Court File and Parties

COURT FILE NO.: CV-16-2518-00SR DATE: 2021 02 04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MDG NEWMARKET INC. v. JOHN ERNEST BECHARD

BEFORE: McSWEENEY J.

COUNSEL: Julia Toso, for the Plaintiff John Ernest Bechard, Self-Represented

HEARD: February 4, 2021

SMALL CLAIMS COURT CONSOLIDATION ENDORSEMENT

[1] The Plaintiff MEG Newmarket, operating as Ontario Energy Group (“OEG”), is a company operating out of Mississauga, Ontario.

[2] The Defendant John Bechard (“Bechard”) is a retiree living in Leamington, Ontario. In 2015 he commenced a Small Claims Court action in Windsor against OEG as Defendant (the “2015 Windsor claim”).

[3] In 2016 OEG started this SCJ action against Bechard in Brampton (the “2016 Brampton SCJ action”).

[4] On this motion, OEG moves:

(a) under rule 6.01 of the Rules of Civil Procedure for an order consolidating the 2015 Windsor claim with this 2016 Brampton SCJ action; and

(b) under rule 72.03 of the Rules of Civil Procedure for an order directing payment out of court to OEG of the $17,041.73, which is the amount of the funds garnished from OEG and subsequently paid into court in the 2015 Windsor claim.

[5] The motion was heard by Zoom videoconference. Bechard attended the telephone only, as he stated he did not have the ability to participate by video conference. He opposes the relief sought by the Defendant.

Brief background of dispute:

[6] In 2015 Mr. Bechard entered into a contract with OEG, which he understood to be offering energy efficient equipment and service contracts for the Ontario government. OEG installed equipment at his home. When the equipment did not work as anticipated and he discovered OEG to be a private for-profit company, Bechard commenced the 2105 Windsor claim against OEG. His claim alleges breaches of consumer protection legislation and seeks various damages.

[7] Although the pleadings were not filed on its motion, OEG counsel stated that the 2016 Brampton SCJ action alleges breach of contract by Bechard and claims damages of approximately $44,000 relating to the same contract pleaded in the 2015 Windsor claim.

Issue 1 - Motion to Consolidate Windsor Claim and Brampton Action

[8] Counsel for OEG asserts, without reference to case law, that I have jurisdiction under rule 6.01 of the Rules of Civil Procedure to consolidate the 2015 Windsor claim and the 2016 Brampton SCJ action, and to do so over the objection of Bechard.

[9] Mr. Bechard opposes consolidation and submits that OEG only started the 2016 Brampton SCJ action to force him to hire a lawyer, which he initially did in order file a defence, but now cannot afford. He perceives the 2016 commencement of an action against him by OEG, in a higher court, in a distant jurisdiction, to be retaliation against him for starting the 2015 Windsor claim.

[10] If this Court does decide to order consolidation, Bechard’s position is that Windsor, not Brampton, is the jurisdiction in which the combined matters should be heard. He emphasizes that he is elderly, retired, has difficulty with the English language, and lives in Leamington which is near Windsor.

[11] OEG’s consolidation request fails for the following reasons:

1. As a preliminary matter, OEG failed to file the pleadings in the SCJ matter. As published by Notice to the Profession during the pandemic period, the court hearing motions does not have access to the court record.

The evidence did not enable me to find, under either Rule 6.01 of the Rules of Civil Procedure or s.107(1) of the Courts of Justice Act, that the Brampton action CV-16-2518-SR has similar questions of fact or law in common with Bechard’s 2015 Windsor claim, nor that the two proceedings involve the same transaction, occurrence, or series of transactions or occurrences;

2. Second, if I accept the view of the Small Claims Court Deputy judge that the two actions are sufficiently similar that consolidation is appropriate, the Rule relied on by OEG does not assist.

During argument I confirmed with counsel that the OEG moves solely under Rule 6.01 of the Rules of Civil Procedure. The relief sought cannot be found under that Rule, as it applies only to proceedings in “the same court” which have common issues etc. OEG counsel conceded in her submissions that the SCJ Brampton is not “the same court” as Small Claims Court in Windsor. The two proceedings therefore cannot be consolidated pursuant to rule 6.01 of the Rules of Civil Procedure.

3. Further, s. 107 of the Courts of Justice Act, which was not mentioned in counsel’s submissions but addresses consolidation of proceedings in different courts, precludes transfer of Small Claims Court matters to the Superior Court without the consent of the Small Claims Court plaintiff. Subsections 107(2) and 107(3) of the Courts of Justice Act are express that an SCJ action party cannot compel a Small Claims Court plaintiff to traverse his or her action to the Superior Court and compel him to plead by way of counterclaim. S. 107 of the Courts of Justice Act can therefore not be a basis for ordering consolidation either, as Mr Bechard, plaintiff in the Windsor Small Claims court matter, does not consent to the transfer.

