SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-4265-SR
DATE: 2013-12-13

RE: Jo-Anne MAY, Plaintiff

AND:

Lester HUTCHINSON, Defendant

BEFORE: The Honourable Mr. Justice D. A. BROAD

COUNSEL:
S. Armstrong, for the Plaintiff

J. B. Prior, for the Defendant

HEARD: December 11, 2013

ENDORSEMENT

[1] This action was commenced by a Statement of Claim issued under the Simplified Procedure on August 13, 2012. It arises out of a motor vehicle accident on December 15, 2010 in which the plaintiff alleges that she was injured as result of the negligence of the defendant. The plaintiff claimed damages in the sum of $100,000 in her Statement of Claim.

[2] The action was defended and Affidavits of Documents were exchanged and examinations for discovery conducted. The defendant has retained an expert and an independent medical examination of the plaintiff was completed in September 2013. The defendant also brought a successful motion pursuant to rule 30.10 for documentary production by the plaintiff's employer.

[3] The plaintiff has now moved to transfer the action to the Small Claims Court on the ground that her claim for damages for pain and suffering arising from the accident is more properly limited to $25,000 after the $30,000 statutory deductible is applied pursuant to the Insurance Act and therefore the action is more properly dealt with in the Small Claims Court.

[4] The plaintiff submits that there is been a change in circumstances following the issuance of her Statement of Claim by reason of her having sustained two workplace injuries, on November 14, 2012 in January 3, 2013 respectively. She argues these events that will impact the quantum of her claim for damages against the defendant, as a portion of her ongoing pain and suffering may be attributable to the workplace accidents rather than the to the motor vehicle accident which is the subject of the action.

[5] The defendant opposes the motion, arguing that the transfer would deprive him of his substantive right to have the action tried by a jury and would prejudice him in that he has conducted his defence and implemented his litigation strategy on the basis that the action would be tried in the Superior Court by a jury. Moreover, the defendant argues that there has not been a material change in circumstances which would justify a transfer to the Small Claims Court. In any event, the defendant argues that, if there were to be a transfer to the lower court, he ought to be compensated on a full indemnity basis for the costs incurred by him to date in defending the action. He argues that the manner in which the action has been defended and the associated costs which were thereby incurred were predicated on the fact that the action involved a substantial claim for $100,000 advanced in the Superior Court. Had the action been limited to $25,000 initially and brought in the Small Claims Court, these costs would not have been incurred to the same extent, or at all.

[6] There is no express provision in the Courts of Justice Act, R.S.O. 1990, c. C-43 for the transfer of an action from the Superior Court to the Small Claims Court in circumstances such as these. Section 23(2) of the Act requires the consent of all parties. Similarly there is no rule in the Rules of Civil Procedure expressly permitting such a transfer. However, it has been held that the Superior Court has the jurisdiction to order such a transfer pursuant to its inherent jurisdiction to govern its own process (see Graves v. Avis Rent a Car System Inc. [1993] O.J. No. 2771 (Ont. Ct. Gen Div.) at para. 12.

[7] In the case of Ali v. Schrauwen 2011 ONSC 2158, [2011] O.J. No. 1671 Master McLeod observed, at para. 4, that cases that are within the jurisdiction of the Small Claims Court are ordinarily to be moved to that branch of the court unless there is prejudice to the other party that cannot be easily remedied.

[8] In this case, the defendant points to the fact that his right to have the case tried with a jury will be lost should a transfer be made. It is noted that the defendant did not serve the jury notice, but rather the plaintiff did. The defendant states that, although he always wanted to have the action tried with a jury, he did not serve his own jury notice but relied on upon the plaintiff’s jury notice. The defendant must therefore be taken to be cognizant of the fact that, should the plaintiff withdraw her jury notice, he would not be entitled to a jury trial as of right, but rather would require leave of the court to serve a fresh jury notice. I am therefore not persuaded that any prejudice to the defendant associated with a withdrawal of the right to a jury trial would be an impediment, standing alone, to a transfer of the action to the Small Claims Court.

