Does a Deputy Judge In the Small Claims Court Have the Power to Dismiss a Defamation Lawsuit Early If the Case Looks Like Just An Intent to Use the Lawsuit As a Way to Victimize An Opinionated Person?

In Ontario, the Anti-Gag Law, Also Known As a SLAPP Motion, That Enables a Defendant In a Defamation Case, Among Others, to Seek Early Dismissal of a Lawsuit, Is Unavailable Within a Small Claims Court Case.

Understanding the Lack of Jurisdiction For a SLAPP Motion to Dismiss a Defamation Case Within the Small Claims Court

Defamation Dismissal Jurisdiction Involving the Strategic Lawsuits Against Public Participation Law In 2015, the Ontario government passed a law that was intended to prevent a lawsuit from being a tool of retribution against those persons who speak out on matters of public interest and that would otherwise inspire the healthy debates that are necessary within a democratic society.  The law is dubbed as an anti-gag law.

The law enables a defendant within a defamation lawsuit to bring a Motion to Dismiss as a means to provide an early end and resolve to defamation claims that appear as intending to use the costly court process, or risk of a costly court process, as a tool or method of stifling criticism, debate, and opinion as a form of freedom of expression.

The Law

The anti-gag law, or law against Strategic Lawsuits Against Public Participation (SLAPP), involved an amendment to the Courts of Justice Act, R.S.O. 1990, c. C.43, and the additions of section 137.1 to section 137.5, as well as clarifying jurisprudence within Kirkland v. Nagy et al., 2023 ONSC 871, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, among other cases, and whereas the statute and these cases respectively state:


Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a)  to encourage individuals to express themselves on matters of public interest;

(b)  to promote broad participation in debates on matters of public interest;

(c)  to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d)  to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, “expression

(2) In this section,

expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a)  there are grounds to believe that,

(i)  the proceeding has substantial merit, and

(ii)  the moving party has no valid defence in the proceeding; and

(b)  the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a)  in order to prevent or avoid an order under this section dismissing the proceeding; or

(b)  if the proceeding is dismissed under this section, in order to continue the proceeding.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

Procedural matters

Commencement

137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.

Motion to be heard within 60 days

(2) A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court.

Hearing date to be obtained in advance

(3) The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.

Limit on cross-examinations

(4) Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants.

Same, extension of time

(5) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.

Appeal to be heard as soon as practicable

137.3 An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal.

Stay of related tribunal proceeding

137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

Notice

(2) The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a)  notice of the stay; and

(b)  a copy of the notice of motion that was filed with the tribunal.

Duration

(3) A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4).

Stay may be lifted

(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a)  the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b)  the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay.

Same

(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal.

Statutory Powers Procedure Act

(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act.

Application

137.5 Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2015 received first reading.


[13]  In Thorman v. McGraw, 2022 ONCA 851, the Ontario Court of Appeal recently summarized the purpose of anti-SLAPP legislation, at paras. 3 and 4:

3  Section 137.1 was enacted against the use of legal processes ("strategic lawsuits against public participation" or "SLAPPs") as a tool to shut down the expression of matters of public interest: 170464 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at paras. 1, 2-4, 16. It was not intended to foreclose the adjudication on the merits of legitimate defamation or other actions that concern purely private and commercial disputes and that do not involve expressions on matters of public interest. Accordingly, s. 137.1 protects expression whose subject matter is genuinely a matter of public interest, while providing that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it: Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 74Pointes, at para. 46.

4  Motions under s. 137.1 are not motions for summary judgment. There is no adjudication or prejudging of the merits of the underlying proceeding. Courts must carefully guard against conflating the two and ensure that they engage in a robust analysis of the criteria under s. 137.1. See Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 47Grist v. TruGrp Inc., 2021 ONCA 309, at paras. 17-18; Platnick, at para. 158.

[14]  Section 137.1(3) of the CJA requires a two-part analysis, known as the threshold burden.  The moving party must show that:

i.   the proceeding arises from an expression made by the moving party; and

ii.  the expression relates to a matter of public interest.

[15]  The term “expression” is defined in section 137.1(2) of the CJA as follows: “In this section, ‘expression’ means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

[16]  In Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 28, the Supreme Court of Canada concluded that the words “relates to a matter of public interest” are to be given a broad and liberal interpretation.

