Court File and Parties

CITATION: Riddell v. Huyhn, 2021 ONSC 7112

DIVISIONAL COURT FILE NO.: 23/21

DATE: 20211028

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

F.B. Fitzpatrick, S.T. Bale and Kristjanson JJ.

BETWEEN:

MATTHEW RIDDELL

Self Represented

Applicant (Responding Party)

– and –

HUU TY HUYHN

Self Represented

Respondent (Moving Party)

HEARD at Brampton by videoconference: October 21, 2021

ENDORSEMENT

Kristjanson J.

[1] The applicant, Matthew Riddell, seeks judicial review of an order made by Small Claims Court Deputy Judge Tweedie dated October 1^st, 2020, on a motion brought by the respondent, Huu Ty Huyhn, to set aside default judgment. The applicant had obtained default judgment for $7,500 against the respondent in a Small Claims Court proceeding for damages relating to defamation, slander, and intentional infliction of mental suffering. The deputy judge set aside the default judgment and ordered the applicant to pay $400.00 in costs and $120.00 in disbursements to the respondent.

[2] There is no appeal from interlocutory orders of the Small Claims Court, nor from costs awarded on interlocutory motions. The applicant thus commenced this judicial review application seeking an order of certiorari quashing the costs order, together with disbursements on this judicial review application of $1,563.72.

Statutory Scheme

[3] In considering this judicial review application, context matters and access to justice matters. The Court of Appeal held in Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520 at para. 35 that “[f]ailing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.”

[4] The Court held at para. 34 that:

The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.

[5] The emphasis on accessible, affordable justice is reflected in special provisions that govern Small Claims Court hearings. Section 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) provides that the court shall proceed by summary hearings:

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.

[6] There are special rules of evidence set out in section 27 of the CJA. A Small Claims Court deputy judge has discretion to admit as evidence relevant documents and oral testimony, “whether or not the evidence is given or proven under oath or affirmation or admissible in evidence in any other court.”

[7] The statutory scheme limits costs awards. Section 29 of the CJA limits awards of costs to 15% of the value claimed, unless the court considers it necessary in the interests of justice to address unreasonable behaviour in the proceedings. Rule 15.07 of the Small Claims Court Rules, O. Reg. 258/98, provides that the costs of a motion, exclusive of disbursements, shall not exceed $100, “unless the court orders otherwise because there are special circumstances.”

[8] Finally, section 31 of the CJA provides that appeals from final orders lie only to Divisional Court, and then only if the plaintiff in the action seeks either the payment of money of more than $2,500, or the recovery of personal property with a value exceeding $2,500.00. There is no statutory right of appeal from interlocutory orders.

Jurisdiction

[9] The Divisional Court has jurisdiction to review decisions of a Small Claims Court Deputy judge, including interlocutory orders, pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Issues

[10] The applicant argues that the deputy judge exceeded his jurisdiction by awarding costs of $400.00 since the maximum costs award for a motion in Small Claims Court is $100.00 unless there are “special circumstances”, according to Rule 15.07 of the Small Claims Court Rules, and the deputy judge failed to provide reasons for “special circumstances”. The question the applicant raises is not a true question of jurisdiction. The court’s jurisdiction to award motion costs comes not from Small Claims Court Rule 15.07, but rather from section 131(1) of the CJA:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding, or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[11] The motion judge had jurisdiction to make a discretionary costs order. The effect of Rule 15.07 is simply to restrict the “extent” of the costs to be ordered to $100, absent special circumstances. The fact that the motion judge referred to Rule 15.07 in his reasons makes it clear that he was alive to the restriction but decided that in the circumstances of the case, a higher award of costs was warranted.

