In Elguindy v. St. Joseph's Health Care London,* Justice Morissette of the Ontario Superior Court of Justice was required to answer the following question on appeal: Did the deputy judge err by presiding over a motion under rule 12.02 of the Rules of the Small Claims Court after presiding over a settlement conference? Rule 12 of the Rules of the Small Claims Court allows a moving party to, among other things, move to strike a document or dismiss an action. The appeal arose from a Small Claims Court medical negligence action brought by the appellant against the hospital, a nurse, and two doctors arising from the cancellation of a medical procedure that he was scheduled to undergo.
The appellant argued by analogy that the Rules of Civil Procedure and case law prohibit a judge who has conducted a pre-trial conference from presiding at a trial or hearing a summary judgment motion under Rule 20 (unless the parties consent). The appellant submitted that the same rationale applies to prohibit settlement conference judges from hearing a motion to dismiss under Rule 12 of the Rules of Small Claims Court. The respondents argued that nothing in the Small Claims Court Rules prohibits a judge who has presided at a settlement conference from hearing such a motion, which they say is not akin to a summary judgment motion.
Justice Morissette ultimately agreed with the respondents, concluding that a rule 12.02 motion is not equivalent or analogous to a Rule 20 summary judgment motion under the Rules of Civil Procedure. The wording of rule 12.02 is not an actual determination on the merits, but rather a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.
The stay and dismissal powers in Rule 12 are meant to facilitate the objectives of the Small claims Court, including hearing and determining all questions of law and fact in a summary way, and having matters proceed in such a way to secure the most just, expeditious and least expensive determination of every proceeding.
In the present case, the deputy judge did not determine the merits of the issues in a proceeding. The deputy judge dismissed the claim because of the appellant's failure to abide by multiple orders of the court. The deputy judge reasoned that it would be a waste of time to proceed to trial on the action as the matter was started in October, 2014 and despite numerous requests and court orders, the plaintiff had still not provided any expert report regarding the standard of care required by either doctor. Without the expert reports supporting the position of the plaintiff there was no possibility of the plaintiff succeeding.
The case provides useful procedural guidance that will be relevant to financial institutions involved in Small Claims Court proceedings.
*Borden Ladner Gervais represented the respondent in the case.
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