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Small Claims - Appeals. Sutherland Law Professional Corp. v. Coccimiglio
In Sutherland Law Professional Corp. v. Coccimiglio (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a motion for a stay pending JR, this of "an order of the Small Claims Court setting aside default judgment".
This is an interesting issue. Case law has held that there is no appeal from an interlocutory order in the Small Claims Court - that's what I think is a sound interpretation of CJA s.31 [see Nugent v. Dimakas (Div Court, 2024, paras 30-32]. And this present court views this granted set aside default order as interlocutory [which seems sound under 1947755 Ontario Ltd. v. Caruso (Ont CA, 2020), paras 1-4], so we can assume it is truly interlocutory (although this court does not explore that issue, it just concludes it summarily). Other cases where I have seen this issue arise require 'exceptional circumstances' before a JR of a Small Claims order will be heard: eg. S & Y Insurance Company v. 2184438 Ontario Inc. (Swift Rent-a-Car) (Ont Div Ct, 2025), paras 1,5. As well, orders of the Superior Court 'proper' cannot be JR'd: Salehi v. LeBlanc (Ont Div Ct, 2025), paras 18-20, and the Small Claims Court is a 'branch' of the Superior Court: CJA s.22(1).
All in all it's an issue that appears without a firm answer, but that may be the best we can get - I suspect the best solution is the 'exceptional circumstances' test where each court must rely in it's JR discretion [JRPA s.2(1)], cited expressly here:[18] This is an application for judicial review, not an appeal. Section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, clearly limits rights of appeal from decisions of the Small Claims Court to those from final orders. While this court has the jurisdiction to judicially review interim orders of the Small Claims Court pursuant to s. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. C.43, that Act “was not intended to provide a surrogate right to appeal where the legislature has expressly restricted those appeal rights”: 1439957 Ontario Inc. (c.o.b. 409 Collision Centre) v. Benkoe, 2017 ONSC 4984 (Div. Ct.), at para. 4; Millard v. DiCarlo, 2014 ONSC 1218 (Div. Ct.), at para. 5. Because of this, “this Court will not exercise its jurisdiction to judicially review interlocutory orders where the judicial review application is, in its essence, an appeal by a different name”: Peck v. Residential Property Management Inc., 2009 CanLII 38504 (ON SCDC), [2009] O.J. No. 3064 (Div. Ct.), at para. 5.
[19] Judicial review of an interlocutory Small Claims Court order will generally be appropriate only in narrow circumstances, such as where the Small Claims Court acted in excess of jurisdiction or denied the parties procedural fairness: Madhour v. Whitten & Lublin Professional Corp. 2024 ONSC 2927 (Div. Ct.), at para. 5. . Air Canada v. Landry
In Air Canada v. Landry (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a Small Claims Court appeal (by Air Canada), this brought against an order "awarding damages to each of the Respondents as a result of delayed flights and denial of boarding".
Here the court considers CJA s.31(a) and CJA Reg 626/00, s.2(1), which limit appeals from the Small Claims Court to (then) $3,500 [10% of the monetary jurisdiction threshold]:The Jurisdictional Issue
[6] The Deputy Judge awarded compensation in the amount of $2,800 for Sebastien MacDougall-Landry and Emali MacDougall-Landry each. Section 31(a) of the Courts of Justice Act, RSO 1990, c C.43 states that an appeal lies to the Divisional Court from a final order of the Small Claims Court in an action for the payment of money in excess of the prescribed amount, excluding costs. The current prescribed amount for an appealable order is $3,500. Sebastien MacDougall-Landry and Emali MacDougall-Landry submit that, as a result, s. 31(a) does not permit Air Canada to appeal the judgment granted in favour of them, as their claims were each below the statutory monetary limit.
[7] In Action Auto Leasing and Gallery Inc. v. Robillard et al., 2011 ONSC 3264, the Court extensively reviewed the jurisprudence with respect to s. 31(a) and concluded that the section should be interpreted to mean that where a plaintiff seeks recovery above the prescribed amount, there is a right of appeal [see also Ajamal v. Bell Canada, 2013 ONSC 5225]. In Action Auto, the Court did not directly address the applicability of s. 31(a) to the situation of multiple plaintiffs with distinct claims. The question here is whether the monetary limit in s. 31(a) should be the amount claimed by a particular plaintiff, or the aggregate of all plaintiffs.
[8] I agree with the Respondents that there are compelling reasons that the prescribed limit should be for the amount claimed by an individual plaintiff.
[9] First, the monetary limits for small claims actions should be interpreted uniformly. In s. 23(1)(a) of the Courts of Justice Act, there is a monetary limit for the maximum claim in each small claims case. The limit in s. 23(1)(a) has been interpreted to apply to each plaintiff, rather than the aggregate of all plaintiffs: Lock v. Waterloo (Regional Municipality), 2011 CarswellOnt 15974.
[10] Second, the Deputy Judge made a distinct monetary order for each Respondent, based on their distinct individual claims, each one independently enforceable by the Respondent for whom it was issued.
