Simon's Megalomaniacal Legal Resources

Small Claims Court (Ontario) Legal Guide
(20 June 2021)

Chapter 11 - Pre-trial Proceedings

1. Overview
   
2. Discovery
   (a) Oral Discovery Abolished
   (b) Other Forms of Discovery
   
3. Settlement Conferences
   (a) Overview
   (b) Purposes of Settlement Conference
   (b.1) Bringing Motions During Settlement Conferences
   (c) Scheduling
   (d) Documentary Disclosure
   (e) Conduct of Settlement Conferences
   (f) Electronic Conferences
   (g) Failure to Attend or Participate
   (h) Recommendations and Memorandum
   (i) Orders
   (j) Claims Under $500 Value
   (k) Further Conduct of the Proceeding
   
4. Pre-Trial Disposition of the Proceedings
   (a) Overview
   (b) Stay of Proceedings
   (c) Vexatious Proceedings
   (d) Motion to Strike Pleadings and Non-Suit Orders
   (d.1) Stay or Dismissal of the Action at the Initiative of the Court
   (e) Summary Judgment Motions
   . Overview
   . Kaur v Deopaul
   . Van de Vrande v Butkowsky
   (f) Discontinuance by Plaintiff Where No Defence Filed
   (g) Abandonment by Plaintiff
   (h) Dismissal for Non-Payment of Interlocutory Cost or Other Monetary Orders
   
5. Transfer, Merger and Joinder
   (a) Overview
   (b) Transfer to Another Court
   (c) Merger
   (d) Joinder
   
6. Constitutional Questions
   (a) Overview
   (b) Examples of Constitutional Issues
   (c) Notice of Constitutional Question
   
7. Money Paid Into and Out of Court
   (a) Overview
   . General
   . Request Form
   . Exceptions
   (b) Payment Into Court
   . Documents to be Filed
   . By Mail to the Accountant of the Superior Court
   . Receipt to be Filed and Served on All Parties
   (c) Payment Out of Court
   . Court Order Required
   . Procedure Once Court Order is Obtained
   . Interest

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1. Overview

A number of proceedings, orders and steps may precede the actual trial of an action. Some are initiated by the court, some are initiated by one or both parties, and some are just required in some circumstances. These include:

• settlement conferences;
  
  
• vexatious proceedings orders, stays of proceedings, dismissals and judgment;
  
  
• merger, joinder or transfer proceedings;
  
  
• constitutional questions notice;
  
  
• payment of money into court.

2. Discovery

(a) No Oral Discovery

Once upon a time the Small Claims Court had rules (like the higher court) that allowed the parties the possibility of oral "discovery". Oral discovery is a pre-trial, out-of-court questioning of parties and witnesses - the purpose of which is to provide a written transcript for the use of the parties as evidence.

The elimination of oral discovery rules in Small Claims court (they are still available in the Superior Court) does not stop parties - on consent - from arranging discovery on their own. While unusual, if this is done the transcripts created can be used in evidence to replace or impeach (contradict) testimony in accordance with the normal evidence usage. This practice is unusual.

(b) Other Forms of Discovery

While the Small Claims Court Rules are generally considered as lacking the range of non-oral discovery procedures available in the Superior Court, the Court of Appeal in Riddell v Apple Canada Inc. (Court of Appeal, 2017) discusses when Orders in the nature of discovery (there an Order for the pre-trial production of physical evidence) might be made under the court's broad general jurisdiction under Rule 1.03(1-2) (liberal construction of the Rules, and anologous to Rules of Civil Procedure, respectively).


3. Settlement Conferences

(a) Overview

In amendments to the Small Claims Court Rules effective 01 July 2006, the rule respecting "Pre-trial Conferences" was revoked and replaced with one respecting "Settlement Conferences". The re-naming is consistent with the primary purpose of such conferences, which has always been to facilitate settlement and to narrow legal and evidentiary issues for trial.

A major change is that now settlement conferences are mandatory in all defended actions (ie. whenever a Defence is filed) [R13.01(1)] - except where the Defence contains a full admission of liability and proposal of terms of payment [R13.01(4)] [see Ch.8, s.4(c) "Pleadings: Defences: Admissions of Liability and Proposals for Payment"].

