Court File and Parties

CITATION: Kedzior v. Pond, 2014 ONSC 1561

COURT FILE NO.: DC-12-103-00

GUELPH SMALL CLAIMS COURT FILE No.: 11-121

DATE: 20140314

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tomasz Jan Kedzior, Appellant

AND:

Natalie Kristina Pond, Megan Solomon, Abigail Ellen Post Menendez, Rachel Raine Vruezew, Respondents

BEFORE: MacKenzie, J.

COUNSEL: Philip V. Hiebert, for the Appellant

Cameron R.B. Fiske, for the Respondents

HEARD: March 7, 2014

ENDORSEMENT

[On appeal from the decision of Deputy Judge Pettipiere, dated November 7, 2012]

[1] The appellant appeals from a decision by Deputy Judge Pettipiere dated November 7, 2012 at the Guelph Small Claims Court. The respondents seek an order dismissing the appeal with costs.

[2] Deputy Judge Pettipiere had dismissed a motion to vacate the order of Deputy Judge Sutherland dated September 13, 2012. The order of Deputy Judge Sutherland was made at a Small Claims Court settlement conference.

[3] Deputy Judge Pettipiere gave brief reasons on delivering his decision. The transcript of the relevant part of the proceedings follows.

[4] In the course of the hearing before Deputy Judge Pettipiere, of the Small Claims Court, the agent for the plaintiff/appellant, Mr. Allen, and Deputy Judge Pettipiere had the following exchanges:

THE COURT: Mr. Allen, I am not convinced I have jurisdiction to overturn Deputy Judge Sutherland’s decision dismissing the action.

MR. ALLEN: Okay.

THE COURT: And even if I disagree with his reasons, and even if there is a palpable error on it, and so, unless you have other submissions to make, you can say that this motion was brought and lost and that Deputy Judge Pettipiere was of the view that this was a matter for appeal.

MR. ALLEN: Okay. Uhm, hm. That’s fine.

THE COURT: That is my decision.

[5] Further exchanges between Mr. Allen and the court continued, as set out in the transcript; other than dealing with costs, there was no further discussion on the jurisdictional issue.

[6] In my view, Deputy Judge Pettipiere was not persuaded by the arguments of the Small Claims Court agent that he had jurisdiction to overturn, let alone review, the decision of Deputy Judge Sutherland at the settlement conference dismissing the action.

[7] In essence, it is an inescapable conclusion that Deputy Judge Pettipiere viewed the motion to set aside the judgment of Deputy Judge Sutherland, dismissing the action as an appeal garbed as a motion to set aside the last-mentioned judgment.

[8] In these circumstances, there are two questions that must be addressed. The primary question that is the crux of this appeal is whether the order of Deputy Judge Pettipiere was interlocutory or final in nature.

[9] A secondary question that arises here is whether the order of Deputy Judge Sutherland dismissing the plaintiff’s claim at the settlement conference was final or interlocutory in nature.

[10] The leading case on whether a given order is final or interlocutory is set out in Hendrickson v Callio, 1932 123 (ON CA), [1932] O.R. 675, O.C.A. At page 678 of the report, the following observation appears:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

[11] The Courts of Justice Act, R.S.O. 1990, c C.43 in s.31 governs appeals from the Small Claims Court.

[12] A s.31 appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,

a) for payment of money in excess of the prescribed amount excluding costs; or

b) for the recovery of possession of personal property exceeding the prescribed amount in value.

[13] Where an order is final and the necessary amount is in dispute, the appeal lies only to a single judge of the Divisional Court.

[14] The jurisdiction of the Small Claims Court deputy judge in conducting a settlement conference is set out in Small Claims Court Rule 13.05, in the following terms:

Rule 13.05(1) A judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make.

Rule 13.05(2)

Without limiting the generality of subrule (1), the judge may

(a) make an order,

(v) staying or dismissing a claim…

[15] Counsel for the appellant submits the motion