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Small Claims Court (Ontario) Law
(01 October 2011)

Chapter 2 - The Court

  1. The Small Claims Court
  2. Judges
    (a) Overview
    (b) Judicial Misbehaviour
    . Overview
    . Failure to Issue Ruling
    . Bias and Conflict of Interest
  3. Deputy Judges
    (a) Overview
    (b) Pay of Deputy Judges
    (c) Terms and Renewals of Terms of Deputy Judges
    (d) Deputy-Judge Misbehaviour
    . Bias and Conflict of Interest
    . Judicial Immunity
    (e) Complaints Process
  4. Referees
  5. Court Clerks
  6. Sheriffs
  7. Bailiffs
________________________________________


1. The Small Claims Court

Technically, the Small Claims Court is a branch of the main Ontario trial court: the Superior Court of Justice, although it is significantly junior in status. For purposes of administration and court sittings, the courts are divided into regions covering the province [CJA s.74].

The chief judge of the Superior Court has authority over the assignment of judges to regions, and the assignment of cases to judges [CJA s.15, s.123(1)].

Trials in Small Claims Courts may be conducted by judges and deputy judges practically all are by deputy-judges). All judicial functionaries acting within their authority are legally acting "as the court", not in any personal capacity [CJA s.81]. As such, they are largely immune from legal liability for acts and omissions committed in good faith pursuance of their duties.


2. Judges

(a) Overview

All judges of the Superior Court are also judges of the Small Claims Court, and can hear cases in that court [CJA s.22]. However most Small Claims trials are presided over by deputy judges (see s.3 below).

Superior Court judges are judges of higher, constitutional status and are to be addressed as "Justice" in person, and as "Mr/Madam Justice ...." in writing. While there is no formal address established for deputy judges, it is common to address them as "Justice" as well. Even if you get it wrong however they will understand - as long as you respect that the important thing is to show them respect and recognize that they perform a necessary and difficult job.

Complaints about judges are dealt with by special Judicial Councils, run by other judges (although when the issue is the failure to issue a ruling, see below). Deputy judges have separate complaint processes (see below).

(b) Judicial Misbehaviour

. Overview

Judges in Ontario are subject to discipline by the Ontario Judicial Council, established under the Courts of Justice Act [ss.49-51.12]. Dealing with a possibly misbehaving judge is always a difficult task.

Judges are effectively immune from civil lawsuits except in the most egregious circumstances. In RM v MZ (Ont Div Ct, 2009) the defendant was a judge of the family court. Despite the failure of the Small Claims Court deputy-judge to issue reasons for dismissing the case on an abuse of process and question of law motion, the Divisional Court substituted it's own ruling and upheld the dismissal on the basis of judicial immunity. Citing the Supreme Court of Canada case of Morier and Boiley v Rivard [SCC, 1985], the court held that judicial immunity was absolute, and immunized any acts done in the course of their judicial role, even if they were malicious or done in bad faith.

. Failure to Issue Ruling

Judges often issue their rulings "from the bench" immediately after a case is completed, or with a short adjournment to collect their thoughts. Sometimes though they will "reserve" their ruling, meaning that they will issue a ruling at a later scheduled appearance - or by later-issued written ruling that parties may pickup up from the courtroom or be mailed or faxed.

Occasionally however parties run into situations where the issuance of a ruling is long-delayed, and in these cases some special rules may apply.

If a judge leaves the Court (eg. retires), they may issue a reserved ruling up to 90 days after retirement, resignation or appointment to another court.

If a judge is unable to render a ruling by reason of death, has gone past the 90 day extension after leaving the court, or for any other reason is unable to issue the ruling, then a party may make a motion to the chief judge for an order that the matter be reheard.

However, if a judge is still sitting as a judge but has failed to issue a reserved ruling on: an order (typically a procedural decision) within three months, or a judgment (typically a final decision) within six months - after the hearing of the matter then the chief judge may: give them more time, or may relieve the judge of other duties until they are caught up [CJA s.123]. If the lateness still persists after this the chief judge may further extend time or report the judge to the Judicial Council and the party may then make a motion to the chief judge for a re-hearing of the matter.

A re-hearing order may order costs regarding the original hearing, refer the costs issue to the re-hearing judge, order that the transcript of evidence at the original hearing be used at the re-hearing, and give any other directions as they feel are just.

. Bias and Conflict of Interest

The doctrines of bias and conflict of interest are closely related and not always distinguishable. However a conflict of interest generally refers to some element of personal interest in the matter before the court, such as a business or ownership relationship with it's subject-matter, or a familial relationship with one of the parties.