Further, settlement conferences may now also be held electronically (ie. telephone or video conferencing) [R1.07(1)].

(b) Purposes of Settlement Conference

The purposes of a settlement conference are [R13.03(1)]:

• to resolve or narrow the issues in the action;
  
  
• to expedite the disposition of the action;
  
  
• to encourage settlement of the action;
  
  
• to assist the parties in effective preparation for trial; and
  
  
• to provide full disclosure between the parties of the relevant facts and evidence.

(b.1) Bringing Motions During Settlement Conferences

The Divisional Court in Jogendra v Campbell (Ont Div Ct, 2011) has made it clear that deputy-judges (SS: though not referees) have broad jurisdiction during settlement conferences to consider and make orders on motions brought by the parties:

[30] Concerning the order made by Deputy Judge L?vesque, it is clear from the Small Claims Court Rules that on a settlement conference, a judge has a broad discretion to make a variety of orders both procedural and substantive, including an order staying in action, striking out a claim or dismissing an action: see rule 13.05 (1) and (2) and rule 12.02.

Given the relative expense and inconvenience of court appearances in Small Claims Court, litigants can take advantage of this oppourtunity to avoid the need to attend in a separate appearance, and to get key issues resolved before trial. Types of motions that are typically brought before trial are considered in s.4, below.

(c) Scheduling

The settlement conference will be held within 90 days after the FIRST defence is filed (remember there can be more if there are more than one defendants) [R13.01 (3)]. (Note: if past performance is any guide, parties should not be surprised to see this timeline missed in practice).

The court clerk will serve a Notice of Settlement Conference on the parties setting out the time, date and place of the conference and a Form 13A: List of Proposed Witnesses [R13.01(2)]. Settlement conferences may also be held by means of electronic hearing [R1.07(1)], in which case the court clerk will provide necessary notices to the parties [R1.07(4)].

Note:
Parties should only expect a "list of proposed witnesses" to be included with a Notice of Settlement Conference if the case involves money or property under $500 value and the parties have consented to the settlement conference judge rendering final judgment in the matter at the settlement conference (see "Claims under $500 Value"), below. In such case witnesses may be required to give evidence.

If the court so orders, a further settlement conference may be held [R13.02(3)(4)].

(d) Documentary Disclosure

Parties are required to serve on all other parties AND file with the court at least 14 days before the Settlement Conference [R13.03(2)]:

• copies of all documents (including expert reports) the party intends to rely on at trial (unless already served and filed with the party's Claim or Defence),
  
  and
  
  
• a "list of proposed witnesses and of other persons with knowledge of the matters in dispute in the action."
  
  Form 13A: List of Proposed Witnesses
  Note: This is distinct from any "list of proposed witnesses" that might be included in a Notice of Settlement Conference, as discussed immediately above.

(e) Conduct of Settlement Conferences

Both parties and their representatives are required to attend (or in the case of an electronic conference, participate) at the settlement conference, unless the court orders otherwise [R13.02(1)].

Settlement Conferences may be held in front of a referee (see Ch.2, s.4: "The Court: Referees"). However a referee may not make an order, but will report their findings and make recommendations to a deputy-judge or judge who then has authority to make orders [R21.01].

Parties attending should either have authority to settle the matter or have made arrangements for telephone access during the conference to someone who does, regardless of when the conference takes place [R13.02(2)]. This is an essential part of the settlement conference, failing which the court may simply re-schedule the conference and penalize a party with a costs order.

In order to facilitate settlement, parties are required to "openly and frankly" discuss the issues of the case in a settlement conference [R13.03(3)].

To protect against such statements being used against them at trial, they may not be disclosed to others (or used in the trial as evidence) until after the proceeding has been disposed of [R13.03(4)] [see Ch. 15, s.3(g) "Settlement Conference Statements Privileged and Implied Undertaking Rule"] - except with the consent of the parties Form 13B: Consent. Further, if a judge has conducted the settlement conference that judge may not hear the trial [R13.08].

A rare exception to this settlement 'privilege' is when a senior judge needs to review an audio recording of a settlement conference, for purposes of a complaint of misconduct against the deputy-judge [under CJA 33.1] [R13.03(5)].

