COURT OF APPEAL FOR ONTARIO DATE: 20210617 DOCKET: C68394
Benotto, Miller and Trotter JJ.A.
BETWEEN
David Kelava and The United Brotherhood of Retail, Food, Industrial and Service Trades International Union Defendants/Applicants (Appellants)
and
Dante Spadacini Plaintiff/Respondent (Respondent)
Counsel: Melvyn L. Solmon and Laney J. Paddock, for the appellants Dante Spadacini, acting in person
Heard: April 21, 2021 by video conference
On appeal from the judgment of the Divisional Court (Justices Lynne Leitch, Harriet E. Sachs and David L. Corbett), dated October 30, 2019, with reasons reported at 2019 ONSC 6314, affirming the order of Deputy Judge Thomas H. Clemenhagen, dated June 21, 2018.
Benotto J.A.:
[1] This appeal involves the jurisdiction of the Small Claims Court to appoint a representative defendant for an unincorporated association.
A. FACTS
[2] The respondent, Dante Spadacini, brought a wrongful termination claim in Small Claims Court against the appellants David Kelava and The United Brotherhood of Retail, Food, Industrial and Service Trades International Union (“the Union”). The monetary amount of the claim is within the jurisdiction of the Small Claims Court.
[3] The Deputy Judge made an order amending the style of the action “to change the wording of the defendant’s name slightly” by adding the named defendant David Kelava as a representative of the Union. Although the Rules of the Small Claims Court, O. Reg. 258/98 do not explicitly deal with representation orders, the Deputy Judge applied r. 1.03(2) which gives the court discretion to refer to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, if a matter is not adequately covered by the Small Claims Court Rules. The deputy judge then referred to r. 12.07 of the Rules of Civil Procedure. This rule (typically used when a union is sued) provides that one or more persons may be authorized by the court to defend an action when numerous persons have the same interest.
[4] The Union applied for judicial review to the Divisional Court on the basis that the deputy judge lacked jurisdiction to make the order because there is a clear omission in the Small Claim Court Rules preventing reference to the Rules of Civil Procedure.
[5] The Divisional Court upheld the deputy judge’s order, unanimously ruling that he did not err.
[6] The Union now appeals to this court. [^1]
B. POSITIONS OF THE PARTIES
(1) Appellants
[7] The appellants submit that the Divisional Court erroneously expanded the jurisdiction of the Small Claims Court. They say that there is a precondition to the application of r. 1.03(2) and it was not met here. They submit that r. 1.03(2) can only be applied in order to refer to the Rules of Civil Procedure if there is a “gap” as opposed to an “omission” in the Small Claims Court Rules.
[8] The appellants argue that there is an omission, not a gap, in the Small Claims Court Rules and rely on this court’s decisions in Van de Vrande v. Butkowski, 2010 ONCA 230, 99 O.R. (3d) 648, and Riddel v. Apple Canada Inc., 2017 ONCA 590, 139 O.R. 595. They argue that a gap is something that is covered inadequately by the Rules, whereas an omission is not addressed in the Rules at all and consequently, there is no ability for the Small Claims Court to make reference to r. 1.03(2) or to the Rules of Civil Procedure.
[9] The appellants further argue that the Small Claims Court does not have the jurisdiction to hear actions by or against unincorporated associations. They rely on the absence of reference to unincorporated associations in the Small Claims Court Rules.
(2) Respondent
[10] The respondent submits that the Small Claims Court Rules are clear and unambiguous in that the court may give directions and make orders when the rules do not cover a matter adequately. This is exactly what the deputy judge did. He identified an area where the rules did not adequately cover a matter – the ability to make representation orders – and made reference to the Rules of Civil Procedure. There are also Ontario regulations premised on unincorporated associations falling under the jurisdiction of Small Claims Court. Specifically, Ontario Regulation 332/16 Small Claims Court – Fees and Allowance includes unincorporated organizations in the definition of “claimant”.