[17]  These words must also be “distinguished from expression that simply makes reference to something of public interest, or to a matter about which the public is merely curious.  Neither of the latter two forms of expression will be sufficient for the moving party to meet its burden under s. 137.1(3)”: Pointes, at para. 29.

[18]  If the threshold burden is met, the analysis moves to the merits-based hurdle under s. 137.1(4)(a) of the CJA, whereby the onus shifts to the responding party to satisfy the court that there are grounds to believe that:

i.   the proceeding has substantial merit, and

ii.  the defendant has no valid defence.

[19]  The standard “ground to believe” has been interpreted as being one that “requires that there is a basis in the record and the law” and that it requires “something more than the mere suspicion, but less than … proof on a balance of probabilities.”: Pointes, at paras. 39 and 40.

[20]  If the merits-based hurdle is met, the analysis moves to the public interest hurdle under s. 137.14(b) of the CJA, whereby the respondent party must satisfy the court that “the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[21]  The public interest hurdle is set out in two stages: (i) the harm analysis; and (ii) the weighing analysis.  The question to be answered at the harm analysis stage is whether harm caused by the expression is likely to be or has been suffered, either in a monetary or non-monetary fashion.  Once the harm has been established, we turn to the crux of the analysis, namely the weighing analysis, where the question to be answered is whether the harm outweighs the public interest in protecting the expression.  The weighing exercise requires the court to engage in a qualitative analysis of the expression and the motivation behind it: Thorman v. McGraw, at paras. 11 to 15.


[2]   Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.

...

[16]  As indicated above, s. 137.1 is the provision in the CJA that is meant to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions. The final statutory language adopted makes it clear how the APR and the legislative debates informed the drafting of the provision: there is an invocation of the need for the expression to relate to a matter of public interest; the underlying proceeding must have substantial merit (beyond “technical validity”, as the APR noted, at para. 37); and the public interest in protecting the expression must be weighed against the public interest in permitting the underlying proceeding to continue (echoing the importance of balance repeatedly noted in the APR and the legislative debates).

[17]  The relevant portions of s. 137.1 are reproduced below:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i)  the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[18]  In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the APR and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance.


[47]  Finally, as Doherty J.A. explained in Pointes (ONCA), at para. 73, a motion under s. 137.1 is meant to be a “screening or triage device designed to eliminate certain claims at an early stage of the litigation process”. It is not an alternative means of trying a claim nor is it a form of summary judgment, and it is important to maintain a sense of proportionality where costs are concerned. The motion judge’s decision to reduce the respondents’ partial indemnity costs was appropriate.

"... provides courts with the ability to scrutinize what is really going on in the particular case ..."
Supreme Court of Canada
1704604 Ontario Ltd. v. Pointes Protection Association,
2020 SCC 22

Jurisdiction
Small Claims Court

Interestingly, a Motion to Dismiss based on the the anti-gag or SLAPP law is unavailable for proceedings within the Small Claims Court.  This unavailability, or lack of jurisdiction, for the Small Claims Court to hear a Motion to Dismiss based on the anti-gag or SLAPP was the subject of review by the Court of Appeal within the cases of Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 48, and Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, wherein each it was respectively said:


ISSUE ON APPEAL

[25]  The issue on appeal is whether the Administrative Judge of the Small Claims Court has jurisdiction to make an order pursuant to s. 137.1 of the CJA.[3] [4]

ANALYSIS

[26]  I come to the conclusion the Administrative Judge does not have the authority to make an order under s. 137.1. I say this for three reasons: (i) the authority was not given by statute; (ii) this court has determined that only Superior Court judges have the jurisdiction; and (iii) the s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court.

[27]  I will address each reason in turn.

(7)  No statutory authority

[28]  In 2017, the Burden Reduction Act amended the CJA to create the position of Administrative Judge. Section 137.1 had been in effect for two years. Although the legislature made other consequential amendments to the CJA to reflect this change, the legislature did not amend s. 137.1(3) to include the Administrative Judge. For ease of reference, s. 137.1(3) provides:

On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. [Emphasis added.]

