Court File and Parties
COURT FILE NO.: CV-1800-78476-0000 DATE: 20190405 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GRACIA JOUBARNE Applicant – and – TERRANCE GREEN, GREEN & ASSOCIATES and MELISSA BROADHURST Respondents
Counsel: Self-represented (for the Applicant) Robin S. Brown, Counsel for the Respondents T. Green and Green & Associates Ryan D. Garrett, Counsel for the Respondent, Melissa Broadhurst
HEARD: March 28, 2019 (Ottawa)
Reasons for Decision
Madam Justice J. Parfett
[1] The Applicant seeks three orders:
- An order declaring as a nullity the decision of Deputy Judge Stauffer in the motion to strike the defences in two small claims court actions [1];
- An order that a motion to strike the defences in the two small claims court actions be heard by this court; and
- An order that the two small claims court actions be transferred to this court.
For the reasons set out below, the Application is dismissed.
Background
[2] In 2013 and 2014, the Applicant started two small claims court actions; one in Kingston and one in Belleville. She retained the Respondent Terrance Green and his firm to assist her with these actions. Ms. Broadhurst was a paralegal in Mr. Green’s firm and she also assisted with these actions. According to the Applicant, Mr. Green and Ms. Broadhurst did not do a good job of representing her and seriously compromised her ability to succeed in these actions.
[3] On October 17, 2016, as a consequence of this belief, the Applicant started two small claims court actions in Ottawa alleging professional negligence.
[4] The parties attended a settlement conference on September 27, 2017. According to the Applicant, the settlement conference was a waste of time as the Respondents had not yet received instructions from Law Pro and consequently, settlement could not be discussed. The Respondents do not deny settlement was not discussed, but state they tried to adjourn the settlement conference but could not get the Applicant’s consent. At the settlement conference, various procedural matters were discussed and orders made by the Deputy Judge in relation to those matters. In particular, the Deputy Judge indicated that at the trial management conference, the parties were to be prepared to discuss consolidation of the two actions. [2]
[5] The trial management conference was set for February 7, 2018. At that conference, settlement was discussed. Unbeknownst to Deputy Judge Stauffer or the Respondents, the Applicant taped the proceedings. When Deputy Judge Stauffer spoke individually with the Respondents, he is alleged to have said ‘get rid of her’ in relation to the Applicant. The Applicant states that this comment showed bias towards her. The Respondents indicate the comment was made in the context of the Deputy Judge asking how much money the Respondents were prepared to offer in order to ‘get rid’ of the actions (ie settle the actions). Once again, the matter did not settle and a number of procedural orders were again made. [3]
[6] In July and August 2018, the Applicant brought a motion to strike the Respondents’ pleadings in both actions pursuant to R. 12.02(1)(a) of the Small Claims Court Rules alleging the pleadings disclosed no reasonable defence to her actions. The motion was heard on September 14, 2018 and Deputy Judge Stauffer’s reasons were issued on September 26, 2018. The Deputy Judge found the defences did disclose a reasonable defence. He ordered that the two actions were to proceed to the same trial date and be heard one after the other and indicated that neither party was to bring any further motions without leave of the court. [4] Trial dates were set for July 9-12, 2019.
[7] In October 2018, the Applicant again brought a motion to strike the Respondents’ pleadings. This motion was addressed to the ‘Chief Justice’. The Applicant again requested dismissal of the Respondents’ claims pursuant to R. 12.02(1)(a) of the Small Claims Court Rules. In addition, she alleged judicial misconduct in relation to the trial management conference of February 2018. There was a flurry of correspondence between the parties and the court culminating in a letter dated October 24, 2018 in which the Deputy Judge stated,
It would seem that Ms. Joubarne wants to appeal my September 26, 2018 decision.
That decision is interlocutory….Therefore, no final Order having been made, there is no appeal of my current Order. There is no mechanism for an appeal to the ‘Chief Justice of Ontario’ as appears to be the request on the most recently filed materials.
[8] In November 2018, this application was filed by the Applicant. There was a preliminary issue relating to whether the application had been properly served and whether the Respondents had filed their responses in time. This court heard that issue on March 7, 2019 and the matter was adjourned to March 18, 2019 to hear the substance of the application.
Analysis
[9] The issues to be decided in this matter are as follows:
- Is the application properly before this court;
- If so, is the Applicant entitled to have the dismissal motions heard by this court; and
- Is the Applicant entitled to have the trials heard by this court?
[10] The answer to all three questions is no.
[11] An application may be brought in this court pursuant to R. 14.05(3) of the Rules of Civil Procedure. That section sets out the specific types of matters that can be dealt with in this court by way of the application. The Applicant argues that sub-sections (g.1) and (h) apply to this matter. I disagree. The Canadian Charter of Rights and Freedoms plays no role in this proceeding as it involves only private parties. Additionally, this is not a matter where ‘it is unlikely that there will be any material facts in dispute’. There are material facts in dispute. There is a dispute over whether there has been professional negligence committed by the Respondents. This matter requires a trial.
[12] It is apparent that what the Applicant is really seeking is an appeal of the decision of Deputy Judge Stauffer. That appeal cannot be heard in this court at this time. Section 31 of the Courts of Justice Act [5] states clearly that,
An appeal lies to the Divisional court from a final order of the Small Claims Court in an action,
(a) For the payment of money in excess of the prescribed amount, excluding costs; or
(b) For the recovery of possession of personal property exceeding the prescribed amount in value. [emphasis added]
[13] The decision was an interlocutory decision and any appeal will have to wait until after the trial is heard and decided.
[14] The Applicant requests that this matter be heard in this court because she is concerned that she will not get a fair hearing in Small Claims Court.
[15] The Superior Court of Justice has an inherent jurisdiction to transfer a matter from the Small Claims Court to the SCJ. However, this can occur only where ‘there is a new fact that changes the original basis of the claim.’ [6] The onus is on the Applicant to show there is such a new fact. The Applicant has not shown there is any new fact that changes the original basis of the claim. As noted earlier, the Applicant’s issue with the Small Claims Court is her concern she cannot receive a fair trial.
[16] Without in anyway accepting the Applicant’s assertion regarding what occurred in the trial management conference, I can understand the Applicant may perceive that she has not been dealt with fairly. However, there are many Deputy Judges of the Small Claims Court available to hear this trial and there is no reason to believe the matter cannot proceed in a fair manner. Consequently, I see no reason to transfer this matter to the Superior Court.
Conclusion
[17] The Application is dismissed. The matter is scheduled to proceed to trial in Small Claims Court and it should do so as expeditiously as possible. The Respondents have indicated the matter is ready for trial. The Applicant has indicated the current trial dates may not be available to her. It is up to the Applicant to seek an adjournment of the trial if necessary.
Costs
[18] The parties should attempt to resolve the issue of costs of this application themselves. However, if the parties cannot resolve the issue of costs, they can make written submissions in relation to this issue. The written submissions should be no more than two pages in length, with Bills of Costs and any Offers to Settle attached and should be provided within 30 days, with a right of reply within a further ten days.
Madam Justice J. Parfett Released: April 05, 2019