COURT FILE NO.: CV-18-27215
DATE: 20190213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Manor Windsor Realty Ltd.
Respondent
– and –
Ziad Anani and Andrea Anani
Applicants
No one appearing for the Respondent
Ziad Anani and Andrea Anani, appearing in person
HEARD: January 29, 2019
RULING ON APPLICATION AND MOTION
hebner J.:
[1] The applicants have brought an application for judicial review of the decision of Small Claims Court Deputy Judge Kuker dated December 4, 2018. The applicants also brought a motion seeking leave to bring the application for judicial review to the Superior Court of Justice in Windsor pursuant to section 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1. The respondent did not file a notice of appearance and, although notified of the return date, did not attend on the hearing.
Background facts
[2] The dispute involves the applicants’ purchase of real property in Windsor and specifically a required deposit of $1,000. Deputy Judge Kuker ordered the applicants to pay the respondent the sum of $1,000 plus costs of $600. The applicants seek judicial review of that judgment.
[3] There are two preliminary issues that must be determined. The first is whether leave ought to be granted for the application to be made to the Superior Court of Justice pursuant to section 6(2) of the Judicial Review Procedure Act. The second is whether an application for judicial review is appropriate in these circumstances.
Venue
[4] The Judicial Review Procedure Act, section 6(2) reads as follows:
6(2) An application for judicial review may be made to the Superior Court of Justice with leave of the judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of the urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
[5] The applicants have filed evidence to support significant health problems. Ziad Anani was born December 9, 1935 and is currently 83 years of age. He provided a report from his family doctor, Dr. Parashar, to the effect that “Mr. Anani has difficulty travelling long distances” and “he has a history of cardiac disease and asthma”. Andrea Anani was born February 11, 1959. She is currently 59 years of age. She also filed a medical report of her family doctor, Dr. Parashar, which reads “this patient is not able to travel long distances due to medical reasons including but not limited to significant congestive heart failure, and diabetes.” On the last occasion these parties were in court, before Bondy J. on January 8, 2019, Mr. Anani collapsed. According to the transcript of court proceedings, an ambulance had to be called.
[6] In my view, the urgency is made out given the health issues of the applicants. Mr. Anani submits in his written material that he is particularly concerned that the matter be dealt with before his health, or the health of Ms. Anani, further deteriorates. It is also to be noted that the respondent did not file a notice of appearance and did not attend the hearing to oppose, or otherwise, the granting of leave. Under all of the circumstances, in my view it is appropriate to grant leave to have this application heard by the Superior Court of Justice in Windsor.
Is an application for judicial review appropriate in the circumstances?
[7] The applicants are seeking an order setting aside the decision of the Small Claims Court judge. I asked Mr. Anani why he did not proceed by way of appeal. Mr. Anani in his submissions said he could not proceed by way of appeal as the amount ordered was less than $2,500. In these circumstances, is the alternative of proceeding by way of judicial review appropriate?
[8] The Divisional Court decision in 1439957 Ontario Inc. v. Benkoe, 2017 ONSC 4984 is directly on point. In that case, the plaintiffs/applicants sought judicial review of the judgment of a Small Claims Court judge that awarded the plaintiff $313.58 on a claim of $1,413.63. When considering the issue of whether judicial review was appropriate, Nordheimer J., speaking for the Court, said:
There is a preliminary issue that must be determined and that is whether an application for judicial review is appropriate in these circumstances. I conclude that it is not. There is no right of appeal from a final order of the Small Claims Court where it directs the payment of a sum of money that does not exceed the prescribed amount, that is, $2,500: see s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Reg. 317/11. In an effort to avoid that prohibition, the applicants seek to rely on s. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 that provides that this court may set aside a statutory power of decision. Specifically, s. 2(2) reads:
The power of the court to set aside a decision for error of law on the face of the record on an application for an order in the nature of certiorari is extended so as to apply on an application for judicial review in relation to any decision made in the exercise of any statutory power of decision to the extent it is not limited or precluded by the Act conferring such power of decision.
In my view, the Judicial Review Procedure Act was not intended to provide a surrogate right of appeal where the legislature has expressly restricted those appeal rights. This court has ruled on more than one occasion that resort can be had to the Judicial Review Procedure Act to correct an error in jurisdiction with respect to a matter in the Small Claims Court. At the same time, however, this court has also repeatedly held that it will not intervene on judicial review if the proceeding is, in essence, an appeal: see Peck v. Residential Property Management Inc., 2009 CanLII 38504 (ON SCDC), [2009] O.J. No. 3064 (Ont. Div. Ct.) and Millard v. Di Carlo, 2014 ONSC 1218, [2014] O.J. No. 917 (Ont. Div. Ct.) .
There is no doubt that this application for judicial review is nothing more than a disguised effort to appeal the decision of the Small Claims Court. The applicants say that this was a test case intended to resolve a large number of cases and that it should qualify as an exception to that general rule. I do not agree. There were other methods under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to have this issue decided as a test case that would have avoided this problem. It does not change the fact that this is not an appropriate use of the extraordinary remedy of judicial review.
[9] The facts in this case cannot be distinguished from the facts in Benkoe. In this case, just as in Benkoe, the applicants are seeking to appeal the Small Claims Court decision by way of an application for judicial review. I agree with the reasoning of Nordheimer J. The purpose of the Small Claims Court is to provide an expeditious and low cost means of resolving disputes. That purpose is reflected in the legislation that does not permit an appeal from interlocutory orders. That purpose is also reflected in the legislation that does not permit an appeal where the small claims court orders payment of a sum of money that is less than $2,500. Where the legislature has restricted the right of appeal, the procedure set out in the Judicial Review Procedure Act cannot be used to circumvent that legislation.
Disposition
[10] For the foregoing reasons, the application for judicial review is dismissed.
Original signed by Justice Pamela L. Hebner
Pamela L. Hebner
Madam Justice
Released: February 13, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Manor Windsor Realty Ltd.
Respondent
– and –
Ziad Anani and Andrea Anani
Applicants
Ruling on application and motion
Hebner J.
Released: February 13, 2019