[11] The respondent points to several Small Claims Court actions commenced by and against unincorporated associations, including unions: see Ryan v. PACI Band Parents Association, [2003] O.J. No. 3732 (Sup. Ct. (Sm. Cl. Div.)); De Yound v. Van Bart, [2006] O.J. No. 4491 (Sup. Ct. (Sm. Cl. Div.)); Communications, Energy and Paperworks Union of Canada, Local 593 v. Matthews, [2006] O.J. No. 872 (Sup. Ct. (Sm. Cl. Div.)); Communications, Energy and Paperworks Union of Canada, Local 593 v. Dennis Garratt (unreported); and Arnett v. Rail Canada Traffic Controllers, [1991] O.J. No. 2656 (Prov. Ct. Civ. Div. Sm. Cl. Ct.)).
C. ANALYSIS
[12] Is the Small Claims Court prevented from naming a representative defendant in an action against an unincorporated association?
[13] I conclude that the answer is no.
[14] I say this for these reasons: (i) the deputy judge had the authority under the Small Claims Court Rules to make the order without reference to the Rules of Civil Procedure; (ii) the deputy judge did not err by referring to the Rules of Civil Procedure; and (iii) the legislature did not deliberately omit unincorporated associations from the jurisdiction of the Small Claims Court.
The authority to make the order is in the Small Claims Court Rules
[15] The Small Claims Court is a branch of the Superior Court of Justice. It handles nearly half of the civil disputes in the province. The court is meant to provide an efficient, cost-effective forum for the resolution of civil disputes involving less than $35,000. It hears cases in a summary way and “may make such order as is considered just and agreeable to good conscience”: The Courts of Justice Act, R.S.O. 1990, c. C.43, s. 25.
[16] In short, the court embodies the foundations of access to justice: informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. By providing access to justice, the court has an important role in the administration of justice for the province.
[17] The authority to make a representation order is found in the Small Claims Court Rules.
[18] The rules are to be read in their entire context having regard to their nature, purpose, scheme, and object. The Small Claims Court Rules, read in their entirety, emphasize facilitating access to justice. They begin with guidance as to their interpretation. Rule 1.03(1) provides:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. O. Reg. 258/98, r. 1.03 (1). [Emphasis added.]
[19] To further provide for the achievement of their objectives, the rules give broad discretion to the court. If the rules do not directly address a matter, the court may give directions and make “any order that is just”. In order to implement the order, the practice is to be decided by analogy to the Small Claims Court Rules. Then, “if the court considers it appropriate” the court may refer to the Rules of Civil Procedure. Rule 1.03(2) provides:
If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 78/06, s. 3. [Emphasis added.]
[20] The Small Claims Court Rules provided the authority to make the order even without reference to the Rules of Civil Procedure. I say this for several reasons.
[21] First, pursuant to a plain reading of r. 1.03(2) the court may give directions and make any order that is just. This provides the court with authority to manage its own process.
[22] Second, with respect to the pleadings, it has long been the case that a liberal, non-technical approach should be taken to the pleadings in Small Claims Court (Brighton Heating & Air Conditioning v. Savoia (2006), 79 O.R. (3d) 386 (Div. Ct.), at para. 40). The court has the power to grant necessary amendments to secure the just determination of the real matters in dispute. Rule 2 provides:
2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute.
2.02 If necessary in the interest of justice, the court may dispense with compliance with any rule at any time.
[23] Third, if a matter is not adequately covered, the court is to decide the matter “by analogy” to other Small Claims Court rules – the very rules that emphasize the just, most expeditious and least expensive process. It is inconsistent with this objective to require a litigant to endure the time, expense and delay of an application to the Superior Court only to obtain a representation order when the matter is within the monetary jurisdiction of the Small Claims Court.
Reference to the Rules of Civil Procedure was not an error
[24] The appellants submit that the Deputy Judge had no authority to apply r. 1.03(2) in order to refer to the Rules of Civil Procedure.
[25] I disagree.
[26] The Deputy Judge was not required to have reference to the procedure in r. 12 of the Rules of Civil Procedure at all. Reference to the Rules of Civil Procedure is discretionary and was not necessary in this case.
[27] Recall the wording of s. 1.03(2). If the matter is not adequately covered, the court may give directions and, “if the court considers it appropriate,” do so with reference to the Rules of Civil Procedure.