[29]  The respondent submits that this does not matter because, in effect, the Administrative Judge should be considered a provincial court judge. The CJA provides that her qualifications and compensation for the position are the same as a provincial court judge. Section 87.2(1) provides that the Administrative Judge must meet “the qualifications set out in subsection 42(2)”, which are the qualifications for a provincial court judge. Section 87.2(7) of the CJA provides that the Administrative Judge is “deemed to be a provincial judge” for purposes of compensation:

Compensation

(7) The salary, pension benefits, other benefits and allowances of the Small Claims Court Administrative Judge are subject to the recommendations of the Provincial Judges Remuneration Commission and, for the purpose, the Small Claims Court Administrative Judge is deemed to be a provincial judge under the framework agreement set out in the Schedule to this Act. 2017, c. 2, Sched. 2, s. 18. [Emphasis added.]

[30]  The reference to ss. 42(2) and 87.2(7) does not assist the respondent. On the contrary, these amendments show that the legislature was alive to changes that were required as a result of s. 87.2 and chose not to amend the definition of judge in s. 137.1(3). This is a marker of an intent to omit the jurisdiction. By providing that the Administrative Judge have the same qualifications and be paid in accordance with provincial court judges, the Legislature did not expand jurisdiction to s. 137.1. Rather, for purposes of compensation only, the Administrative Judge is “deemed to be” a provincial court judge.

[31]  The respondent further submits that s. 24(2) provides the authority for the Administrative Judge to make orders under s. 137.1. For ease of reference, I include the relevant portion of the section again:

(2) Despite subsection (1), a proceeding in the Small Claims Court may also be heard and determined by,

(a)  a provincial judge who was assigned to the Provincial Court (Civil Division) immediately before the 1st day of September, 1990;[5]

(b)  a deputy judge appointed under section 32; or

(c)  the Small Claims Court Administrative Judge appointed under section 87.2. 2017, c. 2, Sched. 2, s. 3.

[32]  The respondent submits that the words “may also be heard and determined by” give the Administrative Judge authority to make orders under s. 137.1.

[33]  I do not agree.

[34]  First, s. 24 does not confer the authority to make orders under s. 137.1. Note that “deputy judges” are also included in s. 24(2)(b). If the respondent’s submission were correct, jurisdiction would also be conferred on deputy judges. We know from the analysis in Bruyea that deputy judges do not have jurisdiction.

[35]  Second, the respondent’s position would effectively expand the Administrative Judge’s authority beyond that of the Small Claims Court. For example, she would have the power to grant injunctions or appoint receivers. This too was considered and definitively dealt with in Bruyea, at paras. 17 and 18:

Further, if one was to accede to the suggestion that the use of the term “judge” in the CJA was intended to include deputy judges, then that result creates difficulties with respect to other sections of the CJA. One such section is s. 101(1) of the CJA which reads:

In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. [Emphasis added.]

Since the Small Claims Court is a branch of the Superior Court of Justice, if the term “judge” includes deputy judges, then s. 101(1) would give authority to deputy judges to grant injunctions or appoint receivers. To my knowledge, it has never been suggested that the Small Claims Court has ever had jurisdiction to grant interlocutory injunctions or to appoint receivers, nor am I aware of any case where the Small Claims Court has purported to exercise that jurisdiction. Indeed, in 936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo Bear Ltd. (2003), 2003 CanLII 72356 (ON SCDC), 74 O.R. (3d) 45 (Div. Ct.), it was concluded that the Small Claims Court is not empowered to grant “any other form of equitable relief, such as injunctions”: at para. 29.

[36]  This reasoning with respect to deputy judges applies equally to the Administrative Judge.

(8)  This court’s decisions have settled the issue

[37]  The respondent submits that Bruyea is limited to deputy judges and does not apply to the Administrative Judge. As I have outlined, the analysis in Bruyea is equally applicable to the Administrative Judge.

[38]  In any event, post-Bruyea this court has stated that only Superior Court judges have the jurisdiction to make orders under s. 137.1: see Nanda v. McEwan, at para. 12 and Ontario College of Teachers, at para. 7.

[39]  The Administrative Judge is not a Superior Court judge.

[40]  The respondent submitted that the endorsement of the Superior Court judge conferred jurisdiction on the Administrative Judge. I do not agree. In light of the jurisprudence, he had no authority to do so. In any event, it is clear from the record that the attendance in – what is usually – a busy practice court involved scheduling. The jurisdiction issue was not brought to his attention.

[41]  I turn to the final reason that the Administrative Judge lacks jurisdiction.

(9)  Section 137.1 and the Rules of the Small Claims Court

[42]  A third reason confirms my view that the legislature did not intend to confer jurisdiction on the Administrative Judge. The s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court.