Bias refers to some degree of non-financial interest in the case, such as a prior political disposition on an issue that is material to the case. In determining whether the deputy-judge at trial was biased against the plaintiff the court in Drzemczewska v Grigorescu (Ont Div Ct, 2006), noting that the standard of finding bias was a high one to meet, cited the following standard from the Supreme Court of Canada in R v S (RD) [SCC, 1997]:
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.
The classic remedy for bias or conflict of interest in the presiding judge is for them to recuse (remove) themself from the case, or - failing that - for the aggrieved party to move for order of recusal in the Superior Court.


3. Deputy Judges

(a) Overview

Lawyers may be appointed as deputy judges by a regional senior judge, with the approval of the Attorney-General [CJA s.32(1)].
Note:
In his book: Ontario Small Claims Court Procedure 2005-2006 (at p.61) Mr Justice Marvin Zuker raises interesting issues as to the constitutionality of the appointmentment mechanism of deputy-judges to the Small Claims court. If the Small Claims court is a branch of the Superior Court of Justice [CJA s.22(1)], should not such appointments be only within the authority of the Governor-General?
The jurisdiction of a Deputy judge may be limited by regulation as to amount of money or value of personal property adjudicated over [CJA s.24(3)]. Presently this limit is set at the limit of the court itself: $25,000 [Reg 626/00].

Deputy judges are governed by the Deputy Judges Council, which generally governs them and also sets standards of conduct and education. [CJA s.33]

(b) Pay of Deputy-Judges

In 2006 the courts heard an application on this issue: Ontario Deputy-Judges Association v Ontario (A-G) 78 OR (3d) 504 (Sup Ct); upheld on appeal at [2006] OJ #2057 (QL)(CA). The case was brought by the deputy-judges to challenge the manner in which their pay was determined. The past system was one essentially of political fiat through Orders-in-Council by the provincial cabinet, which had resulted in their daily pay being fixed at $232 for the last 24 years. The deputy-judges argued that it was necessary, in order to maintain judicial independence, that their pay be determined by a separate and independent body. Both reviewing courts agreed with this and sent the matter back to the province to arrange. The case is interesting reading for the history, status and workload of both the Small Claims Court and the role of deputy-judges within it.

Now, by virtue of Reg 161/08, which is retroactive to 01 January 2005, the per diem (daily) rate of deputy-judges was more than doubled:

Reg. 161/08: Remuneration of Deputy Judges

(c) Terms and Renewals of Terms of Deputy-Judges

Starting on 01 July 2010, the terms and renewal of terms of deputy-judges vary with their ages. Those who are under 65 years of age may have three year terms [CJA 32(2,4)], but where they are 63-64 years (inclusive) of age their term may not extend beyond them reaching 65 years of age [CJQ s.32(7)]. Those who are 65 to 74 years of age (inclusive) may have one-year terms, but their term may not extend beyond them reaching 75 years old [CJA 32(3,5,8)]. Otherwise there is no limit on the number of times that a deputy-judge's term may be extended [CJA s.32(6)]. Deputy-judges who were appointed prior to 01 July 2010 have their remaining terms run for three years, despite the above rules.

(d) Deputy-Judge Misbehaviour

. Bias and Conflict of Interest

The doctrines of bias and conflict of interest are closely related and not always distinguishable. However a conflict of interest generally refers to some element of personal interest in the matter before the court, such as a business or ownership relationship with it's subject-matter, or a familial relationship with one of the parties.

Bias refers to some degree of non-financial interest in the case, such as a prior political disposition on an issue that is material to the case. In determining whether the deputy-judge at trial was biased against the plaintiff the court in Drzemczewska v Grigorescu (Ont Div Ct, 2006), noting that the standard of finding bias was a high one to meet, cited the following standard from the Supreme Court of Canada in R v S (RD) [SCC, 1997]:
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.
The classic remedy for bias or conflict of interest in the presiding judge is for them to recuse (remove) themself from the case, or - failing that - for the aggrieved party to move for order of recusal in the Superior Court.

. Judicial Immunity

Deputy-judges are effectively immune from civil lawsuits except in the most egregious circumstances. In RM v MZ (Ont Div Ct, 2009) the defendant was a judge of the family court who was sued in Small Claims Court. Despite the failure of the Small Claims Court deputy-judge to issue reasons for dismissing the case on an abuse of process and question of law motion, the Divisional Court substituted it's own ruling and upheld the dismissal on the basis of judicial immunity. Citing the Supreme Court of Canada case of Morier and Boiley v Rivard [SCC, 1985], the court held that judicial immunity was absolute, and immunized any acts done in the course of their judicial role, even if they were malicious or done in bad faith.

