Court File and Parties

COURT FILE NO.: SC-21-00004688-00OT DATE: 20220315 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FRANK FELDMAN, Plaintiff AND: JOHN DUNCAN CLAUDE MACDONALD, Defendant

BEFORE: Justice Glustein

COUNSEL: Caitlin Milne, for the Plaintiff Matthew Macdonald, for the Defendant

HEARD: March 11, 2022 (by video hearing)

Reasons for Decision

Overview

[1] On March 11, 2022, I conducted a video case conference scheduled by the defendant, John Macdonald (Macdonald), who asked the court to schedule an “anti-SLAPP” motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, to be heard by a Superior Court judge in the Small Claims Court action (SC-21-00004688-0000) brought by the plaintiff, Frank Feldman.

[2] At the video case conference, I advised counsel that given the recent decision in Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 48, I would not schedule the s. 137.1 motion in the Small Claims Court action. I concluded that the result of the Laurentide Kitchens decision was to preclude any anti-SLAPP motion in a Small Claims Court action, regardless of whether that motion would be heard by a deputy judge, the Small Claims Court Administrative Judge (the Administrative Judge), or a Superior Court judge.

[3] Counsel agreed that the s. 137.1 motion could not be scheduled in a Small Claims Court action given the decision in Laurentide Kitchens. Consequently, Macdonald asked the court to schedule a motion to transfer the existing Small Claims Court action to the Superior Court of Justice, which I scheduled for May 12, 2022, pursuant to an endorsement I released on March 11, 2022.

[4] In my March 11, 2022 endorsement, I indicated that I would release more detailed reasons on the jurisdictional issue raised by the Laurentide Kitchens decision, and in particular, the issue of whether a s. 137.1 motion can be brought in a Small Claims Court action.

[5] For the reasons that follow, I set out the basis for my conclusion in my March 11, 2022 endorsement that a s. 137.1 motion cannot be brought in a Small Claims Court action.

The Applicable Law

[6] There are two recent Court of Appeal decisions which address the issue of s. 137.1 motions in Small Claims Court actions. While neither case directly addressed the issue before the court on this scheduling attendance, I find that the effect of Laurentide Kitchens is that a s. 137.1 motion cannot be brought in a Small Claims Court action, regardless of whether that motion is brought before a deputy judge, the Administrative Judge, or a Superior Court judge.

The Decision in Bruyea

[7] In Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, a deputy judge had dismissed the plaintiff’s defamation claim under s. 137.1.

[8] Prior to the hearing of the appeal, the Court of Appeal raised the issue of whether a deputy judge had jurisdiction to make an anti-SLAPP order, since s. 137.1 only permitted a “judge” to hear such a motion: at paras. 2, 8, and 12.

[9] The court held that a deputy judge was not a “judge” under s. 137.1, and as such, allowed the appeal on the jurisdictional issue without the need to address the merits.

[10] Consequently, the issue of whether an anti-SLAPP motion could be brought in a Small Claims Court action was not before the court, which solely addressed the jurisdiction of a deputy judge to hear a s. 137.1 motion.

[11] The court added that the appeal was allowed “without prejudice to any fresh motion that may be brought before a judge”: at para. 31.

The Decision in Laurentide Kitchens

[12] In Laurentide Kitchens, the defendant had brought s. 137.1 motions to dismiss the claims in two actions. The motions had been scheduled before a deputy judge: at para. 4. Upon the subsequent release of the Bruyea decision, the defendant attended before the Superior Court to schedule the s. 137.1 motions. The scheduling judge endorsed the record that the matter would remain in Small Claims Court and “an administrative judge of the Small Claims Court should hear these motions”: at paras. 5 and 6.

[13] The Administrative Judge heard the motions. The plaintiffs (appellants on the appeal) challenged the jurisdiction of the Administrative Judge to hear the motions. The jurisdictional issue was argued as a preliminary matter. The Administrative Judge concluded that the Superior Court judge’s endorsement settled the issue of jurisdiction, and that she would hear the merits of the motions when the court resumed operations after the COVID-19 shutdown. The plaintiffs appealed from that order: at paras. 8 and 9.

