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Small Claims - Appeals. 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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