COURT FILE NO.: CV-18-594392 DATE: 20181003 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN WALKER, Applicant AND: LEON’S AUTOBODY INC., ROBERT GUARINO and LECOS AUTO SALES, Respondents

BEFORE: Cavanagh J.

COUNSEL: R. Christopher M. Belsito, for the Applicant Olha Moroz, for the Respondents, Leon’s Auto Body Inc. and Roberto Guarino

HEARD: September 27, 2018

Endorsement

Introduction

[1]

Introduction

The applicant, John Walker, seeks an order that six separate actions that are pending in the Small Claims Court be transferred to the Superior Court of Justice and consolidated into a single action. The applicant also seeks an order for a timeline with respect to the exchange of pleadings, affidavits of documents and examinations for discovery.

2On or about May 1, 2017, the respondent, Leon’s Auto Body Sales (“Leon’s”) commenced five separate Small Claims Court actions against the applicant and against the respondent, Lecos Auto Sales (“Lecos”). Another action was commenced by the respondent Robert Guarino against Mr. Walker and Lecos. Mr. Guarino is the brother of the principal of Leon’s. The monetary relief claimed in each action falls within the jurisdiction of the Small Claims Court.

3Mr. Walker served and filed his defences in the six Small Claims Court actions on or about February 23, 2018. All of the six actions are ready for trial in the Small Claims Court.

4This application was commenced by Notice of Application issued on March 21, 2018.

5The applicant submits that Leon’s and Mr. Guarino improperly brought their actions in the Small Claims Court and that an order should be made pursuant to s. 110(1) of the Courts of Justice Act transferring these actions to the proper court, the Superior Court of Justice. Alternatively, the applicant submits that I should exercise my discretion and make an order under my inherent jurisdiction to transfer the six Small Claims Court actions to the Superior Court of Justice, and consolidate them into a single action.

6For the following reasons, I conclude that (i) Leon’s and Mr. Guarino did not bring their actions in the wrong court, and (ii) the circumstances are not such that I should exercise my discretion and make an order transferring the Small Claims Court actions to the Superior Court.

Analysis

[7]

Analysis

The applicant submits that the six actions were improperly brought in the Small Claims Court. The applicant relies upon s. 110(1) of the Courts of Justice Act which provides that where a proceeding is brought or taken before the wrong court, it may be transferred or adjourned to the proper court.

8The applicant relies upon rule 6.02 of the Rules of the Small Claims Court in support of his submission that the six actions were improperly brought in the Small Claims Court. This rule provides that “[a] cause of action shall not be divided into two or more actions for the purpose of bringing it within the court’s jurisdiction”. The applicant submits that the six actions were divided into separate actions with the specific purpose of bringing each action within the monetary jurisdiction of the Small Claims Court.

9The generally accepted definition of the term “cause of action” is the fact or facts which give a person a right to judicial redress or relief against another: Lawless v. Anderson, 2011 ONCA 102 at paragraph 22.

10Four of the Small Claims Court Actions are concerned with claims in respect of different vehicles. These claims relate to separate transactions and separate contractual arrangements. One of these actions was brought by Mr. Guarino as plaintiff.

11Two of the Small Claims Court actions relate to the same vehicle. One of these actions involves a claim for payment of charges for procurement of parts. The other action involves a claim for payment of charges for labour costs for repairs to this vehicle. Leon’s submits that these claims involve separate contractual arrangements made with respect to the same vehicle at different times.

12The facts upon which Leon’s relies for judicial redress against the defendants in each of the Small Claims Court actions are different for each action. Leon’s has not failed to comply with rule 6.02 of the Rules of the Small Claims Court by dividing a cause of action into two or more actions for the purpose of bringing it within the court’s jurisdiction. Each of these actions is founded upon a separate cause of action, and each was properly brought within the monetary jurisdiction of the Small Claims Court.

13The six actions were not brought before the wrong court when each was commenced in the Small Claims Court. Section 110(1) of the Courts of Justice Act is inapplicable.

