff’s repair claims. Further, it is my opinion that characterizing the claims as a negligence claim or as an Ontario Human Rights Code or Charter claim does not infuse the Superior Court with jurisdiction. From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the Plaintiffs’ claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board. See Politzer v. 170498 Canada Inc., [2005] O.J. No. 5224 (S.C.J.) at para. 27; Brown v. Bermax Capital Ltd., [1999] M.J. No. 67 (C.A.); Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929.

[44] The Plaintiffs’ characterization of the repair problems as negligence or as discrimination in breach of the Code and the Charter does not assist them. If the essential character of the dispute, in its factual context, arises from the statutory scheme, it does not matter that the claim is asserted for a cause of action which is ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. The characterization of the dispute is resolved by whether the subject matter of the dispute expressly or inferentially is governed by the statute: Toronto Police Association v. Toronto Police Services Board, [2007] O.J. No. 4156 (C.A.), leave to appeal to S.C.C. ref’d Sept. 25, 2008; Regina Police Association v Regina (City) Board of Police Commissioners 2000 SCC 14 (CanLII), [2000], 1 S.C.R. 360. In the case at bar, the dispute about repairs and complaints about compliance with housing standards is a repair claim for under $10,000 and comes within the Board’s exclusive jurisdiction.

[19] Throughout oral argument, counsel for the Plaintiffs relied upon other certification motion decisions arising out of fires in residential apartment buildings. These include Carillo v. Vinen Atlantic S.A., 2014 ONSC 5269, Blair v. Toronto Community Housing Corporation, 2011 ONSC 4395 and Charmley v. Deltera Construction Limited, 2010 ONSC 7153. These cases were described as similar cases in which the court certified the class proceedings using comparable procedural language as suggested by the Plaintiffs in the within case.

[20] In Carillo, another decision of Perell J., there had been a fire in an 82-unit apartment building and the proposed plaintiffs were residential tenants. The proposed defendants included the owner of the building, a property management company, the building superintendent, the actual property manager and Toronto Hydro. Importantly, all but Toronto Hydro consented to the certification of the action as a class proceeding and jurisdiction was never argued. Toronto Hydro would not be caught by the RTA. Accordingly, this case does not assist on this issue.

[21] In Blair the proposed class action before Perell J. also involved tenants in a residential apartment building against the housing corporation and property management company. The alleged cause of the fire was negligence. The defendants raised the availability of proceedings before the LTB as an argument for a class proceeding not being the preferable procedure. Jurisdiction was not directly discussed in the decision except with respect to the “preferable procedure” criterion. However, it is noteworthy that Ms. Blair advanced a significant individual claim of $103,000 for personal property damage and stolen/damaged goods, plus an unspecified amount for psychiatric injuries. This would arguably take at least her claim out of the jurisdiction of the LTB and may explain why it was unnecessary to consider jurisdiction.

[22] In Charmley, an explosion and fire in the electrical room of a condominium apartment and townhouse development rendered the premises uninhabitable. That claim was made in negligence against the contractor alleged to have been responsible for the design and construction of the building, as well as Toronto Hydro. I conclude that the RTA would have no application to that set of facts.

[23] In the within case, Westcourt argues that the individual claims must be “small” and urges me, in the absence of evidence to the contrary, to determine that they fall below $35,000 individually assessed. The tenants are not paying rent to Westcourt right now. Westcourt has accepted the responsibility to clean, remove and store the property located within the residential units. As a result, Westcourt has substantially mitigated the Plaintiffs’ losses, further diminishing the actual damages that they have sustained. Further, both Mr. Gordon and Ms. Thomson describe the claims as “small” in their affidavits.

[24] In my view, Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442 is determinative of the jurisdiction issue. Letestu was not a class proceeding but involved an elderly plaintiff who allegedly slipped and fell over a damaged carpet in his residential rental unit. The action claimed $500,000 in damages from the owner and manager of the apartment building. The defendants brought a motion to dismiss the claim on the basis that it fell within the exclusive jurisdiction of the LTB and was commenced outside the one-year limitation period under the RTA. The motions judge agreed and dismissed the action.

[25] The Court of Appeal reversed the decision. The court quoted sections 168 and 207 of the RTA and then stated at paras. 10 and 11, as follows:

[10] Thus, the Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the Board has jurisdiction over a tenant’s or former tenant’s claim for damages (as well as other claims within the Board’s authority) where the “essential character of the claim” is for non-repair and within its monetary jurisdiction: Mackie v. Toronto (City) and Toronto Housing Corporation, 2010 ONSC 3801, [2010] O.J. No. 2852. The Board’s jurisdiction, however, is not exclusive by virtue of s. 207(2): Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 15.