The court may order costs of the settlement conference (exclusive of disbursements) against parties up to $100 - or more if there are "special circumstances" [R13.10]. The actual cost of disbursements may also be included in such an order.

(f) Electronic Conferences

New rules effective 01 July 2006 now provide for the possibility, on request of a party and approval of the court, of conducting all or part of a settlement conference by telephone or video conferences [R1.07]. Of course, this option only applies where the local court has adequate facilities [R1.07(1)].

Such requests Form 1B: Request for Telephone or Video Conference must include reasons for the request [R1.07(2)] - which logically would include such things as witness or party inconvenience or health problems which militate against travel, and - in the case of a motion - simplicity of the matter. The primary consideration for the court in granting the request is the balance of convenience between the requester and any party resisting the request [R1.07(3)]. The judge presiding at the electronic conference may set aside or vary any previous order granting it [R1.07(5)].

The court clerk will send out notices regarding the timing of the conference and any necessary preliminary procedures [R1.07(4)]. Once all the parties have been properly connected and can hear each other, the conduct of the settlement conference is usually identical in sequence to oral conferences. They can however be awkward and confusing as people cannot see the faces of the speakers to know who is speaking or how they are reacting to things. The best practice is to go slowly and to ask for clarification whenever needed.

The use of telephone and video hearings is a recent development in Ontario legal procedures, driven by a hope that they hold the potential for time and expense-saving. In my opinion they are highly alienating experiences for self-represented parties, leaving them dissatisfied and suspicious, and do little to nothing to save the courts and parties time and effort.

(g) Failure to Attend or Participate

Failure to attend at or adequately participate in a settlement conference for which proper notice has been given may result in the following consequences:

• for failure of a PARTY to attend the first scheduled settlement conference: costs or other sanctions against the party as the court sees fit, and the holding of an additional settlement conference[R13.02(5)];
  
  
• for further failure of a DEFENDANT to attend any additional settlement conference: the court may strike a party's defence, dismiss a defendant's claim and allow the plaintiff to prove their claim - or "make such other order as is just" [R13.02(6)] [including an order of judgment in the action: R13.05(2)(b)];
  
  Note: this has essentially the same impact as the failure to file a defence, see Ch.9 "Default by Defendant".
  
  
• for failure of any PERSON attending a settlement Conference to adequately prepare such that the purposes of the settlement conference are frustrated OR to file material required (see "Documentary Disclosure", below): legal costs against the person (costs are discussed in "Conduct of Settlement Conferences", above) [R13.02(7)].
  
  Note: As this Rule applies to "persons" it includes not only parties but also their counsel and even witnesses.

(h) Recommendations and Memorandum

To fulfil the purposes of a settlement conference, the court may make recommendations to the parties regarding [R13.04]:

• clarification and simplification of issues in the action;
  
  
• elimination of claims or defences that appear to be unsupported; and
  
  
• admission of facts as true or documents as authentic without the need for further proof.

A Memorandum regarding these recommendations shall be prepared by the court, filed, and given to the trial judge. This Memorandum shall contain the recommendations made, and in particular [R13.06]:

• the issues remaining in dispute;
  
  
• the matters agreed on by the parties;
  
  
• any relevant evidence admissions or issues;
  
  
• the scheduling of any further steps in the proceeding.

(i) Orders

The judge who conducted the settlement conference [or a judge acting on the recommendation of the referee who conducted it: R13.05(3)], may "make any order relating to the conduct of the action that the court could make" [R13.05(1)(2)], including:

• adding or deleting parties (see "Joinder" in "Transfer, Merger and Joinder", below);
  
  
• consolidating actions (see "Merger" in "Transfer, Merger and Joinder", below);
  
  
• with written reasons, staying or dismissing the action (see s.4 below)(see Note 1, below);
  
  
• amending or striking out a claim or defence under R12.02(1) ('non-suit': see Ch.8 "Pleadings" and Note 1, below);
  
  Note 1:
  The use of the non-suit jurisdiction by a Small Claims court at a settlement conference to effectively dismiss a claim - in the absence of a motion by the defendant - was reversed by the Divisional Court in Jacobs v Ottawa Police Services Board (2008) OJ #657. The higher court reasoned that the R13.05(1) reference to "conduct of the action" limited the court's authority at a settlement conference to procedural matters only. The reasoning in Jacobs, if accepted, would seem to apply to so limit the court's jurisdiction at a settlement conference even if a proper motion were brought by a party. As well, the Jacobs rationale would certainly prohibit summary judgement orders [see s.4(e), below] at settlement conferences, as such orders require at least some factual assessment.
  
