REASONS FOR DECISION

COURT FILE NO.: 09-43736
DATE: 2012/07/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHEL LAMARCHE, Plaintiff

AND:

ING INSURANCE COMPANY OF CANADA, Defendant

BEFORE: Master MacLeod

COUNSEL:
Martin Diegel for the Plaintiff, Moving Party

Sherri Anderson for the Defendant, Responding Party

HEARD: April 3, 2012 (with supplementary written submissions)

REASONS FOR DECISION

[ 1 ] The Plaintiff commenced an action against his motor vehicle insurer for accident benefits arising from an accident that took place on August 1 st , 2004. Originally the claim was for $200,000.00 plus $100,000.00 in punitive damages. That action was commenced in January of 2009 and defended in September of the same year. Subsequently the parties have exchanged affidavits of documents and attended mediation. The plaintiff was served with a notice of examination for discovery in November of 2010. He did not attend. He now brings a motion to limit his claim to $25,000.00 and to transfer the action to Small Claims Court.

[ 2 ] Assuming that it would be appropriate to transfer a claim to Small Claims Court over the objection of the opposing party [^1] , I decline to do so in this case. The reasons for my decision may be summarized as follows.

a. This is not a case in which the wrong court was chosen inadvertently or in which the Small Claims jurisdiction was expanded to encompass an existing claim. Rather it is a case in which the plaintiff consciously started an action for hundreds of thousands of dollars and now wishes to abandon the greater part of that claim by proceeding with a radically truncated claim for $25,000.00.

b. Although the plaintiff advised the defendant on November 29, 2010 of his intention to reduce the claim and seek an order transferring it to Small Claims Court he was advised then that the defendant would not consent. No such motion was actually brought until July of 2011.

c. Prior to November 29, 2010 the defendant had already appointed counsel, defended the action, prepared an affidavit of documents and participated in mediation. This involved steps that would not have been necessary in Small Claims Court. Moreover the choice of counsel and the litigation strategy or even the decision to defend the action might well have been different had the action originally been for under $25,000.00. By way of analogy the court has declined to permit late filing of a jury notice when the proceeding is advanced. [^2]

d. Two months after advising that a motion would be brought to transfer the action with no such motion having been brought, the plaintiff was advised that the defendant wished to proceed with discoveries. Notice was duly served but the plaintiff failed to attend.

e. The fees and disbursements incurred by the defendant in defending the action to date exceed $7,000.00. These costs would not be recoverable in Small Claims Court as I cannot make an order either fettering or expanding the limited costs jurisdiction of the Deputy Judge. [^3] Accordingly the costs can only be awarded if I award them prior to the transfer as a term of my order.

f. I could make an order requiring the plaintiff to pay costs to the defendant prior to the transfer taking place and had I made the requested order I would have made that a condition. An appropriate order would be to order complete indemnity because virtually all of the costs incurred in this court would have been wasted. Needless to say, the plaintiff is not enamoured of that idea and should I make that order it would largely eliminate the benefits of transferring the action to Small Claims Court.

g. There is a parallel tort action before this court. Though it may not be necessary to order the matters tried together there remains a possibility this may be so. In that case the action would have to be retrieved from Small Claims Court or the Small Claims trial would have to proceed before a judge of this court. That would be inefficient.

h. Given the costs incurred to date and the status of the proceeding, most of the cost savings that might be realized in Small Claims Court may be realized by moving the action under Rule 76 and giving specific direction to expedite the trial.

[ 3 ] In conclusion the motion to transfer the action to Small Claims Court is dismissed. The plaintiff does have leave to amend the statement of claim to reduce the damages to under $100,000.00 in which case the action shall proceed under Rule 76.

[ 4 ] If the plaintiff elects to proceed under Rule 76, the parties shall provide Schedule D to the affidavits of documents and shall also exchange the Schedule A documents within 45 days. They are to confer and to agree on a discovery plan. Discoveries are to be completed by the end of September and the action is to be set down as provided in Rule 76 no later than the end of December, 2012. Further direction regarding the mode of trial and steps necessary prior to trial will be given at the pre-trial.

[ 5 ] The plaintiff shall pay the costs thrown away for failing to attend for discovery and those costs are fixed at $500.00. The plaintiff shall also pay costs of the motion on a partial indemnity scale. I fix those costs at $900.00.

Master MacLeod

Date: July 11, 2012

[^1]: See Ali v. Schrawen 2011 ONSC 2158 ; [2011] No. 1671 (SCJ Master)

[^2]: See Mojhajer Estate v. Frappier Group Inc. [1998} O.J. No. 2004 (Gen.Div. Master)

[^3]: Pitrangelo v. Lundrigan (1999) 1999 19908 (ON SCDC) , 44 O.R. (3d) 71 (Div.Ct.)