Court of Appeal for Ontario

Date: July 12, 2019 Docket: C65959

Justices: Lauwers, Fairburn and Nordheimer JJ.A.

Parties

Between

Sean Bruyea Plaintiff (Appellant)

and

Seamus O'Regan, also known as Minister of Veteran Affairs, and the Attorney General of Canada Defendants (Respondents)

Counsel

Paul Champ, for the appellant

Robert MacKinnon and Sanam Goudarzi, for the respondents

Shahana Kar, for the Attorney General of Ontario (by written submissions)

Hearing and Appeal

Heard: June 13, 2019

On appeal from: the order of Deputy Judge David Dwoskin of the Small Claims Court, dated August 28, 2018

Decision

Nordheimer J.A.:

Jurisdiction Issue

[1] Sean Bruyea appeals from the order granted by the motion judge that dismissed his claim pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA"). Prior to hearing the appeal, the court invited the parties to address the issue whether a deputy judge of the Small Claims Court has jurisdiction to make an order under s. 137.1.

[2] On the appeal, we heard submissions from the parties on the jurisdictional issue along with their submissions on the merits of the appeal. The parties requested the opportunity to file further written submissions on the jurisdictional issue and we acceded to that request. The court also invited the Attorney General of Ontario to make submissions on the jurisdictional issue. We have received and reviewed all of those written submissions. Both parties and the Attorney General of Ontario argue in favour of a conclusion that deputy judges do have jurisdiction to make an order under s. 137.1.

Background

[3] The appellant is a disabled veteran of the Canadian Forces who receives pension benefits for injuries incurred during his service to Canada. Since his medical release from the Canadian Forces, he has become a freelance journalist, media commentator, and advocate for the lives and well-being of other disabled veterans and their families.

[4] The respondent, Seamus O'Regan, is a Member of Parliament and Cabinet Minister. At the time of the relevant events, he occupied the position of Minister of Veterans Affairs and Associate Minister of National Defence.

[5] The appellant wrote an article that was published in The Hill Times on February 12, 2018. In the article, entitled "Liberals' plan for veterans, the numbers don't add up", the appellant analyzed and critiqued the new program in detail. In response to this article, Mr. O'Regan published an article in The Hill Times, on February 26, 2018, in which he said that the appellant was "stating mistruths" about Canada's new "Pension for Life" program "to suit [his] own agenda". As a result of the publication of this article, the appellant commenced an action for defamation in the Small Claims Court in Ottawa against Mr. O'Regan and against the Attorney General of Canada as the body responsible for Veteran Affairs Canada. The appellant claimed damages in the amount of $25,000.

[6] The respondents moved to dismiss the claim under s. 137.1 of the CJA. The deputy judge dismissed the appellant's claim, holding that Mr. O'Regan's statements constituted expression relating to a matter of public interest and that the appellant had not advanced "credible and compelling evidence" that the claim had substantial merit or that the respondents had no valid defence in the proceeding.

[7] The deputy judge also concluded that the appellant had adduced no evidence of harm and therefore the public interest in dismissal outweighed allowing the claim to proceed to an adjudication on the merits.

Jurisdiction Analysis

[8] As I mentioned at the beginning of these reasons, prior to the hearing of the appeal, the court raised the issue whether a deputy judge of the Small Claims Court has jurisdiction to make an order under s. 137.1. For the reasons that follow, I conclude that they do not.

[9] I begin with the structure of the Small Claims Court. The Small Claims Court is a branch of the Superior Court of Justice: CJA, s. 22. Section 24 of the CJA determines who presides over matters in the Small Claims Court. It reads, in part:

(1) A proceeding in the Small Claims Court shall be heard and determined by one judge of the Superior Court of Justice.

(2) Despite subsection (1), a proceeding in the Small Claims Court may also be heard and determined by,

(a) a provincial judge who was assigned to the Provincial Court (Civil Division) immediately before the 1st day of September, 1990;

(b) a deputy judge appointed under section 32; or

(c) the Small Claims Court Administrative Judge appointed under section 87.2.

[10] In practice, virtually all proceedings in the Small Claims Court are presided over by deputy judges. Deputy judges are lawyers who are appointed by a regional senior judge of the Superior Court of Justice, with the approval of the Attorney General, to act as a deputy judge of the Small Claims Court. Usually they are appointed for a term of three years: CJA, s. 32.

[11] I now turn to the specific provision in the CJA with which this case is concerned. Section 137.1 was added to the CJA to address concerns arising from the use of litigation to interfere with freedom of expression. The section was added to the CJA to provide "a pretrial procedure designed to quickly and inexpensively identify and dismiss those unmeritorious claims that unduly entrenched on an individual's right to freedom of expression on matters of public interest": 1704604 Ontario Ltd v. Pointes Protection Association, 2018 ONCA 685, 142 OR (3d) 161, at para. 29. This was a new process to permit the summary dismissal of a proceeding that was not otherwise available to a party under the CJA or the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[12] Of importance for the current issue is the wording of s. 137.1(3) that reads:

On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. [Emphasis added.]

