The stated purpose of the Small Claims Court is to provide a
streamlined process for parties to pursue claims of up to $25,000
in a cost-effective and efficient manner. In Superior Court, one of
the options available to try and advance straightforward claims in
a similar fashion is with a summary judgment motion as opposed to a
full trial. However, while the Rules of Civil
Procedure provide specifically for the ins and outs of a
summary judgment motion, the Rules of the Small Claims
Court do not. The question becomes: can you move for
summary judgment in small claims?
In 2010, the Ontario Court of Appeal said "no", with a
It appeared that the Court of Appeal had answered this
question in the negative in the 2010 decision Van de Vrande v.
Butkowsky. The Court determined that the lack of
a specific rule for summary judgment in the Small Claims Court was
a deliberate omission and could not be read into the rules by the
However, These motions are distinct from motions to strike under
Rule 12.02 of the Rules of the Small Claims Court, where
the Court may (among other things) strike or amend any document
that discloses no reasonable cause of action or defence. These
motions may serve similar functions as summary judgment motions,
and Justice Rouleau noted in Van de Vrande that the
threshold for these types of motions under Rule 12.02 is
deliberately lower than that of a summary judgment motion.
With the recent Supreme Court of Canada decision of Hryniak v.
Mauldin clarifying the rules and practice of summary judgment
motions generally, there was some question as to whether this would
impact the practice in Small Claims Court. There appear to be
conflicting decisions that have recently been released on this
point. I will focus on two specific ones.
The first of these is Petersen v. Matt. A Small Claims Court deputy
judge summarily dismissed the plaintiff's claims, and the
plaintiffs appealed to the Divisional Court. Mr. Justice
Leroy for the Divisional Court applied the principles of
Hryniak in determining when the Court may grant summary
judgment, without any reference to Rule 12.02 of the Rules of
the Small Claims Court or to the Court of Appeal decision in
Van de Vrande.
The second relevant decision is
Tuka v. Butt, which was heard the day after Petersen
was released. Deputy Judge Winny in Tuka openly questions
whether Justice Leroy was aware of Van de Vrande and notes
that summary judgment presumably would not have granted in
Petersen or upheld on appeal had the judges in question
been aware of Van de Vrande. Winny goes so far as to state
that "in my respectful opinion, Petersen v.
Matt...does not stand for the proposition that Van de
Vrande v. Butkowsky is no longer good law".
It remains to be seen whether the Divisional Court or, perhaps
more properly, the Court of Appeal will comment on whether
Hryniak impacts the earlier decision of Van de
Vrande in assessing what the test is on a Rule 12.02 motion in
Small Claims Court.
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