[11] Third, interpreting the monetary limit under s. 31(a) to be the aggregate of the claims of all plaintiffs would produce a result that could undermine the just and efficient resolution of small claims cases. Take for example a situation in which Plaintiff A claims $1,000 and Plaintiff B claims $2,501, and both distinct claims were unsuccessful. Only Plaintiff A wishes to appeal. Plaintiff A could leverage Plaintiff B’s claim amount to meet the monetary threshold in s. 31(a) to appeal. This would be contrary to the intention of the provision, which is to restrict appeals where the monetary amount in issue does not justify the public resources required to conduct an appeal. Similarly, such an interpretation would grant the Defendant a right to appeal against Plaintiff A, even when no appeal is brought against Plaintiff B. Again, this is contrary to the intention of the provision.
[12] Given that Sebastien MacDougall-Landry’s claim was for under the prescribed limited, no appeal lies from the decision awarding him compensation. Similarly, given that Emali MacDougall-Landry’s claim was for under the prescribed limited, no appeal lies from the decision awarding her compensation. . Akman v. Sonnet Insurance Company
In Akman v. Sonnet Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court considered whether the monetary limit on Small Claims Court appeal (currently $3,500) applies to trial cost awards (it does):[8] Mr. Akman’s position is that, because the costs awarded at first instance were less than $3,500, Sonnet was prohibited from appealing the costs award. In support of that position, Mr. Akman relies on s. 2 of O. Reg. 626/00 titled, “Small Claims Court Jurisdiction and Appeal Limit”. Pursuant to that regulatory provision, there can be no appeal from an award, made in the Small Claims Court, that falls below $3,500. That provision applies to costs orders: Riddell v. Carefree Moving Inc., 2018 ONSC 1972 (Div. Ct.). . Berhe v. Shoppers Drug Mart
In Berhe v. Shoppers Drug Mart (Ont Divisional Ct, 2025) the Divisional Court dismisses a Small Claims Court appeal due to insufficient quantum [under CJA 31(1)]:[1] Mr. Berhe seeks to appeal an order refusing to set aside the dismissal of his lawsuit in Small Claims Court. The lawsuit sought a refund of $396.62 in relation to a defective computer allegedly sold to him by the Respondent, Shoppers Drug Mart. Mr. Berhe was also ordered to pay costs of $177 to each of Acer Canada and Better Business Bureau.
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[5] Under s. 31(a) of the Courts of Justice Act, R.S.O. 1990, c C.43, appeals to this court are limited to orders for payment of more than $3,500 exclusive of costs. (See s. 2(1) of Small Claims Court Jurisdiction, O. Reg 626/00).
[6] On its face, this court has no jurisdiction to entertain the proposed appeal. ... . Nugent v. Dimakas
In Nugent v. Dimakas (Div Court, 2024) the Divisional Court granted a motion to quash a Small Claims Court (SCC) interlocutory appeal, initially for delay.
Here the court notes that interlocutory orders from the Small Claims Court may not be appealed [CJA s.31 (that's inferred from s.31, which allows final SCC orders to be appealed)]:[30] The second rule relates to s. 31 of the Courts of Justice Act, which provides that an appeal lies to the Divisional Court from a “final order of the Small Claims Court…”.
[31] There is no appeal from an interlocutory decision of the Small Claims Court: Grainger v. Windsor-Essex Children’s Aid Society (2009), 2009 CanLII 34987 (ON SC), 96 O.R. (3d) 711 (Div. Ct.), at para. 22:In my view, s. 31 of the Courts of Justice Act reflects a policy choice on the part of the legislature to discourage interlocutory proceedings, appeals from interlocutory orders and extraneous procedural law in the Small Claims Court. Pursuant to s. 31, where an order made by a judge of the Small Claims Court is interlocutory, and not final, there is no appeal to the Divisional Court, let alone to the Superior Court of Justice. [32] The test of whether an order is final or interlocutory is set forth in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675. The Ontario Court of Appeal stated [at p. 678 O.R.]:The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined. See also: 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at para. 7. . Freedom Pools Inc. v. 1800912 Ontario Ltd.
In Freedom Pools Inc. v. 1800912 Ontario Ltd. (Div Court, 2024) the Divisional Court considered whether an appeal lay from a small claims court costs order (here for $100) under CJA 133(b):[7] Pursuant to s. 31 of the Courts of Justice Act, an appeal lies to the Divisional Court from a final order of the Small Claims Court “for the payment of money in excess of the prescribed amount excluding costs”. Pursuant to s. 2 of O. Reg. 626/00: SMALL CLAIMS COURT JURISDICTION AND APPEAL LIMIT, that prescribed amount is $3,500. There are no appeals for amounts less than $3,500.
[8] In Riddell v. Carefree Moving Inc., 2018 ONSC 1972, Gilmore J. held that this provision also applies to costs orders, and there can be no appeal from a costs order if the costs order is less than the prescribed amount. As such, leave to appeal cannot be granted with respect to a costs order that is less than the prescribed amount.