Subsections 137.1(4), (6), (7), (8) and (9) also all refer to a "judge".

[13] The issue is whether the use of the word "judge" in s. 137.1 includes a deputy judge of the Small Claims Court. The word "judge" is not defined in the CJA nor is it defined in the Rules of the Small Claims Court, O. Reg. 258/98. It is, however, defined in r. 1.03 of the Rules of Civil Procedure as: "judge" means a judge of the court. The term "court" is defined as:

"court" means the court in which a proceeding is pending and, in the case of a proceeding in the Superior Court of Justice, includes,

(a) a master having jurisdiction to hear motions under Rule 37, and

(b) a case management master

[14] There is a conscious effort made in the CJA and in the Rules of Civil Procedure to draw a distinction between what a court has jurisdiction to do and what a judge has jurisdiction to do. The primary purpose behind this distinction is that where the CJA or the Rules of Civil Procedure gives authority to the court to do something, a master or case management master has the same authority. If, however, the authority is expressly given to a judge, then only a judge may exercise that authority. This distinction is an important one.

[15] There is no reason to believe that the Legislature would have chosen to adopt any different approach when it comes to deputy judges of the Small Claims Court. As s. 24(2) demonstrates, deputy judges of the Small Claims Court are specifically referred to as such in the CJA. Other sections of the CJA also make specific reference to deputy judges. For example, s. 80 stipulates that "[e]very judge or officer of a court in Ontario, including a deputy judge of the Small Claims Court" must take and sign a specific oath or affirmation before entering upon their duties. Similarly, s. 82 provides that deputy judges have the same immunity from liability as judges of the Superior Court of Justice. Further, s. 123 establishes time limits for a judge to give a decision after they retire and by s. 123(1.1) these same time limits are expressly made applicable to deputy judges.

[16] Two points arise from the existence of these various sections of the CJA. First, it is clear that where the Legislature intends the term "judge" to include a "deputy judge", it does so expressly. It follows that if the Legislature had intended that the term "judge", whenever used in the CJA, would include deputy judges, then the express mention of deputy judges in these sections would have been unnecessary. Second, all of these sections of the CJA were in existence in 2015 when s. 137.1 of the CJA was passed and yet the Legislature chose not to expressly reference deputy judges in s. 137.1 as it had done in all of these other sections.

[17] Further, if one was to accede to the suggestion that the use of the term "judge" in the CJA was intended to include deputy judges, then that result creates difficulties with respect to other sections of the CJA. One such section is s. 101(1) of the CJA which reads:

In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. [Emphasis added.]

[18] Since the Small Claims Court is a branch of the Superior Court of Justice, if the term "judge" includes deputy judges, then s. 101(1) would give authority to deputy judges to grant injunctions or appoint receivers. To my knowledge, it has never been suggested that the Small Claims Court has ever had jurisdiction to grant interlocutory injunctions or to appoint receivers, nor am I aware of any case where the Small Claims Court has purported to exercise that jurisdiction. Indeed, in 936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo Bear Ltd., 74 OR (3d) 45 (Div. Ct.), it was concluded that the Small Claims Court is not empowered to grant "any other form of equitable relief, such as injunctions": at para. 29.

[19] In response to these issues, the parties refer to the decisions of this court in Ontario Deputy Judges Assn. v. Ontario, 80 O.R. (3d) 481 (C.A.) and Grover v. Hodgins, 2011 ONCA 72, 103 O.R. (3d) 721. In my view, neither of those decisions assist the parties. In the Deputy Judges case, this court said, at para. 27:

Even though Deputy Judges sit part-time, when sitting, they fully assume the judicial role. They are perceived as judges by the many litigants who turn to the Small Claims Court for the resolution of their disputes.

[20] That statement does not assist in determining the proper meaning to be given to the term "judge" in s. 137.1. No one disputes that deputy judges assume a judicial role in presiding over cases in the Small Claims Court but that fact does not determine, or assist in determining, what their jurisdiction or statutory authority is. The Small Claims Court is a statutory court and it must find its jurisdiction in a statute. All of the parties accept that neither the Small Claims Court nor the deputy judges have any inherent jurisdiction. If either are to exercise any jurisdiction, it must be found in a statute, principally, the CJA.

[21] In the Grover case, this court was dealing with the interpretation to be given to s. 96 of the CJA in order to determine whether the Small Claims Court has jurisdiction to grant equitable relief and, if so, to what extent. Section 96(3) reads:

Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided.

[22] Based on the words "unless otherwise provided" that appear in s. 96(3), this court found that a narrow jurisdiction existed in the Small Claims Court to grant equitable relief as limited by s. 23 of the CJA, that is, for claims of "a monetary payment under the limit of $25,000 or the return of personal property valued within that limit": Grover at para. 49. Again, that decision provides little assistance in arriving at the proper interpretation of "judge" in s. 137.1. I would note, though, that the court in Grover did conclude that the fact that the Small Claims Court had become part of the Superior Court of Justice "did not alter the court's jurisdiction": at para. 44.

