Administrative judges in small claims court have no jurisdiction on anti-SLAPP motions: ONCA

The Court of Appeal for Ontario has reiterated that only Superior Court judges can grant orders under the strategic lawsuits against public participation, or “anti-SLAPP,” provision and that administrative judges in the small claims court do not have such jurisdiction.

In Laurentide Kitchens Inc. v. Homestars Inc., the court cited its previous decision in Bruyea v. Canada (Veteran Affairs), where Justice Ian Nordheimer wrote that the use of the word “judge” without reference to “deputy judge” was a clear indication that deputy judges do not have jurisdiction to make the order. “The Small Claims Court must find its jurisdiction in a statute and therefore absent express statutory authority; the Small Claims Court has no jurisdiction.”

Gavin Tighe, the appellant’s lawyer, says a significant amount of time, energy and money is spent defending anti-SLAPP motions to dispose of them in an early stage. Bringing the motions in small claims court where processes are compressed and designed to be user-friendly with easy access does not make much sense because more proceedings are involved, he says. “From a judicial economy perspective, it is a square peg in a round hole, and that’s what the Court of Appeal agreed with.”

Tighe says it is not the first time that the appeal court is dealing with the issue of anti-SLAPP motions, but this is now probably the most comprehensive decision on the topic.

Law Times previously reported that Ontario introduced the law seeking to prevent strategic lawsuits against public participation in 2015, by adding s. 137.1 to the Courts of Justice Act. The legislation’s purpose is to encourage expression and debate on matters of public interest, and ensure litigation is not used to silence it.

The lawyer for the respondents, Maanit Zemel, says the decision represents a blow to access to justice and freedom of expression because it creates more work for Superior Court judges who already face significant backlogs.

“The logistical hurdles in scheduling these motions may be too complex to navigate for many small claims court defendants, who are often self-represented. As a result, defendants in SLAPP proceedings brought at the small claims court may decide not to bring anti-SLAPP motions because of the cost and procedural complexity involved in having them heard by a Superior Court judge. Thus, the purpose of the anti-SLAPP provisions — to promote and protect freedom of expression — is hindered.”

This case involved two defamation actions brought in small claims court against HomeStars, a home improvement review website, over alleged negative customer reviews. Homestars brought motions against each appellant to dismiss their actions under s. 137.1 of the CJA and sought to have its anti-SLAPP motions heard by a Superior Court Judge, but the judge endorsed that the action remain in small claims court and be heard by an administrative judge.

On Feb. 27, 2020, the motions came before the administrative judge. Laurentide Kitchens and Lucvaa challenged her jurisdiction, and the case was argued as a preliminary matter. In her written reasons, released on Feb. 17, 2021, the judge concluded that the Superior Court judge’s endorsement settled the jurisdiction issue, and she would hear the motions when the court resumed operations.

The appellants appealed the order that under s. 137.1 of the Courts of Justice Act, arguing that the small claims court does not have jurisdiction to decide the case because the appeal court determined the issue in Bruyea v. Canada (Veteran Affairs). The respondent disagreed that the jurisdiction issue decided in Bruyea was limited to deputy judges and did not extend to the administrative judge.

The appeal court highlighted the statutory principles of ss. 137.1, 87.2 and 24 of the CJA concluding that the administrative judge does not have jurisdiction to make an order and jurisdiction lies only with the Superior Court.