[9] Accordingly, the proposed Appellant’s motion for an extension of time to bring a motion for leave to appeal the Costs Order of July 16, 2024 is dismissed. . 2263921 Ontario Inc. v. Gordon
In 2263921 Ontario Inc. v. Gordon (Div Court, 2024) the Divisional Court dismissed an appeal from a Small Claims stay where the deputy-judge found the action conflicted with a related Superior Court action already afoot. The appellant, on discovering that only a final order of the Small Claims Court could be appealed, sought to convert it to a JR, (which the court had the jurisdiction to do) but was denied on the merits:[6] Only final orders of the Small Claims Court can be appealed to the Divisional Court. The Divisional Court does not have jurisdiction to hear appeals from interlocutory orders from the Small Claims Court: Courts of Justice Act, s. 31, Cudini v. 1704405 Ontario Inc., 2012 ONSC 6645 at para. 32. The preliminary issue, therefore, is whether the settlement conference judge’s order staying the small claims court matter until the Superior Court matter is resolved is an interlocutory or final order.
[7] An interlocutory order is an order that does not determine the “real dispute between the parties.” If the substantive matters in dispute remain undecided after the order is made, the order is interlocutory: Drywall Acoustics v. SNC Lavalin, 2020 ONCA 375 at para. 16.
[8] I find that the settlement conference judge’s decision is an interlocutory decision. That decision did not dismiss the small claims court action. Nor did it permanently stay the action. Rather, the settlement conference judge stayed the small claims court action just until the Superior Court action is concluded. As a result, 2263921 Ontario Inc. will have an opportunity, if appropriate, to pursue its claim once the Superior Court matter is resolved.
[9] The appeal is, therefore, dismissed for want of jurisdiction.
[10] 2263921 Ontario Inc. argues, in the alternative, that if there was no right of appeal from the settlement conference judge’s decision, I should treat the Notice of Appeal as a Notice for Judicial Review and decide this matter as though it were commenced as an application for Judicial Review.
[11] The Divisional Court has jurisdiction to judicially review interlocutory orders of the Small Claims Court. This Court can also make orders in relation to its own process, including converting an appeal into a judicial review where a judicial review is the only route to challenge a decision: Joubarne v. Land Registrar & Director of Titles, 2019 ONSC 6709. However, I only have jurisdiction to hear a judicial review application as a single judge of the Divisional Court in two circumstances: first, if designated to do so by the Chief Justice of the Superior Court (or his designate) under s. 21(2)(c) of the Courts of Justice Act; second, under s. 6(2) of the Judicial Review Procedure Act if the application is urgent and the delay caused by scheduling a hearing before the Divisional Court is likely to involve a failure of justice. Neither provision applies in this case. The Chief Justice has not directed that this matter be heard by a single judge of the Divisional Court. Nor is there any urgency to this matter that would justify a hearing before a single judge. I, therefore, cannot decide this matter as if it were commenced as a judicial review application.
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[14] Judicial review is highly discretionary and the scope of judicial review of an interlocutory decision of the Small Claims Court is very narrow. This Court will not interfere with an interlocutory order of the Small Claims Court unless the order was made without jurisdiction or was made in breach of the principles of natural justice: Imperatore v. Fetesko, 2023 ONSC 1340 at paras. 14 to 16. 2263921 Ontario Inc. argues the Small Claims Court judge did not have jurisdiction to grant a stay at the settlement conference and, in the alternative, the procedure employed by the judge was unfair. I am not satisfied that either ground has any apparent merit. . Imperatore v. Fetesko
In Imperatore v. Fetesko (Div Court, 2023) the Divisional Court considered a rare judicial review of a Small Claims interlocutory order. Note that appeals are not allowed of interlocutory Small Claims order by an inferential reading of CJA 31 ["An appeal lies to the Divisional Court from a final order of the Small Claims Court ..."]:[14] Pursuant to s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this court from a final order of a Small Claims Court judge. There is no statutory right of appeal from an interlocutory order of the Small Claims Court. However, because Small Claims Court judges derive jurisdiction from statute and exercise a statutory power of decision, there is jurisdiction under s. 2(1) of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1, to review decisions of a Small Claims Court judge, including interlocutory orders.
[15] The purpose of the Small Claims Court is to provide expeditious and low-cost resolution of monetary disputes. Section 25 of the Courts of Justice Act states that the Small Claims Court shall hear and determine “in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” The absence of an appeal from interlocutory orders under the Courts of Justice Act reflects that proceedings before the Small Claims Court are intended to be expeditious.
[16] As a result, the scope of judicial review of interlocutory orders of the Small Claims Court is correspondingly narrow. This court has repeatedly expressed its reluctance to interfere with a decision of a Small Claims Court judge on judicial review unless it is an order made without jurisdiction or in breach of principles of natural justice: see e.g. Peck v. Residential Property Management, 2009 CanLII 38504, [2009] O.J. No. 3064 (Div. Ct.).
[17] In this case, I find that the issue raised is one of jurisdiction and thus falls within the narrow scope of judicial review of an interlocutory order of the Small Claims Court. As further detailed in these reasons, the circumstances warrant this court exercising its discretion to review the Deputy Judge’s decision.
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