[43]  The Small Claims Court is a branch of the Superior Court of Justice. The court embodies the foundations of access to justice: informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. By providing access to justice, the court has an important role in the administration of justice for the province. The court handles nearly half of the civil disputes in the province. It provides a cost-effective forum for civil disputes involving less than $35,000. To achieve these objectives, all questions of fact and law are to be determined in a summary way. Rule 1.03(1) of the Rules of the Small Claims Court, under the CJA, provides:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice ActO. Reg. 258/98, r. 1.03 (1).

[44]  These hallmarks of the Small Claims Court, as enshrined in its rules, are incompatible with the provisions of s. 137.1. A s. 137.1 analysis requires the detailed process of shifting burdens with respect to merits, proportionality and public interest, which involves exchange of affidavits and cross-examinations. Motions are not encouraged in the Small Claims Court. The Rules of Small Claims Court do not provide for cross-examination on affidavits. Under s. 137.1, costs of an unsuccessful motion are presumptively full indemnity. The limit on costs for a motion in Small Claims Court, absent special circumstances, is $100. The limit on costs after trial is 15% of the award. Small Claims Court jurisdiction is limited to $35,000. Contrary to these limits of Small Claims Court, s. 137.1 provides extensive powers with respect to damages.

[45]  The s. 137.1 motion must be heard within 60 days and stays the underlying action. Appeals go directly to the Court of Appeal. This does not comply with r. 1.03.(1) of the Rules of the Small Claims Court.

[46]  The Small Claims Court provides timely justice to litigants in matters under $35,000. I conclude that the legislature did not intend to inject complex interim proceedings into its summary process. Doing so would frustrate the objectives of the Rules of the Small Claims Court.


[9]  I begin with the structure of the Small Claims Court. The Small Claims Court is a branch of the Superior Court of Justice: CJA, s. 22Section 24 of the CJA determines who presides over matters in the Small Claims Court. It reads, in part:

(1) A proceeding in the Small Claims Court shall be heard and determined by one judge of the Superior Court of Justice.

(2) Despite subsection (1), a proceeding in the Small Claims Court may also be heard and determined by,

(a) a provincial judge who was assigned to the Provincial Court (Civil Division) immediately before the 1st day of September, 1990;

(b) a deputy judge appointed under section 32; or

(c) the Small Claims Court Administrative Judge appointed under section 87.2.

[10]  In practice, virtually all proceedings in the Small Claims Court are presided over by deputy judges. Deputy judges are lawyers who are appointed by a regional senior judge of the Superior Court of Justice, with the approval of the Attorney General, to act as a deputy judge of the Small Claims Court. Usually they are appointed for a term of three years: CJA, s. 32.

[11]  I now turn to the specific provision in the CJA with which this case is concerned. Section 137.1 was added to the CJA to address concerns arising from the use of litigation to interfere with freedom of expression. The section was added to the CJA to provide “a pretrial procedure designed to quickly and inexpensively identify and dismiss those unmeritorious claims that unduly entrenched on an individual's right to freedom of expression on matters of public interest”: 1704604 Ontario Ltd v. Pointes Protection Association, 2018 ONCA 685, 142 OR (3d) 161, at para. 29. This was a new process to permit the summary dismissal of a proceeding that was not otherwise available to a party under the CJA or the Rules of Civil Procedure, R.R.O.1990, Reg. 194.

[12]  Of importance for the current issue is the wording of s. 137.1(3) that reads:

On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. [Emphasis added.]

Subsections 137.1(4), (6), (7), (8) and (9) also all refer to a “judge”.

[13]  The issue is whether the use of the word “judge” in s. 137.1 includes a deputy judge of the Small Claims Court. The word “judge” is not defined in the CJA nor is it defined in the Rules of the Small Claims Court, O/Reg. 258/98. It is, however, defined in r. 1.03 of the Rules of Civil Procedure as: “judge” means a judge of the court.[1] The term “court” is defined as:

court” means the court in which a proceeding is pending and, in the case of a proceeding in the Superior Court of Justice, includes,

(a) a master having jurisdiction to hear motions under Rule 37, and

(b) a case management master

[14]  There is a conscious effort made in the CJA and in the Rules of Civil Procedure to draw a distinction between what a court has jurisdiction to do and what a judge has jurisdiction to do. The primary purpose behind this distinction is that where the CJA or the Rules of Civil Procedure gives authority to the court to do something, a master or case management master has the same authority. If, however, the authority is expressly given to a judge, then only a judge may exercise that authority. This distinction is an important one.

