Anti-SLAPP Motion Not Available in Small Claims Court. This is the second of two recent Court of Appeal decisions to put the nail in the coffin for Anti-SLAPP motions in Small Claims Court. In the first decision released in 2019 (Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 439 D.L.R. (4th) 193), the appellate court made it clear that deputy judges could not rule on Anti-SLAPP motions. The matter would return to the appellate court because in this new instance, the Anti-SLAPP motion (under section 137.1 of the Courts of Justice Act) was being heard by an Associate Judge (and not a deputy judge). The Court of Appeal concluded that just like deputy judges, Associated Judges sitting in Small Claims Court cannot rule on Anti-SLAPP motions: such motions being the exclusive purview of an Ontario Superior Court Judge.
But the Court of Appeal went further, and added that even if a Superior Court Judge happened to be sitting in Small Claims Court, the motion should still not be heard because the Small Claims Court process is not geared to hear such motions. In this regard, the Court of Appeal said the following:
“… The s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court. The Small Claims Court is a branch of the Superior Court of Justice. The court embodies the foundations of access to justice: informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. By providing access to justice, the court has an important role in the administration of justice for the province. The court handles nearly half of the civil disputes in the province. It provides a cost-effective forum for civil disputes involving less than $35,000. To achieve these objectives, all questions of fact and law are to be determined in a summary way. Rule 1.03(1) of the Rules of the Small Claims Court, under the CJA, provides:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. O. Reg. 258/98, r. 1.03 (1).
These hallmarks of the Small Claims Court, as enshrined in its rules, are incompatible with the provisions of s. 137.1. A s. 137.1 analysis requires the detailed process of shifting burdens with respect to merits, proportionality and public interest, which involves exchange of affidavits and cross-examinations. Motions are not encouraged in the Small Claims Court. The Rules of Small Claims Court do not provide for cross-examination on affidavits. Under s. 137.1, costs of an unsuccessful motion are presumptively full indemnity. The limit on costs for a motion in Small Claims Court, absent special circumstances, is $100. The limit on costs after trial is 15% of the award. Small Claims Court jurisdiction is limited to $35,000. Contrary to these limits of Small Claims Court, s. 137.1 provides extensive powers with respect to damages.
The s. 137.1 motion must be heard within 60 days and stays the underlying action. Appeals go directly to the Court of Appeal. This does not comply with r. 1.03.(1) of the Rules of the Small Claims Court.
The Small Claims Court provides timely justice to litigants in matters under $35,000. I conclude that the legislature did not intend to inject complex interim proceedings into its summary process. Doing so would frustrate the objectives of the Rules of the Small Claims Court.”
Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 48
https://www.canlii.org/en/on/onca/doc/2022/2022onca48/2022onca48.html