Order for Production

Production Orders in Small Claims Court (Ontario)

Elguindy v St. Joseph’s Health Care, 2016 ONSC 2847 (CanLII)

[9] The purpose of the Small Claims Court is to provide expeditious and low cost resolutions of monetary disputes (CJA, ss. 23-30). In keeping with that purpose, there is no provision in the SCC Rules for discovery generally in the Small Claims Court. Where the plaintiff’s claim or the defendant’s defence is based in whole or in part on a document, a copy of the document must be attached to the pleading (SCC Rules 7.01(2) 2; 10.01(4) 2.). A settlement conference is mandatory in every defended action (SCC Rule 13.01(1)). At least 14 days before the date of the settlement conference, each party is required to serve and file a copy of any document not attached to their pleading that they intend to rely on at trial, including an expert report (SCC Rule 13.03(2)).

[10] SCC Rule 13.05(1) provides that a judge conducting a settlement conference may make an order relating to the conduct of the action that the court could make. Rule 13.01(2)(a) sets out some examples of orders a judge may make including (vi) “directing production of documents”. This is the only place in the SCC Rules that deals with production of documents beyond those the parties intend to rely on and it arises only as part of a settlement conference.

[13] In our view, the Judge clearly had jurisdiction at the settlement conference and pursuant to SCC Rule 13.05(2)(a)(vi) to order the Applicant to produce his expert reports dealing with the standard of care of the Respondents. There is no issue that in a medical negligence action such reports are necessary to succeed at trial. Further, they must be produced at least 14 days before the settlement conference: SCC Rule 13.03(2). In the face of the Applicant not providing such reports, it is appropriate to order their production before trial.

[20] In Lemont, Deputy Judge Winny was dealing with a motion under the SCC Rule 15 for production of non-party documents. The moving party submitted that the Small Claims Court had jurisdiction to make the production order, either under the SCC Rules dealing with motions or at a settlement conference. The Deputy Judge dismissed the motion for a number of reasons including that rule 30.10 of the Rules of Civil Procedure did not apply in Small Claims Court, both because of rule 1.02(1) of those rules and because SCC Rule 1.03(2), the analogy rule, can only be applied where the SCC Rules fail to cover a matter adequately and that cannot be said in respect of discovery in the Small Claims Court. In addition, Deputy Judge Winny further held that the settlement conference context of SCC Rule 13.05(2)(a)(vi) did not permit the Rule to be interpreted to mean that non-party production motions are a proper part of the settlement conference process.

[21] By contrast, in Dave’s Auto Detailing v. Guilbault Certiguard, [2013] O.J. No. 4082, Deputy J. P. Lepsoe, on the consent of both the parties and the third party, ordered production of third party records. After referring to Lemont, the Deputy Judge stated “I am satisfied that it is proper for this court in some circumstances to make an appropriately tailored order, such as the one herein, particularly with the advice and consent of counsel to that non-party.”

[22] Given that Dave’s Auto was on consent of all parties, including the third party and the Deputy Judge provided no reasoning concerning his jurisdiction to make the third party production order, it is of no assistance in dealing with the issue before the court.

[23] On the other hand, I am in complete agreement with Deputy J. Whinny’s reasons in Lemont. In the absence of discovery in the Small Claims Court, there is no gap in the SCC Rules which would permit incorporation of rule 30.10 of the Rules of Civil Procedure. Nor is there any provision in the SCC Rules for third party production orders, either on a motion or at a settlement conference. As noted, the only provision in the SCC Rules permitting an order for production of documents is SCC Rule 13.05(2)(a)(vi) which, in the context of a settlement conference, only permits an order for production by a party to the action as part of the settlement conference.

[27] Finally, because I have found there is no jurisdiction in the Small Claims Court to issue a third party order for production, it is not necessary to address the issue of prejudice to the third parties raised by the Respondents.

[28] For the above reasons, therefore, I hold that the Judge did not have the jurisdiction to issue that portion of the Order requiring third party production of the Applicant’s medical records.

Burke v Lauzon Sound and Automation Inc., 2016 CanLII 16474 (ON SCSM)

12. Counsel for the respondent (who was not counsel at the time of the correspondence referred to above) contests the jurisdiction of the Small Claims Court to make an order for production, at least where it is sought by motion. She relies in particular on the decision of Deputy Judge Winny in Petrykowski v. 552562 Ontario Ltd., [2010] O.J. No. 1048, 2010 CarswellOnt 11112 (Sm. Cl. Ct.).

13. In Petrykowski, Winny, D.J. stated as follows:

An order for the production of documents may be requested of a settlement conference judge, but the procedures of this court do not contemplate a pretrial motion for the production of documents. Such motions would import a discovery process that is neither contemplated by nor intended under the Small Claims Court Rules.

Riddell v. Apple Canada Inc., 2017 ONCA 590 (CanLII),

[1] The primary issue on this appeal concerns the important question whether Deputy Judges of the Small Claims Court have jurisdiction to order the pre-trial inspection of property in a proper case. If such jurisdiction exists, the second issue on appeal is whether that jurisdiction was properly exercised in the circumstances of this case.

[2] The Divisional Court, for clear and cogent reasons, answered both of these questions in the affirmative. We agree with the Divisional Court’s conclusions and its reasoning on these issues.