[15]  There is no reason to believe that the Legislature would have chosen to adopt any different approach when it comes to deputy judges of the Small Claims Court. As s. 24(2) demonstrates, deputy judges of the Small Claims Court are specifically referred to as such in the CJA. Other sections of the CJA also make specific reference to deputy judges. For example, s. 80 stipulates that “[e]very judge or officer of a court in Ontario, including a deputy judge of the Small Claims Court” must take and sign a specific oath or affirmation before entering upon their duties. Similarly, s. 82 provides that deputy judges have the same immunity from liability as judges of the Superior Court of Justice. Further, s. 123 establishes time limits for a judge to give a decision after they retire and by s. 123(1.1) these same time limits are expressly made applicable to deputy judges.

[16]  Two points arise from the existence of these various sections of the CJA. First, it is clear that where the Legislature intends the term “judge” to include a “deputy judge”, it does so expressly. It follows that if the Legislature had intended that the term “judge”, whenever used in the CJA, would include deputy judges, then the express mention of deputy judges in these sections would have been unnecessary. Second, all of these sections of the CJA were in existence in 2015 when s. 137.1 of the CJA was passed and yet the Legislature chose not to expressly reference deputy judges in s. 137.1 as it had done in all of these other sections.

[17]  Further, if one was to accede to the suggestion that the use of the term “judge” in the CJA was intended to include deputy judges, then that result creates difficulties with respect to other sections of the CJA. One such section is s. 101(1) of the CJA which reads:

In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. [Emphasis added.]

[18]  Since the Small Claims Court is a branch of the Superior Court of Justice, if the term “judge” includes deputy judges, then s. 101(1) would give authority to deputy judges to grant injunctions or appoint receivers. To my knowledge, it has never been suggested that the Small Claims Court has ever had jurisdiction to grant interlocutory injunctions or to appoint receivers, nor am I aware of any case where the Small Claims Court has purported to exercise that jurisdiction. Indeed, in 936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo Bear Ltd. (2003), 2003 CanLII 72356 (ON SCDC), 74 OR (3d) 45 (Div. Ct.), it was concluded that the Small Claims Court is not empowered to grant “any other form of equitable relief, such as injunctions”: at para. 29.

[19]  In response to these issues, the parties refer to the decisions of this court in Ontario Deputy Judges Assn. v. Ontario (2006), 2006 CanLII 17250 (ON CA), 80 O.R. (3d) 481 (C.A.) and Grover v. Hodgins, 2011 ONCA 72, 103 O.R. (3d) 721. In my view, neither of those decisions assist the parties. In the Deputy Judges case, this court said, at para. 27:

Even though Deputy Judges sit part-time, when sitting, they fully assume the judicial role. They are perceived as judges by the many litigants who turn to the Small Claims Court for the resolution of their disputes.

[20]  That statement does not assist in determining the proper meaning to be given to the term “judge” in s. 137.1. No one disputes that deputy judges assume a judicial role in presiding over cases in the Small Claims Court but that fact does not determine, or assist in determining, what their jurisdiction or statutory authority is. The Small Claims Court is a statutory court and it must find its jurisdiction in a statute. All of the parties accept that neither the Small Claims Court nor the deputy judges have any inherent jurisdiction. If either are to exercise any jurisdiction, it must be found in a statute, principally, the CJA.

[21]  In the Grover case, this court was dealing with the interpretation to be given to s. 96 of the CJA in order to determine whether the Small Claims Court has jurisdiction to grant equitable relief and, if so, to what extent. Section 96(3) reads:

Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided.

[22]  Based on the words “unless otherwise provided” that appear in s. 96(3), this court found that a narrow jurisdiction existed in the Small Claims Court to grant equitable relief as limited by s. 23 of the CJA, that is, for claims of “a monetary payment under the limit of $25,000 or the return of personal property valued within that limit”: Grover at para. 49. Again, that decision provides little assistance in arriving at the proper interpretation of “judge” in s. 137.1. I would note, though, that the court in Grover did conclude that the fact that the Small Claims Court had become part of the Superior Court of Justice “did not alter the court’s jurisdiction”: at para. 44.

