Court File and Parties

COURT FILE NO.: SC-08-068129-0000 & SC-08-068129-00D1 CV-08-CT068129-0000 & CV-08-CT068129-00D1 DATE: 20090313

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Vaerii Alexandrov v. Gergely Csanyi, Lidija Mezei, and GLC Transport

BEFORE: Justice Low

COUNSEL: Claudia Scherman, for the Defendants, moving parties Valerii Alexandrov, plaintiff, in person

HEARD: March 12, 2009

Endorsement

On appeal from the decision of Justice O'Marra of the Superior Court of Justice dated February 4, 2009

[1] On May 14, 2008, the plaintiff, a truck driver, commenced an action in the Small Claims Court for unpaid wages of $7,429. He alleged that the defendants hired him to be co-driver with the defendant Csanyi. The equipment was owned by a third party. The employment ended on March 30, 2008 when the plaintiff and Csanyi were in an accident in Wyoming. The plaintiff was driving and Csanyi was sleeping. The defendants defended the plaintiff's claim, denying that they were the plaintiff's employer, alleging in the alternative that the plaintiff had been paid, and asserting a set-off.

[2] On June 4, 2008, the defendants brought their own claim in the Small Claims Court claiming $10,000, the limit of the court's jurisdiction, and alleging damages of $1,000,000 in the body of the claim. It is alleged, inter alia, that Csanyi suffered personal injuries as a result of the plaintiff's negligence in the March 30, 2008 accident.

[3] A settlement conference was held in July 2008 and the actions were set for trial. There have been adjournments of the trial date.

[4] Counsel for the moving party asserts that defendants are not ready for the trials of the small claims actions which are scheduled to commence imminently. It is said that the defendants will need to marshal expert evidence to prove both their claim and the set-off of $5,000 they have pleaded in defence of the plaintiff's claim; the set-off is premised on showing negligence by the plaintiff,

[5] On January 12, 2009, the defendants launched a motion to this court for an order transferring both their Small Claims Court action and the plaintiff's action into the Superior Court, for an order consolidating the actions or for trial together or one immediately after the other, or, alternatively, for an order transferring the defendants' action into the Superior Court and staying the plaintiff's Small Claims Court action.

[6] It came on before O'Marra J. on February 4, 2009 who dismissed the motion. The defendants seek leave to appeal that order.

[7] The first inquiry relates to the refusal to transfer the defendants' claim into the Superior Court.

[8] I am not persuaded that there is good reason to doubt the correctness of the order.

[9] The fact that the defendants commenced a claim in the Small Claims Court seeking $10,000 in the prayer for relief while alleging damages of $1,000,000 does not make that court the "wrong court" as contemplated in s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (see Tawfik v. Baker (1992), 1992 7724 (ON SC), 10 O.R. (3d) 569 at para. 3). Section 110 is a remedial provision which preserves the rights of litigants who may have lost them due to the lapse of limitation periods or other time deadlines by reason of having taken proceedings in a court without jurisdiction.

[10] The Small Claims Court is not a court without jurisdiction. To take advantage of the speed and economy of that court's processes, litigants may elect to forego a claim for part of the damages that they believe they may have suffered in excess of the monetary jurisdiction of the Small Claims Court. There is neither inability nor lack of jurisdiction in the Small Claims Court to adjudicate personal injury claims. Given the litigation risks posed by the combination of the verbal threshold, the high deductible under the Insurance Act, R.S.O. 1990, c. I.8., and the costs risks of litigation in the Superior Court, the Small Claims Court may become an increasingly reasonable forum for many litigants.

[11] At all times up to the defendants' launching of their motion for a transfer in January 2009, these defendants appeared to be among those litigants. The commencement of the defendants' claim in the Small Claims Court was no mistake. As counsel for the moving parties disclosed in argument, the assertion of the set-off and the launching of the defendants' claim in the Small Claims Court was strategic. The purpose was to block the plaintiff's recovery of wages in that court in the event that the defence that the defendants were not the employers did not succeed.