[28] For these reasons, I conclude that the Small Claims Court Rules provide the authority to make the order appealed from. That said, I turn to the appellants’ submissions with respect to the court’s jurisdiction.
Jurisdiction regarding unincorporated associations
[29] The appellants say that nonetheless, the deputy judge could not make the order at all, because the Small Claims Court has no jurisdiction with respect to unincorporated associations. They submit that the legislative intent is evident from the fact that the rules do not refer to unincorporated associations. This prevents reference to the Rules of Civil Procedure which can only be used where there is a gap as opposed to an omission in the Small Claims Court Rules.
[30] The appellants rely on this court’s decisions in Van de Vrande and Riddel which, they submit, have developed the test to apply when the Small Claims Court decides a practice following the Rules of Civil Procedure. That test is to determine whether there is a “gap” or an “omission” in the Small Claims Court Rules. If the former, the court can have reference to the Rules of Civil Procedure. If the latter, then the legislature must have intended there to be no jurisdiction.
[31] The appellants misconstrue both Van de Vrande and Riddel.
[32] 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 Small Claims Court Rules, in part because the Small Claims Court Rules allow a process whereby a claim could be struck. Consequently, the omission of the summary judgment rule was an omission not a gap. Importantly, this court read the Small Claims Court Rules liberally and upheld the deputy judge’s order dismissing the claim. Van de Vrande actually confirms my view that it was not necessary to invoke the Rules of Civil Procedure at all because the court had the authority to give directions.
[33] Nor does Riddell assist the appellants.
[34] Riddel, at para. 7, clarifies that when there is a “marker in the Rules of a deliberate legislative decision to omit” a procedure, then the Small Claims Court Rules should not be supplemented. Riddel found no such marker when the court ordered an inspection of property. Rather the court concluded that the Small Claims Court Rules authorized the impugned order without reference to the Rules of Civil Procedure.
[35] An example of a marker limiting jurisdiction is shown in Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 147 O.R. (3d) 84. There, the issue was whether the Small Claims Court had the authority to dismiss an action under s. 137.1 of the Courts of Justice Act. This is the so-called anti-SLAPP [^2] law. It is meant to address concerns arising from the use of litigation to interfere with freedom of expression and quickly dismiss unmeritorious claims that unduly encroach on an individual’s right to freedom of expression on matters of public interest: Bruyea, at para. 11. The process permits the summary dismissal of an action. In Bruyea, this court determined that, by drafting the Act to refer exclusively to “judge”, not “deputy judge” or “court”, the legislature put down a “marker” of an intent to omit the jurisdiction from the Small Claims Court. Interestingly, the court commented on access to justice, at para. 27, by noting that:
…ironically, s. 137.1 is not a provision providing access. To the contrary, at least viewed from the perspective of the plaintiff, it is the very opposite. It is a provision that is intended, in proper circumstances, to prohibit access to the courts.
[36] Here, there is no such marker. There is no language in a statute that marks a clear intent to exclude representative defendants from the court’s jurisdiction. On the contrary, there is extensive language regarding the ability of the court to manage its process in a cost-effective way.
[37] Finally, I note the appellant appears to have conflated the right to sue with the representation order. The appellant submits that unincorporated associations do not have legal personality. This is incorrect for trade unions. A trade union is a legal entity with legal personality: see Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493, at para. 39. However, because of the statutory requirements in the Rights of Labour Act, R.S.O. 1990, c. R.33, the only way to sue a union in Ontario is to obtain a representation order: Lawrence v. IBEW, Local 773, 2017 ONCA 321, 138 O.R. (3d) 129, at para. 16.
D. CONCLUSION
[38] I would dismiss the appeal with costs payable to the respondent fixed in the amount of $5,000 for the appeal, plus $2,000 for the motion for leave to appeal for a total of $7,000 inclusive of tax and disbursements.
Released: June 17, 2021 “M.L.B.” “M.L. Benotto J.A.” “I agree B.W. Miller J.A.” “I agree Gary Trotter J.A.”
[^1]: No submissions were made as to the standard of review. In any event, as I explain, the decision under review is correct. [^2]: Strategic Lawsuits Against Public Participation