Court File and Parties

CITATION: Freedom Pools Inc. v. Moro, 2024 ONSC 4811

OSHAWA DIVISIONAL COURT FILE NO.: DC-24-1576-00ML

DATE: 2024-08-30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: FREEDOM POOLS INC. and 1800912 ONTARIO LTD., Appellant/Defendant

AND:

ROBERT MORO, Respondent/Defendant

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: Freedom Pools Inc. and 1800912 Ontario Ltd., Self-Represented Jaclyn P. Solomon, Counsel for the Respondent

HEARD: In-Writing

Endorsement

[1] On August 14, 2024, the proposed Appellant filed a Notice of Motion for an extension of time to file a motion for leave to appeal under s. 133 of the Courts of Justice Act.

[2] The Notice of Motion indicates that the proposed Appellant was seeking to set aside the Order of Deputy Judge Pace of the Small Claims Court dated July 16, 2024.

[3] In his brief Endorsement, Deputy Judge Pace denied the Defendant’s motion to set aside default judgment and ordered costs against the Defendant in the amount of $100.

[4] On August 22, 2024, I issued the following direction to the parties:

The proposed appellant (Freedom Pools Inc.) has brought a motion in writing for an extension of time to file a motion for leave to appeal under s. 133 of the Courts of Justice Act. The decision under appeal is dated July 16, 2024 and states: “The stay of proceedings in this matter is lifted and enforcement against the Defendant shall re-commence. The Defendant’s motion to set aside the default judgement and ensuing enforcement as a result is denied.”

Section 133 of the Courts of Justice Act applies to “orders made with the consent of the parties” or “where the appeal is only as to costs”.

It is not clear from the proposed appellant’s materials or the Order of the Court under appeal how s. 133 of the Courts of Justice Act applies to the proposed appeal.

The proposed appellant is requested to provide an explanation, maximum one page, as to why s. 133 of the Court’s of Justice Act applies to the proposed appeal... The only issue to be addressed by the parties is the application of s. 133 of the Courts of Justice Act to the motion for an extension of time for leave to appeal.

The motion will be held in abeyance pending the receipt of the proposed appellant’s explanation and the proposed respondent’s response after which there will be further directions from the court.

[5] On August 29, 2024, the proposed Appellant provided the following response:

Section 133(B) of the Courts of Justice Act also applies to this proposed Appeal because the Appeal is only on costs.

[6] As indicated above, the costs ordered by Deputy Judge Pace were in the amount of $100.

[7] Pursuant to s. 31 of the Courts of Justice Act, an appeal lies to the Divisional Court from a final order of the Small Claims Court “for the payment of money in excess of the prescribed amount excluding costs”. Pursuant to s. 2 of O. Reg. 626/00: SMALL CLAIMS COURT JURISDICTION AND APPEAL LIMIT, that prescribed amount is $3,500. There are no appeals for amounts less than $3,500.

[8] In Riddell v. Carefree Moving Inc., 2018 ONSC 1972, Gilmore J. held that this provision also applies to costs orders, and there can be no appeal from a costs order if the costs order is less than the prescribed amount. As such, leave to appeal cannot be granted with respect to a costs order that is less than the prescribed amount.

[9] Accordingly, the proposed Appellant’s motion for an extension of time to bring a motion for leave to appeal the Costs Order of July 16, 2024 is dismissed.

Justice R.E. Charney

Date: August 30, 2024