



COURT OF APPEAL
    FOR ONTARIO

CITATION: Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

DATE: 20190712

DOCKET: C65959

Lauwers, Fairburn and Nordheimer JJ.A.

BETWEEN

Sean Bruyea

Plaintiff (Appellant)

and

S
eamus ORegan,
    also known as Minister of Veteran Affairs, and the Attorney General of Canada

Defendants (Respondents)

Paul Champ, for the appellant

Robert MacKinnon and Sanam Goudarzi, for the respondents

Shahana Kar, for the Attorney General of Ontario (by
    written submissions)

Heard: June 13, 2019

On appeal from the order of Deputy Judge David Dwoskin of
    the Small Claims Court, dated August 28, 2018

Nordheimer J.A.:

[1]

Sean Bruyea appeals from the order granted by the motion judge that dismissed
    his claim pursuant to s. 137.1 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43 (the 
CJA
). Prior to hearing the appeal, the court
    invited the parties to address the issue whether a deputy judge of the Small Claims
    Court has jurisdiction to make an order under s. 137.1.

[2]

On the appeal, we heard submissions from the parties on the
    jurisdictional issue along with their submissions on the merits of the appeal. The
    parties requested the opportunity to file further written submissions on the
    jurisdictional issue and we acceded to that request. The court also invited the
    Attorney General of Ontario to make submissions on the jurisdictional issue. We
    have received and reviewed all of those written submissions. Both parties and
    the Attorney General of Ontario argue in favour of a conclusion that deputy
    judges do have jurisdiction to make an order under s. 137.1.

Background

[3]

The appellant is a disabled veteran of the Canadian Forces who receives
    pension benefits for injuries incurred during his service to Canada. Since his
    medical release from the Canadian Forces, he has become a freelance journalist,
    media commentator, and advocate for the lives and well-being of other disabled
    veterans and their families.

[4]

The respondent, Seamus ORegan, is a Member of Parliament and Cabinet
    Minister. At the time of the relevant events, he occupied the position of
    Minister of Veterans Affairs and Associate Minister of National Defence.

[5]

The appellant wrote an article that was published in The Hill Times on
    February 12, 2018. In the article, entitled Liberals plan for veterans, the
    numbers dont add up, the appellant analyzed and critiqued the new program in
    detail. In response to this article, Mr. ORegan published an article in The
    Hill Times, on February 26, 2018, in which he said that the appellant was
    stating mistruths about Canadas new Pension for Life program to suit
    [his] own agenda. As a result of the publication of this article, the
    appellant commenced an action for defamation in the Small Claims Court in Ottawa
    against Mr. ORegan and against the Attorney General of Canada as the body
    responsible for Veteran Affairs Canada. The appellant claimed damages in the
    amount of $25,000.

[6]

The respondents moved to dismiss the claim under s. 137.1 of the
CJA
.
    The deputy judge dismissed the appellants claim, holding that Mr. ORegans
    statements constituted expression relating to a matter of public interest and
    that the appellant had not advanced credible and compelling evidence that the
    claim had substantial merit or that the respondents had no valid defence in the
    proceeding.

[7]

The deputy judge also concluded that the appellant had adduced no
    evidence of harm and therefore the public interest in dismissal outweighed
    allowing the claim to proceed to an adjudication on the merits.


Jurisdiction

[8]

As I mentioned at the beginning of these reasons, prior to the hearing
    of the appeal, the court raised the issue whether a deputy judge of the Small
    Claims Court has jurisdiction to make an order under s. 137.1. For the reasons
    that follow, I conclude that they do not.

[9]

I begin with the structure of the Small Claims Court. The Small Claims
    Court is a branch of the Superior Court of Justice:
CJA
, s. 22.
    Section 24 of the
CJA
determines who presides over matters in the
    Small Claims Court. It reads, in part:

(1) A proceeding in the Small Claims Court shall be
    heard and determined by one judge of the Superior Court of Justice.