Issue 2 - Payment out of court of garnishment monies

[12] OEG argues that there is no ongoing reason to keep the monies improperly garnished from it in the Small Claims proceeding in court. Counsel does not seek the funds based on any allegation of hardship suffered by OEG. Rather, she argues that OEG is a solvent company and that enforcement of any eventual judgment against OEG is not a reasonable basis to tie up its funds in court.

[13] OEG relies on rule 72.03 of the Rules of Civil Procedure as authority for ordering payment out of court. Counsel acknowledged that the funds were garnished in satisfaction of a Windsor Small Claims court judgment, and were retained in court by order of a Small Claims Court Deputy Judge. She offered no authority for the proposition that a judge on a motion in Superior Court can order payment out of court of funds held pursuant to an order made in a different region and different level of court.

[14] On this specific jurisdiction issue, Mr Bechard did not take a position and said that he would have to ask a lawyer in order to comment on whether I have authority to make the order requested by OEG. Bechard’s position in the overall dispute between the parties, however, remains that OEG owes him money, not the other way around.

[15] OEG’s request for payment of funds out of court is dismissed for the following reasons:

a) I am not satisfied that the SCJ has jurisdiction to order payment out of court of monies held in a Small Claims Court Action.

In this case, Deputy Judge J. Hewitt of the Windsor Small Claims Court ordered as follows on April 20, 2016: “all enforcement proceedings are hereby stayed. Monies paid into court by way of garnishment are to remain in court and not be disbursed until further order of this court ”. [emphasis added];

OEG did not appeal DJ Hewitt’s order. Should it wish to challenge it at this time, it must do so in the Windsor Small Claims Court in which the order was made.

b) Having concluded that the Small Claims Court is the appropriate venue for this motion, the Small Claims Court Rules are the applicable rules. I note, however that the rule relied on by OEG would not apply in any event, as Rule 72.03 of the Rules of Civil Procedure requires an order of the court, or consent of the parties, prior to payment out of court.

c) The fact that the funds in court were garnished in the 2015 Windsor claim is also evidenced in the letter of June 12, 2019, sent to both parties by the Ministry of the Attorney General.

This letter references the Small Claims Court file number and states regarding the $17,041.73 paid into court that the “funds are available for distribution and will be retained by the court pending completion of next steps.” In order for the funds to be paid out, the parties were advised that “[e]ither a final order that addresses these funds or a consent from all parties to release the funds would be acceptable.”

[16] Mr. Bechard confirmed that the 2015 Windsor claim is ongoing. The next step is the rescheduling of a settlement conference which was booked for May 2020 but did not proceed due to the pandemic. OEG counsel advised that she was new counsel for OEG and not familiar with the status of the 2015 Windsor claim. It was not made clear to the Court if she was retained by OEG to defend that claim, or was solely counsel on the 2016 Brampton SCJ action.

[17] OEG counsel confirmed that the 2016 Brampton SCJ action had not progressed beyond the close of pleadings, and that her instructions were to consolidate the actions and then proceed through full litigation steps in Brampton.

[18] The Court observed to the parties, and reiterates its view, that the amounts in issue between these parties are much more proportionate to scaled-down proceedings. The parties are strongly encouraged to make use of such mechanisms for resolution in the court processes as will assist in maintaining overall proportionality between costs and outcome.

[19] In particular it would appear, should the upcoming settlement conference in the 2015 Windsor claim not resolve the entire dispute between these parties, that any needed consolidation of the actions would more proportionately indicate Windsor as the appropriate location.

CONCLUSION:

[20] For the reasons given, both parts of OEG’s motion are dismissed with costs.

COSTS:

[21] Mr. Bechard was fully successful and is presumptively entitled to costs. He was assisted by a paralegal, Ms. Ventura, at the hearing, who could not appear as his representative in the Superior Court, however she helped him express his submissions on the telephone.

[22] If the parties cannot agree on costs, they may make written submissions pursuant to the following timetable:

[23] By no later than February 19, 2021 at 4pm – Mr. Bechard’s submissions to be served by email and then sent to my judicial assistant at the following email address: melanie.powers@ontario.ca.

[24] By no later than February 26, 2021 at 4pm – OEG’s responding submissions to be served by email and then sent to my judicial assistant at the following email address: melanie.powers@ontario.ca.

[25] No reply submissions without leave.

[26] All submissions must be 3 pages or less in length. Submissions received after the date and time specified above, or which exceed 3 pages in length, will not be considered.

[27] Mr. Bechard confirmed that since he does not have email, all service on him, or communications to him may be made by using Ms. Ventura’s email address.

McSWEENEY J DATE: February 11, 2021