2017 ONSC 5360, 2017 ONSC 5360

CITATION : Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 5360 COURT FILE NO.: 7/17 DATE: 20170912 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Emad Elguindy, Appellant AND: St. Joseph’s Health Care London, Lisa Marie Barnes, Brian Larocque and Hassan Razvi, Respondents BEFORE: J. N. Morissette COUNSEL: Emad Elguindy, self-represented J. Damstra, and A. Christiaen, counsel for the respondents Dr. Brian Larocque and Dr. Hassan Razvi Logan Crowell, counsel for the Respondents St.

Joseph’s Health Care London and Lisa Barnes HEARD: September 8, 2017 ENDORSEMENT Introduction: [ 1 ] This appeal arises from a Small Claims Court medical negligence action brought by the appellant against the hospital, a nurse, and two doctors arising from the cancellation of a medical procedure that he was scheduled to undergo. The Appeal: The sole ground for appeal, was framed by Grace J. in his endorsement dated July 11, 2017 arising from the respondents’ motion to quash the appeal.

The motions judge struck parts of the notice of appeal and identified this as the subject for argument: Did the deputy judge err by presiding over a motion under rule 12.02 of the Rules of the Small Claims Court after presiding over a settlement conference? [ 2 ] The appellant argues by analogy to the Rules of Civil Procedure and the case law. Rule 50.10(1) prohibits a judge who has conducted a pre-trial conference from presiding at a trial. In Royal Bank of Canada v Hussain , 2016 ONCA 637 the Court held that a pre-trial judge is prohibited from hearing a

summary judgment motion under Rule 20 (unless the parties consent). He submits that the same rationale applies to prohibit a settlement conference judge from hearing a motion to dismiss under Rule 12 of the Rules of Small Claims Court. [ 3 ] The respondents respond that nothing in the Small Claims Court Rules prohibits a judge who has presided at a settlement conference from hearing such a motion, which they say is not akin to a

summary judgment motion. [ 4 ] Justice Grace observed at paragraph 69 of his reasons as follows: Why was the change to rule 13.05(2)(

a) made in 2014? What is its effect? Is Hussain to be confined to motions for

summary judgment or does it apply to any motion which could finally determine the action? If the latter, is Hussain nonetheless confined to proceedings governed by the SCJ Rules ? Are the words in rule 50.09 of the SCJ Rules prohibiting communication of any statement made at a pre- trial conference to “the judge…presiding at the hearing of…a motion” critical to the decision? Is the absence of those words from rule 13.03(4) of the Small Claims Court Rules significant? Is the characterization of motions under rule 12.02 of the Small Claims Court Rules as set forth in Van de Vrande v. Butkowsky , supra significant?

Does the requirement that the Small Claims Court Rules “be liberally construed to secure the most expeditious and least expensive determination of every proceeding on its merits” have any effect? [ 5 ] The appellant argues that because a deputy judge who presides at a settlement conference is prohibited from presiding at trial by rule 13.08 of the Small Claims Court Rules, that a deputy judge is (or should be) prohibited from presiding on a Rule 12 motion. [ 6 ] The question is whether a motion under Rule 12 of the Small Claims Court Rules is akin to or similar to a “summary judgment” motion under Rule 20 of the Rules of Civil Procedure and therefore, a deputy judge must not preside.

Analysis [ 7 ] In Van De Vrande v Butkowsky [1] , the Court of Appeal made clear that a rule 12.02 motion to dismiss under the Small Claims Court Rules is not equivalent or analogous to a rule 20

summary judgment motion under the Rules of Civil Procedure. Rouleau J.A. for the court held “it is neither useful nor appropriate to apply the jurisprudence emanating from the application of Rules 20 and 76 of the Rules of Civil Procedure to assist in the

interpretation of rule 12.02 of the SCC rules.

[ 8 ] As noted by Rouleau JA, in a Small Claims Court proceeding, the court is to “hear and determine in a

summary way all questions of law and fact” and can make “such order as is considered just and agreeable to good conscience” in accordance with the direction that the rules shall be “liberally construed to secure the just, most expeditious and lease expensive determination of every proceeding on its merit.” [2] [ 9 ] Further, the wording of rule 12.02 is not an actual determination on the merits, but rather: “it is a motion that is brought in the spirit of the

summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be ‘inflammatory, a waste of time or a nuisance.” [3] [ 10 ] The Small Claims Court is a statutory court created by the Courts of Justice Act (CJA) .

