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Small Claims Court - Judicial Review. Sutherland Law Professional Corp. v. Coccimiglio
In Sutherland Law Professional Corp. v. Coccimiglio (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a motion for a stay pending JR, this of "an order of the Small Claims Court setting aside default judgment".
This is an interesting issue. Case law has held that there is no appeal from an interlocutory order in the Small Claims Court - that's what I think is a sound interpretation of CJA s.31 [see Nugent v. Dimakas (Div Court, 2024, paras 30-32]. And this present court views this granted set aside default order as interlocutory [which seems sound under 1947755 Ontario Ltd. v. Caruso (Ont CA, 2020), paras 1-4], so we can assume it is truly interlocutory (although this court does not explore that issue, it just concludes it summarily). Other cases where I have seen this issue arise require 'exceptional circumstances' before a JR of a Small Claims order will be heard: eg. S & Y Insurance Company v. 2184438 Ontario Inc. (Swift Rent-a-Car) (Ont Div Ct, 2025), paras 1,5. As well, orders of the Superior Court 'proper' cannot be JR'd: Salehi v. LeBlanc (Ont Div Ct, 2025), paras 18-20, and the Small Claims Court is a 'branch' of the Superior Court: CJA s.22(1).
All in all it's an issue that appears without a firm answer, but that may be the best we can get - I suspect the best solution is the 'exceptional circumstances' test where each court must rely in it's JR discretion [JRPA s.2(1)], cited expressly here:[18] This is an application for judicial review, not an appeal. Section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, clearly limits rights of appeal from decisions of the Small Claims Court to those from final orders. While this court has the jurisdiction to judicially review interim orders of the Small Claims Court pursuant to s. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. C.43, that Act “was not intended to provide a surrogate right to appeal where the legislature has expressly restricted those appeal rights”: 1439957 Ontario Inc. (c.o.b. 409 Collision Centre) v. Benkoe, 2017 ONSC 4984 (Div. Ct.), at para. 4; Millard v. DiCarlo, 2014 ONSC 1218 (Div. Ct.), at para. 5. Because of this, “this Court will not exercise its jurisdiction to judicially review interlocutory orders where the judicial review application is, in its essence, an appeal by a different name”: Peck v. Residential Property Management Inc., 2009 CanLII 38504 (ON SCDC), [2009] O.J. No. 3064 (Div. Ct.), at para. 5.
[19] Judicial review of an interlocutory Small Claims Court order will generally be appropriate only in narrow circumstances, such as where the Small Claims Court acted in excess of jurisdiction or denied the parties procedural fairness: Madhour v. Whitten & Lublin Professional Corp. 2024 ONSC 2927 (Div. Ct.), at para. 5. . S & Y Insurance Company v. 2184438 Ontario Inc. (Swift Rent-a-Car)
In S & Y Insurance Company v. 2184438 Ontario Inc. (Swift Rent-a-Car) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR from a defendant, this brought from an interlocutory decision of the Small Claims Court (which is unusual but allowed under 'exceptional circumstances'):[1] This is an application for judicial review of the interlocutory decision of Deputy Judge Anderson of the Small Claims Court. ...
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[5] Nothing before us amounts to the exceptional circumstance in which this court would review the interlocutory decision of a small claims deputy judge. There was no excess of jurisdiction or denial of natural justice that would make a new proceeding inevitable. This is not a case in which this court should intervene. . Madhoun v. Whitten & Lublin Professional Corporation
In Madhoun v. Whitten & Lublin Professional Corporation (Div Court, 2024) the Divisional Court recognizes the limited (and discretionary) JR jurisdiction to review interlocutory Small Claims orders:[1] Mr. Madhoun has sued his former lawyers in the Toronto Small Claims Court. The lawyers did not deliver a defence within the time prescribed by the Rules of the Small Claims Court, O. Reg. 258/98. The lawyers were noted in default.
[2] Mr. Madhoun seeks judicial review of the decision of Deputy Judge J. Harper in the Toronto Small Claims Court on September 20, 2023 setting aside the noting in default in accordance with Rule 11.06 of the Rules of the Small Claims Court. That means that Mr. Madhoun’s lawsuit will continue in the ordinary course.