[9] However, I am satisfied that the litigation strategy adopted by the defendant, including his choice of counsel and the steps undertaken in defence of the action, was reflective of the amount claimed by the plaintiff and the court level which she chose. This is a relevant consideration to be considered by the court on a motion such as this, as exemplified by the case of Lamarche v. Ing. Insurance Co. of Canada [2012] O.J. No. 3248 (Master) at para. 2(c).

[10] The material indicates that the costs incurred by the defendant to date are $13,766.23 in respect of fees and HST and $1,565.78 in respect of disbursements and applicable HST thereon, for a total of $15,332.01. The question is not how much of these costs would be recoverable by the defendant should it succeed in the action. The more important point is that these costs may not have been incurred to any great extent or at all by the defendant had the action been commenced originally in the Small Claims Court.

[11] The plaintiff, in her affidavit in support of the motion, stated that she understands that to transfer the matter to the Small Claims Court she may have to pay costs thrown away by the defendant, however, she goes on to state that although she also understands from her counsel that in the event that she is unsuccessful on the motion to transfer a cost award could be made against her, she has no ability to pay such a cost award.

[12] In my view, even if the transfer were to be contemplated, it should be contingent upon the plaintiff actually paying an appropriate amount to the defendant for his costs thrown away. As indicated by Master McLeod in Lamarche, at para. 2(f), an order of this nature may be made for complete indemnity in appropriate circumstances. Given the plaintiff's declaration that she has no ability to pay any substantial cost award, it would be an exercise in futility to order a transfer to the Small Claims Court where, to do justice to the defendant, payment by the plaintiff of such a cost award would be appropriate.

[13] Moreover, I am not satisfied that there has been a material change in circumstances subsequent to the issuance of the statement of claim which would justify the transfer. The affidavit material of the plaintiff, while noting the post-accident workplace injuries, does not clearly set forth the basis upon which the amount of her claim for damages against the defendant would be reduced. The defendant points out that that the plaintiff, on her examination for discovery, gave evidence that the only areas of her body that were injured in the subject motor vehicle accident were her neck, shoulders and back. She also confirmed that she only injured her left forearm, left hip, left leg and left ankle as a result of the November 2012 workplace accident and she only injured her tailbone in the January 2013 workplace accident. She acknowledged on discovery that the January 2013 accident did not have any effect on her neck and shoulders.

[14] I accept that, in the exercise of a discretion on whether to transfer an action to the Small Claims Court, the court should consider the overall goal expressed in rule 1.04 of securing the just, most expeditious and least expensive determination of every civil proceeding on its merits, and the principle of proportionality. The inclusion of the adjective "just" in Rule 1.04 carries with it a requirement that the process adopted, and the exercise of discretion by the court, must be fair to both sides. It was the plaintiff who chose to claim the amount of damages that she did and to commence her action in the Superior Court and the defendant was entitled, and indeed required, to marshal resources and to adopt a litigation strategy commensurate with the claim and the forum chosen by the plaintiff. In the circumstances of this case, it would be unfair to the defendant to effect a transfer to the Small Claims Court simply because the plaintiff has now come to the realization that her true claim for damages is within the jurisdiction of the Small Claims Court and wishes to mitigate her exposure to a possible adverse award of costs in the Superior Court. This is not a case, like Graves, of an increase in jurisdiction of the Small Claims Court bringing the plaintiff’s claim within the new expanded jurisdiction, thereby justifying a transfer.

[15] Moreover, I am not satisfied that a transfer to the Small Claims Court would result in an appreciably more expeditious process, given that virtually all of the required pre-trial steps have been completed and the action is ready to be set down for trial and pre-tried in the Superior Court.

[16] The motion is therefore dismissed. If the parties cannot agree upon costs they may make brief written submissions; the defendant within 30 days hereof, and the Plaintiff within 14 days thereafter. The submissions shall not exceed three double-spaced typed pages, exclusive of any Bills of Costs or Offers to Settle.

[17] I wish to thank and commend counsel for their well-prepared and helpful written and oral submissions.

D. A. Broad J.

Date: December 13, 2013