[23] Finally, the parties also rely on the decision in Stockey v. Peel Condominium Corp. No. 174, 30 O.R. (3d) 464 (Div. Ct.). In Stockey, Webber J., sitting as a single judge of the Divisional Court upheld, on appeal, the decision of a deputy judge to exercise authority under what was then s. 49(1) of the Condominium Act, R.S.O. 1990, c. C.26. Section 49(1) read:

Where a duty imposed by this Act, the declaration, the by-laws or the rules is not performed, the corporation, any owner, the bureau, or any person having a registered mortgage against a unit and common interest, may apply to the Ontario Court (General Division) for an order directing the performance of the duty.

[24] The important distinguishing feature between the decision in Stockey and the case here is that s. 49(1) of the Condominium Act referred to the Ontario Court (General Division) not to a judge of that court. Had the section provided that a person could apply to a judge of the Ontario Court (General Division) then, in my view, a deputy judge of the Small Claims Court would not have been able to exercise authority under that section, and I expect that the appeal judge would have so concluded.

[25] Two points raised by the Attorney General of Ontario, in his submissions, bear mention. One is the submission that "[t]here is no principled reason why the Small Claims Court" could hear a motion to strike a claim under r. 12.02 of the Small Claims Court Rules but not a motion to strike under s. 137.1. I do not agree. The Rules of Civil Procedure permit Masters and Case Management Masters to hear certain motions but restrict other motions to be heard only by judges. In this context, it is apparent that the Legislature has decided that some motions take on a significance for the parties where the result should only be determined by a judge. For example, only a judge may hear and determine a pre-trial motion under Rule 21 of the Rules of Civil Procedure, including dismissing actions that are frivolous, vexatious or an abuse of process. As I earlier noted, s. 137.1 provided a new mechanism to summarily dispose of a proceeding. It was open to the Legislature to decide that this new mechanism should only be employed by a judge.

[26] The other point raised by the Attorney General of Ontario is the submission that "unlike sections 96(3), 97, 101 and 140, the CJA does not expressly exclude section 137.1(3) relief from the Small Claims Court's powers". Two problems arise from this submission. One is that we are not dealing here with the exclusion of powers. As earlier noted, the Small Claims Court must find its jurisdiction in a statute. Absent express statutory authority, the Small Claims court has no jurisdiction. The other is that not all of those sections expressly exclude relief from the Small Claims Court. Sections 101 and 140 do not do so, for example. And, contrary to the thrust of the Attorney General's submission, the wording of s. 96(3) was expressly relied upon by this court in Grover to find jurisdiction in the Small Claims Court to grant equitable relief, albeit in very limited situations.

[27] Lastly, all of the parties place great emphasis on the fact that the Small Claims Court is intended to provide for simpler and less expensive litigation. They argue that the powers of a deputy judge should be given broad and expansive interpretation to encourage access to justice. With respect, such policy arguments cannot override the plain words of the statute. Either deputy judges have been given the authority to provide certain relief, or they have not. It is not for the court to find authority where the Legislature has chosen not to clearly provide it. I would also note that, ironically, s. 137.1 is not a provision providing access. To the contrary, at least viewed from the perspective of the plaintiff, it is the very opposite. It is a provision that is intended, in proper circumstances, to prohibit access to the courts.

[28] In the end result, it would have been open to the Legislature to expressly provide in s. 137.1 that deputy judges of the Small Claims Court could grant orders under that section. The Legislature chose not to do so in the same fashion that, in wording s. 137.1 as it did, it did not give that authority to masters or case management masters. For its own reasons, the Legislature clearly concluded that this new jurisdiction should only be exercised by a judge. It is not for this court to strain the language of the section to provide a power to deputy judges that the Legislature did not, itself, plainly choose to provide.

[29] For these reasons, I conclude that deputy judges of the Small Claims Court do not have authority to grant orders under s. 137.1 of the CJA.

[30] The parties asked, if we reached the conclusion that jurisdiction did not exist to grant the order, that this court make the determination of the merits of the s. 137.1 motion. I would not accede to that request. It is not appropriate, as a matter of general application, for this court to engage in determining matters of first instance. Among other reasons, doing so has a direct and significant effect on appeal rights.

Conclusion

[31] The appeal is allowed, the order dismissing the action is set aside, and the matter is returned to the Small Claims Court, without prejudice to any fresh motion that might be brought before a judge. The appellant is entitled to his costs of the appeal in the agreed amount of $13,000 inclusive of disbursements and HST.

Released: July 12, 2019

I.V.B. Nordheimer J.A.

I agree. P. Lauwers J.A.

I agree. Fairburn J.A.

Footnote

[1] I note that by virtue of r. 1.03(2) of the Rules of the Small Claims Court where those rules do not cover a matter adequately, the court may have reference to the Rules of Civil Procedure.