|Jordan Farkas says he thinks it would not be a good idea to apply the analogy rule too broadly in the Small Claims Court, where matters are supposed to be dealt with quickly.|
In Riddell, the plaintiff brought an action against Apple Canada Inc., seeking $25,000 in damages for his claim that an iPhone 5 overheated and severely burned his arm.
The Small Claims Court deputy judge granted a pre-trial motion, ordering the plaintiff to produce the phone for inspection, as it was the foundation of his claim.
The plaintiff appealed for judicial review from the Divisional Court, which upheld the deputy judge’s decision.
The Divisional Court found that the deputy judge had the authority to make such an order, as it was similar to the type of pre-trial motion that could be made under Rule 32 of the Rules of Civil Procedure, and the Rules of the Small Claims Court did not adequately cover the situation.
Lawyers say a Court of Appeal ruling on the decision could do away with a lot of confusion in the Small Claims Court on the matter. As decisions in the Small Claims Court are not binding, the court has recently gone back and forth on the issue, says Jordan Farkas, a lawyer and founder of Mr. Small Claims Court.
“The problem is you get complete inconsistency between the judges, which is rearing itself here in this case,” says Farkas, who was not involved in the case.
“I think there’s just a big gap in the rules.”
In another recent Divisional Court decision in Elguindy v. St. Joseph’s Health Care — a case that also originated in Small Claims Court — the court determined that deputy judges in the lower court have no jurisdiction to make a production order of documents by a third party.
The Divisional Court rejected the argument that such an order could be made in the Small Claims Court under R. 30.10 of the Rules of Civil Procedure.
Fredrick Goodman, a paralegal who works in the Small Claims Court, says the Riddell decision opened the door a bit for pre-trial orders for discovery-type relief after the Elguindy decision.
“It’s really problematic that we have this inconsistency,” he says. Goodman says he hopes the appeal will address the issue of what is known as the analogy rule, or Rule 1.03 of the Rules of the Small Claims Court.
The rule holds that where the Small Claims Court rules “do not cover a matter adequately,” the court can make an order referring to the Courts of Justice Act or the Rules of Civil Procedure.
As the Rules of the Small Claims Court do not provide for a discovery process, the question becomes whether the Rules of Civil Procedure should be applied.
Goodman says deputy judges and litigants in the Small Claims Court struggle with the analogy rule every day.
Farkas says he thinks it would not be a good idea to apply the rule too broadly in the Small Claims Court, where matters are supposed to be dealt with quickly.
“I don’t think from a policy perspective, I don’t think it’s a good idea to let judges have free range,” he says.
Toronto lawyer Jeffrey Silver says looking past the issues of jurisdiction and discovery rules, what was at stake in the Riddell decision were fundamental principles of fair justice.
“It goes to levelling the playing field,” he says.
Monique Jilesen, the lawyer representing Apple Canada in Riddell, declined to comment as the case is pending before the Court of Appeal.