[12] In my view, read holistically, the reasons that were given are adequate to support the higher award. As the Court of Appeal held in Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520 at para. 35: “appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently.” In assessing the adequacy of the reasons, context matters. This court has considered the record before the motion judge, his findings of fact and his reasons on disposition. The deputy judge found that:

• Mr. Riddell had acted unreasonably by repeatedly refusing to cooperate with the defendant who was having difficulty filing documents as a result of the Covid lockdown;

• when the defendant discovered the default judgment, Mr. Riddell improperly refused to furnish particulars of the claim and judgment to defendant’s counsel;

• given Mr. Riddell’s inability to prove personal service on the defendant, despite four defective affidavits, “There is a point at which the court must conclude that these repeated omissions come perilously close to appearing deliberate”;

• Mr. Riddell made irrelevant and factually unfounded allegations against defendant’s counsel;

• the tone of Mr. Riddell’s witness (process server) “bordered on insouciance’’;

• Mr. Riddell and his witness seemed “proud of the impediments which they created”;

• Mr. Riddell had “interfered with a witness” (by instructing his process server not to communicate with defendant’s counsel);

• the motion judge inferred from Mr. Riddell’s efforts to control the evidence of his witness that there was something to hide;

• the “Mr. Smith” who had purported to commission the affidavit of Mr. Riddell’s witness was “unknown to the provincial regulator of commissioners’’;

• that Mr. Riddell had “unnecessarily inflated the record and retarded the progress of arguing the motion by making irrelevant allegations”; and

• Mr. Riddell was committing an abuse of process by making claims in the Small Claims Court that he had already made in a pending residential tenancies claim.

[13] Reading the entirety of the reasons, and the deputy judge’s reference to Rule 15.07, in my view, he did give reasons adequate to support the higher award.

[14] The applicant also submits that the deputy judge failed to call on the applicant to make submissions on costs, thus denying procedural fairness and breaching natural justice. He notes that he prepared written submissions on costs but was not permitted to serve or file his submissions. I find no denial of procedural fairness given the summary nature of Small Claims Court hearings, the nature of the interest at stake and the amount in issue, and the statutory scheme.

[15] In any event, in the event I am wrong, I would exercise my discretion to decline to grant a remedy on the judicial review of the costs award of the interlocutory motion. Judicial review is constitutionally guaranteed in Canada. Therefore, the court must always retain some residual discretion to grant judicial review. However, judicial review is an extraordinary remedy. As the Supreme Court of Canada recognized in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713 at para. 37:

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see, e.g., D. J. Mullan, “The Discretionary Nature of Judicial Review”, in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010), 420, at p. 421; Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575; D. P. Jones and A. S. de Villars, Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100…

[16] Context matters. There are no appeals from interlocutory orders of the Small Claims Court. The legislature has decided to limit such appeals, placing priority on an informal, efficient and cost-effective process. The restriction on appeals reflects the intention of the legislature to allow the Small Claims Court to function with a minimum of interference from higher courts, and to avoid the parties incurring further costs on appeals where the amount in issue is less than $2,500.

[17] In my view, this court should only grant relief on judicial review of Small Claims Court interlocutory costs orders, if at all, in exceptional circumstances. To give a remedy on judicial review of a costs order, made by a deputy judge on an interlocutory motion, would not reflect the required judicial restraint nor the context. This is particularly so in this case where the amount in issue is $300.

[18] Judicial review is expensive for all parties. To avoid a costs award of an extra $300, an amount the judge was entitled to award for special circumstances, Mr. Riddell has incurred $1,563.72 for disbursements. Most of these costs are unavoidable - $229 for the notice of application, $608.00 for the certificate of perfection, service costs of $56.50, and photocopying costs of $221. Had the respondent chosen to participate, he too would have incurred costs far more than the value of the claim.

[19] The applicant submits that the public interest dimensions involved with this case “cry and plead for this Honourable Court to provide much-needed guidance for the Small Claims Court on the underlying issues raised herein.” I do not agree. And the respondent should not be put in jeopardy of paying these disbursements, or incurring costs of responding to the judicial review, given the context of the Small Claims Court proceeding.

[20] For these reasons, I would decline to grant relief on this judicial review and would dismiss the application. The respondent did not file materials and has claimed no costs, and none are therefore awarded.

“Kristjanson J.”

___________________________ Kristjanson J.

I agree

F.B. Fitzpatrick J.

I agree “S.T. Bale J.

S.T. Bale J.

Date of Release: October 28, 2021