[11] Because the estate claimed damages exceeding the monetary jurisdiction of the Small Claims Court, and therefore exceeded the jurisdiction of the Board, there was no question that the appellants were entitled to commence their proceeding in the Superior Court. And, through the operation of s. 207(2), the court would be able to make any order the Board could have made in addition to any relief it could grant in a court proceeding.

[26] The Court declined to determine whether other factors would have taken the claim outside the jurisdiction of the Board had the damages claimed been less than the monetary limit of the small claims court. Thus, “essential character” of the claim was not addressed. For similar reasons, I do not need to address the essential character argument in this case, at this stage.

[27] It is noteworthy that in Letestu there was no discussion by the Court of Appeal about the actual value of the plaintiff’s damages. It was the amount claimed that was determinative. In my view, that is a sensible approach as it avoids the court, or LTB, from having to undertake an assessment of the actual value of a claim before determining whether or not it has jurisdiction. The impracticalities of that approach are obvious. The RTA employs the word “claim” in s. 207(2) as well.

[28] In Mackie, the amount claimed was, on its face, well within the jurisdiction of the small claims court and thus, there was no jurisdiction in the Superior Court to bring a class proceeding. In Blair, the claim, at least of the representative plaintiff, was well over the threshold amount.

[29] Despite the arguments of Westcourt, I have determined that it is not appropriate for me to assume that the tenants’ claims will be under $35,000, although they well may be. The use of the word “small” here is meaningless without context. I cannot draw the conclusion that “small” necessarily means “less than $35,000”. The amount claimed in the Class Proceeding is $23,000,000 for general damages and the costs of administering the plan of distribution and a further $10,000,000 for special damages, pecuniary damages, aggravated damages and punitive damages. Although the number of claimants is not yet precisely determined, dividing these figures by $35,000 results in nearly 1000 claimants. There are only 154 residential units. The affidavits indicate that 177 individuals from the residential units and 8 commercial tenants identified themselves as putative Class members. Accordingly, I am satisfied that the amount claimed exceeds the $35,000 threshold on a per claimant basis. I have not simply aggregated all of the claims together. I also have taken into account the fact that punitive damages may not be recoverable in Superior Court if the essential nature of the claim is a landlord-tenant dispute (see: Campbell v. Maytown Inc. (2005), 42 R.P.R. (4th) 304 (Ont.Div.Ct.)). The $35,000 threshold still appears to be surpassed per claim.

SWT-42797-20-IN-NOV-19

5. The application was adjourned on November 2, 2020, so the following issues could be addressed in this interim order:

a) Whether the monetary jurisdiction of the Board is limited per application or per person.

b) Whether "General Damages" can be awarded to an occupant of the rental unit.

Whether the monetary jurisdiction of the Board is limited per application or per person

6. The Tenants are asking for the Landlord to be fined the maximum of $35,000.00 per Tenant, for a total fine of $70,000.00.

7. Section 207 of the Act says:

(1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court. 2006, c. 17, s. 207 (1 ).

(2) A person entitled to apply under this Act but whose claim exceeds the Board's monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.(emphasis added)

8. As the monetary jurisdiction of the Small Claims Court is currently $35,000.00, this is also the Board's monetary jurisdiction.

11. The Act clearly indicates in s.207(1) that the Board has the jurisdiction to award any "person" an amount up to the monetary jurisdiction of the Board.

12. That each "person" is entitled to an award is supported by the caselaw noted above, as well as Bleeks v Keenan, 2014 Canlll 90436 (ON SCSM), which also found that each Plaintiff had a separate claim against the Defendant irrespective of them being jointly named in the matter.

13. Therefore, based on the above analysis I find that the Board has the jurisdiction to award each Tenant properly named in this application an amount that does not exceed $35,000.00.

Kent v. Conquest Vacations Co. 2005 CarswellOnt 335, 194 O.A.C. 302

1 This appeal involves two actions in Small Claims Court. Amita Kent and Rohit Kent (the Kents) are married. Together, they purchased an all-inclusive vacation from the appellant, Conquest Vacations Company (Conquest). Although both trips (and their toddler child's trip) were contracted for and paid for together, the terms of the contract set out that each traveller is a party to a contract with Conquest. As the vacation did not meet the description that was presented by Conquest's brochure, the Kents each brought an action against Conquest for breach of contract.

