The Court of Appeal for Ontario has granted leave to hear a case that concerns whether Small Claims deputy judges have jurisdiction to grant "discovery type relief".

In Riddell v Apple Canada Inc., the Ontario Superior Court of Justice, Divisional Court held that deputy judges have jurisdiction to grant discovery type relief in limited circumstances. In that case, Mr. Riddell applied for judicial review of the order of a deputy judge who ordered him to deliver to the Defendant a mobile phone that he purchased from the defendant, for the purpose of having it examined by an expert in the context of Mr. Riddell's action for damages, in which he claimed that the phone had "overheated and cause[d] severe burns" to his right arm.

The Divisional Court recognized that a "natural tension" exists between maintaining the summary approach to dispositions upon which the Small Claims Court is founded and ensuring that the Small Claims Court arrives at a result that is "just and agreeable to good conscience". The balance will generally tip in favour of not making pre-trial orders for discovery type relief. However, there is a small subset of cases where an order for pre-trial inspection is necessary in order to do justice and this does not undermine the effectiveness and expediency of the Small Claims Court, nor does it "open the floodgates" to discovery requests. It is a "narrow and limited expansion of the existing discovery procedures in that court that reflects the need, in those rare cases, to grant an order that will secure 'the just, most expeditious and least expensive determination of every proceeding on its merits.'"

In light of the foregoing, the Divisional Court concluded that the order for inspection made by the deputy judge was authorized by a combination of the two sub-rules in Rule 1.03 of the Small Claims Court Rules based on two reasons:

1. Rule 17.03 of the Small Claims Court Rules provides that the trial judge could inspect the phone at trial. In order to make the authority to inspect a meaningful one, such as in this case, some expert assistance will be necessary. In the interests of an expeditious determination at trial of the issues raised in this action, that expert assistance needs to be provided in advance of the trial. Rule 1.03(2) provides the authority to do so.

2. The Plaintiff made it clear that he intended to call an expert witness and elicit expert evidence from her/him based on an inspection of the phone. Since the Plaintiff refused the Defendant's request to examine the phone, the only way of "levelling the playing field" and ensuring that fairness between the parties is achieved was for the deputy judge to order the Plaintiff to provide the phone to the Defendant for an inspection.

The decision has implications for financial institutions, which are frequently sued in Small Claims Court. If the decision is upheld on appeal, those Small Claims Court cases could become more expensive and time-consuming to defend.

Stay tuned for the Court of Appeal's decision!