When Should Evidence In a Small Claims Court Case Be Disclosed?

The Rules of Disclosure In a Small Claims Court Case Are Confusing As Different Timings Apply Depending On the Type of Evidence. Evidence That Is the Basis of the Claim Should Be Disclosed With the Claim.

Understanding Disclosure Requirements For Small Claims Court

Lawsuit Document The document disclosure processes of the Small Claims Court are often described as easy enough for a self-represented layperson without legal training; however, even seasoned professionals can struggle in the attempt to understand what constitutes proper disclosure timing for matters proceeding within the Small Claims Court; and accordingly, laypeople may especially struggle to understand disclosure mandates.

Serve Early, Serve Often, Serve Late

To describe the Rules of the Small Claims Court, O. Reg. 258/98 in regards to proper disclosure timing, perhaps the best rule of thumb is to 'serve early, serve often, and serve late'; however, doing so can result in a waste of resources and perhaps be interpreted by an opposing representative as an act of sharp practice whereas to 'serve early, serve often, and serve late' may be, even when genuinely and innocently done, misperceived as a bombardment of documents intended to overburden and unnecessarily drive up costs.

Disclose With Pleading

The first references to disclosure of documents that lead to confusion are the requirements within the Rules applicable to pleadings which state:

Plaintiff's Claim, Rule 7.01(2)2
If the plaintiff’s claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim, unless it is unavailable, in which case the claim shall state the reason why the document is not attached.

Defence, Rule 9.02(1)2
If the defence is based in whole or in part on a document, a copy of the document shall be attached to each copy of the defence, unless it is unavailable, in which case the defence shall state the reason why the document is not attached.

Defendant's Claim, Rule 10.01(4)2
If the defendant’s claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim, unless it is unavailable, in which case the claim shall state the reason why the document is not attached.

The problem here is in the lack of clarity with the wording of these Rules.  What exactly does the word "based" mean?  While seemingly straightfoward, the word "based" is confusing, especially whereas, per Rule 13.03(2)(a), the subsequent Settlement Conference rules instruct disclosure of a document that may be "relied" upon at Trial; and accordingly, by the use of two different words, "based" and "relied", different meanings must then be imputed upon such words.  The challenge arises whereas the Rules fail to provide definition for the each of the two words - or if without the intent for a different meaning for the two words, then the Rules fail to explain why there are two different words.  In law, if there are two different words used, it is anticipated that there are two different meanings intended; but, what are those two different meanings?

Generally, it appears that Small Claims Court practitioners interpret "based" as meaning a document that gives rise to the cause of action and the meaning of 'relied' as a document that assists in proving the cause of action.  For example, where a claim is brought upon the breach of contract cause of action, it is reasonable to perceive that the word "based" imputes the meaning that where the legal cause of action is breach of contract, any alleged breach may therefore be "based" upon the terms within a contract document and therefore the contract itself should be attached; however, this interpretation imputes a meaning that documents that may prove or demonstrate how it came to pass that the contract was breached are without need of disclosure at the pleadings stage.  These secondary documents, which may prove how the breach of contract occurred, for example an expert report describing defects in workmanship that are less than the standards of workmanship required or perhaps a statement of account to show failure of payment of monies due, appear to fall within the parameters of a document that may be "relied" upon at Trial and therefore fall within the meaning of rules governing subsequent disclosure.

Subsequent Disclosure

As above, disclosure mandates at the time of pleading appear to state that only those documents upon which a claim or defence theory is "based" are subject to a requirement for disclosure at the time of pleading.  Documents that may be "relied" upon at Trial appear as without a mandate for attachment to pleading documents.  The first instance of mandate for service of documents that may be "relied" upon appears at Rule 13.03(2)(a) which states:

13.03 (2)  At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,

(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence …

While Rule 13.03(2)(a) appears as the final instructive rule regarding timing of service, Rule 18.02(1) appears as implying a subsequent allowance for service of documents whereas such states:

18.02 (1)  A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.

