SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-58408
DATE: 2014/06/05
RE: Jefferson Drost, Plaintiff
AND
CMH Automotive Financing as a division of Charles Michael Holdings Corporation, Defendant
BEFORE: Mr. Justice Timothy Minnema
COUNSEL:
Jessica Abou-Eid, for the Plaintiff
William Parker, for the Defendant
HEARD: April 8, 2014
ENDORSEMENT ON MOTION
Issue
[1] The plaintiff, Jefferson Drost, seeks an order transferring his Small Claim Court action to the Superior Court of Justice.
Background Facts
[2] The plaintiff leased a truck from the defendant on May 27, 2009 for the total amount of $7,666.12. The defendant CMH Automotive Financing repossessed the truck in December of 2009. On October 19, 2011 the plaintiff brought a Small Claims Court action alleging the truck had been unlawfully repossessed and seeking $10,916.96 in damages. He noted in that claim:
The failure of the Defendant to transfer the ownership caused the Defendant significant financial loss to his construction and property maintenance business. The plaintiff has lost contracts due to his inability to perform services requiring the use of a truck.
The Plaintiff has suffered significant personal and health challenges as a result of the failure of his business in 2009, which was a direct result of being unable to fulfill maintenance contracts.
The Plaintiff will provide full financial particulars of these damages to the Defendant.
[3] About a year later, on October 20, 2012, a “Fresh” Plaintiff’s Claim was issued again in the Small Claims Court. This was a rather extensive amendment. The claim went from several pages to 29 pages. The amount claimed was $25,000, which is that court’s limit. However, the body of the claim says the following with respect to damages:
- As a result of the actions of CMH Leasing, the Plaintiff has to pay medical costs of $631.34 per month for the rest of his life, his emotional and physical wellbeing, the amount that had already been paid into the truck to CMH Leasing at $11,873.95, six months of unnecessary insurance at $656.64, the loss of his home, tools in his truck valued at $9,000, the purchase of a new truck valued at $13,810, costs of motel and storage totaling $9,000, the loss of his business, and the loss of contracts valued at a total of $157,404.01.
[4] The proposed new Statement of Claim for the Superior Court is concisely drafted, and only several pages long. In it the plaintiff seeks general damages of $420,566.64 and punitive damages of $20,000. The body of the claim says the following with respect to damages:
- The Plaintiff states that due to the Defendant’s repossession of the vehicle on October 22, 2009 and the events leadings (sic) up to December 2009, the Defendant is liable to the Plaintiff for the loss of his business opportunities. Furthermore, the Defendant’s actions have directly caused the Plaintiff to suffer significant health challenges which require him to be on medication for the rest of his life.
[5] The plaintiff explains the previous proceedings in his affidavit on this motion as follows:
When I retained my previous counsel in 2009 I explained that I wanted this matter to be listed in Superior Court. He did not follow my instructions properly and listed the matter in Small Claims Court. After finding that my matter was issued in Small Claims Court, I asked him to have the matter transferred before the Superior Court. He did not follow my instructions but issued a fresh statement of my behalf for an increased amount of money.
As of January 2013 my previous counsel and I have parted ways. I have retained new counsel … to represent me with my civil matter.
[6] Following the first claim, the plaintiff’s previous lawyer moved from his sole practice to work for a larger law firm. He was working for that firm when he filed the “Fresh” claim in the Small Claims Court. His new lawyer for this motion is from that same law firm.
[7] The plaintiff has been cross-examined on his affidavit for this motion. The transcript establishes that the plaintiff knew the nature of his alleged damages prior to commencing the Small Claims Court action and, as noted, he referred to them in both versions of that claim. He had reviewed both of those pleadings before they were filed in the Small Claims Court.
[8] On this motion, on consent, the plaintiff has provided evidence that substantial snow removal, litter removal, and general property maintenance contracts with a company called Crombie General Partner Limited were cancelled about the time that his truck was repossessed. Also on consent, a February 3, 2012 letter was filed from the plaintiff’s psychiatrist stating “This gentleman remains with ongoing depressive symptoms which were clearly triggered after the loss of his business in 2009.” The details of those symptoms are noted, and are quite severe.
Law
[9] Section 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43, (“CJA”) reads as follows:
110 (1) Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.