[23]  Finally, the parties also rely on the decision in Stockey v. Peel Condominium Corp. No. 174 (1996), 1996 CanLII 11799 (ON SC), 30 O.R. (3d) 464 (Div. Ct.). In Stockey, Webber J., sitting as a single judge of the Divisional Court upheld, on appeal, the decision of a deputy judge to exercise authority under what was then s. 49(1) of the Condominium Act, R.S.O. 1990, c. C.26Section 49(1) read:

Where a duty imposed by this Act, the declaration, the by-laws or the rules is not performed, the corporation, any owner, the bureau, or any person having a registered mortgage against a unit and common interest, may apply to the Ontario Court (General Division) for an order directing the performance of the duty.

[24]  The important distinguishing feature between the decision in Stockey and the case here is that s. 49(1) of the Condominium Act referred to the Ontario Court (General Division) not to a judge of that court. Had the section provided that a person could apply to a judge of the Ontario Court (General Division) then, in my view, a deputy judge of the Small Claims Court would not have been able to exercise authority under that section, and I expect that the appeal judge would have so concluded.

[25]  Two points raised by the Attorney General of Ontario, in his submissions, bear mention. One is the submission that “[t]here is no principled reason why the Small Claims Court” could hear a motion to strike a claim under r. 12.02 of the Small Claims Court Rules but not a motion to strike under s. 137.1. I do not agree. The Rules of Civil Procedure permit Masters and Case Management Masters to hear certain motions but restrict other motions to be heard only by judges. In this context, it is apparent that the Legislature has decided that some motions take on a significance for the parties where the result should only be determined by a judge. For example, only a judge may hear and determine a pre-trial motion under Rule 21 of the Rules of Civil Procedure, including dismissing actions that are frivolous, vexatious or an abuse of process. As I earlier noted, s. 137.1 provided a new mechanism to summarily dispose of a proceeding. It was open to the Legislature to decide that this new mechanism should only be employed by a judge.

[26]  The other point raised by the Attorney General of Ontario is the submission that “unlike sections 96(3), 97, 101 and 140, the CJA does not expressly exclude section 137.1(3) relief from the Small Claims Court’s powers”. Two problems arise from this submission. One is that we are not dealing here with the exclusion of powers. As earlier noted, the Small Claims Court must find its jurisdiction in a statute. Absent express statutory authority, the Small Claims court has no jurisdiction. The other is that not all of those sections expressly exclude relief from the Small Claims Court. Sections 101 and 140 do not do so, for example. And, contrary to the thrust of the Attorney General’s submission, the wording of s. 96(3) was expressly relied upon by this court in Grover to find jurisdiction in the Small Claims Court to grant equitable relief, albeit in very limited situations.

[27]  Lastly, all of the parties place great emphasis on the fact that the Small Claims Court is intended to provide for simpler and less expensive litigation. They argue that the powers of a deputy judge should be given broad and expansive interpretation to encourage access to justice. With respect, such policy arguments cannot override the plain words of the statute. Either deputy judges have been given the authority to provide certain relief, or they have not. It is not for the court to find authority where the Legislature has chosen not to clearly provide it. I would also note that, ironically, s. 137.1 is not a provision providing access. To the contrary, at least viewed from the perspective of the plaintiff, it is the very opposite. It is a provision that is intended, in proper circumstances, to prohibit access to the courts.

[28]  In the end result, it would have been open to the Legislature to expressly provide in s. 137.1 that deputy judges of the Small Claims Court could grant orders under that section. The Legislature chose not to do so in the same fashion that, in wording s. 137.1 as it did, it did not give that authority to masters or case management masters. For its own reasons, the Legislature clearly concluded that this new jurisdiction should only be exercised by a judge. It is not for this court to strain the language of the section to provide a power to deputy judges that the Legislature did not, itself, plainly choose to provide.

[29]  For these reasons, I conclude that deputy judges of the Small Claims Court do not have authority to grant orders under s. 137.1 of the CJA.

Furthermore, per the case of Macdonald v. Feldman, 2022 ONSC 4818, the court ruled that a Motion to Transfer a case from the Small Claims Court division to the Superior Court for the purpose of bringing a case into jurisdiction for a SLAPP Motion is improper.  Specifically, it was said:


[37]  The Supreme Court of Canada has described the procedure under section 137.1 as a “mechanism”, more specifically “a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions”: see Pointes at paras. 16 and 62.  In my view, a motion under section 137.1 is a procedural mechanism like a motion to strike under Rule 21 or a motion for summary judgment under Rule 20.  This is supported by the fact that the Supreme Court explains the differences between these mechanisms in Pointes at para. 38.

