) ) 1439957 ONTARIO INC. o/a 409 COLLISON CENTRE v. 2237446, 2017 ONSC 4984

CITATION : 1439957 Ontario Inc. v. Benkoe, 2017 ONSC 4984 DIVISIONAL COURT FILE NO.: 561/15 DATE: 20170822 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, STEWART and PATTILLO JJ. BETWEEN: ) ) 1439957 ONTARIO INC. o/a 409 COLLISON CENTRE and 2237446 ONTARIO INC. ) ) ) Mark A. Klaiman , for the Applicants ) Applicants ) ) – and – ) ) GIOVANNA BENKOE ) Lisa M.

Carr , for the Respondent ) Respondent ) ) ) HEARD at Toronto: August 22, 2017 NORDHEIMER J. (orally) [ 1 ] The plaintiffs/applicants seek judicial review of the judgment of Deputy Judge Caplan of the Small Claims Court that awarded the plaintiff $313.58 on a claim of $1,413.63. The claim arises under the Repair and Storage Lien Act , R.S.O. 1990, c. R.25 with respect to the costs of storage for a motor vehicle that had been damaged in an accident. [ 2 ] The plaintiff sued the wife/driver of the vehicle rather than the husband/owner.

As a consequence, the trial judge found that the plaintiff could not rely on its agreement for storage charges and thus awarded the plaintiff the lower amount. [ 3 ] There is a preliminary issue that must be determined and that is whether an application for judicial review is appropriate in these circumstances. I conclude that it is not. There is no right of appeal from a final order of the Small Claims Court where it directs the payment of a sum of money that does not exceed the prescribed amount, that is, $2,500: see s. 31 of the Courts of Justice Act , R.S.O. 1990, c. C.43 and Reg. 317/11.

In an effort to avoid that prohibition, the applicants seek to rely on s. 2 of the Judicial Review Procedure Act , R.S.O. 1990, c. J.1 that provides that this court may set aside a statutory power of decision.

Specifically, s. 2(2) reads: The power of the court to set aside a decision for error of law on the face of the record on an application for an order in the nature of certiorari is extended so as to apply on an application for judicial review in relation to any decision made in the exercise of any statutory power of decision to the extent it is not limited or precluded by the Act conferring such power of decision. [ 4 ] In my view, the Judicial Review Procedure Act was not intended to provide a surrogate right of appeal where the legislature has expressly restricted those appeal rights.

This court has ruled on more than one occasion that resort can be had to the Judicial Review Procedure Act to correct an error in jurisdiction with respect to a matter in the Small Claims Court. At the same time, however, this court has also repeatedly held that it will not intervene on judicial review if the proceeding is, in essence, an appeal: see Peck v. Residential Property Management Inc. 2009 CanLII 38504 (ON SCDC) , [2009] O.J. No. 3064 (Div. Ct.) and Millard v. Di Carlo , 2014 ONSC 1218 (CanLII) , [2014] O.J. No. 917 (Div.

Ct.). [ 5 ] There is no doubt that this application for judicial review is nothing more than a disguised effort to appeal the decision of the Small Claims Court. The applicants say that this was a test case intended to resolve a large number of cases and that it should qualify as an exception to that general rule. I do not agree. There were other methods under the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 to have this issue decided as a test case that would have avoided this problem.

It does not change the fact that this is not an appropriate use of the extraordinary remedy of judicial review. [ 6 ] The application is dismissed. [ 7 ] I have endorsed the Application Record as follows: “For oral reasons, the application is dismissed. The applicants shall pay to the respondent costs fixed in the agreed amount of $4,000 all inclusive.”

___________________________ NORDHEIMER J. I agree ___________________________ STEWART J. I agree ___________________________ PATTILLO J. Date of Reasons for Judgment: August 22, 2017 Date of Release: August 23, 2017 CITATION : 1439957 Ontario Inc. v. Benkoe, 2017 ONSC 4984 DIVISIONAL COURT FILE NO.: 561/15 DATE: 20170822 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, STEWART and PATTILLO JJ. BETWEEN: 1439957 ONTARIO INC. o/a 409 COLLISON CENTRE and 2237446 ONTARIO INC. Applicants – and – GIOVANNA BENKOE Respondent ORAL REASONS FOR JUDGMENT NORDHEIMER J.

Date of Reasons for Judgment: August 22, 2017 Date of Release: August 23, 2017