[10] Both parties rely on Mrzlecki v. Kusztos (1987), 1987 4409 (ON SC), 59 O.R. (2d) 301 (S.C.J.). The issue there was a transfer from the then District Court, with a monetary jurisdiction of $25,000, regarding a claim that was started in that court for $35,000 but for which the plaintiff was seeking to amend to $500,000. The court found that the request was premature as the amendments had not yet been done, and it dismissed the motion. However, it noted in obiter three principles that I summarize as follows:
(a) A plaintiff bringing an action that exceeds the monetary jurisdiction of the court does not make that court “the wrong court” for the purposes of a transfer under s. 110.
(b) However, there is a “very good argument” that the court has inherent jurisdiction to make the transfer “in the appropriate case”.
(c) The court would be reluctant to transfer a personal injury action if “[t]here is no new medical condition or fact that changes the original basis or complexion of the injury or claim”.
[11] These comments represent the law generally and have been adopted in other cases where the request is by the plaintiff to transfer a Small Claims Court action to the Superior Court. It is now well established, and is not disputed here, that s. 110 of the CJA does not apply, but the court has the inherent jurisdiction to allow a transfer. The question is when that jurisdiction should be exercised.
[12] In many cases the reluctance of the court to transfer where there is no change to the original basis or complexion of the claim (noted in (c) above) takes prominence: Williams (Litigation Guardian of) v. Barnett, 2000 CarswellOnt 3681 (S.C.J.) at para. 13; Layland v. Roberts, 2007 29976 (ON SC).
[13] However, a leading case relied on by both parties is Tawfik v. Baker (1992), 1992 7724 (ON SC), 10 O.R. (3d) 569 (Gen.Div.). It was a motion for leave to appeal an interim order that allowed a transfer by the plaintiff of a personal injury case from the Small Claims Court to the Ontario Court (General Division). The plaintiff claimed that he was completely disabled for four months, and that his lost income for approximately two years after the accident was in the area of $40,000. The court noted “it would appear to have been utterly inappropriate for the solicitors then acting for the plaintiff to have commenced the action … in a court that had a maximum jurisdiction of $3,000”. Looking at (c) above, the court specifically noted at para. 5 that there did “not appear to have been a change in the original basis of the injury or its consequences (other than an accumulating loss of income) since the claim was instituted in Small Claims Court.” However, rather than applying that as the test and granting leave to appeal the transfer, the court still looked at whether it was an “appropriate case” for a transfer, per the second principle from Mrzlecki v. Kusztos. It noted that the transfer “would appear to be an appropriate instrument to make it possible for the claim to be presented in its allegedly full dimensions …” The court found that empowering the plaintiff “to pursue his claim in what the plaintiff avers are its real dimensions” was a sufficient reason for the transfer.
[14] As an aside, the plaintiff here also sought to rely on Farlow v. Hospital for Sick Children (2009), 2009 63602 (ON SC), 100 O.R. (3d) 213 (S.C.J.). However, that case stands for the general proposition that when it is not the plaintiff but rather the defendant who is seeking the transfer, the plaintiff’s choice of court should be given respect and the discretion to transfer should be rarely exercised given access to justice considerations.
Analysis
[15] I find that the Tawfik v. Baker decision is the closest on its facts to this case. In some sense this is not a transfer motion. The reality is that the plaintiff is before the courts trying to amend his claim to allow him to seek a higher recovery, and he has run into the jurisdictional limits of the court he has chosen. If there were no ceiling, such amendments are routinely granted unless prejudice would result that could not be compensated for by costs. As in Tawfik, I find that this is an appropriate case for a transfer as it empowers the plaintiff to pursue his claim in what he now maintains are its real dimensions.
[16] I appreciate that the plaintiff has already made the same mistake twice in selecting the wrong court, namely when he brought the action and when he obtained the first amendment. However, in my view it would be a disproportionate penalty to now deny him the opportunity to pursue the full extent of his claim.
Decision
[17] The plaintiff’s motion is granted. To save delay and an unnecessary step, the plaintiff shall also be permitted to amend his pleading per the draft claim submitted on this motion. The defendant shall have 30 days to amend its statement of defense.
Costs
[18] I have considered Rule 57.01(1)(f)(ii) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This motion was necessitated by the mistaken steps taken by the plaintiff. Therefore, despite the plaintiff’s success, the defendant shall have its costs. As in Tawfik, the plaintiff’s motion was to request an indulgence, and costs should be in favour of the defendant. If the parties cannot agree on the amount of costs, they can provide brief written submissions within 15 days.
Mr. Justice Timothy Minnema
Date: June 5, 2014