Do claims arising from motor vehicle accidents belong in the Small Claims Court? In my view, the answer is straightforward and simple: No.
The issue comes as the courts in Ontario have faced questions around transferring such matters from the Superior Court to the Small Claims Court. The best place to start in answering it is likely justice Coulter Osborne’s summary of findings and recommendations of the Civil Justice Reform project of 2007 that led to various changes to the Rules of Civil Procedure on Jan. 1, 2010.
It’s no surprise that the report referred to the Small Claims Court as the “people’s court” given that litigants can represent themselves in a venue that dispenses justice quickly. Procedures at the Small Claims Court are relatively simple with only 21 rules governing an action from beginning to end. Incidentally, the Osborne report identified the Small Claims Court as the busiest civil court in Ontario.
One important difficulty identified in the report with regard to proceeding with matters before the Small Claims Court is that its case lists are frequently open ended with some of them occasionally not being heard on their scheduled date. This results in adjournments, unnecessary costs, and inconvenience to litigants, those representing them, and witnesses.
What the report doesn’t state but is obvious to people familiar with the Small Claims Court is that it’s geared around determining issues in a day or less.
The Osborne report devotes a complete section to automobile negligence claims. This isn’t surprising given that it identifies them as the most common type of case commenced at the Superior Court. In fact, they represented 21 per cent of the total cases commenced in 2005 06.
Automobile negligence actions belong at the Superior Court largely due to the fact that they involve complicated accident benefits issues, medical evidentiary requirements, and judicial consideration of the statutory threshold for damages. In addition, damages in automobile negligence actions are fact specific to the injured person.
In my view, the procedures of the Small Claims Court don’t allow the parties enough opportunities to canvass these facts in the steps leading to trial. With no procedures for examinations for discovery and no rules forcing the parties to produce relevant documents, a defendant might only learn of the impact of the accident on an injured plaintiff on a with-prejudice basis at trial.
Perhaps the most practical reason why autombile negligence actions shouldn’t take place at the Small Claims Court stage is the length of the trials. I’ve never heard of any trial in an autombile negligence action taking place in just one day. Litigants can consider themselves lucky if a trial takes only a week.
For example, I recently completed a trial involving only liability issues between co defendants in an autombile negligence action that lasted four days with openings, motions, two experts, five witnesses, and closing arguments. If a trial focusing only on liability can take four days at the Superior Court level, lawyers can only imagine how long a case would take that requires proof of damages.
Whether a plaintiff claims $25,000 or $1 million in damages, the medical evidentiary burden remains the same for all parties.
Handling trials lasting just two days efficiently and expediently can be a great challenge at the Small Claims Court. As the Osborne report noted, the majority of Small Claims Court adjudicators are deputy judges who are essentially lawyers appointed by the regional senior judges on the approval of the attorney general. Most, if not all, of the deputy judges who preside at the Small Claims Court don’t do so on a full time basis.
Accordingly, if a trial there is to last more than a day, the litigants are most likely going to have to wait a few months for it to continue to its second day. If a third day of trial is necessary, another few months will likely have to pass again.
I have experienced this situation myself. A few years ago, I did a trial at the Small Claims Court. This wasn’t even an automobile negligence action but a matter involving a rather simple collections debt. There were only four witnesses, but after the first day of trial in October, the second witness’ testimony wasn’t yet finished.
Unfortunately, the deputy judge presiding at the trial wasn’t scheduled to sit again at the court in question until January. As a result, everyone had to come back a few months later to complete the second day of trial. This common problem at the Small Claims Court level will likely continue to occur.
This year, the Superior Court of Justice in Milton, Ont., has heard two different motions regarding the same issue: whether an action involving a claim for $2 million at the Superior Court of Justice should move to the Small Claims Court with its cap of $25,000 for damages.
In the unreported motion decision of Thakur v. Towne, Superior Court Justice Douglas Gray gave limited reasons on why the transfer should take place. “In my view, this is the not the sort of case that requires that it be heard in the Superior Court,” he wrote in his endorsement. Unfortunately, it’s hard to discern the reasoning behind the decision and the endorsement may therefore be of limited precedential value.
In Shahzada v. Pinch, Justice William Hourigan provided a detailed analysis for his decision not to transfer the action from the Superior Court to the Small Claims Court. Hourigan noted that a jury notice had been served and that a court shouldn’t lightly interfere with a party’s right to a jury. In addition, he noted there were complicated medical issues that were better suited for determination at the Superior Court.
Where do we go from here? Quite simply, automobile negligence actions should remain at the Superior Court. If parties elect to commence one at the Small Claims Court, defendants should push to have it transferred to the Superior Court.
Olivier Guillaume is a partner who handles litigation matters at Borden Ladner Gervais LLP in Toronto.
