J. Damstra

The appellant appealed the dismissal of his Small Claims Court medical negligence action.

He argued that the deputy judge erred by presiding over a motion to dismiss under Rule 12.02 after having presided over a settlement conference in the same matter, relying on the Court of Appeal's decision in Hussain regarding summary judgment motions.

The Superior Court dismissed the appeal, finding that a Rule 12.02 motion is not analogous to a summary judgment motion and that the Small Claims Court Rules grant broad powers to dismiss unmeritorious claims, particularly where the appellant failed to provide required expert reports.

The respondents brought a motion to dismiss or quash the appellant's appeal of a Small Claims Court decision that dismissed his medical negligence action.

The appellant argued the motion judge lacked jurisdiction to hear the motion to dismiss because he had previously presided over a settlement conference in the same matter.

The Divisional Court declined to dismiss or quash the appeal, finding that the jurisdictional argument regarding the settlement conference judge presiding over the motion was not manifestly devoid of merit.

However, the court struck out the majority of the appellant's notice of appeal for being frivolous, vexatious, and an abuse of process, leaving only the jurisdictional ground to be argued at the appeal hearing.