2 The Small Claims Court judge found in favour of the Kents, awarding Mr. Kent $7,185.80 plus costs and interest, and Mrs. Kent $8,544.90, plus costs and interest. Conquest appeals on three grounds: first, that the Small Claims Court did not have monetary jurisdiction because the Kents had split their case; second, that Conquest was not responsible for their disappointing holiday; and third, that the damages awarded were excessive.

5 The Kents dispute Conquest's allegations of case splitting, relying on the terms of the contract, which state that each traveler has a contract with Conquest. Since each has a contract, each has an action for breach. Multiple plaintiffs, even if married to each other, maintain rights to seek relief before the Small Claims Court up to the maximum $10,000 per claim.

6 The "Terms and Conditions" issued to vacationers by Conquest contains the following:

In booking a Conquest Holiday, or Air only, you and those on whose behalf you are booking become party to a contract with Conquest and those companies providing the services included in your holiday.

7 This is Conquest's language, inserted by it in its own interest and it clearly provides that not only the person booking the holiday, here Mrs. Kent, but also those for whom she booked, here Mr. Kent, become party to the contract. Why then cannot each party to the contract assert his or her damages for a breach of it in an action? "The right to sue for damages for breach of contract does not arise out of the contract itself, that is, it is not a matter of agreement but is an independent right given by the law."

13 As to Mr. Kent, the fact that he did not give evidence does not materially assist the appellant. Mrs. Kent gave detailed evidence as to the deplorable lack of facilities and the impact on their vacation in terms of stress and disappointment. She also spoke to the fact that her husband could not dive as the promised facility did not exist, they could not play tennis as there was no court, the beach was so bad there was no beach enjoyment at all. She spoke of their mutual disappointment at the loss of the expected opportunity to spend time on the beach with their three-year-old, "probably the biggest disappointment to us." This evidence goes to support the damages award to Mr. Kent as well as that to Mrs. Kent.

17 In the case of the Kents, the amount awarded to each of them is certainly within the bounds of the reasonable award in their particular circumstances as established in the evidence. It must not be forgotten, in assessing this sort of damages, that for many people, the Kents no doubt included, the real loss is not the cost, but the scarce vacation time expended in vain and never recoverable.

18 I see no error in the assessment of the damages by the trial judge. The appeal is dismissed with costs. If the parties cannot agree on the costs, they may make brief written submissions within 30 days of the release of these reasons.

Lock v. Waterloo (Regional Municipality) 2011 CarswellOnt 15974

17 The Courts of Justice Act and its regulations should be interpreted liberally and as a coherent package. In my view, properly interpreted, the effect of the applicable provisions is that plaintiffs suing together in one action in the Small Claims Court may properly each claim damages up to the maximum monetary jurisdiction of the court.

18 Accordingly, both plaintiffs in this case are limited to claiming damages of $25,000 each rather than $25,000 in total, exclusive of interest and costs, and their claims are amended accordingly

Bleeks v Keenan, 2014 CanLII 90436 (ON SCSM)

Letang v. Cooper [ 1964] All E.R. 1929 (C.A.) ] defines a cause of action as “ a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person”. That definition was cited in Royal Bank of Canada v. Metcalf in (1985) 3 C.P.C. (2nd) 228 (ONT. DIST. COURT), which case went on to say that a cause of action is “a factual situation which entitles one person to recover damages from a Defendant” (paragraph 5). In this case, each Plaintiff had an individual retainer with Defendant Keenan and his firm, and, each of the Plaintiffs paid one-fifth of the amount owing pursuant to the cost award and each suffered an individual amount of damages if they are ultimately found to be successful.

Secondly, the Plaintiffs made a claim based on negligence. In Lock v Waterloo (Regional Municipality), it was held that each Plaintiff had a separate cause of action arising from the same tort. See also Tope v. Stratford (City) [1994] OJ No.3097.

In Kent v. Conquest Vacations Co. (2005) No. 1311, 138 A. C.W.S. (3rd) 426 it was held that both Plaintiffs, Mr. Kent and Mrs. Kent entered into separate contracts with Conquest Vacations and accordingly had an independent cause of action against Conquest Vacations. That decision was affirmed in KNP Headwear Inc. v. Levinson [2005] OJ No.5438, 2605 OAC 291. In this matter we are dealing with a lawyer/client relationship in which there is a claim for breach of contract, Negligence, misrepresentation etc.