14It is open to a judge of the Superior Court of Justice through the exercise of inherent jurisdiction to transfer an action from the Small Claims Court to the Superior Court of Justice in appropriate circumstances, without the consent of the plaintiff in the Small Claims Court action. See Vigna v. Toronto Stock Exchange, 1998 CarswellOnt 4560 (Div. Ct.), para. 1. The applicant submits that in the circumstances, particularly given the aggregate monetary exposure that he faces in the six actions and the absence of procedures for oral discovery in the Small Claims Court actions, I should exercise this jurisdiction and make an order transferring the six Small Claims Court actions to the Superior Court of Justice.

15In Farlow v. Hospital for Sick Children, 2009 CarswellOnt 7124, Herman J. set out at paras. 18-21 the general principles that apply on an application to transfer an action from the Small Claims Court to the Superior Court:

18 A judge of a Superior Court has the inherent power to transfer a matter from the Small Claims Court to the Superior Court in appropriate circumstances (Vigna v. Toronto Stock Exchange, [1998] O.J. No. 4924 (Ont. Div. Ct.) at para.7). It is, however, a discretion that should be rarely exercised (Crane Canada Co. v. Montis Sorgic Associates Inc., [2006] O.J. No. 1999 (Ont. C.A.)).

19 The decision as to whether the court should transfer an action involves the balancing of various factors.

20 Courts have considered the following factors in deciding that a transfer may be warranted: (i) the complexity of the issues; (ii) the importance of expert evidence to a determination of the case; (iii) the need for discovery; (iv) whether the case involves issues of general importance; and (v) the desire for a just and fair determination [citations omitted].

21 Balanced against these factors is the principle that the court should rarely exercise its discretion to transfer a case. In general, if a litigant chooses to pursue a case in Small Claims Court, that choice should be respected. Of particular concern in this case is the potential that the transfer to a higher court may increase the costs for the litigants and have a negative impact on access to justice [citations omitted].

16Four of the Small Claims Court actions brought by Leon’s involve a claim for charges for unpaid invoices in respect of repairs to an automobile. The other action by Leon’s involves a claim for damages for breach of a contract for the sale of a vehicle. The action brought by Mr. Guarino involves a claim for damages for breach of a contract for the sale of a vehicle.

17These actions do not involve issues that are so complex that they should be adjudicated in the Superior Court. There is no suggestion that expert evidence will be needed. The actions do not involve issues of general importance. The six Small Claims Court actions are unlike the Small Claims Court action in Vigna that involved complex issues of immense importance across Canada involving participation of other parties. These actions are also unlike the Small Claim Court actions in Crane that involved product liability claims that would have required complex expert evidence.

18The applicant submits that it would be unfair to deprive him of a right to discovery, given the aggregate of the amounts claimed against him in the Small Claims Court actions. He submits that he would not receive a fair and just determination of the issues raised in these actions unless they are transferred to the Superior Court and consolidated, with provision for documentary and oral discovery. I disagree. Actions like the ones commenced by Leon’s and Mr. Guarino in the Small Claims Court are routinely decided in that court using the procedures that are in place to balance the promotion of access to justice with the need for fair and just adjudications.

19The six actions are ready for trial in the Small Claims Court. The Small Claims Court may decide that the actions should be heard together, or one after another, by the same judge. If the relief sought by the applicant were to be granted, the result would be considerable additional costs to the parties as well as added delay. These are also factors that militate against transferring the actions to the Superior Court.

20This is not one of those rare circumstances where the court’s inherent jurisdiction to transfer an action, or several actions, properly brought in the Small Claims Court to the Superior Court should be exercised. In my view, the decisions of Leon’s and Mr. Guarino to commence their actions in the Small Claims Court should be respected. I decline to exercise my discretion to make an order transferring the six Small Claims Court actions to the Superior Court of Justice.

Disposition

[21]

Disposition

For the foregoing reasons, the application is dismissed.

22The respondents Leon’s and Mr. Guarino are entitled to costs of this application on a partial indemnity scale. They seek $4,678.48 which is calculated based upon an hourly rate for counsel who was called in 2018 of $112.50. I regard the amount claimed to be fair and reasonable and within the range of costs that the applicant would reasonably expect to pay if he were to be unsuccessful on his application. I fix costs of the application to be paid by the applicant to the respondents Leon’s and Mr. Guarino in the amount of $4,678.48.

Cavanagh J.