Transferring Actions from Ontario Superior Court to Ontario Small Claims Court
As we noted in our earlier posts on this topic, on January 1, 2010 the monetary jurisdiction of Ontario's Small Claims Courts will rise from $10,000 to $25,000.
Suppose you have an ongoing claim for $25,000 or less in Ontario Superior Court. What will happen to your case on January 1st?
Will it automatically be transferred to Small Claims Court?
According to the Ontario Ministry of the Attorney General, “proceedings in the Superior Court of Justice valued at less than $25,000 will not be automatically transferred to the Small Claims Court."
Pursuant to Section 23 of the Courts of Justice Act. however, proceedings may be administratively transferred to a Small Claims Court if all parties consent.
Section 23 provides:
(a) has jurisdiction in any action for the payment of money where the amount claimed does not
exceed the prescribed amount exclusive of interest and costs; and
(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount. R.S.O. 1990, c. C.43, s. 23 (1).
Transfer from Superior Court of Justice
(2)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. R.S.O. 1990, c. C.43, s. 23 (2); 1996, c. 25, s. 9 (17).
(3)An action transferred to the Small Claims Court shall be titled and continued as if it had been commenced in that court. R.S.O. 1990, c. C.43, s. 23 (3).
If the parties do not all consent, a transfer may only be effected by an order of the Superior Court of Justice upon a motion. There may be some interesting disputes on this issue.
Why might a transfer to Small Claims Court be opposed?
A significant concern may be that the costs incurred in a Superior Court action already exceed the maximum costs that are available in Small Claims Court, where costs awards will remain capped at 15% of a claim's value. In a $25,000 suit, for example, costs awards will thus be limited to $3,750.
There may be other tactical advantages to remaining in Superior Court - a party may wish to to retain access to certain procedures that are available in Superior Court, but not in Small Claims Courts.
For example, documentary disclosure and production entitlements in Superior Court actions are significantly broader than those in Small Claims Court.
In Superior Court actions, each party is required to produce a comprehensive Affidavit of Documents listing all relevant documentation touching on the matters in question. The documentary disclosure rules in Small Claims Courts are much narrower and considerably less onerous.
Rule 13.03 (2) of the Ontario Small Claims Court Rules provides:
Rule 13.05 (1) additionally empowers a Judge presiding at a Small Claims Court settlement conference to direct that certain documents must be produced:
(2) At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,
(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence; and
(b) a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action. O. Reg. 78/06, s. 27.
(2) Without limiting the generality of subrule (1), the judge may,
(a) make an order,
....(vi) directing production of documents
Beyond that, a party may wish to remain in Superior Court for less than legitimate reasons - for example, to avoid the speedier trial of a proceeding that will likely occur in Small Claims Court.
A cautionary note - those who unreasonably resist a transfer to Small Claims Court may face potential costs sanctions under Rule 57.05 the Ontario Rules of Civil Procedure, which govern Superior Court actions:
COSTS WHERE ACTION BROUGHT IN WRONG COURT
Recovery within Monetary Jurisdiction of Small Claims Court
(2) Subrule (1) does not apply to an action transferred to the Superior Court of Justice under section 107 of the Courts of Justice Act. R.R.O. 1990, Reg. 194, r. 57.05 (2); O. Reg. 292/99, s. 2 (2).
Default Judgment within Monetary Jurisdiction of Small Claims Court
(3) If the plaintiff obtains a default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with that court’s tariff. O. Reg. 377/95, s. 4.
Disputes over transfers might be less likely if the Small Claims Court Rules change, as they did in British Columbia when the B.C. Small Claims Courts' monetary limit was increased.
B.C. Small Claims matters are now subject to three different procedural tiers, depending on the amount claimed in a lawsuit.
Will that happen in Ontario? There’s no word yet from the Ministry about whether there will be any significant new Small Claims Court Rules, and if so, what they might be.
- Garry J. Wise and Bill Rogers, Toronto