Motion to Produce or Inspect

Disclosure mandates within the Rules are silent on the right of a party to seek an production or opportunity for inspection; accordingly, these issues are addressed by the common law; which until recently, remained in a state of flux and confusion with contradictory decisions from the lower courts (Small Claims Court and Divisional Court); however, the Court of Appeal, in the case of Riddell v. Apple Canada Inc., 2017 ONCA 590 (request for leave to Appeal to the Supreme Court denied; 2018 CanLII 51171) confirmed that judges in the Small Claims Court do have such jurisdiction whereas it was stated:

[3]  Specifically, the Rules of the Small Claims Court, O.  Reg.  258/98 (the “Rules”), especially r. 17.03, do not adequately cover the matter of the pre-trial inspection of property.  As a result, where trial fairness and the interests of justice, including the expeditious and least expensive determination of a case on the merits, so require, Deputy Court Judges of the Small Claims Court have jurisdiction under r.  1.03(2) of the Rules to order the pre-trial inspection of property by reference to r. 32.01 of the Rules of Civil Procedure, R.R.O.  1990, Reg.  194.

Previous cases on the issue still worthy of a review include Garg v. Raywal Limited, 2014 CanLII 45320 (motion denied and deemed improper as lacking jurisdiction); Burke v. Lauzon Sound and Automation Inc., 2016 CanLII 16474 (motion allowed but purpose limited); Pope v. Sutton Premier, 2013 CanLII 56750 (motion denied and deemed unavailable).

Production, Third Party

What does appear very consistent is denial of any attempt to import Rule 30.10 of the Rules of Civil Procedure and thus any opportunity to obtain an Order from the Small Claims Court for production by a third party.  This issue was well addressed in Elguindy v. St.  Joseph’s Health Care, 2016 ONSC 2847 as well as Schafer v. Wagner, 2016 CanLII 90738 (see paragraphs 8 to 26 for reasoning and decision).

[8]  A Small Claims Court Judge derives his or her jurisdiction from statute. The jurisdiction of the Small Claims Court is set out in the Courts of Justice Act, R.S.O. 1990, Chap. C.43 (the “CJA”), ss. 22 to 33.1 and in the Rules of the Small Claims Court, O. Reg. 258/98, as amended (the “SCC Rules”). The procedure to be followed in the Small Claims Court is set out in the SCC Rules: Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 641 (C.A.).

[9]  The purpose of the Small Claims Court is to provide expeditious and low cost resolutions of monetary disputes (CJA, ss. 23-30). In keeping with that purpose, there is no provision in the SCC Rules for discovery generally in the Small Claims Court. Where the plaintiff’s claim or the defendant’s defence is based in whole or in part on a document, a copy of the document must be attached to the pleading (SCC Rules 7.01(2) 2; 10.01(4) 2.). A settlement conference is mandatory in every defended action (SCC Rule 13.01(1)). At least 14 days before the date of the settlement conference, each party is required to serve and file a copy of any document not attached to their pleading that they intend to rely on at trial, including an expert report (SCC Rule 13.03(2)).

[10]  SCC Rule 13.05(1) provides that a judge conducting a settlement conference may make an order relating to the conduct of the action that the court could make. Rule 13.01(2)(a) sets out some examples of orders a judge may make including (vi) “directing production of documents”. This is the only place in the SCC Rules that deals with production of documents beyond those the parties intend to rely on and it arises only as part of a settlement conference.

[11]  At the conclusion of the Applicant’s submissions, we advised counsel for the Respondents that we did not have to hear from them on the issue of whether the Judge had jurisdiction to issue the order requiring the Applicant to produce the expert reports he intended to rely on at trial within 90 days.

[12]  The Applicant submits that the Order dealing with the production of documents was an equitable order and the Small Claims Court has no jurisdiction to order equitable relief except as provided by s. 23 of the CJA. While I agree the Small Claims Court has no jurisdiction to grant equitable relief apart from what is provided by statute (CJA s. 96(3)), an order to produce documents in an action is not equitable relief. It is a procedural order. Further, the jurisdiction to make such an order comes from the SCC Rules.