[14] Consequently, the issue before the court in Laurentide Kitchens was whether the Administrative Judge had jurisdiction to hear a s. 137.1 motion: at para. 25.

[15] The court relied upon s. 137.1 which provides that a “judge” can hear an anti-SLAPP motion. The court held that the Administrative Judge, just as a deputy judge, did not have jurisdiction to hear the motion.

[16] However, the court also held that it was not appropriate for an anti-SLAPP motion to be brought in any Small Claims Court action. Benotto J.A. concluded that “the s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court”: at paras. 42 and 46.

[17] The court held that s. 137.1 motions were not appropriate in the Small Claims Court because of the access to justice which is intended to be provided to those who seek relief before the court. Benotto J.A. held, at para. 43:

The Small Claims Court is a branch of the Superior Court of Justice. The court embodies the foundations of access to justice: informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. By providing access to justice, the court has an important role in the administration of justice for the province. The court handles nearly half of the civil disputes in the province. It provides a cost-effective forum for civil disputes involving less than $35,000. To achieve these objectives, all questions of fact and law are to be determined in a summary way. Rule 1.03(1) of the Rules of the Small Claims Court, under the CJA, provides:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. O. Reg. 258/98, r. 1.03 (1). [Underlining in original text.]

[18] The court further held that anti-SLAPP motions were inconsistent with the above “hallmarks” of the Small Claims Court. Benotto J.A. stated, at paras. 44-45:

These hallmarks of the Small Claims Court, as enshrined in its rules, are incompatible with the provisions of s. 137.1. A s. 137.1 analysis requires the detailed process of shifting burdens with respect to merits, proportionality and public interest, which involves exchange of affidavits and cross-examinations. Motions are not encouraged in the Small Claims Court. The Rules of Small Claims Court do not provide for cross-examination on affidavits. Under s. 137.1, costs of an unsuccessful motion are presumptively full indemnity. The limit on costs for a motion in Small Claims Court, absent special circumstances, is $100. The limit on costs after trial is 15% of the award. Small Claims Court jurisdiction is limited to $35,000. Contrary to these limits of Small Claims Court, s. 137.1 provides extensive powers with respect to damages.

The s. 137.1 motion must be heard within 60 days and stays the underlying action. Appeals go directly to the Court of Appeal. This does not comply with r. 1.03.(1) of the Rules of the Small Claims Court.

[19] Consequently, the court concluded that the legislature, under s. 137.1, “did not intend to inject complex interim proceedings into its summary process”. Benotto J.A. held, at para. 46:

The Small Claims Court provides timely justice to litigants in matters under $35,000. I conclude that the legislature did not intend to inject complex interim proceedings into its summary process. Doing so would frustrate the objectives of the Rules of the Small Claims Court.

Analysis

[20] I rely on the above analysis in Laurentide Kitchens to conclude that an anti-SLAPP motion cannot be brought in a Small Claims Court proceeding, regardless of whether the motion is heard by a deputy judge (as addressed in Bruyea), Administrative Judge (as addressed in Laurentide Kitchens), or a Superior Court judge.

[21] The jurisdiction of a Superior Court judge to hear an anti-SLAPP motion in a Small Claims Court matter was not directly at issue in Laurentide Kitchens, as the appeal addressed the jurisdiction of the Administrative Judge. A Superior Court judge hearing a Small Claims Court matter sits as a Small Claims Court judge, applying the Rules of the Small Claims Court. As the court held in Laurentide Kitchens, at para. 42, “[t]he s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court”.

[22] For the above reasons, I did not schedule Macdonald’s proposed anti-SLAPP motion before a Superior Court judge, nor did either party request such relief given the decision in Laurentide Kitchens. Instead, I scheduled a motion to transfer the action to the Superior Court of Justice, as requested by Macdonald, so that he could seek the anti-SLAPP relief if the action was transferred. That order is without prejudice to the parties’ positions as to whether such a transfer is appropriate.

[23] I order no costs of the case conference attendance before me.

GLUSTEIN J. Date: 20220315