) ) Mary Lee Armellini Plaintiff/Creditor (Appellant) – v. –, 2013 ONSC 4735

CITATION : Armellini v. Crook, 2013 ONSC 4735 COURT FILE NO.: 13-0163 DATE: 20130711 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Mary Lee Armellini Plaintiff/Creditor (Appellant) – and – Joel Grant Crook Defendant/Debtor (Respondent) ) ) ) ) ) ) ) ) ) E. Brohm, for the Appellant Self Represented, Respondent ) ) ) HEARD: July 11, 2013 On Appeal from the Judgment of Deputy Judge M. Shaw dated January 8, 2013 McCarthy J. The Appeal [ 1 ] The Appellant appeals from the decision of the Honourable Deputy Judge M.

Shaw given on January 8, 2013 in which Judge Shaw, on a motion to set aside a Default Judgment, transferred the action to the “Family Court Barrie”. In so doing, the Deputy Judge also ordered that the writ of seizure and sale issued on June 29, 2011 be stayed until final resolution. The grounds for the order were that, “The Small Claims Court does not have jurisdiction in a co-habitation family law matter, Courts of Justice Act ,

section 21.8,

Schedule 3.” [ 2 ] In her oral reasons, the Deputy Judge also relied on

section 110 of the Courts of Justice Act (“the Act”) which states that where a proceeding is brought in the wrong court or judge, it may be transferred to the proper court or judge. [ 3 ]

Section 21.8 of “the Act” sets out the proceedings in which the Family Court has jurisdiction.

Part 3 of the

Schedule to subsection 3 reads as follows: 3. Proceedings for relief by way of constructive trust or resulting trust or a monetary award as compensation for unjust enrichment between persons who have cohabited. [ 4 ] The motion before the Deputy Judge had nothing to do with either a transfer of the proceeding or the appropriate court for it. The Deputy Judge did not give an order setting aside the default judgment given by Deputy Judge on June 23, 2011. On the contrary, in her reasons for ruling, the Deputy Judge was careful to add that she was not dismissing the writ of seizure and sale, only staying it. She went on to say, “I am transferring it under

Section 110 as opposed to staying the whole process and making your client start over, so she does not have to start over.” That comment was directed at the Plaintiff who was opposing the motion. Preliminary Issue

[ 5 ] The Respondent raised the preliminary issue of whether an appeal lies to this court at all under

section 31 of the Act, since the order in question is merely an interlocutory order, not a final order as contemplated in that section. I disagree. The order in question is clearly final since it is the last opportunity for the Small Claims Court to have jurisdiction over the matter. By transferring the action to the Family Court, the Small Claims Court has discharged any further obligation to deal with any aspect of the matter. In that sense, it is very much a final order. Analysis [ 6 ] I have concluded that the Deputy Judge erred both procedurally and substantively in granting the impugned order. As well, I have concluded that she erred by exercising her jurisdiction under

section 110 of the Act in an unreasonable manner. [ 7 ] From a procedural standpoint, the motion itself was limited to the relief sought in the notice of motion. While the court has the inherent jurisdiction to control its own process and apply the law, procedural fairness dictates that a party responding to a motion be clear on what the motion entails and what relief is sought. This would allow that party to properly research the law, prepare materials and make oral argument. In this case, the Deputy Judge made a procedural final order for relief which was neither sought nor argued.

The Plaintiff did not have a reasonable opportunity to properly prepare responding materials or meaningful submissions on the point before the Judge gave her ruling. I recognize that the Small Claims Court Rule 25 directs that it 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. This power should not, in my view, result in the procedural unfairness which is visited upon a party when it is deprived of a meaningful opportunity to prepare an argument and address the court on an issue. [ 8 ] On the substantive side, I am the view that the Deputy Judge erred when she characterized the claim as a “cohabitation family law matter” for the purposes of

section 21.8 (3) of the Act. A careful reading of the claim in fact reveals that the relationship of the parties and the reasons for the Plaintiff advancing the sums to the Defendant served as part of the narrative of the salient facts in support of the claim. Nowhere in the claim does she claim an equitable interest in the Defendant’s home or seek an equitable remedy from the court. She does not claim for resulting trust, constructive trust nor allege unjust enrichment. The claim is, in pith and substance, for a monetary amount within the monetary jurisdiction of the Small Claims Court. At page 2 of

Schedule A of the claim, the Plaintiff is clearly asking the court for the original amount of the debt plus interest. I note that no certificate of pending litigation was sought. The after acquired writ of seizure and sale is a collection tool; it is not necessary to show a legal or equitable interest in land to obtain that writ. There was nothing about the relief sought which prevented the trier of fact at first instance from properly adjudicating on the matter. In my view, the claim was in debt. The verbiage employed and the reference to a future interest in the Defendant’s home does not suffice to bring it within the

Schedule found at

section 21.8 (3) nor under the rubric of family law. The learned Deputy Judge failed to look at the substance of the claim and, in my view, incorrectly categorized it as a “cohabitation family law matter.” The substance of the claim does not warrant it being transferred out of the Small Claims Court’s jurisdiction. [ 9 ] As well, I am of the view that the Deputy Judge erred by exercising her discretion and the jurisdiction of the court in an unreasonable manner.

Here, the Deputy Judge was dealing with a motion to set aside a default judgment and to permit the filing of a statement of defence, with the accompanying relief. Although the Deputy Judge gives the proviso that she is not expecting the Plaintiff to begin all over again, by transferring the matter to the Family Court and granting a stay long after a judgment has been obtained and at a point of advanced collection proceedings, her order would in fact compel the Plaintiff to begin anew.

I cannot contemplate exactly how this matter would wend its way through the complex and challenging world of the family rules and procedures but I am satisfied that the Plaintiff would find herself far closer to the beginning rather than to the end of the procedures that would await her there. As well, transferring the matter to the Family Court after default judgment has been granted on the merits by a trier of fact would raise the possibility of competing or contrary findings being made at a different level of court. This raises the spectre of res judicata .

A judicial officer should be reluctant to transfer matters to a different court which have already been largely, if not entirely, adjudicated. This is also not in keeping with the overall goal of having matters determined on their merits in a timely fashion and ensuring that scarce judicial resources are not utilized in a wasteful or unnecessary fashion. Disposition [ 10 ] For the reasons set out above, I would allow the appeal and set aside the order of Deputy Judge Shaw dated January 8, 2013. The within action and the proceedings thereunder shall remain within the jurisdiction of the Small Claims Court.

The Defendant is granted leave to renew, return or bring his motion to set aside the default judgment of Deputy Judge Scharf dated June 23, 2011 within 30 (thirty) days. That motion must be brought before a judge of the Small Claims Court. This decision have been delivered in writing to the parties and read out in open court. The issue of costs will be addressed on the record following delivery of these reasons. McCarthy J. Released: July 11, 2013