Court of Appeal for Ontario

Date: July 10, 2017 Docket: C63349 Judges: MacPherson, Cronk and Benotto JJ.A.

Between

Matthew Riddell Appellant (Plaintiff)

and

Apple Canada Inc. Respondent (Defendant)

Counsel

Matthew Riddell, in person

Monique J. Jilesen and Laurel D. Hogg, for the respondent

Heard: July 5, 2017

On Appeal

On appeal from the order of the Divisional Court (Justices Harriet E. Sachs, Ian V.P. Nordheimer and Laurence Pattillo), dated September 26, 2016, with reasons reported at 2016 ONSC 6014.

Reasons for Decision

[1] The primary issue on this appeal concerns the important question whether Deputy Judges of the Small Claims Court have jurisdiction to order the pre-trial inspection of property in a proper case. If such jurisdiction exists, the second issue on appeal is whether that jurisdiction was properly exercised in the circumstances of this case.

[2] The Divisional Court, for clear and cogent reasons, answered both of these questions in the affirmative. We agree with the Divisional Court's conclusions and its reasoning on these issues.

[3] Specifically, the Rules of the Small Claims Court, O. Reg. 258/98 (the "Rules"), especially r. 17.03, do not adequately cover the matter of the pre-trial inspection of property. As a result, where trial fairness and the interests of justice, including the expeditious and least expensive determination of a case on the merits, so require, Deputy Court Judges of the Small Claims Court have jurisdiction under r. 1.03(2) of the Rules to order the pre-trial inspection of property by reference to r. 32.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] We make two additional comments on this issue. First, in our opinion, this conclusion does not conflict with this court's decision in Van de Vrande v. Butkowsky, 2010 ONCA 230, 260 O.A.C. 323.

[5] In Van de Vrande, this court held that motions for summary judgment based on principles emanating from r. 20 of the Rules of Civil Procedure are not available under the Rules. This holding was based on the court's conclusion, having regard to r. 12.02 of the Rules (which permits a party to bring a motion to strike a document, including a claim, before trial) and other factors, that the failure to provide for summary judgment motions under the Rules was not a gap in those Rules but, rather, a deliberate omission.

[6] In particular, Van de Vrande holds that r. 12.02 of the Rules specifically addresses the ability to bring a motion in the nature of those contemplated by rr. 20, 21 and 76 of the Rules of Civil Procedure. Indeed, this court upheld the motion judge's dismissal of the claim in Van de Vrande given her jurisdiction pursuant to r. 12.02. It therefore could not be said that the Rules fail to adequately cover motions for summary judgment, so as to trigger the application of r. 1.03(2).

[7] That is not this case. Here, the Rules provide, under r. 17.03, for the inspection of property by a trial judge of the Small Claims Court, in certain circumstances. They do not adequately address the pre-trial inspection of property at the instance of a litigant. Unlike Van de Vrande, we see no marker in the Rules of a deliberate legislative decision to omit such a procedure. Rather, as the Divisional Court explained, the failure to provide for such pre-trial inspection rights may be viewed as a deficiency in the scope and operation of r. 17.03. In an exceptional case, therefore, resort may be had to r. 1.03(2) to cure this deficiency. See Divisional Court reasons, at paras. 17-18.

[8] Second, and relatedly, we do not accept the appellant's submission that the recognition of the authority of Deputy Court Judges of the Small Claims Court to order the pre-trial inspection of property in exceptional circumstances will undermine the mandate of the Small Claims Court to hear and determine in a summary way those cases that come before it. To the contrary, in our view, it will assist Deputy Judges of the Small Claims Court to fulfil this important function in accordance with s. 25 of the Courts of Justice Act, R.S.O. 1990, c. 43. In this regard, we agree with, and endorse, the comments of Deputy Judge S.M. McGill of the Small Claims Court in National Service Dog Training Centre Inc. v. Hall, [2013] O.J. No. 3216, at paras. 30-31:

The only Small Claims Court Rule expressly dealing with the inspection of personal property is part of the final phase of the process – trial. Rule 17.03 authorizes a trial judge to inspect any real or personal property in the presence of the parties. The lack of pre-trial inspections of property represents a gap in the Small Claims Court rules that has disparate impact on the parties. The party in possession of the property experiences no side effects whatsoever while the non-possessory party has its ability to prepare for trial severely restricted. An unlevel playing field is the result which is not just, fair or agreeable to good conscience.

Ordering a pre-trial inspection of the property is not hostile to the objectives of the court, it is central to principles of natural justice. This is an issue of fundamental fairness which the court must be allowed to address in the context of controlling its own proceedings and to support the most just, agreeable and in good conscience determination. A question about the condition of the property cannot be determined on the merits if only one side is allowed to collect relevant evidence. A party will not perceive the justice system as fair if it is denied the basic opportunity afforded to the other party. The playing field must be level or the administration of justice will fall into disrepute. [Emphasis added.]

[9] We are also satisfied that the test for the invocation of the power to order the pre-trial inspection of property, set out above, was met here. In this products liability case, the appellant seeks damages for what he alleges were personal injuries caused by the negligent manufacture of an iPhone by the respondent. He claims that the iPhone overheated and caused severe burns to his right arm. He declared his intention to lead expert evidence at trial regarding the iPhone and the overheating event in order to establish his case. Yet he refused, absent a court order, to permit an independent third party expert to inspect the iPhone prior to trial, at no cost to him, to assist the trial judge in determining the central matter in dispute between the parties.

[10] In these circumstances, Deputy Judge Stabile's impugned pre-trial inspection order was entirely justified. Trial fairness, the interests of justice and the proper exercise of the trial judge's functions under r. 17.03 of the Rules all compelled this result.

[11] The appeal is dismissed. Given the novel and public interest dimensions of the issues raised on appeal, this is not an appropriate case for an award of costs.

"J.C. MacPherson J.A."

"E.A. Cronk J.A."

"M.L. Benotto J.A."