COURT FILE NO.: 506/08

DATE: 20090715

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

chapnik, ferrier and molloy jj.

B E T W E E N:

WALTER PECK

Applicant

• and -

RESIDENTIAL PROPERTY MANAGEMENT INC. and ALAN YATES

Respondents

Sergio Grillone, for the Applicant

John S. Wenus, for the Respondents

HEARD at Toronto: July 15, 2009

MOLLOY J.: (Orally)

1The applicant seeks judicial review of a decision of C. Ashby J. sitting as a judge in the Toronto Small Claims Court. Ashby J. ruled in favour of the respondents, Residential Property Management Inc. and Alan Yates and set aside a noting in default and default judgment dated June 19, 2008. He also ordered the respondent to pay $12,000.00 into court to the credit of the action to be held pending a trial on the merits of the defendant’s claim.

2An appeal lies to this Court from a final order of a Small Claims Court Judge: s.31, Courts of Justice Act. There is no statutory right of appeal from an interlocutory order. The order of Ashby J. is an interlocutory order.

3This matter is brought by way of judicial review. A Small Claims Court Judge derives his jurisdiction from statute and is exercising a statutory power of decision. As such there is jurisdiction under s.2(1) of the Judicial Review Procedures Act to review decisions of a Small Claims Court Judge, including interlocutory orders. However, this Court is reluctant to interfere with a decision of a Small Claims Court judge on judicial review unless it is an order made without jurisdiction or in breach of principles of natural justice.

4The purpose of Small Claims Court is to provide expeditious and low cost settlement of monetary disputes. That purpose is reflected in the legislation that does not permit an appeal from interlocutory orders.

5For this reason, this Court will not exercise its jurisdiction to judicially review interlocutory orders where the judicial review application is, in its essence, an appeal by a different name.

6We are of the view that this is not an appropriate situation in which to exercise our discretion. This matter should proceed in the normal course in the Small Claims Court subject to the usual rights of appeal from a final order.

7In any event, we are of the view that the order of Ashby J. was within his jurisdiction and that there is no issue of res judicata preventing him from making the order that he did. An order was made by Libman J. on July 19, 2007 directing that upon filing of a defendant’s claim by the defendant, Mr. Peck, the plaintiffs could either deliver a defence to that claim or if they failed to do that their statement of claim in the action would be considered to be a defence to the defendant’s claim.

8The plaintiff’s claim was tried by Priddle J. on March 14, 2008 and judgment was issued in favour of the plaintiff. Priddle J. did not deal with the defendants’ claim but merely stated as follows:

Before proceeding with the defendants’ claim, the defendant will have to request the court clerk to note the defendant named in that claim in default and upon payment of the trial fee request the defendants’ claim be scheduled for assessment of damages. As to the defendants’ claim, I am not seized.

9Subsequently, the defendant did note the plaintiff in default and later proceeded before Godfrey J. to obtain a default judgment for $10,000.00, plus costs and interest. When the plaintiff became aware of that judgment, the plaintiff moved before Ashby J. to set aside default judgment which order was made by Ashby on the grounds that the defendant was not entitled to a default judgment because of the previous order of Libman J.

10The complicating factor in all of this is an endorsement made by Priddle J. on March 28, 2008, two weeks after he had granted judgment on the plaintiff’s claim. In that March 28 endorsement he stated, that as between Libman J.’s endorsement dated July 19, 2007 and his own endorsement dated March 14, 2008 with respect to the defendants claim, his March 14, 2008 endorsement should govern.

11It was originally argued in this judicial review by the defendant that this amounted to an order by Priddle J. that Ashby J. had no jurisdiction to override. We disagree. If anything, Priddle J acted without jurisdiction. It is not clear that his endorsement constituted an order but, if it did, he had no jurisdiction to make it. Ashby J. was not bound by Priddle J.’s endorsement. He correctly held that the order made by Libman J. should govern and that the plaintiffs were entitled to have a trial on the merits with respect to the defendants’ claim.

12Accordingly, this judicial review application is dismissed.

CHAPNIK J.

13Costs to the respondent in the amount of $1,000.00, payable forthwith.

MOLLOY J.

CHAPNIK J.

FERRIER J.

Date of Reasons for Judgment: July 15, 2009

Date of Release: July 17, 2009

COURT FILE NO.: 267/07

DATE: 20090715

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

chapnik, ferrier and molloy jj.