[13]  In our view, the Judge clearly had jurisdiction at the settlement conference and pursuant to SCC Rule 13.05(2)(a)(vi) to order the Applicant to produce his expert reports dealing with the standard of care of the Respondents. There is no issue that in a medical negligence action such reports are necessary to succeed at trial. Further, they must be produced at least 14 days before the settlement conference: SCC Rule 13.03(2). In the face of the Applicant not providing such reports, it is appropriate to order their production before trial.

[14]  In respect of that portion of the Order dealing with the third party production, the Respondents submit that the Small Claims Court has jurisdiction to make such an order. They rely on s. 25 of the CJA and the SCC Rules 1.03(1) and 13.05. They submit that the prior SCC rules assist in interpreting the current rules and particularly SCC Rule 13.05 concerning production of documents.

[15]  The Respondents further submit that there is no prejudice to the third parties in this case. The scope of the records is defined both in terms of type and time. Further, hospitals and other medical providers have procedures in place to facilitate production of such records when ordered or consented to by the parties.

[16]  Section 25 of the CJA provides:

25. The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.

[17]  Further, SCC Rule 1.03(1) provides:

1.03(1) 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 Act.

[18]  Both s. 25 of the CJA and SCC Rule 1.03(1) are concerned with and apply to actions within the Small Claims Court’s jurisdiction. They do not assist, in my view, in determining whether the Small Claims Court has jurisdiction.

[19]  The parties have provided two conflicting decisions from the Small Claims Court dealing with the jurisdiction to order third party production.  In Lemont v. State Farm Mutual Automobile Insurance Co., [2011] O.J. No. 4601, Deputy Judge Winny, in a carefully worded decision, concluded that there was no jurisdiction to make third party production orders whether on motion or at a settlement conference.

[20]  In Lemont, Deputy Judge Winny was dealing with a motion under the SCC Rule 15 for production of non-party documents. The moving party submitted that the Small Claims Court had jurisdiction to make the production order, either under the SCC Rules dealing with motions or at a settlement conference. The Deputy Judge dismissed the motion for a number of reasons including that rule 30.10 of the Rules of Civil Procedure did not apply in Small Claims Court, both because of rule 1.02(1) of those rules and because SCC Rule 1.03(2), the analogy rule, can only be applied where the SCC Rules fail to cover a matter adequately and that cannot be said in respect of discovery in the Small Claims Court. In addition, Deputy Judge Winny further held that the settlement conference context of SCC Rule 13.05(2)(a)(vi) did not permit the Rule to be interpreted to mean that non-party production motions are a proper part of the settlement conference process.

[21]  By contrast, in Dave’s Auto Detailing v. Guilbault Certiguard, [2013] O.J. No. 4082, Deputy J. P. Lepsoe, on the consent of both the parties and the third party, ordered production of third party records. After referring to Lemont, the Deputy Judge stated “I am satisfied that it is proper for this court in some circumstances to make an appropriately tailored order, such as the one herein, particularly with the advice and consent of counsel to that non-party.”

[22]  Given that Dave’s Auto was on consent of all parties, including the third party and the Deputy Judge provided no reasoning concerning his jurisdiction to make the third party production order, it is of no assistance in dealing with the issue before the court.

[23]  On the other hand, I am in complete agreement with Deputy J. Whinny’s reasons in Lemont. In the absence of discovery in the Small Claims Court, there is no gap in the SCC Rules which would permit incorporation of rule 30.10 of the Rules of Civil Procedure. Nor is there any provision in the SCC Rules for third party production orders, either on a motion or at a settlement conference. As noted, the only provision in the SCC Rules permitting an order for production of documents is SCC Rule 13.05(2)(a)(vi) which, in the context of a settlement conference, only permits an order for production by a party to the action as part of the settlement conference.

[24]  Prior to the current SCC Rules being enacted in 1998, the former Small Claims Court Rules did in fact allow for the possibility of discovery, but only with leave of the court. Former rule 13.01 provided that no discovery was permitted but also provided that the court could grant leave for certain forms of discovery, including examination for discovery. In practice, except for the odd exception, no discovery was permitted by Small Claims Court Judges.

