Small Claims Court - Pleadings. RVR Concrete v. Windsor Wall Forming
In RVR Concrete v. Windsor Wall Forming (Div Court, 2022) the Divisional Court illustrated nicely how the Small Claims Court pleading rules differ from the Superior Court. Here the Divisional Court allowed a small claims decision based on unpled issues, a practice that would not have been allowed in the higher court:
Did the trial judge err in finding liability on a ground that was not pleaded or advanced by the parties?. Welch v. Quast
 In paras. 33-56 of its factum, Windsor Wall submits that the trial judge erred “by finding liability based on a ground that was neither pleaded nor advanced by the parties, … when he found that RVR Concrete was entitled to damages because of a ‘material change in the methodology.’” In particular, the appellant submits that the trial judge made an error of law “in finding liability based on a novel theory that was not pleaded, namely, a ‘material change in the methodology.’”
 There is no merit in this submission. Indeed, respectfully, the appellant’s argument fundamentally misapprehends the reasoning of the trial judge.
 As the contract between the appellant and respondent was never reduced to writing, the evidence before the trial judge as to the terms of the oral agreement was critical. At the trial of the action, three witnesses gave evidence before the deputy judge: Mr. Liburdi on behalf of RVR, Mr. Thompson on behalf of Windsor Wall, and Mr. Coupe on behalf of Essex Readymix. The trial judge had the benefit of hearing the witnesses’ viva voce testimony.
 In the course of his nine-page handwritten decision, the trial judge reviewed the two critical meetings when work to be performed by RVR was discussed and the parties’ understanding of what was to happen was shaped. The three witnesses who testified before the trial judge were all present at both of the two critical meetings.
 As reviewed above, the trial judge found that during the initial meeting in March 2015, the parties agreed that RVR was to be paid $0.63 per square foot of concrete. The trial judge expressly found that at the time the parties came to the agreement on the rate of payment to RVR, “none of the parties suggested that the substrate had to be protected while the cement floor was being poured,” and, as a result, the $0.63 per square foot of concrete rate to be paid to RVR was “not based on the fact that extra or special measures would be needed to protect the substrate.” The trial judge went out of his way to bring this point home in his decision, saying, that “what is important to note is that” none of the witnesses who testified before him said that there was any concern expressed at that initial meeting “about not being able to put cement trucks on the substrate.”
 To emphasize, the trial judge made a specific finding of fact that the price initially agreed upon was not based on any extra or special measures being needed to protect the substrate. There was an abundance of evidence before the trial judge to support that express finding of fact. It is entitled to high deference, and it has not been established, nor even suggested, by the appellant that the trial judge made any palpable and overriding error in making that finding of fact.
 However, as it turned out, precisely those conditions that the trial judge found did not underpin the agreement as to the price to be paid to RVR did, in fact, come to fruition. As it turned out, extra or special measures were in fact needed to protect the substrate. The Developer insisted on them at the second critical meeting, in mid-April 2015. It is clear that Windsor Wall agreed. Again, the trial judge made an express finding about the position taken by Windsor Wall at the second meeting. The trial judge found that: “Mr. Thompson, on behalf of Windsor Wall Forming, testified that the means and method of installing the concrete was to be other than using trucks on the substrate.”
 The trial judge, rightfully, was of the view that this was a significant change in the parties’ understanding of what was to happen. Again, he went out of his way to make clear to the parties that this was a significant change in the parties’ understanding, compared to their understanding at the time of contract formation. The trial judge expressly said: “[w]hat is important is that the Court accepts that this was the first time that [RVR] was told of this.” The original price was not based on any special measures having to be taken but, as it turned out, that was exactly what was thought to be needed – RVR was not to be permitted to use trucks on the substrate. Instead, the more expensive process of using motorized buggies was to be used. And it was in that vein that the trial judge concluded that, “this is a material change in methodology.”
 I would also pause to note that the trial judge made an express finding that Windsor Wall was well aware that this change in method would be a more expensive process. Again, Mr. Thompson testified on behalf of Windsor Wall at trial. The trial judge expressly found that, “Mr. Thompson admitted that using buggies would be a more expensive process.”
 Accordingly, the trial judge referred to the “material change in methodology” only to describe the significance of the change in the events, the parties’ understanding, and their agreement. He was in no way suggesting any novel theory of liability, as the appellant contends. It is not a “theory of liability” at all, novel or otherwise. It is not a cause of action. It is a description of the facts by the trial judge. It is the trial judge’s expression of the change in factual circumstances that occurred at the second critical meeting, in April 2015, as compared to the initial meeting. It is not a theory of liability; it is a description by the trial judge of the evidence before him. In short, it is a finding of fact.
 As I have said, in my view, the appellant’s argument, that is, that the trial judge’s finding that there was a “material change in the methodology” constitutes some theory of liability, fundamentally misapprehends the trial judge’s reasons for judgment.
