Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Canadian Imperial Bank of Commerce, Plaintiff
AND:
Meriel Gunness also known as Meriel Elsa Gunness also known as Meriel E.Gunness, Defendant
BEFORE: Kurz J.
COUNSEL: Kamaree Sweetland, for the Plaintiff
HEARD: October 18, 2021 – In writing
ENDORSEMENT
1This is a motion for substituted service of a statement of claim where the defendant is obviously evading service. However, the amount claimed comes within the financial limits of the Small Claims Court and the Defendant resides outside of the jurisdiction of Halton, where this action is brought. If this matter were brought within the Small Claims Court, it would likely be required to be heard in Toronto pursuant to r.6.01(a) of the Rules of the Small Claims Court, which reads as follows:
6.01 (1) An action shall be commenced,
(a) in the territorial division,
(i) in which the cause of action arose, or
(ii) in which the defendant or, if there are several defendants, in which any one of them resides or carries on business; or
(b) at the court's place of sitting that is nearest to the place where the defendant or, if there are several defendants, where any one of them resides or carries on business.
2When the claim is on a simple unpaid debt, that Small Claims Court venue is the place where the defendant resides: Cash 4 You Corp. v. Power, [2014] O.J. No. 2131 (Sm. Cl. Ct.), Canaccede Credit LP v. Schulz-Hallihan, 2021 ONSC 4851 (“Canaccede”) at paras. 4, 50-56.
3In Canaccede, at para. 79, I found that another financial institution’s common practice of suing out-of-jurisdiction defendants in this court for amounts within the Small Claims Court financial limits was an abuse of process. I made that finding even though the practice does not violate any statute or rule. At para. 28, I further found that a judge of this court has the inherent jurisdiction to stay a proceeding or transfer it to the Small Claims Court, even absent consent. That case, like this one, was determined prior to service and within the context of a motion for substituted service.
4Before I make any decision in regard to transferring this action to the Toronto Small Claims Court at this stage of the proceedings, I require the Plaintiff to provide reasons in writing why I should not do so. If I do not receive such a submission within 30 days, I shall transfer this action to the Toronto Small Claims Court upon the same terms set out in Canaccede. In that event, those terms will include substituted service as requested by the Plaintiff in this motion.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Date: October 18, 2021