WANNAMAKER v. WESBELL TECHNOLOGIES, 2017 ONSC 5160

CITATION: WANNAMAKER v. WESBELL TECHNOLOGIES, 2017 ONSC 5160

COURT FILE NO.: CV-15-527030

DATE: 20170830

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RYAN WANNAMAKER, Plaintiff/ Respondent

AND:

WESBELL TECHNOLOGIES INC., Defendant/ Appellant

BEFORE: Sanfilippo, J.

COUNSEL: Ryan Edmonds, for the Plaintiff/ Respondent

Alexander Minkin, for the Defendant/ Appellant

HEARD: August 29, 2017

ENDORSEMENT

[1] This is an appeal brought by the defendant, Wesbell Technologies Inc., from the decision of Master McAfee dated June 15, 2017, wherein the master dismissed the defendant’s motion to transfer this action, commenced under the Simplified Procedure Rules, to the Small Claims Court. A motion was also advanced, and granted on consent, to adduce fresh evidence.

[2] On the basis of the reasons set out herein, this appeal is dismissed.

The Master’s Order

[3] The master noted that the parties did not raise any issue concerning a master’s jurisdiction to transfer an action to the Small Claims Court on contested motion, citing Ali v. Schrauwen, 2011 ONSC 2158, [2011] O.J. No. 1671, at para. 2 (Master). In Capano v. Rahm, 2010 ONSC 3241, [2010] O.J. No. 2866 (Ont. S.C.J.), leave to appeal refused 2010 CarswellOnt 7425 (Ont. Div. Ct.), at paras. 4—5, it was held that a master has the jurisdiction to decide whether to transfer an action to the Small Claims Court by reason of the court’s inherent jurisdiction over its own process: citing Vigna v. Toronto Stock Exchange, [1998] O.J. No. 4924, at para. 7 (Gen. Div.); see also May v. Hutchinson, [2013] O.J. No. 5962, at para. 6 (Ont. S.C.J.).

[4] A motion for transfer of this nature is based on sections 23(2) and 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and by Rules 1.04(1), (1.1) and 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Section 107(4) of the Courts of Justice Act addresses situations where two or more proceedings are pending in different courts and requires that a motion to transfer, in such circumstances, shall be made to a judge. I agree with the finding made in Capano v. Rahm, supra, that requests for transfer can be dealt with by either a judge or a master.

[5] The master determined the following facts:

(a) On October 30, 2015, following a mediation conducted on October 27, 2015, the plaintiff sought the defendant’s consent to transfer this action to the Small Claims Court on a without cost basis. The defendant did not agree;

(b) As at October 30, 2015, the only costs that had been incurred in this action were in regard to the pleadings and mediation;

(c) Since October 30, 2015, this action has proceeded through the Superior Court as a Simplified Procedure case, including documentary production, pre-trial conference, the certification of the case as being ready for trial and the setting of a trial date;

(d) This action has been certified as ready for trial in the Superior Court. The original trial date was April 10, 2017, which was adjourned to October 23, 2017;

(e) No evidence was placed before the court concerning the availability of trial dates in the Small Claims Court;

(f) An attendance at Civil Practice Court was then-pending for June 30, 2017, which was intended by the plaintiff to allow for the scheduling of a summary judgment motion that was proposed to determine the sole issue remaining in this action;

(g) If a summary judgment motion were available, which was not certain given that the defendant disputed the plaintiff’s entitlement to advance such a motion by reason of Rule 48.04, then only modest court time would be required in the Superior Court to determine this action. If a trial were required, it would be conducted soon thereafter as a summary trial under the Simplified Procedure Rules.

[6] The master applied the test for the transfer of an action from the Superior Court to the Small Claims Court as determined in Ali v. Schrauwen, supra, at para. 4: “Cases that are within the jurisdiction of Small Claims Court ought ordinarily to be moved to that branch of this court unless there is prejudice to the other party that cannot be easily remedied.”

[7] The master recognized, as did the court in Ali v. Schrauwen, supra, that actions that have progressed to the point where the monetary amount remaining in issue is within the monetary jurisdiction of the Small Claims Court ought ordinarily to be moved to that branch of the court. It would be the exception to decline a request to transfer such a case.

[8] The master’s decision to decline to order the transfer of this case to Small Claims Court was based on the fact that this action was then-scheduled for summary trial in some four months’ time: now some two months. Alternatively, the court noted that a summary judgment motion in the Superior Court could result in a determination of this action even sooner and with even less court time.

[9] The conclusion reached by the court was stated as follows: “The evidence before me does not satisfy me that a transfer at this late stage in the proceeding would be the most just, expeditious and least expensive determination of the matter remaining at issue and costs.”

