Why Settle When You Can Have It All? Settlement Conference Orders in Small Claims Court


It is settled law that summary judgement is not available in Ontario Small Claims Court actions, per se.[1] However, recent experience suggests that defendants are not without an alternative to settlement for achieving the early and favourable resolution of vexatious and/or unmeritorious claims. In fact, recent experience suggests that the mandatory settlement conference – an often unproductive and inefficient step in the Small Claims Court process – is the appropriate venue for achieving this result.

In 2010, Ontario Superior Court of Justice, Divisional Court, had the occasion to consider this issue in Poole v. Kinetico.[2] Therein, the Defendant sought to have the Plaintiff’s Claim dismissed at the mandatory settlement conference as it failed to disclose a reasonable cause of action. The Defendant argued that the Plaintiff’s claim was statute-barred by operation of the Limitations Act, 2002, SO 2002, c 24, Sch B. The factual issue in Poole was discoverability. As such, on appeal from the Deputy Judge’s Order dismissing the Plaintiff’s Claim, the Plaintiff challenged authority of a deputy judge to make an Order on the basis of factual findings and evidence before him at a mandatory settlement conference.

In confirming the jurisdiction of a Deputy Judge, pursuant to Rule 13.05 of the Rules of the Small Claims Court,[3] (SCC) to dismiss a Plaintiff’s Claim at the settlement conference stage, the Court in Poole said:

I find that the SCC Rules provide the jurisdiction to a Deputy Judge at a settlement conference to dismiss a claim, as Deputy Judge Lefebvre did in this case. There is no requirement that the court receive affidavit evidence or viva voce evidence.[4]

Moreover, the Court went on to state that a Deputy Judge presiding over a Small Claims Court settlement conference has the jurisdiction to make factual findings and inferences based on the evidence before him at the settlement conference; and that the decision of the Deputy Judge can only be overturned on appeal in the event of a palpable and overriding error.[5] By doing so, the Court has confirmed the jurisdiction of a Deputy Judge to make both legal and factual findings at the settlement conference stage. Thus, while summary judgment is not available per se, the Rule 13.05 alternative is not without teeth.

Since 2010, similar successes have been achieved in cases where the Plaintiff’s Claim was otherwise statute barred. One example of this type of success involved a claim that was improperly advanced against a physician, who was insulated from any such claim by operation of section 72 of the Child and Family Services Act, RSO 1990, c. C11. The Deputy Judge found that the Plaintiff’s Claim had no reasonable prospect of success and as such, dismissed the claim on the authority of the Poole decision.

With these cases in mind, it is important to remember the summary-nature and spirit of the Small Claims Court. Indeed, section 25 of the Courts of Justice Act[6] provides that in Court proceedings, the court is to "hear and determine in a summary way all questions of law and fact". By operation of Rule 13.05, the settlement conference judge is imbued with the authority to make such order as is considered just and agreeable to good conscience – including an Order dismissing a Plaintiff’s Claim. In the right circumstances, the early dismissal of a Plaintiff’s Claim at the settlement conference stage is not only achievable, but can result in significant cost-savings for a Defendant insurer.

[1] Van de Vrande v. Butkowsky, 2010 ONCA 230

[2] Poole v. Kinetico, 2010 ONSC 6617.

[3] Rules of the Small Claims Court, O Reg 258/98.

[4]Poole v. Kinetico, supra note 2, at para. 81.

[5] Poole v. Kinetico, supra note 2, at para. 94.

[6] Courts of Justice Act, RSO 1990, c C.43, s 25


Topics:  Canada, Jurisdiction, Settlement, Small Claims Court, Summary Judgment

Published In: Civil Procedure Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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