CITATION: Stamm Investments Limited v. Ryan, 2016 ONSC 6293

DIVISIONAL COURT FILE NO.: DC-6-16

DATE: 20161014

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, SACHS and SHEARD JJ.

B E T W E E N :

STAMM INVESTMENTS LIMITED

Plaintiff (Moving Party)

– and –

ROBERT RYAN, ALINA MARKS AND GAIL BROOKS

Defendants (Respondents)

Kristin A. Levy and Mark Melchers, for the Plaintiff (Moving Party)

No one appearing for the Defendants (Respondents)

HEARD: at Hamilton October 3, 2016

M. DAMBROT J.:

1Stamm Investments Limited (“Stamm”) brings this motion to a panel of the Divisional Court to set aside or vary a decision of Parayeski J. refusing to make an order transferring an application for judicial review commenced in Kitchener to the Divisional Court in Hamilton.

Background

Background

2Stamm entered into a lease with Ryan and Marks in January 2013. Brooks agreed to guarantee the tenancy. Stamm obtained vacant possession of the rental unit on January 20, 2014 on the basis of an order of the Landlord and Tenant Board terminating the tenancy. It then brought a claim against the respondents in Small Claims Court to recover lost rent and other costs in the total amount of $1,963.92. The respondents did not defend the claim, and an assessment hearing was ordered.

3On August 25, 2015, Deputy Judge Winny dismissed the claim against Ryan and Marks for want of jurisdiction in recognition of the exclusive jurisdiction of the Landlord and Tenant Board with respect to the termination of a residential tenancy. He accepted that he did have jurisdiction over a claim against a guarantor of a residential tenancy, but found that the tenants owed no money to the landlord, and so there was no basis for a judgment against the guarantor in this case. He dismissed the claim in its entirety.

4Stamm seeks judicial review of this decision, and raises eight alleged errors of law in its Notice of Application to the Divisional Court for Judicial Review. It filed its Notice of Application in the Superior Court of Justice in Kitchener on February 23, 2016.

5Appeals to the Divisional Court are ordinarily heard in the judicial region where the matter originally arose. All Divisional Court proceedings for the Central South Region heard by a panel of the Court are scheduled in three weekly sittings each year at Hamilton. Divisional Court panels are not convened in Kitchener. As a result, on March 17, 2016, the applicant was advised by Court staff in Kitchener that this matter had to be transferred to Hamilton. The Registrar of the Divisional Court in Hamilton further advised Stamm that an order was required to effect the transfer.

6Stamm then brought a motion to be heard in writing by a single judge of the Divisional Court in Hamilton seeking an order transferring its application from Kitchener to the Divisional Court in Hamilton. The motion was brought pursuant to a number of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as well as sections 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, J.1. None of these provisions authorize such an order, but s. 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 does authorize one judge of the Divisional Court to hear and determine a motion in the Divisional Court. I will assume that the motion was properly brought under that provision.

7On July 5, 2016, in a brief handwritten endorsement, Parayeski J. denied the motion. He stated:

There is no “judicial review” of the judgment of the Small Claims Court. There is an appeal, which is to a single judge. Any of the judges of the Superior Court in Kitchener can hear the appeal. Motion to transfer to Div. Ct. at Hamilton is denied.

8Stamm brings this motion to a panel of the Divisional Court seeking an order setting aside the decision of Parayeski J. and ordering the proceeding transferred to the Divisional Court in Hamilton.

The Standard of Review

9Section 21(5) of the Courts of Justice Act permits a panel of the Divisional Court, on motion, to set aside or vary the decision of a judge who hears and determines a motion pursuant to s. 21(3). The standard of review on such a motion was recently considered by this Court in CAS Ottawa v. L.F. (1) and L.F. (2), 2016 ONSC 4044. The Court stated, at paras. 8-10:

The motion judge heard the matter on April 12, 2016 as a single judge of the Divisional Court. Under s. 21(5) of the Courts of Justice Act, “a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion”.

The standard of review on a hearing under s. 21(5) is not well settled. In Marsden v. The Queen, 2012 ONSC 6118 (Div. Ct.) para. 2 the motion panel held that “a panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact”. On the other hand, it is arguable that no standard of review analysis is required under s. 21(5) of the Courts of Justice Act because it is not an appeal from the decision of the motions judge, but simply a reconsideration. The language of s. 21(5) suggests the panel is hearing the matter de novo. If that is so, no deference would be required.

There is no need to resolve the standard of review issue in this particular case. The issues raised by the grandparents are questions of law. There are no disputed facts. If there is an applicable “standard of review” that standard is correctness. This panel is free to conduct its own analysis without deference to the original decision.

