Jenny Tran v. Martin Kerbel, 2014 ONSC 5233

1The appellant, Jenny Tran issued two claims in the Small Claims Court against the defendant, Martin Kerbel. The respondent is a criminal defence lawyer who Ms. Tran retained to represent her on several criminal charges.

2Small Claims Court No. 13-2347200 was issued on May 14, 2013. The second claim No. SC-13-2399600 was issued on May 27, 2013. In each claim Ms. Tran alleges that Mr. Kerbel was negligent in his representation of her on criminal charges.

3Ms. Tran signed one retainer agreement with Mr. Kerbel. This retainer agreement confirmed that he would defend Ms. Tran on three criminal charges. The retainer agreement describes the charges and the block fee that would be charged for each criminal charge.

4On October 11, 2013, a settlement conference was held in the two Small Claims Court claims. Deputy Judge Wheatley issued an order at the settlement conference consolidating the two actions and ordered that they continue as one under Claim No. SC-13-2347200. The reasons for this order are recorded as follows: “I find that these two actions are one cause of action under one retainer for legal services and to allow the two actions to continue would be splitting the claim under rule 6.02”.

5On January 7, 2014, Ms. Tran brought a motion before Deputy Judge Richardson seeking to set aside or vary the October 11, 2013 order of Deputy Judge Wheatley. Judge Richardson dismissed this motion.

6Ms. Tran now seeks to appeal both of the Small Claims Court orders. She seeks to set aside both orders and wants to proceed with both actions in the Small Claims Court on the merits. Ms. Tran states that because her two claims were consolidated into one claim, she can only sue in Small Claims Court for a maximum of $25,000. With two claims she was suing for a total of $50,000.

7Ms. Tran says that her ability to sue for an additional $25,000 has been taken away. She argues that each invoice that Mr. Kerbel rendered creates a separate cause of action that entitled her to a separate claim for each invoice. I disagree.

8There was one retainer agreement with Mr. Kerbel that covered his legal representation of Ms. Tran on all of the criminal charges. Ms. Tran alleges that Mr. Kerbel was negligent in his representation of her on the criminal charges. This is not a claim about the invoices and what Mr. Kerbel charged for his services.

9If Ms. Tran wanted to sue for more than $25,000, it would be open to her to have her claim transferred to the Superior Court of Ontario where she would not be limited to suing for only $25,000 of damages. This option was explained by Mr. Kerbel’s counsel in Court today.

10The orders of the two Small Claims Court Judges are interlocutory orders that deal with procedure. Ms. Tran’s claims against her former lawyer have not been decided. As ordered by Judge Wheatley, the consolidated claim will proceed and the claim will advance to a trial if not settled. If she wanted to sue for more than $25,000, she would have to move her claim to this Court.

11Ms. Tran brought a motion in Small Claims Court seeking an order setting aside the order of Judge Wheatley. This came before Deputy Judge Richardson on January 7, 2014. Ms. Tran complains that this Judge gave no reason. While true, the fact is that Judge Richardson had no jurisdiction to hear this motion because a party has no right to appeal an interlocutory order of a Small Claims Court Judge to another Small Claims Court Judge. There is also no right to appeal an interlocutory order of a Small Claims Court Judge to this Court.

12An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action for the payment of money in excess of the “prescribed amount”, excluding costs, or for the recovery of possession of personal property exceeding the “prescribed amount” in value (see s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43). In the case of a final order, the appeal is heard by a single Judge of the Divisional Court as provided by (Courts of Justice Act, s. 21(2)(b)).

13The orders that Ms. Tran seeks to appeal are not final orders, they are interlocutory orders and the Divisional Court has no jurisdiction to hear an appeal from an interlocutory order of the Small Claims Court (see, for example, Grainger v. Windsor-Essex Children’s Aid Society (2009), 96 O.R. (3d) 711, 2009 34987 (S.C.J.) at para. 22).

14The respondent’s motion seeks an order quashing the appellant’s appeal for lack of jurisdiction. The appellant’s notice of appeal dated February 3, 2013 seeks to appeal the orders of the two Small Claim Court Judges, Judge Wheatley’s order of October 11, 2013 and Judge Richardson’s order of January 7, 2014.

15The motion is allowed and the appeal is quashed because the orders are interlocutory orders and there is no right of appeal.

COSTS

16The Respondent seeks partial indemnity costs of $4,961.57 (inclusive of disbursements and HST). A detailed Costs Outline was provided. These are costs for the appeal and the motion. The Respondent was successful and is entitled to reasonable costs. The appellant is ordered to pay the Respondent costs that I fix at $3,500 all inclusive, payable in 30 days.