 Given that the trial judge’s reference to the “material change in the methodology” was not some theory of liability or cause of action, it was not something that RVR was required to plead in its claim.
 Further, in considering Windsor Wall’s claim that the particulars of this claim were not specifically pled by RVR, I am mindful of the line of cases that have consistently held that a liberal and non-technical approach should be taken to pleadings in the Small Claims Court.
 Specifically, the courts have held that the rules surrounding parties’ pleadings in the Small Claims Court are less strict than those in other courts. In Kelava v. Spadacini, our Court of Appeal held that, “with respect to the pleadings, it has long been the case that a liberal, non-technical approach should be taken to the pleadings in Small Claims Court.”
 Our courts have also said that requiring “strict adherence to the rules of pleadings would be contrary to the role of the Small Claims Court in the administration of justice.” Our courts have instructed that a “liberal, non-technical approach should be taken to pleadings” in the context of the Small Claims Court.
 In 936464 Ontario Ltd. v. Mungo Bear Ltd., the court rejected the defendant/appellant’s argument that it was an error in law for a deputy judge of the Small Claims Court to have granted judgment based on quantum meruit when the claim, as pleaded, was one for breach of contract. In dismissing the appeal, Heeney J. of the Divisional Court very clearly said that the higher standards of pleading required in the Superior Court of Justice are simply unworkable in the Small Claims Court:
More important, though, is the fact that the case at bar was litigated in the Small Claims Court. The higher standards of pleading in the Superior Court are simply unworkable in the Small Claims Court, where litigants are routinely unrepresented, and where legal concepts such as the many varieties of causes of action are completely foreign to the parties. Essentially, the litigants present a set of facts to the Deputy Judge, and it is left to the Deputy Judge to determine the legal issues that emerge from those facts and bring his or her legal expertise to bear in resolving those issues. Relying on the Newfoundland Court of Appeal in Popular Shoe Store Ltd. v. Simoni, Heeney J. adopted that court’s “practical approach to the manner in which justice is and must be dispensed on a day-to-day basis in our Small Claims Court,” as follows:
A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstances described in the Statement of Claim, to determine whether those facts constitute a cause of action known to the law, regardless of whether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action. Subject to considerations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within the subject-matter jurisdiction of the court, ought to be granted. In any event, I find that RVR did in fact specifically plead these factual circumstances in its defendant’s claim. They are expressly laid out in paras. 19-24 of RVR’s pleading. In para. 20 of its pleading, RVR alleged that: “[d]ue to the condition of the subgrade, concrete buggies would need to be used to adequately pour the cement and apply the proper finish.” Paragraph 21 of the claim speaks to a meeting of the parties, i.e., the second critical meeting in April 2015. In para. 22, RVR alleges that it “advised all parties as to the additional costs that would be required to complete the concrete flooring under the new conditions.” [Emphasis added.] And in para. 23, RVR alleges, inter alia, that Windsor Wall approved the new fee schedule and agreed to compensate RVR accordingly.
 As such, there is no basis – at all – for Windsor Wall’s claim that it did not know of these allegations. There is no basis for Windsor Wall to claim that there was some fundamental unfairness in the process or that it was “denied the right to know the case it had to meet,” as it does in paras. 40-42 in its factum.
 In sum, the trial judge found that there was a “material change in the methodology” to be employed by RVR in the completion of its work under the contract. There was an abundance of evidence before the trial judge to support that finding of fact. As such, it is entitled to a high degree of deference. The appellant has not established that the trial judge’s finding was infected with palpable and overriding error, requiring an appellate court to intervene.
In Welch v. Quast (Div Ct, 2021) the Divisional Court considered the standard of pleadings in defamation in Small Claims Court:
 Defamation actions must plead the following elements: (i) particulars of the alleged defamatory words; (ii) publication of the defamatory words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: The Capital Catalyst Group Inc. v Veritas Investment Research Corporation, 2017 ONCA 85 (CanLII) at paras. 23-24.
 The plaintiff amended his claim several times. It is frankly impossible to discern a cause of action in defamation in any of those versions of the claim. On a most liberal reading, I allow he claims the emails were false and that he was therefore defamed. However, no version of his pleading identifies the words in the impugned email that are allegedly defamatory.
 Review of Small Claims pleadings promotes a liberal approach, where litigants are not required to meet the higher standards of the Superior Court: 936464 Ontario Ltd. (cob Plumbhouse Plumbing & Heating) v Mungo Bear Ltd., 2003 CanLII 72356 (ON SCDC) However, I accept this liberal approach does not abrogate the plaintiff’s obligation to meet the requirements for pleading defamation even on a liberal reading of the statement of claim. The plaintiff’s claim went through a number of amendments. The final amendment before trial includes a claim for “defamation of character” but fails to identify the impugned words in the email that allegedly defamed him. In my view, this is fatal to the fundamental requirements for a defamation pleading, even on a less strict application in small claims court. It was therefore an error of law to conclude that defamation was sufficiently pleaded.