Section 25 of the CJA directs that the Court shall hear and determine all questions of law and fact in a

summary way. [ 11 ] Rule 1.03(1) of the Rules of Small Claims Court provides that as a general principle, the 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 CJA .” [ 12 ] In order to facilitate the attainment of these objectives, the legislature has equipped a deputy judge with powerful tools to determine or narrow issues in actions and dispose of unmeritorious claims early in the litigation process. Two tools relevant to this appeal are the stay and dismissal powers in rule 12 and the broad powers granted to settlement conference judges. [ 13 ] Rule 12 provides the court broad procedural authority to strike out documents, stay or dismiss claims, or grant judgment. In particular, and at issue in this appeal, rule 12.02(1) states that “The court may, on motion, strike out … any document that … (

c) is inflammatory, a waste of time, a nuisance, or an abuse of the court’s process.” Rule 12.02(2) further provides “In connection with an order striking out or amending a document under subrule (1), the court may … 1. In the case of a claim, order that the action be stayed or dismissed." [ 14 ] The legislature has recently strengthened the power of a deputy judge to end proceedings at an early stage.

In 2014, by O Reg 44/14 the legislature added rule 12.02(3) which grants the court the power to, “on its own initiative, make the order referred to in paragraph 1 of subrule (2) staying or dismissing an action, if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process.” This rule expands the authority of a deputy judge to control the court’s process and reflects the

summary nature of Small Claims proceedings by weeding out unmeritorious actions. [ 15 ] Meanwhile, rule 13.01 mandates that a settlement conference be held in every defended action. The Small Claims Court Rules grant a deputy judge conducting a settlement conference the broad power to make “any order relating to the conduct of the action that the court could make.” Rule 13.05(2) (

a) further provides that “without limiting the generality of subrule (1)”, a settlement conference judge may make an order “amending or striking out a claim or defence under subrule 12.02(1)”. [ 16 ] Prior to the 2014 amendments, rule 13.05(2) (

a) specified that a settlement conference judge could “make an order … (iii) staying the action … [or] (

v) staying or dismissing the claim”. As noted by Grace J., O. Reg. 44/14 revoked rule 13.05(2) (a) (v). In addition, O. Reg. 44/14 revoked rule 13.05(2) (a) (iii) and substituted the following words: “with written reasons, staying or dismissing the action”. The changes to the Rules still give settlement conference judges the power to make an order dismissing an action, simply with the added qualification that the judge must provide written reasons. [ 17 ] There is no equivalent to Rule 50.09 in the Small Claims Court Rules.

Summary judgment motions under Rule 20 of the Rules of Civil procedure provides for enhanced powers to judges hearing a

summary judgment motion to make findings of fact, which might dispose of the proceeding on its merits. [ 18 ] For the foregoing reasons, the Court of Appeal’s decision in Hussain does not apply to Small Claims Court rule 12.02 proceedings. [ 19 ] Finally, the deputy judge in this case did not determine the merits of the issues in a proceeding. The deputy judge dismissed because of the appellant’s failure to abide by multiple orders of the court. He reasoned that it would be a waste of time to proceed to a trial on the action.

He explained in his written reasons that he was exercising the power to dismiss the action on the following procedural basis: This matter was started in October of 2014 despite of numerous requests and several court orders the Plaintiff has still not provided any expert report regarding the standard of care required by either doctor. Without the expert reports supporting the position of the plaintiff there is no possibility of the plaintiff succeeding. Therefore, a trial would be a waste of time and effort. Accordingly, the claim is dismissed. [ 20 ] The appellant’s argument must fail.

The deputy judge in this case had the authority to order the dismissal of the action and was not barred from doing so because he had, on a previous day, presided over the settlement conference. Therefore the appeal is dismissed. “Justice J. N. Morissette” Justice J. N. Morissette

Date: September 12, 2017