A recent decision of the Court of Appeal for Ontario indicates that motions to dismiss lawsuits on the basis that they amount to SLAPP suits are not a viable option.
In a 2019 decision of the Court of Appeal, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599 (CanLII), the Court held that deputy judges of the Small Claims Court do not have jurisdiction to make an order under s.137.1 of the Courts of Justice Act. This provision has been described as the heart of anti-Strategic Litigation Against Public Participation (“SLAPP”) lawsuit protections in Ontario. The decision in Bruyea specifically stated that this decision was without prejudice to a motion brought before a judge in Small Claims Court. It is not common practice for Small Claims Court matters to be heard by judges, but rather are routinely heard by deputy judges or the administrative judge for that court.
In Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 48, the Court of Appeal considered whether the Administrative Judge of the Small Claims Court has jurisdiction. Homestars Inc. had sought to have a Superior Court judge assigned to hear its anti-SLAPP motion in the Small Claims Court asking for an order under s.137.1, but was denied this request by a Superior Court judge in civil practice court (“CPC”) who endorsed the record that an administrative judge of the Small Claims Court should hear the motions. Homestars’ s.137.1 motion was put before the Small Claims Administrative Judge, whose jurisdiction was then challenged by the appellants. The Small Claims Administrative Judge made an endorsement that the CPC endorsement of a Superior Court judge had settled the issue of jurisdiction. The appellants challenged this decision before the Court of Appeal.
By way of background, there is only a single Administrative Judge of the Small Claims Court, a position created by amendments to the Courts of Justice Act in 2017. The Courts of Justice Act states that proceedings before the Small Claims Court shall be heard by one judge of the Superior Court of Justice, a provincial judge assigned immediately before September 1, 1990, a deputy judge, or the Small Claims Administrative judge. The day-to-day experience in practice has been in many, if not all, areas of Ontario. The Small Claims Court workload is dealt with by deputy judges or the Small Claims Court Administrative judge rather than Superior Court judges.
After a detailed analysis of the legislation and jurisprudential principles, the Court of Appeal held that the Small Claims Court Administrative Judge does not have jurisdiction to make an order under s.137.1 as only Superior Court judges have jurisdiction to make such orders and the Small Claims Court Administrative Judge is not a Superior Court judge. This interpretation was felt to be consistent with the rules and procedure of the Small Claims Court to provide access to justice through informality, affordability, timely resolution, accessibility for self-represented people, and active judicial engagement, which is incompatible with the provisions of s.137.1, as those require a complex interim proceeding.
While this decision does not explicitly state that a motion in Small Claims Court could not be brought and heard by a Superior Court judge, the comments indicating that such motions are incompatible with that court’s rules and procedure seem to effectively close the door.