[12] That being said, this court does have an inherent jurisdiction to exercise a discretion to allow a claimant to transfer a claim into this court. Mrzlecki v. Kusztos (1987), 1987 4409 (ON SC), 59 O.R. (2d) 301 (H.C.J.) indicates, however, that a relevant factor in deciding whether or not to move the matter up is whether there is a new fact that changes the original basis of the claim. There was no evidence of such a fact here.

[13] Most saliently, this is not a case where a limitation period has lapsed. It was, at the time of the motion before O'Marra J., and it still is entirely within the power of the defendants to commence a new action in the Superior Court and discontinue their action in the Small Claims Court. They will suffer no prejudice in so doing and they suffer no prejudice in the court declining to order a transfer of their Small Claims Court action. There is also a great disparity between the significant resources consumed in bringing a motion to transfer as opposed to the relatively modest resources required to launch a new action in this court with discontinuance of the claim in the Small Claims Court.

[14] In my view, O'Marra J. was correct in declining to transfer the defendants' claim in the circumstances.

[15] The defendants also sought to transfer the plaintiff's claim from the Small Claims Court. Prima facie there is no basis for it. The plaintiff is entitled to choose his forum and, given the nature and quantum of the claim, he chose the appropriate forum. While there is jurisprudence that a plaintiff may be forced, in very exceptional cases, into the Superior Court against his wishes, (see Vigna v. Toronto Stock Exchange, [1998] O.J. No. 4924, 115 O.A.C. 393 at para. 5) this is clearly not such a case. There is nothing complex about the claim for unpaid wages. In any event, where there has been no transfer of the defendants' claim, consideration of a transfer of the plaintiff's claim would be academic.

[16] As for consolidation, it is governed by s. 107(1) of the Courts of Justice Act and by rule 6.01(1). Rule 6.01(1) clearly did not apply. Section 107(1) of the Courts of Justice Act is engaged only where proceedings are pending in two or more different courts. In order for the motions judge to embark on an inquiry under s. 107 as to whether the court should exercise a discretion to consolidate, at least one of the actions must first have to have been transferred into the Superior Court.

[17] I do not read O'Marra J's decision as deciding whether or not there should be consolidation. That issue never was properly before him because the pre-conditions in s. 107(1) and in rule 6.01(1) were never met.

[18] If the defendants' claim were to find its way into the Superior Court, (and the defendants are entitled to make that happen), then s. 107(1) of the Courts of Justice Act would be engaged and the court could, on motion, consider whether there should be transfer and consolidation (if the plaintiff consents to transfer) or, if the plaintiff does not consent, whether, under s. 107(1)(e), there should be a stay of the plaintiff's action or execution in the Small Claims Court.

[19] As no limitation period had lapsed and the defendants had it within their own power at all material times to commence an action in the Superior Court, I am not satisfied that there is good reason to doubt the correctness of O'Marra J.'s order dismissing the motion for transfer. I am of the view that no matter of general importance is involved as contemplated in rule 62.02(4)(b).

[20] The moving parties have not shown that there are conflicting decisions.

[21] Tawfik v. Baker affirms the existence of an inherent jurisdiction of this court to exercise a discretion to allow transfer of a cause into this court from another even if it is not a case of the proceeding having been started in the wrong court. It does not stand for the proposition that an applicant is entitled to transfer on demand. As alluded to above, Tawfik v. Baker affirms that "wrong court" does not mean bringing an action in a court which has a monetary limit lower than the extent of the damages asserted. O'Marra J. did not hold that there was an absence of jurisdiction in this court to order a transfer. He declined in the circumstances before him to exercise the discretion.

[22] There is no conflict with Ram Western Express Ltd. v. Baskin, [2004] O.J. No. 3384 or with Hillcrest Housing Ltd. (Re) 7 C.P.C. (2d) 60. The consolidation issue was not one that O'Marra J. could properly entertain for the reasons above and he did not decide the issue.

[23] As neither of the two-pronged grounds for granting of leave has been made out, the motion is dismissed. Costs of the responding party plaintiff fixed at $500 payable by moving parties in 30 days.

Low J.

DATE: March 13, 2009