CITATION: Jacob v. Westwood Mall, 2017 ONSC 1754
COURT FILE NO.: CV-17-871-00
DATE: 2017-03-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ELSY JACOB and PETER JACOB
Self-represented
Plaintiffs
- and -
WESTWOOD MALL HOLDINGS LIMITED (MISSISSAUGA)
Matthew P. Maurer, for the Defendant
Defendant
HEARD: March 17, 2017, at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] The plaintiffs move for an order transferring their action from the Small Claims Court in Brampton to the Superior Court of Justice in Brampton, so that they can claim rescission of their agreement to purchase a condominium unit from the defendant. Rescission is not a remedy which is within the jurisdiction of the Small Claims Court.
BACKGROUND FACTS
[2] The plaintiffs, Peter Jacob (“Mr. Jacob”) and Elsy Jacob (“Ms. Jacob”), are husband and wife. On February 12, 2016, they commenced an action in the Small Claims Court in in Brampton against the defendant, Westwood Mall Holdings Limited (Mississauga) (“Westwood”), in which they claimed damages in the amount of $24,475.00 arising from the purchase of a condominium unit at 7215 Goreway Drive, in Mississauga.
[3] On November 10, 2016, and January 6, 2017, the trial of the action proceeded before Deputy Judge R. Sharda. Mr. and Ms. Jacob were self-represented. Westwood was represented by counsel.
[4] During the course of the trial, it became evident to the trial judge that Mr. and Ms. Jacob had intended to claim both damages and rescission. He therefore stayed the proceeding so that they could “requisition” the transfer of the file to the Superior Court.
[5] Mr. and Ms. Jacob subsequently delivered a Notice of Motion to transfer the action to the Superior Court. Westwood opposes the motion on the ground that the Notice of Motion does not conform to Form 37A of the Rules of Civil Procedure and does not request leave to amend the Jacobs’ Statement of Claim, although a proposed amended Claim is attached to the Notice of Motion. The proposed amended Claim does not conform to Form 14A.
ISSUES
[6] The Court must determine whether to transfer the action to the Superior Court, notwithstanding the deficiencies in the Notice of Motion.
PARTIES’ POSITIONS
[7] Mr. and Ms. Jacob argue that this court should transfer the action and that a formal Notice of Motion was not required, as the trial judge in the Small Claims Court, in his endorsement, granted them leave to transfer the action to the Superior Court. In any event, they argue that they intend to amend their Claim, as is evident from the draft Claim attached to their Notice of Motion. They request leave to amend their Notice of Motion to permit them to request leave to amend as well as a transfer of their action to this court.
[8] Westwood submits that this court should dismiss the Jacobs’ motion on the ground that without an Amended Claim, the court cannot determine whether the Claim, as amended, would disclose a reasonable cause of action. Westwood submits that it has already incurred in excess of $30,000 in costs and should not be put to the further cost of a defence of a re-constituted action in the Superior Court.
ANALYSIS AND EVIDENCE
a) Leave to amend the Claim
[9] When asked at the hearing, Westwood declined the offer of an adjournment of the motion to respond to the Jacobs’ request for leave to amend their Statement of Claim. Rule 26.01 of the Rules of Civil Procedure provides that on a motion, at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. In Spencer v. Tom and Jerry's Bistro (2009), Kelly J., on hearing a motion by the defendant for a summary judgment dismissing the action based on a limitations defence, considered Rule 26.01 and granted the plaintiff leave to amend the Claim to plead discoverability.[^1]
[10] In Grant v. Grant (2001), the Court of Appeal held that the motion judge had erred in granting a motion for summary judgment dismissing a defamation action on the basis of a variance between evidence and statement of claim. The court held that the motion judge should have granted plaintiff leave to amend the statement of claim to conform with the evidence of words spoken by the defendant.[^2]
[11] Mr. and Ms. Jacob should not be prevented from proceeding to trial on their proposed Amended Claim if there is a genuine issue for trial as to whether they are entitled to a rescission of the Agreement of Purchase and Sale. Plaintiffs should not be deprived of their right to a trial of their Claim by reason of defective pleading alone, when the defect is capable of being cured by amendment without prejudice to the defendant that cannot be compensated for by an award of costs.[^3]
b) Transfer of Action
Legislative framework
[12] 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.
Jurisprudence
[13] In Mrzlecki v. Kusztos, in 1987, 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, which can be summarized 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”.[^4]
[14] In Tawfik v. Baker, in 1992, this Court allowed a transfer from the Small Claims Court to the Superior Court.[^5] The motion judge 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, in accordance with 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.
[15] As in Tawfik, I find that this is an appropriate case for a transfer as it empowers the plaintiffs to pursue their claim in what they now maintain are its real dimensions.
[16] I appreciate that the plaintiff has already made a mistake in selecting the wrong court, namely when they brought the action and when they were first asked whether they wished to claim a rescission. However, in my view, it would be a disproportionate penalty to now deny them the opportunity to pursue the full extent of their claim.
CONCLUSION AND ORDER
[17] The plaintiffs’ motion is granted. To save delay and an unnecessary step, the plaintiffs shall also be permitted to amend their pleading within 30 days to claim rescission in addition to damages. The defendant shall have 30 days after service of the amended claim 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 plaintiffs. Therefore, despite the plaintiffs’ success, the defendant shall have its costs. As in Tawfik, the plaintiffs’ 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.
Price J.
Released: March 17, 2017
CITATION: Jacob v. Westwood Mall, 2017 ONSC 1754
COURT FILE NO.: CV-17-871-00
DATE: 2017-03-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ELSY JACOB and PETER JACOB
Plaintiffs
- and –
WESTWOOD MALL HOLDINGS LIMITED (MISSISSAUGA)
Defendant
REASONS FOR ORDER
Price J.
Released: March 17, 2017
[^1]: Spencer v. Tom and Jerry's Bistro, 2009 16583 (ON SC), para. 24 [^2]: Grant v. Grant, 2001 27938 (ON CA) [^3]: Skylark v Minhas, 2017 ONSC 1328, para. 53 [^4]: Mrzlecki v. Kusztos (1987), 1987 4409 (ON SC), 59 O.R. (2d) 301 (S.C.J.) [^5]: Tawfik v. Baker (1992), 1992 7724 (ON SC), 10 O.R. (3d) 569 (Gen.Div.)