  Readers should however be aware of another 2008 Divisional Court ruling which appears to contradict the jurisdictional restriction of Jacobs, allowing courts at settlement conferences to make orders both in the nature of non-suit (pleadings motions) and summary judgment (with a rough assessment of the facts): Roskam v Rogers Cable [2008] OJ #2049 (Div Ct, 2008). While Roskam was followed in a well-reasoned small claims judgment in Bank of Montreal v McConnell [2008] OJ #3464, Roskam itself is light on reasoning and did not consider the earlier Jacobs case.
  
  My own view is that Jacobs on this point was a particularly finicky ruling, and that the provisions under consideration [R13.05] are quite robust enough to empower a judge at a settlement conference to make orders both in the nature of non-suit and summary judgment IF parties are properly forewarned to prepare for such motions, and if they are treated leniently respecting leave to amend weak pleadings and improve summary judgment evidence. Practically this may limit settlement conference jurisdiction over such motions to situations where a party motion has been made with full supporting materials and proper notice, and not just to situations where a spontaneous judicial urge exists to dismiss based on weak peadings or the appearance of a vexatious claim.
  
  That said, in Kipiniak v. K. Dubiel (Div Ct, 2011) where the deputy-judge below dismissed the action under R12.02, the appeal court in allowing the appeal expressed caution about jurisdiction of a deputy-judge to make Orders at a settlement conference without formal notice to the parties:

  [38] As a question of law, no authority was cited for the proposition that an action can be dismissed at a settlement conference without notice and without an opportunity to be heard. A judge presiding over a settlement conference has no special powers to dispose of actions over the objection of the parties. If anything, the jurisdiction to make such an order at a settlement conference is more circumscribed than on a motion.

• directing production of documents;
  
  
• changing venue (see Ch.3, s.6 "Jurisdiction: Venue");
  
  
• directing an additional settlement conference;
  
  
• an order of costs (see Ch.14, s.7 "Trial: Costs")
  
  Note: This costs jurisdiction appears to be in addition to the court's authority to make cost orders respecting the settlement conference itself (see the discussion in "Conduct of Settlement Conferences", above).

(j) Claims Under $500 Value

A judge who presides at a settlement conference may order judgment on the case where [R13.05(4)]:

• the action is for an amount of $500 or less (or for recovery of personal property of that value) [the appeal limit: CJA s.31],
  
  
• the parties have filed written Consents to the matter being finally determined at the settlement conference prior to or at the settlement conference [in Form 13B], and
  
  
• if no mediated settlement is reached [R13.05(4)].

Note that, unlike other settlement conference orders (above), there is NO provision here for judgment to be made on the recommendation of the referee who presided.

Any orders made from a settlement conference will be served by mail or fax, and within 10 days after signing by the judge, on parties who did NOT attend the settlement conference [R13.05(5)]. For clarity's sake, even parties who attended are well-advised to request a copy of any orders from the court clerk.

(k) Further Conduct of the Proceeding

At or after the settlement conference the clerk will provide the parties with a notice "stating that one of the parties must request a trial date if the action is not disposed of within 30 days after the settlement conference, and pay the fee required for setting the action down for trial" [R13.07] (see Ch.14 "Trial: Scheduling of Trial"). It is premature to request a trial date before the settlement conference is held (and may be a waste of money). Otherwise it is normally the plaintiff who will wish the matter to proceed to trial and must request a trial date - although any party can do it.

Once a settlement conference has been held, no party may withdraw any Claims including Defendant's Claims) unless they have the written consent of the part/ies against whom the claim is made or leave (permission) of the court [normally obtained by motion (see Ch.11) or at a settlement conference on request]. The only exception to this is when the defendant/s to the claim are in default (see Ch.9 "Default by Defendant") [R13.09].

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