[25]  The Respondents submit that because the prior SCC rules specifically prohibited documentary discovery, except with leave, whereas the current SCC Rules specifically provide for documentary discovery (SCC Rule 13.05(2)(a)(vi)), there is no restriction on that discovery limiting it to between the parties.

[26]  In my view, the Respondents’ reliance on the prior SCC rules is of no assistance in determining jurisdiction for third party production in the current SCC Rules. There is still no discovery under the SCC Rules. SCC Rule 13.05(2)(a)(vi), which enables an order for production of documents is not a general provision concerning production. It is contained within the settlement conference rules. Settlement conferences are only between the parties to the action. It cannot be expanded to encompass the jurisdiction to order production from parties who are not part of the action and have had no notice of the request.

8.  The question of the jurisdiction of the Small Claims Court to grant discovery-type remedies under the Rules of Civil Procedure has been the subject of a number of cases over the past decade or longer.  Those cases include my decisions in Lemont v. State Farm Mutual Automobile Ins. Co. (2011), 9 C.C.L.I. (5th) 318 (Ont. Sm. Cl. Ct.), and Garg v. Raywal L.P., [2014] O.J. No. 3686 (Sm. Cl. Ct.), respectively holding that the Small Claims Court has no jurisdiction to entertain motions under rules 30.10 and 32 of the Rules of Civil Procedure.

9.  For present purposes I will add only what appears useful to describe the jurisprudential landscape in light of the two recent Divisional Court decisions: Elguindy v. St. Joseph’s Health Care, [2016] O.J. No. 2742 (Div. Ct.), where the court approved of the reasoning and result in Lemont, and Riddell v. Apple Canada Inc., [2016] O.J. No. 4934 (Div. Ct.), where the court disapproved of the reasoning and result in Garg.  On this motion the defence submitted that I should follow Riddell and the plaintiffs submitted that I should follow Elguindy.

10.  The Small Claims Court has no discovery process equivalent to what is provided under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.  Those rules specifically state that they do not apply in Small Claims Court.  Rule 1.02(1) provides:

1.02(1) These rules apply to all civil proceedings in the Court of Appeal and in the Superior Court of Justice, subject to the following exceptions:

1. They do not apply to proceedings in the Small Claims Court, which are governed by Ontario Regulation 258/98 (Rules of the Small Claims Court).

2. They do not apply to proceedings governed by Ontario Regulation 114/99 (Family Law Rules), except as provided in those rules.

3. They do not apply if a statute provides for a different procedure.

11.  Despite the simple fact that the Rules of Civil Procedure don’t apply in Small Claims Court, occasionally some litigants want them to apply in this court.

12.  An early example was motions for summary judgment under Rule 20 of the Rules of Civil Procedure.  In several cases it was held that such motions could be brought in Small Claims Court “by analogy” to the Rules of Civil Procedure.  In Kaur v. Deopaul, [2006] O.J. No. 1373 (Sm. Cl. Ct.), affirmed (2006), 2006 CanLII 34721 (ON SCDC), 216 O.A.C. 247 (Div. Ct.), the motions judge held that Rule 20 motions should be available in Small Claims Court because that result was just and expeditious.  Summary judgment on a limitation defence was granted and that result was upheld on appeal to the Divisional Court.

13.  But then in Van de Vrande v. Butkowsky (2010), 2010 ONCA 230 (CanLII), 99 O.R. (3d) 641 (C.A.), the Court of Appeal rejected the theory that Rule 20 motions were available in Small Claims Court “by analogy” to the Rules of Civil Procedure.  The court held that the omission of a Rule 20 procedure from the Rules of the Small Claims Court, O.Reg. 258/98, was deliberate and not an inadvertent “gap”.  The omission could not justify importing Rule 20 from the Rules of Civil Procedure into this court.  It is up to the Civil Rules Committee and not the courts to decide whether more procedures should be made available for Small Claims Court cases.