[38]  As made clear by the Supreme Court of Canada in Pointes, the application of section 137.1 is not restricted to defamation actions.  Rather, it applies to any type of proceedings that arise from an expression, including, for instance, a breach of contract action, as in Pointes: see Pointes at para. 24.  Thus, a 137.1 Motion is not a “defence” to a particular cause of action, including defamation.

[39]  The characterization of a 137.1 Motion as a procedural mechanism rather than a defence is also supported by the fact that the consideration of available defences is part of the test under subsection 137.1(4)(a)(ii).

[40]  The different and shifting legal burdens on a 137.1 Motion do not impact this characterization.  I note that on a motion for summary judgment brought by a defendant, a defendant has to discharge an evidentiary burden that it would not have at trial before the burden shifts to the plaintiff to prove that its claim has a real chance of success: see, e.g., Sanzone v. Schechter, 2016 ONCA 566 at paras. 24-25, 29-30.  While I acknowledge that this different and shifting legal burden on a motion for summary judgment is not for the benefit of the defendant, contrary to a 137.1 Motion, this shows that a particular mechanism can feature a different and shifting legal burden.

[41]  Ultimately, however, the issue before me is not whether a 137.1 Motion is a defence or a procedural mechanism.  On this motion to transfer, the issue is whether the unavailability of a 137.1 Motion in the Small Claims Court prevents a fair and just resolution of the Defamation Action in that Court.  While the nature and characterization of a 137.1 Motion may inform the answer to this question, it does not provide a complete answer.

[42]  I conclude that the fact that a defendant cannot bring a 137.1 Motion in the Small Claims Court is insufficient to establish that a claim is not capable of being justly and fairly resolved using the procedures available in the Small Claims Court.  I have come to this conclusion for a number of reasons, including the following:

(a)  The defendant is not deprived of any substantive defences.

(b)  The fact that a defendant is deprived of a particular mechanism does not automatically make a process unjust or unfair.  It is noteworthy that motions for summary judgment, like 137.1 Motions, are not available in the Small Claims Court.  I agree with the Respondent that the Small Claims Court is designed to provide a summary process that is both cost-effective and efficient and, therefore, early screening mechanisms are not necessary to ensure the justness and fairness of the process.  This is consistent with the decision of the Court of Appeal in Laurentide.  See, in particular, Laurentide at para. 46.

(c)  If an action is brought in the Small Claims Court for an improper purpose, a defendant can bring a motion to strike under Rule 12.02 of the Rules of the Small Claims Court.

(d)  The rationale behind the adoption of the section 137.1 mechanism is not as strong for actions commenced in the Small Claims Court as for actions in the SCJ.  Given the cap on damages that can be sought in the Small Claims Court and the lower costs involved in defending a claim in that Court, the harmful effects of a SLAPP are not as extensive and pronounced in a Small Claims Court action compared to an action in the SCJ where hundreds of thousands of dollars can be sought in damages and significant litigation costs can be incurred.

(e)  Proportionality is a relevant and important consideration when determining whether a particular procedure is just and fair.  See, e.g., Rules 1.04(1) and (1.1) of the Rules of Civil Procedure.  In my view, the bringing of a complex and potentially expensive 137.1 Motion in a matter that is within the jurisdiction of the Small Claims Court would usually violate the principle of proportionality as the damages sought in such a case cannot exceed $35,000.[1]

(f)  While the issue before me was not squarely before the Court of Appeal in Laurentide, the Court of Appeal’s reasons do not suggest in any way that the unavailability of 137.1 Motions in the Small Claims Court is unjust or unfair.  Quite the contrary.

Summary Comment

An anti-gag law, nicknamed SLAPP, exists in Ontario and serves to protect people against lawsuits being used as tools to abuse or victimize persons who exercise right of freedom of expression such as the voicing of comments, of opinions, or of criticisms, that are factually based; however, the legal process required to apply the anti-gag law, known as a SLAPP Motion, is unavailable within Small Claims Court cases whereas adjudicators of the Small Claims Court are without proper authority to hear the Motion to Dismiss process applicable to the anti-gag law.

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