) ) THE TORONTO-DOMINION BANK Plaintiff – v. –, 2010 ONSC 6974

CITATION : TD Bank v. Thind, 2010 ONSC 6974 COURT FILE NO.: 5847/10 DATE: 2010-12-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) THE TORONTO-DOMINION BANK Plaintiff – and – NASIB THIND also known as NASIB S. THIND also known as NASIB SINGH THIND, HIRA SINGH THIND also known as HIRASINGH THIND and KARTAR KAUR THIND also known as KATARKAUR THIND Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) James M. Butson, for the Plaintiff Nasib Thind, Self-Represented ) ) ) HEARD: December 15, 2010 GRAY J. [ 1 ] There are two motions before me: a motion by the defendant to transfer this action to the Small Claims Court; and a cross-motion by the plaintiff for

summary judgment. Background [ 2 ] The plaintiff sues on three separate claims, based on different credit facilities. The first claim is for $18,225.31, and interest from October 14, 2010, at the rate of 8.75% per annum. The second claim is for $597.17, and interest from October 14, 2010, at the rate of 24.75% per annum. The third claim is for $3,227.42, and interest from October 14, 2010, at the rate of 21% per annum. The total claims, apart from interest, are for $22,049.90.

This is within the jurisdiction of the Small Claims Court. [ 3 ] The defendant filed a Statement of Defence in which he admits the debts owing, and requests that the plaintiff accept a reduced amount in order to allow the defendant’s financial needs and his creditors’ needs to be met. Clearly, this does not set out a legitimate defence to the action. [ 4 ] In his motion materials, Mr. Thind discloses that he is being advised by an organization called Ontario Consumer Credit Assistance (“OCCA”).

Through that organization, he has made a proposal to various creditors, including the plaintiff. [ 5 ] Overtures to the plaintiff, with a view to resolving the claims reflected in this action, have not resulted in settlement. [ 6 ] Correspondence has ensued between the OCCA and plaintiff’s counsel with respect to the possibility of transferring this matter to the Small Claims Court. That was rejected, and this matter remains within the jurisdiction of this Court. [ 7 ] As noted, Mr. Thind has now brought a motion to transfer this action to the Small Claims Court, and the plaintiff has brought a cross-motion for

summary judgment. Submissions [ 8 ] Mr. Thind filed a factum, and it is clear that he has had assistance in preparing the factum. In addition to his factum, Mr. Thind made oral submissions before me.

[9] Mr. Thind submits that the plaintiff’s position is premised on the knowledge that Mr. Thind cannot afford legalrepresentation in the Superior Court and that this is abusive. [10] Mr. Thind submits that this action is clearly within the jurisdiction of the Small Claims Court, and that is where the caseshould be dealt with. He submits that there is no justifiable reason why the matter should be pursued in the Superior Court. [11] Mr. Butson, for the plaintiff, resists the motion to transfer this action to the Small Claims Court. Further, he submits thatMr. Thind has not shown any defence to the claim in his Statement of Defence, and accordingly

summary judgment should issue. [12] Mr. Butson acknowledges that the claim is within the jurisdiction of the Small Claims Court. However, he justifies thecommencement of the action in the Superior Court on the basis that, in fact, it is less expensive and more efficient to do so. [13] Mr. Butson points out that, as is the case here, where no adequate defence is pleaded or shown, the

summary judgmentprocedure is available in the Superior Court. No corresponding procedure is available under the Small Claims Court Rules, albeit theCourt of Appeal, in Van de Vrande v. Butkowsky (2010), 2010 ONCA 230 , 99 O.R. (3d) 641 (C.A.), suggested that there appearto be mechanisms within the Small Claims Court Rules that would allow motions to be brought to deal with claims expeditiously whereinadequate claims or defences have been pleaded. At paras. 14 – 20, Rouleau J.A. pointed out that Rule 12.02 permits the bringing ofvarious types of motions to strike pleadings and grant judgment where appropriate.

In a proper case, a Small Claims Court judge coulddecide “whether the proceeding should be ended at an early stage because its continuation would be ‘inflammatory’, a ‘waste of time’, ora ‘nuisance’.” [14] Mr. Butson submits that, notwithstanding the views of the Court of Appeal in Butkowsky, as a practical matter it is notpossible to obtain a speedy judgment in Small Claims Court where any kind of defence is pleaded, whether meritorious or not. Invirtually every case where a defence is filed, the matter cannot be disposed of in less than six to eight months.

Furthermore, a settlementconference must be attended before the matter can get to trial. This simply increases the delay and expense, as compared to thesummary judgment procedure that is available in the Superior Court. [15] Mr. Butson acknowledges that there will be cases in which a meritorious defence is pleaded. In those cases, Mr. Butsonsubmits that it is open to the defendant to properly bring a motion to transfer the matter to the Small Claims Court, and indeed he submitsthat in those cases, the plaintiff will likely consent to the matter being transferred. However, that is not this case.