[3] Mr. Madhoun accepts that since the order of the Deputy Judge did not conclude his lawsuit, the order is not a “final” order. That means he cannot appeal the order. Instead, he asks the court to exercise its supervisory authority to set aside the judge’s order under s. 2(1) of the Judicial Review Procedure Act, RSO 1990 c J.1.
[4] The Small Claims Court is designed to provide people with relatively quick and affordable access to civil justice. Procedural issues are minimized to avoid costs and delay and to allow the court to focus on trying to do justice between the parties.
[5] For this reason, this court has recognized that the jurisdiction to intervene on judicial review in ongoing Small Claims Court actions will only be exercised on very limited grounds. Generally, this court will not consider granting relief by way of judicial review unless a Small Claims Court judge acted in excess of her jurisdiction or without according the parties procedural fairness. Peck v. Residential Property Management Inc., 2009 CanLII 38504 (ON SCDC), at para. 3. . 2263921 Ontario Inc. v. Gordon
In 2263921 Ontario Inc. v. Gordon (Div Court, 2024) the Divisional Court dismissed an appeal from a Small Claims stay where the deputy-judge found the action conflicted with a related Superior Court action already afoot. The appellant, on discovering that only a final order of the Small Claims Court could be appealed, sought to convert it to a JR, (which the court had the jurisdiction to do) but was denied on the merits:[6] Only final orders of the Small Claims Court can be appealed to the Divisional Court. The Divisional Court does not have jurisdiction to hear appeals from interlocutory orders from the Small Claims Court: Courts of Justice Act, s. 31, Cudini v. 1704405 Ontario Inc., 2012 ONSC 6645 at para. 32. The preliminary issue, therefore, is whether the settlement conference judge’s order staying the small claims court matter until the Superior Court matter is resolved is an interlocutory or final order.
[7] An interlocutory order is an order that does not determine the “real dispute between the parties.” If the substantive matters in dispute remain undecided after the order is made, the order is interlocutory: Drywall Acoustics v. SNC Lavalin, 2020 ONCA 375 at para. 16.
[8] I find that the settlement conference judge’s decision is an interlocutory decision. That decision did not dismiss the small claims court action. Nor did it permanently stay the action. Rather, the settlement conference judge stayed the small claims court action just until the Superior Court action is concluded. As a result, 2263921 Ontario Inc. will have an opportunity, if appropriate, to pursue its claim once the Superior Court matter is resolved.
[9] The appeal is, therefore, dismissed for want of jurisdiction.
[10] 2263921 Ontario Inc. argues, in the alternative, that if there was no right of appeal from the settlement conference judge’s decision, I should treat the Notice of Appeal as a Notice for Judicial Review and decide this matter as though it were commenced as an application for Judicial Review.
[11] The Divisional Court has jurisdiction to judicially review interlocutory orders of the Small Claims Court. This Court can also make orders in relation to its own process, including converting an appeal into a judicial review where a judicial review is the only route to challenge a decision: Joubarne v. Land Registrar & Director of Titles, 2019 ONSC 6709. However, I only have jurisdiction to hear a judicial review application as a single judge of the Divisional Court in two circumstances: first, if designated to do so by the Chief Justice of the Superior Court (or his designate) under s. 21(2)(c) of the Courts of Justice Act; second, under s. 6(2) of the Judicial Review Procedure Act if the application is urgent and the delay caused by scheduling a hearing before the Divisional Court is likely to involve a failure of justice. Neither provision applies in this case. The Chief Justice has not directed that this matter be heard by a single judge of the Divisional Court. Nor is there any urgency to this matter that would justify a hearing before a single judge. I, therefore, cannot decide this matter as if it were commenced as a judicial review application.
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[14] Judicial review is highly discretionary and the scope of judicial review of an interlocutory decision of the Small Claims Court is very narrow. This Court will not interfere with an interlocutory order of the Small Claims Court unless the order was made without jurisdiction or was made in breach of the principles of natural justice: Imperatore v. Fetesko, 2023 ONSC 1340 at paras. 14 to 16. 2263921 Ontario Inc. argues the Small Claims Court judge did not have jurisdiction to grant a stay at the settlement conference and, in the alternative, the procedure employed by the judge was unfair. I am not satisfied that either ground has any apparent merit.
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