[8] Second, and relatedly, we do not accept the appellant’s submission that the recognition of the authority of Deputy Court Judges of the Small Claims Court to order the pre-trial inspection of property in exceptional circumstances will undermine the mandate of the Small Claims Court to hear and determine in a summary way those cases that come before it. To the contrary, in our view, it will assist Deputy Judges of the Small Claims Court to fulfil this important function in accordance with s. 25 of the Courts of Justice Act, R.S.O. 1990, c. 43. In this regard, we agree with, and endorse, the comments of Deputy Judge S.M. McGill of the Small Claims Court in National Service Dog Training Centre Inc. v. Hall, 2013 CanLII 41924 (ON SCSM), [2013] O.J. No. 3216, at paras. 30-31:

The only Small Claims Court Rule expressly dealing with the inspection of personal property is part of the final phase of the process – trial.  Rule 17.03 authorizes a trial judge to inspect any real or personal property in the presence of the parties.  The lack of pre-trial inspections of property represents a gap in the Small Claims Court rules that has disparate impact on the parties.  The party in possession of the property experiences no side effects whatsoever while the non-possessory party has its ability to prepare for trial severely restricted.  An unlevel playing field is the result which is not just, fair or agreeable to good conscience.

Ordering a pre-trial inspection of the property is not hostile to the objectives of the court, it is central to principles of natural justice. This is an issue of fundamental fairness which the court must be allowed to address in the context of controlling its own proceedings and to support the most just, agreeable and in good conscience determination.  A question about the condition of the property cannot be determined on the merits if only one side is allowed to collect relevant evidence.  A party will not perceive the justice system as fair if it is denied the basic opportunity afforded to the other party.  The playing field must be level or the administration of justice will fall into disrepute.  [Emphasis added.]

Matthew Riddell v. Apple Canada Inc., 2018 CanLII 51171 (SCC)

• The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C63349, 2017 ONCA 590 (CanLII), dated July 10, 2017, is dismissed without costs.

Fiuza v Creekside Real Estate Group Inc., 2019 CanLII 45625 (ON SCSM)

Jurisdiction to Order Production

In Polewsky v. Home Hardware Stores Ltd., 2003 CanLII 48473 (ON SCDC) the court states at paragraph [15] ..."The court is a statutory court. It is not a court of inherent jurisdiction. This is an important factor in our analysis of the issues raised in this appeal". At paragraph [25] the court further states in part "... Being a statutory court, the Small Claims Court does not have inherent or equitable jurisdiction".

R. v. 974649 Ontario Inc., [2001 3 SCR 575, 2001 SCC 81 (CanLII)] at paragraph [26] states:

26. Section 24 does not confer jurisdiction on any court or tribunal; rather, the power of the tribunal to grant the remedy sought must emanate from a source other than the Charter itself: Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at p. 222. Where, as here, the tribunal in question is a creature of statute, this power must derive from its enabling legislation. It is a fundamental principle that statutory bodies may perform only those tasks assigned to them by Parliament or one of the provincial legislatures, and in performing those tasks they have at their disposal only those powers granted to them expressly or impliedly: Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597, at p. 602; R. W. Macaulay and J. L. H. Sprague, Practice and Procedure Before Administrative Tribunals (loose-leaf), vol. 3, at pp. 23-17 et seq. The enactment of the Charter did not alter this fundamental tenet: it remains the role of Parliament and the legislatures, and not the judiciary, to assign jurisdiction to the various courts and tribunals comprising our legal system.

Physicians' Services Inc. v. Cass, 1971 CanLII 359 (ON CA)

.... Accordingly, we would apply the principles laid down in such cases as Fairbairn v. Sage, 1925 CanLII 403 (ON CA), 56 O.L.R. 462, [1925 2 D.L.R. 536], in which it was held that particulars for pleading will only be ordered if (1) they are not within the knowledge of the party demanding them, and (2) they are necessary to enable the other party to plead....

Polewsky v. Home Hardware Stores Ltd., 2003 CanLII 48473 (ON SCDC)

[15] In order to provide a context to the issues raised in this appeal, we include some background of the Small Claims Court in Ontario. The Small Claims Court is a branch of the Superior Court of Justice created by the Courts of Justice Act, s. 22(1) and s. 23(1). The Small Claims Court is designed to be "user friendly" and the majority of litigants are self- represented. The monetary limit of the court is now $10,000. In 2002-2003, approximately 58 per cent of all civil claims initiated in the Superior Court of Justice were commenced in Small Claims Courts. The court is staffed by Deputy Judges who are lawyers appointed pursuant to s. 32(1) of the Courts of Justice Act by Regional Senior Justices for a term of three years, which may be renewed for one or more three-year terms. Deputy Judges are not full-time judges. Generally, they sit as a Deputy Judge for one to two days per month. Statistics maintained by the Ministry of the Attorney General reveal that at the present time, there are approximately 362 [page610] Deputy Judges in Ontario. In addition, there are three full- time Small Claims Court judges [Note 8] and five former provincial court judges who sit as Small Claims Court judges on a per diem basis. Section 96(3) of the Courts of Justice Act excludes from the Small Claims Court the discretion to grant equitable relief or a declaratory judgment [Note 9]. The court is a statutory court. It is not a court of inherent jurisdiction. This is an important factor in our analysis of the issues raised in this appeal.