10I adopt the formulation of the standard of review on a s. 21(5) motion articulated in Marsden. I do not share the reservation about that decision expressed in CAS Ottawa v. L.F. (1) and L.F. (2). I see nothing in the language of s. 21(5) suggesting that a s. 21(5) motion authorizes de novo reconsideration, and no reason to treat it as one.

Analysis

Analysis

11The purpose of the Small Claims Court, which was continued as a branch of the Superior Court of Justice by s. 22(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), is to provide an expeditious and low cost means to settle small monetary disputes. The legislature sought to accomplish this in several ways. First, s. 23(1) of the CJA limits the jurisdiction of the Small Claims Court to actions for the payment of money where the amount claimed does not exceed the prescribed amount, currently $25,000 (see s. 1 of Ontario Regulation 626/00.) Next, and importantly, s. 25 of the CJA provides that the Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience. Finally, of particular importance here, the legislature placed limitations on the nature and scope of the right to appeal a Small Claims Court decision.

12Specifically, with respect to appeals, s. 31 provides for an appeal to the Divisional Court only from a final order of the Small Claims Court, and then only if the order is in respect of an amount in excess of the prescribed amount, currently $2,500 (see s. 2 of Ontario Regulation 626/00.) Finally, while proceedings in the Divisional Court are usually heard and determined by a panel of three judges (s. 21(1) of the CJA) an appeal from a decision of a judge of the Small Claims Court is ordinarily heard and determined by one judge (s. 21(2)(b) of the CJA.)

13It is the position of the moving party that although appeals to the Divisional Court from decisions of judges of the Small Claims Court are only available in respect of amounts greater than $2,500, and are heard by single judges, a judicial review should be available in respect of amounts less than $2,500, and should be heard by panels of three judges. This position flies in the face of the intention of the legislature that Small Claims Court proceedings provide an expeditious and low cost means to settle smaller monetary disputes.

14It is true that the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) does not preclude judicial review from decisions of judges of the Small Claims Court. A Small Claims Court judge derives jurisdiction from a statute (the CJA), and exercises a statutory power of decision. By virtue of s. 2 of the JRPA, the Divisional Court has the power to grant relief in relation to jurisdictional errors and errors of law on the face of the record made by Small Claims Court judges. This Court has confirmed that power on at least three occasions (see, Peck v. Residential Property Management Inc., 2009 38504 (ON SCDC), [2009] O.J. No. 3064, Pardar v. McKoy, 2011 ONSC 2549, [2011] O.J. No. 2092 and R. v. Casalese, [1981] O.J. No. 1332.)

15However, while this Court has the jurisdiction to judicially review decisions of the Small Claims Court, s. 2(5) makes clear that the Court retains discretion to refuse to grant any such relief. And in each of the three decisions I have mentioned, relief was refused. The reasons given in each case for refusing relief are instructive.

16In Peck, Molloy J. stated, at paras. 3 - 4:

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.

17Wilson J. adopted this comment in Pardar.

18Finally, I turn to Casalese. That decision is not a very safe guide to judicial review, given its age. It preceded all of the modern developments in administrative law. Nevertheless, the rationale for refusing relief in that case remains pertinent. Robins J., as he then was, stated, at para. 3:

It must be borne in mind that these proceedings are taken against a decision of The Small Claims Court. That is a court of summary jurisdiction, one of equity and good conscience, and save in the clearest of cases, it is inappropriate for this court to interfere by way of judicial review with the decision arrived at in the Small Claims Court. Since we are of the view that there was evidence upon which the trial judge was entitled to proceed, he acted within his jurisdiction and this application must be dismissed.

19With this background in mind, I turn to the decision of the motions judge. He obviously erred in stating that there is no “judicial review” of the judgment of the Small Claims Court. There is, but it is rarely available. He also erred in stating that an appeal was available to a single judge, having regard to the amount of the claim. In fact, Rule 68.01(2) contemplates that applications for judicial review will ordinarily be transferred without an order. But in the unusual circumstances of this case, Parayeski J. was correct in refusing to transfer the matter to Hamilton. This is clearly a case that should not occupy the time of a panel of this court a second time. The judicial review at issue is nothing more than a disguised appeal in a situation where the legislature has denied any such right to the moving party. It cries out for the Court to exercise its discretion to decline relief. It was appropriate for the motions judge to deny the applicant the opportunity to take up the court’s time with a frivolous application, and it is incumbent on us to do the same.

Disposition

Disposition

20For all of these reasons, the motion is dismissed without costs.

M. DAMBROT J.:

21For oral reasons delivered in Court, the motion is dismissed.

22No costs.

DAMBROT J.

SACHS J.

SHEARD J.

RELEASED: October 14, 2016

CITATION: Stamm Investments Limited v. Ryan, 2016 ONSC 6293

DIVISIONAL COURT FILE NO.: DC-6-16