Admissibility of Expert Reports in Small Claims Court

Admissibility of Expert Reports in Small Claims Court

In Turner v. Kitchener (City) [2011] O.J. No. 4803, there was a mid-trial ruling on the admissibility of an expert report in Small Claims Court.

The facts of this case involve a plaintiff who was riding his bike along a recreational trail in Kitchener. It was his regular route and time of travel which put him on the trail at 5:15 am.

Earlier that morning vandals had set fire to a bridge along the trail and after investigating, the police and fire personnel had blocked off the bridge with a wooden barricade and yellow caution tape.

The plaintiff was biking at a relatively high speed for the time of morning, was wearing a helmet but did not have any light affixed to his bike. As the plaintiff approached the barricade, he was not able to see it, and when he did notice it is was too late to stop safely. The plaintiff applied his brakes so hard that he flipped over the bike and suffered injuries.

At trial, the plaintiff attempted to admit into evidence a report from a professional engineer. Defence counsel objected and intended to cross-examine the expert and challenge the admissibility of his report based on the evidence of qualifications.

The deputy trial judge held that the report was admissible. He cited section
27(1) of the Courts of Justice Act which provides the Small Claims Court (“SCC”) with the general authority to “accept and act on lower-quality evidence than would otherwise be permitted under the common law rules of evidence”.

He then examined the SCC Rule 18.02 subsections (1) to (7) and held that the position of defence counsel as he intended to cross-examine the expert is not contemplated by the Rules and that the report had already been admitted into evidence by way of Rule 18.02 (1) to (3). Admissibility of documents under Rule 18.02 is to be determined at the initial stage under Rule 18.02(1) when the document is tendered - “Once the document is admitted, the witness may be-cross-examined using the summons procedure under rule 18.02(4). But since that is cross-examination,the rule presupposes that the report or document is already admitted into evidence. The report or document serves as the examination-in-chief of that
witness.”

The deputy judge found no merit in the defendant’s objection to the expert’s qualifications. The expert was a professional engineer and his qualifications to provide the opinion evidence were of the highest quality generally seen in civil courts.

- Alison McBurney

Admissibility of Expert Reports in Small Claims Court

Small Claims Court - $25,000 Limits

Small Claims Court - $25,000 Limits

On January 1, 2010, the monetary jurisdiction of Small Claims Court in Ontario will be raised from $10,000 to $25,000. The limit had not changed since 2001 when it was increased from $6,000 to $10,000.

The question I have been wondering is, what will happen to cases started prior to January 1, 2010, but which claim between $10,000 and $25,000? If you start a case before Jan. 1 for $25,000, will it automatically be transferred to Small Claims Court after that date?

The answer seems to be no.

Section 23(2) of the Courts of Justice Act states:

"An action in the Superior Court of Justice may be transferred to the Small Claims Court by the local registrar of the Superior Court of Justice on requisition with the consent of all parties filed before the trial commences if,

(a) the only claim is for the payment of money or the recovery of possession of personal property; and

(b) the claim is within the jurisdiction of the Small Claims Court."

It seems that this rule will apply for transfers after January 1, 2010.

In the absence of consent among the parties, a change will require a motion to the Superior Court of Justice.

Why would a party prefer the Superior Court of Justice to the Small Claims Court? One reason would be the discovery procedures available to the parties in Superior Court which are not available in Small Claims Court, such as examinations for discovery and affidavits of documents. Small Claims Court only requires parties to produce documents upon which it intends to rely at trial and a list of proposed witnesses and other persons with information about the matter at issue. This is a significant difference.

Another reason might be the costs rules which are limited in Small Claims Court to 15% of a claim (this can be doubled if a party beats at trial its own offer to settle, in certain circumstances). Of course this is more restrictive than the costs that are available to a successful party in a Superior Court action.

The consequence to a plaintiff however for failing to transfer a proper case to the Small Claims Court may be an order that the plaintiff not receive any costs. See Rule 57.05 of the Rules of Civil Procedure.

Small Claims Court - $25,000 Limits

Court Appeal Rules Summary Judgment is not available in Small Claims Court

Court Appeal Rules Summary Judgment is not available in Small Claims Court

Van de Vrande vs. Butkowsky, [2010] O.J. No. 1239 (C.A.)

The Court of Appeal has held that summary judgment is not available in Small Claims Court, clarifying an area where there were two separate lines of case law.

In this case, the defendant was retained to perform an assessment in the context of a custody dispute between the plaintiff and his spouse. The plaintiff alleged that instead of simply conducting and submitting an assessment, the defendant took on an additional role of mediator in the dispute. The defendant brought a motion seeking summary judgment and the court granted the motion pursuant to Rules 1.03 (2) and 12.02 of the Small Claims Court Rules, on the basis that in his capacity as a court appointed assessor, the defendant was immune from suit pursuant to the doctrine of expert witness immunity. The deputy judge also found that the action had been commenced outside of the applicable limitation period.

The Court of Appeal held that the absence of a summary judgment procedure in the Small Claims Court Rule is not a gap but rather a deliberate omission. It is not up to the court to read in such provision, since Rule 12.02 specifically addresses the ability to bring a motion similar to that contemplated by Rules 20, 21 & 76 of Rules of Civil Procedure. The court held that Rule 12 is similar to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on filing affidavit evidence. It involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.

Although the court has now clarified that summary judgment is not available in Small Claims Court, Rule 12 remains a valuable tool that can assist in disposing of cases that are without merit without the need to progress to a full blown trial.

Court Appeal Rules Summary Judgment is not available in Small Claims Court

Summary Judgment Not Available in Small Claims Court

Summary Judgment Not Available in Small Claims Court

Caprio v. Caprio, [2009] 97 O.R. (3d) 312 (S.C.J.)

This Small Claims action involved a dispute between family members over whether a grandmother who gave money to her grandson before she died was giving the money as a loan or a gift. The grandson brought a summary judgment motion and sought to have the action dismissed based on affidavit evidence. Deputy Justice Bale refused to grant summary judgment, holding that summary judgment is not available in Small Claims Court. Bale D. J. refused to follow prior decisions where summary judgment had been permitted using section 1.03(2) of the Small Claims Court Rules, which allows a court to refer to the Rules of Civil Procedure where matters are not provided for in the Small Claims rules. The court held that reference to the Rules of Civil Procedure is for minor matters and cannot be used to create a new and substantial procedure in Small Claims, such as summary judgment.

There are cases going both ways dealing with the issue of whether summary judgment is available in Small Claims Court. Given the new increased monetary jurisdiction of Small Claims Court of $25,000.00, this decision has particular importance. There could now be cases that are within the Small Claims Court jurisdiction that were formally within the Simplified Procedure. Cases that would have been in Simplified Rules would have been susceptible to a summary judgment motion; however, if summary judgment is not available in Small Claims Court, the case must now proceed through to trial. There is no mechanism for an earlier resolution of the claim. It may be that the Civil Rules committee should consider whether to clear up this issue by explicitly providing for the existence of summary judgment or prohibiting its use in Small Claims.

Summary Judgment Not Available in Small Claims Court