14.  Arguably the reluctance to import the Rules of Civil Procedure into Small Claims Court reflected the weight of the authorities even before the Court of Appeal pronounced on the subject in Van de Vrande, supra: see Fountain v. Ford, [2009] O.J. No. 562 (Sm. Cl. Ct.), at para. 4.  That reluctance was consistent with existing Court of Appeal pronouncements on the limited scope for judges to import new procedural rules “by analogy” to otherwise inapplicable procedural rules or codes: Andreacchi v. Purruccio, 1971 CanLII 414 (ON CA), [1972] 1 O.R. 508 (C.A.); Toronto-Dominion Back v. Szilagyi Farms Ltd. (1988), 1988 CanLII 4745 (ON CA), 65 O.R. (2d) 433 (C.A.).

15.  Discovery was previously available in this court, with leave of the court, under rule 13.01 of the former Rules of the Small Claims Court, R.R.O. 1990, Reg. 201.  Those rules were repealed and replaced by O.Reg. 258/98, in which the option for discovery by leave of the court was eliminated.  Yet there are some who consider it desirable for discovery-type steps to be available in this court, at least in exceptional cases, despite the revocation of a rule which provided for such a policy.

16.  Jurisdiction is a foundational concept in the rule of law.  It is also particularly important that litigants should have the benefit of clear rules defining what a court can and cannot do for their specific cases: Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.).

17.  In the case at bar, the defendants cited Riddell v. Apple Canada Inc., [2016] O.J. No. 4934 (Div. Ct.).  There the Divisional Court approved the availability of motions in Small Claims Court for inspection of property under Rule 32 of the Rules of Civil Procedure, albeit on a limited basis.  The court said at para. 24 that making pre-trial orders for discovery-type relief will usually be unjustified in Small Claims Court proceedings.  It held at para. 25 that only in “a small subset of cases” would discovery-type orders be necessary.  In that case the court concluded at para. 26 that inspection of the electronic device giving rise to the claim was “critical to a proper determination whether it could have caused the damages that the applicant claims.

18.  The reasoning and result in Riddell, supra, may be contrasted with Elguindy v. St. Joseph’s Health Care, [2016] O.J. No. 2742 (Div. Ct.), cited by Mr. Ellis.  In that case the Divisional Court held that the Small Claims Court has no jurisdiction to make an order under rule 30.10 of the Rules of Civil Procedure for production of documents by a non-party.  The court held at para. 9 based on Van de Vrande, supra, that procedure in the Small Claims Court is set out in the Rules of the Small Claims Court.  There was no suggestion that rule 30.10 orders could be made in this court in exceptional cases where such an order was found to be critical to a proper determination of an essential element of the case.

19.  In my respectful opinion there is a certain discord between Elguindy and Riddell.  Consistent with the previous weight of authorities, Elguindy holds that rule 30.10 motions are not available in Small Claims Court.  But Riddell re-opens the door, if only slightly, with respect to Rule 32 motions in this court.  In doing so the Divisional Court at para. 15 approved National Service Dog Training Centre Inc. v. Hall, 2013 CanLII 41924 (ON SCSM), [2013] O.J. No. 3216 (Sm. Cl. Ct.), where the court (at paragraphs 30 & 33) applied the same “gap” reasoning that was rejected by the Court of Appeal in Van de Vrande, supra, to find that a Rule 32 motion could be brought in Small Claims Court.

20.  It appears to me that on a broader level, Van de Vrande stands for the proposition that the Rules of Civil Procedure cannot be freely imported into Small Claims Court based on the “gap” or “by analogy” reasoning that appears in Kaur v. Deopaul, supra, and other cases.  If so, Rule 32 motions are not available in Small Claims Court and it would be for the Civil Rules Committee to change that state of affairs.