(e) Complaints Process

Complaints about deputy judges (including regarding a failure to issue a ruling) are directed to a designated regional judge of the Superior Court. [CJA s.33.1] This reviewing judge may summarily dismiss complaints for lack of jurisdiction, abuse of process or triviality. If the reviewing judge does not dismiss the complaint then it is referred to a committee of three persons (one judge, one deputy judge and a layperson) selected by the regional senior judge.

The committee shall investigate, giving the parties oppourtunity for written or oral submissions, and make a recommendation to the regional senior judge regarding further action, if any. The regional senior judge may then either dismiss the complaint with or without findings, or order any combination of the following with respect to the deputy judge:
  • warning or reprimand;

  • that they apologize to anyone;

  • remedial education or treatment;

  • suspension for up to 30 days;

  • non-renewal of term;

  • limitation of duties;

  • removal from office.
The regional senior judge may also order that any disability-related needs of the deputy judge related to the complaint - and required to enable them to perform their duties of office - be accomodated.


4. Referees

"Referees" are functionaries appointed by a regional senior judge [R21.01(1); CJA 73(2)] to:
  • hear disputes of proposals of terms of payment when a defendant has admitted liability in an action (see Ch.8, s.4(c) : "Pleadings: Defence: Admission of Liability and Proposal for Payment");

  • conduct settlement conferences (see Ch.10, s.3: "Pre-trial Proceedings: Settlement Conferences");

  • hear motions for debt consolidation orders (see Ch.15, s.3(d): "Collection: Court-Modification of Orders: Consolidation Orders");

  • assess receipted disbursements for fees paid to the court, a court reporter or a sheriff under the Administration of Justice Act (see Ch.13, s.7(e): "Trial: Costs: Disbursements").
With the one exception of disputed proposals as to terms of payment [R9.03(5)], referees do not have final authority in these matters but report to a judge who then makes final decisions [R21.01(2)].


5. Court Clerks

Court clerks are employees of the court and not judicial or political appointees. Clerks conduct the day to day administrative business of the court regarding filings, issuing documents, schedulings and dealing with the public, and accounting
relating to garnishments.

Mr Justice Marvin Zuker in his book Ontario Small Claims Court Practice 2005-6 (Thomson Carswell, 2005) highlights the role of the clerk in Small Claims court (unlike that of clerks in other courts where lawyers practice almost exclusively) as one of assisting the public through the court process. This excludes the giving of legal advice, but includes assisting litigants in filling out court forms, providing information on what type of proof may be required at trial, when supporting witnesses may be required and how to summons them.

While the line between "assistance" and "advice" is elusive, it is plain that the role of the court clerk in Small Claims court is meant to be more helpful and interventionist than clerks in other courts.

Some of the record-keeping duties of Small Claims court clerks are set out in Reg. 188/90 (see Source Law).


6. Sheriffs

The sheriff is a local municipally-based officer in charge of receiving and executing writs of execution from the Superior Court and related tasks.

Generally, the typical duties of a sheriff as they relate to Small Claims court are performed by court "bailiffs" (below) or the court clerk. One exception to this is the enforcement of writs of seizure and sale against real estate, which are filed in and executed by the sheriff's office.

There is no "Sheriffs Act" anymore, it was repealed. The authority of sheriffs is now scattered through several pieces of legislation including the Courts of Justice Act and the Administration of Justice Act.


7. Bailiffs

References in the Small Claims rules are to "court bailiffs". These are not to be confused with "private bailiffs".

Court bailiffs act for the Small Claims court and in conjunction with the sheriff's office in the execution of court process, including repossession of property ("writs of delivery" and "writs of seizure and sale of personal property") and service of documents for the court. Some of the record-keeping duties of Small Claims court bailiffs are set out in Reg 188/90 (see Source Law). Some courtroom staff are also sometimes referred to as "bailiffs".

A private bailiff is a person or corporation licensed, registered with the Registrar of Bailiffs, bonded by law (ie. having placed a security deposit with the government), and governed by the Bailiffs Act. They conduct private repossessions of commercial tenancy property and chattel property (ie. personal property as opposed to real estate) [Bailiffs Act, s.1]. They act both for private creditors and landlords, and charge a fee for service. Private bailiffs are generally not acting under court process (ie. order or judgment) but rather under either a common law or a contractual right of possession which is recognized and condoned under a variety of statutorily condoned execution procedures.

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