Here, there is nodefence to the claim. [16] In this case, Mr. Butson submits that to transfer this case to the Small Claims Court, when no meritorious defence haseven been pleaded, will simply delay the inevitable and increase the cost. Furthermore, he submits that, as no defence to the action hasbeen shown,

summary judgment should issue. [17] Mr. Butson acknowledges that if he is successful on the

summary judgment motion, costs should be awarded that are inline with amounts that would normally be awarded in the Small Claims Court. In this case, he suggests a range from $800 to $900. Analysis [18] It is the clear policy of the legislature and the Rules Committee that cases worth $25,000 or less be heard in the SmallClaims Court. Indeed, as reflected in rule 57.05, there are costs consequences where a plaintiff recovers an amount that is within themonetary jurisdiction of the Small Claims Court. In such a case, the Court may order that the plaintiff not recover any costs.

Such anorder is discretionary. [19] With his usual candour, Mr. Butson advised me that his client’s position is based entirely on practicalities. Heacknowledges that the general policy of the legislature and the Rules Committee is that cases worth less than $25,000 are to bedetermined in the Small Claims Court. However, he submits that as a practical matter it is preferable, at least for cases that are likely tobe amenable to the

summary judgment procedure, that such cases be heard and determined in the Superior Court, at least until it isdetermined whether there is a meritorious defence. [20] As valid as these practical considerations may be, they are really a criticism of the way in which the Small Claims Court isadministered; a criticism of the absence of a

summary judgment procedure in the Small Claims Court; and a criticism of the apparentunwillingness of Small Claims Court judges to take up the suggestions of the Court of Appeal in Butkowsky. [21] With respect, I do not think these practical considerations can override the clear policy of the legislature and the RulesCommittee that cases worth less than $25,000 should be disposed of in the Small Claim Court. As pointed out by the Court of Appeal inButkowsky, the absence of a

summary judgment procedure under the Small Claims Court Rules is deliberate. I cannot be concernedabout the way in which the Small Claims Court is administered, or the way in which Small Claims Court judges make determinations onmotions under that Court’s Rule 12.02. [22] That brings me to this case. I agree with Mr. Butson that since no real defence is pleaded, it would not make sense totransfer this action to the Small Claims Court. That would serve no useful purpose. For the same reason,

summary judgment shouldissue on the plaintiff’s claim. [23] However, I think there must be costs consequences for the plaintiff’s decision to bring the matter in this Court, eventhough it is clear that this action is within the jurisdiction of the Small Claims Court. I agree with the statement of Justice Nolan in Lore(c.o.b. Lore General Contracting) v. Tortola, [2008] O.J. No. 769 (S.C.J.), at para. 17: The Superior Court of Justice is currently overburdened with cases. Parties should not be rewarded with costs in matters that shouldhave been properly brought in another forum designed to handle claims of a specific magnitude or monetary value, such as the Ontario

Small Claims Court. [ 24 ] Rule 57.05(1) permits the Court to order that a plaintiff not recover any costs if the plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court. In this case, the plaintiff has not only recovered an amount within the monetary jurisdiction of the Small Claims Court, the plaintiff made a deliberate decision to commence this action in the Superior Court when it was clear that the action was within the jurisdiction of the Small Claims Court. [ 25 ] In these circumstances, I do not think it is sufficient, as submitted by Mr.

Butson, to simply award the plaintiff costs on a scale that would be appropriate in the Small Claims Court. If the plaintiff, as here, has made a deliberate decision to bring the proceedings in the Superior Court when it is clear that the Small Claims Court has jurisdiction, then, save in exceptional circumstances, the plaintiff should recover no costs. The business decision made by the plaintiff to bring the action in this Court should carry with it the business decision that it will likely receive no costs if it is successful. [ 26 ] For the foregoing reasons, there will be no order as to costs.

Disposition [ 27 ] The defendant’s motion to transfer this action to the Small Claims Court is dismissed. The plaintiff’s cross-motion for

summary judgment is granted. I have signed a judgment awarding the plaintiff the amounts claimed in the Statement of Claim. [ 28 ] There will be no order as to costs. GRAY J. Released: December 15, 2010 CITATION : TD Bank v. Thind, 2010 ONSC 6974 COURT FILE NO.: 5847/10 DATE: 2010-12-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: THE TORONTO-DOMINION BANK Plaintiff – and – NASIB THIND also known as NASIB S. THIND also known as NASIB SINGH THIND, HIRA SINGH THIND also known as HIRASINGH THIND and KARTAR KAUR THIND also known as KATARKAUR THIND Defendants REASONS FOR JUDGMENT GRAY J. Released: December 15, 2010