21.  But on the other hand, if Van de Vrande is interpreted narrowly, one could argue that it deals only with Rule 20 motions, leaving Riddell as the sole and binding authority from the Divisional Court on the availability of Rule 32 motions in this court.  One drawback of this approach is that it provides little guidance on whether, in future, other discovery-type motions under the Rules of Civil Procedure will be held to be unavailable in this court as in Elguindy, or available as in Riddell.  Another is that it permits the costs associated with Rule 32 motions to be visited on litigants in this court, including the cost of these motions, the cost of the discovery-type step and the associated trial cost.

22.  In National Service Dog, supra, the Rule 32 order resulted in a series of experts being added to the roster of witnesses at eventual trial, which was significantly delayed in the process.  The trial ended up taking 14 days - so far as I am aware, the longest trial in the history of this court.  In his reasons for judgment the trial judge found all of the expert evidence, including that which was generated by the Rule 32 order, to be immaterial to the result: National Service Dog Training Centre Inc. v. Hall, [2014] O.J. No. 4370 (Sm. Cl. Ct.), at para. 25-27, supplementary reasons [2014] O.J. No. 6500 (Sm. Cl. Ct.).  I perceive a common feature of cases in which discovery-type relief is granted in this court: it costs far more than it is worth.  And quite frankly I have never seen a case where the lack of a pre-trial discovery-type procedure in this court caused an unjust outcome at trial.  Those practical observations are part of why my own opinion is against permitting discovery-type motions in this court, even in exceptional cases.

23.  To decide this motion I will apply Riddell and assume for the sake of argument that it can be reconciled with Van de Vrande.

24.  The evidence before me does not establish that the proposed inspection of real property is critical to the determination of the case at trial.  There is already an expert report on hand on the defence side, and there is no evidence that physical inspection of the real property by that expert would or even might make any difference to his opinions.  The defendants have not established that this is one of those exceptional situations where the balance tips in favour of making a pre-trial order for inspection of property.

25.  In the alternative, I agree with Mr. Ellis’ submission that since the current owners of the property are non-parties, the facts of this case are closer to the facts of Elguindy.  To order the current owners to give access to the defence expert would be supportable under rule 32.01(2)(a) of the Rules of Civil Procedure (if the non-parties were on notice of the motion), but such an order would in my view be unwarranted in Small Claims Court because they are not parties to the proceeding and are accordingly one step removed from a discovery process which does not apply in this court.  Either this court has no jurisdiction to make a Rule 32 inspection of property order against non-parties, or it has such jurisdiction but the relief is unwarranted in this particular instance.

26.  The request for an order compelling the plaintiffs to allow the defence expert access to their former real property is denied.

After Setting Matter Down

Whereas a party that sets a matter down for Trial implies readiness to proceed to trial, a subsequent Motion to Produce or Inspect is improper; Abdi v. Demello, 2016 ONSC 4373 and Meloro Restaurants Ltd. v. Little Caesar of Canada Inc., 2012 ONSC 1870.

Inspection or Production

Recently in the case of York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, a traffic ticket provincial offences case involving a Motion to Produce, the Court of Appeal stated:

[130] Nor was the prosecutor's invitation to view the user manual at the prosecutor's office sufficient.  The first principle governing the manner of disclosure is that it be meaningful, in the sense that it be adequate to make full answer and defence.  Disclosure of user manual instructions will be meaningful where the defendant can capture a precise record of the information.  It will be meaningful if the information can be captured to be shared In consulting and preparing an expert witness, if necessary.  And it will be meaningful if the defendant has access to a copy of that information during trial so that it can be used during the cross examination of the traffic officer, or as an exhibit, if appropriate.  This is not a case where the interests of justice require inspection instead of production.

Accordingly, it appears clear that a limited inspection opportunity may be insufficient disclosure and actual production required.  As indicated by the Court of Appeal, where availability of the document in question may need subsequent access by an expert witness, among other things, production rather than mere inspection is appropriate.

Summary Comment

The Rules on disclosure are extensive and can be confusing with various twists, turns, conditions, and exceptions, that can challenge even the most seasoned professionals.  For these reasons, laypersons should obtain professional assistance when reviewing what should be disclosed, and when, as well as what should be sought from the opposing side.

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