I find that each Plaintiff has a separate contract with the Defendant Keenan and his firm the Defendant Collucci and each Plaintiff may have a separate claim for negligence as well. Therefore, each is entitled to a separate claim in Small Claims Court against the Defendants. Accordingly the Plaintiffs’ claims shall be tried together as directed by the Trial Judge.

Kent v. Conquest Vacations Co., 2005 CanLII 2321 (ON SCDC)

[3] Conquest argues that the Small Claims Court did not have jurisdiction to hear these actions because there should have been only one action. Conquest submits that the Kents split their single action into two in order to get around the $10,000 limit applicable in Small Claims Court. Conquest claims that, since the contract was for two adults and one child to take a vacation together, “it was not in any way separated by individuals.” Conquest relies on the facts that the family paid for the vacation with one Visa card, traveled together, and spent time together as a family on the vacation to argue that there is only one cause of action. Conquest claims that the Kents are in breach of Rule 6.02 of the Rules of the Small Claims Court, Ontario Regulation 258/98: 6.02 A cause of action shall not be divided into two or more actions for the purpose of bringing it within the court's jurisdiction.

[4] If the two actions are more correctly heard as one, the total award of damages of $15,730.70 exceeds the jurisdiction of the Small Claims Court.

[5] The Kents dispute Conquest’s allegations of case splitting, relying on the terms of the contract, which state that each traveler has a contract with Conquest. Since each has a contract, each has an action for breach. Multiple plaintiffs, even if married to each other, maintain rights to seek relief before the Small Claims Court up to the maximum $10,000 per claim.

[8] While the damages of the individual parties arise out of a common transaction, they need not be asserted in a single action. Rule 5 of the Rules of the Superior Court, although not directly applicable to the Small Claims Court, is instructive. It provides that two or more plaintiffs, if represented by the same solicitor, “may” join as the plaintiffs in the same proceeding where their claims arise out of the same transaction. The joinder is voluntary.

[9] The Kents have not split their case, as prohibited by Rule 6.02. This rule prevents a single plaintiff from dividing an action to come within the court’s jurisdiction. This is not so in the case at bar, as both Mr. Kent and Mrs. Kent were parties to the contract and had the right to bring separate actions against Conquest.

McCruden v Nead, 2018 CanLII 123230 (ON SCSM)

I find that the loan was a contract between John and Adriana as lenders and MedviewMD as borrower and that the contract has been breached by the failure of MedviewMD to repay the loan. Each of John and Adriana claim the sum of $33,500.00 (one-half the amount of the loan) on the basis that each has a separate cause of action against MedviewMD. In paragraph 79 of the Claim they waive any damages in excess of the Court’s monetary jurisdiction of $25,000.00.

“A cause of action has been defined as a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” as per Lord Justice Diplock in Letang v. Cooper, [1964] All E.R. 929 (C.A.) at page 934. This definition has been accepted by Canadian courts many times.

The loan funds came from a joint line of credit for which the plaintiffs would be jointly and severally liable. They have separate causes of action both arising from the same factual situation. Each could have separately brought an action in this court for $25,000.00 for breach of contract without infringing Rule 6.02 which provides that a cause of action shall not be divided into two or more actions for the purpose of bringing it into the court’s jurisdiction. To commence separate actions, however, would cause a multiplicity of proceedings which is, in the interest of justice, to be avoided.

In Lock v Waterloo (Regional Municipality), Deputy Judge Winny, in an action for damages based on personal injury to the two plaintiffs, found that each of the plaintiffs was entitled to claim damages up to the court’s monetary limit as they had two separate causes of action.

In the case of Kent v. Conquest Vacations Co., 2005 CanLII 2321 (ON SCDC), the Divisional Court on appeal from the Small Claims Court decided that each of the plaintiffs was entitled to assert his/her cause of action for damages for breach of contract against the defendant in the same action.

(...)

ORDERS

The plaintiff, John Michael McCruden, shall have judgment jointly and severally against the defendants, Daniel Nead and MedviewMD Inc. in the amount of $25,000.00 together with pre-judgment interest at the Courts of Justice Act rate from June 20, 2016 to date of judgment and post-judgment interest at the Courts of Justice Act rate.

The plaintiff, Adriana McCruden, shall have judgment jointly and severally against the defendants, Daniel Nead and MedviewMD Inc. in the amount of $25,000.00 together with pre-judgment interest at the Courts of Justice Act rate from June 20, 2016 to date of judgment and post-judgment interest at the Courts of Justice Act rate.

I therefore find that each of John McCruden and Adriana McCruden are entitled to judgment against MedviewMD in the amount of $25,000.00 each.