The Standard of Review

[10] This appeal is properly brought pursuant to section 17(a) of the Courts of Justice Act and pursuant to Rule 62.01(1)(a).

[11] The standard of review is set out in Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Ont. Div. Ct.), as affirmed by the Court of Appeal (2009 ONCA 415, 96 O.R. (3d) 639); Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555; and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, and L.H. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. It may be summarized as follows:

(a) There is no reasoned basis to distinguish between the decision of a master and that of a judge for the purpose of the standards of review on appeal: Zeitoun v. Economical Insurance Group, supra, at para. 1 (Ont. C.A.).

(b) The standard of review depends upon whether the appeal is based on a question of law, a question of fact, an inference of fact or a mixed question of fact and law: Housen v. Nikolaisen, supra, at paras. 8—37.

(c) It is settled law that an appeal from a master’s decision is not a rehearing: Wellwood v. Ontario Provincial Police, supra, at para. 28. The appeal court cannot substitute its own discretion for the discretion exercised by the master.

(d) The decision of the master is entitled to significant deference from reviewing courts and “will be interfered with only if the master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error”: Zeitoun v. Economical Insurance Group, supra, at paras. 40—41, as affirmed at 2009 ONCA 415, at para. 1.

Application of the Standard of Review

[12] I have concluded that the master did not exercise her discretion on the wrong principle. The master applied the appropriate test on a motion to transfer this action as set out in Ali v. Schrauwen, supra, that cases that come within the jurisdiction of the Small Claims Court ought to be moved to that branch of the court unless there would be prejudice to the other party. The prejudice that informed the master’s exercise of discretion is delay in the conduct of the trial.

[13] Delay in the conduct of a trial has been recognized as constituting prejudice sufficient to deny a motion for transfer of an action to Small Claims Court: May v. Hutchinson, supra, at para 15; Capano v. Rahm, supra, particularly at para. 4, per Pitt J.: “I am not convinced that a transfer to the Small Claims Court would secure the ‘just, most expeditious and least expensive’ determination of the dispute. As further discussed below, the steps remaining until trial are not many. A transfer to the Small Claims Court could further delay resolution of the dispute.”

[14] Even if the master exercised her discretion on the wrong principles, I find that her decision does not result in any “palpable and overriding error”. In Housen v. Nikolaisen, palpable error was determined to be error that is “plainly seen”: paras. 5—6. Here, the discretion exercised by the master did not result in any error, and not any error that is “plainly seen”.

The Further Evidence

[15] Together with this appeal, the defendant brought a motion to introduce fresh evidence. The plaintiff consented to this motion.

[16] The admissibility of the further evidence must meet the requirements of section 134(4)(b) of the Courts of Justice Act, and the tests set out in the governing case authorities: R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, as applied in civil matters in Monteiro v. Toronto Dominion Bank, [2005] O.J. No. 4749 (Ont. Div. Ct.); Dew Point Insulation Systems Inc. v. JV Mechanical Ltd., [2009] O.J. No. 5446 (Div. Ct.).

[17] An order was issued to allow for the introduction of the fresh evidence, on the basis of the consent provided and also because the fresh evidence is credible evidence that bears on a matter referred to by the master in her reasons, thereby having the potential to affect the result.

[18] The fresh evidence was in the form of two affidavits that established that the plaintiff did not carry forward with the submission that a summary judgment motion would be brought to determine this action, but rather cancelled the Civil Practice Court appearance of June 30, 2017.

[19] The master’s decision was not based on a requirement that the plaintiff advance the proposed motion for summary judgment. There was some doubt that this motion would be permitted given that leave was required for which consent was not forthcoming. Last, the summary motion would likely only take marginally less court time than the summary trial.

[20] The possibility of a prospective motion for summary judgment of the issue remaining in this action was an alternative factor considered by the master, not the focus of her reasoning, such that the withdrawal of that initiative, as demonstrated by the further evidence that was admitted in this appeal, does not alter the sustainability of the master’s decision on appeal.

Disposition

[21] There is no basis upon which to interfere with the master’s analysis of evidence or her application of the relevant principles. The result reached by the master was made with jurisdiction and in accordance with the applicable test and correct principles. The appeal is dismissed.

Costs

[22] The plaintiff was successful in opposing the appeal and is entitled to costs. Having heard and considered the parties’ submissions on costs, having regard to all of the relevant factors set out in Rule 57.01, and having particular reference to the principle of proportionality stated in Rule 1.04(1.1), costs of the appeal are awarded to the plaintiff, payable by the defendant within thirty (30) days, in the all-inclusive amount of three thousand dollars ($3,000.00).

Sanfilippo J.

Date: August 30, 2017