(2) Despite subsection (1), a proceeding in the Small
    Claims Court may also be heard and determined by,

(a) a provincial judge who was assigned to the
    Provincial Court (Civil Division) immediately before the 1st day of September,
    1990;

(b) a deputy judge appointed under section 32; or

(c) the Small Claims Court Administrative Judge
    appointed under section 87.2.

[10]

In
    practice, virtually all proceedings in the Small Claims Court are presided over
    by deputy judges. Deputy judges are lawyers who are appointed by a regional
    senior judge of the Superior Court of Justice, with the approval of the
    Attorney General, to act as a deputy judge of the Small Claims Court. Usually
    they are appointed for a term of three years:
CJA,
s. 32.

[11]

I
    now turn to the specific provision in the
CJA
with which this case is
    concerned. Section 137.1 was added to the
CJA
to address concerns
    arising from the use of litigation to interfere with freedom of expression. The
    section was added to the
CJA
to provide a pretrial procedure designed
    to quickly and inexpensively identify and dismiss those unmeritorious claims
    that unduly entrenched on an individual's right to freedom of expression on
    matters of public interest:
1704604 Ontario Ltd v. Pointes Protection
    Association
, 2018 ONCA 685, 142 OR (3d) 161, at para. 29. This was a new
    process to permit the summary dismissal of a proceeding that was not otherwise available
    to a party under the
CJA
or the
Rules of Civil Procedure
,
    R.R.O.1990, Reg. 194.

[12]

Of
    importance for the current issue is the wording of s. 137.1(3) that reads:

On motion by a person against whom a proceeding is brought, a
judge
shall, subject to subsection (4), dismiss the
    proceeding against the person if the person satisfies the
judge
that the proceeding arises from an expression made
    by the person that relates to a matter of public interest. [Emphasis added.]

Subsections 137.1(4), (6), (7), (8) and (9) also all
    refer to a judge.

[13]

The
    issue is whether the use of the word judge in s. 137.1 includes a deputy
    judge of the Small Claims Court. The word judge is not defined in the
CJA
nor is it defined in the
Rules of the Small Claims Court
, O/Reg.
    258/98. It is, however, defined in r. 1.03 of the
Rules of Civil Procedure
as: judge means a judge of the court.
[1]
The term court is defined as:

court means the court in which a proceeding is
    pending and, in the case of a proceeding in the Superior Court of Justice,
    includes,

(a) a master having jurisdiction to hear motions
    under Rule 37, and

(b) a case management master

[14]

There
    is a conscious effort made in the
CJA
and in the
Rules of Civil
    Procedure
to draw a distinction between what a court has jurisdiction to
    do and what a judge has jurisdiction to do. The primary purpose behind this
    distinction is that where the
CJA
or the
Rules of Civil Procedure
gives
    authority to the court to do something, a master or case management master has the
    same authority. If, however, the authority is expressly given to a judge, then
    only a judge may exercise that authority. This distinction is an important one.

[15]

There
    is no reason to believe that the Legislature would have chosen to adopt any
    different approach when it comes to deputy judges of the Small Claims Court. As
    s. 24(2) demonstrates, deputy judges of the Small Claims Court are specifically
    referred to as such in the
CJA
. Other sections of the
CJA
also make specific reference to deputy judges. For example, s. 80 stipulates
    that [e]very judge or officer of a court in Ontario, including a deputy judge
    of the Small Claims Court must take and sign a specific oath or affirmation
    before entering upon their duties. Similarly, s. 82 provides that deputy judges
    have the same immunity from liability as judges of the Superior Court of
    Justice. Further, s. 123 establishes time limits for a judge to give a decision
    after they retire and by s. 123(1.1) these same time limits are expressly made
    applicable to deputy judges.

[16]

Two
    points arise from the existence of these various sections of the
CJA
.
    First, it is clear that where the Legislature intends the term judge to
    include a deputy judge, it does so expressly. It follows that if the
    Legislature had intended that the term judge, whenever used in the
CJA
,
    would include deputy judges, then the express mention of deputy judges in these
    sections would have been unnecessary. Second, all of these sections of the
CJA
were in existence in 2015 when s. 137.1 of the
CJA
was passed and yet
    the Legislature chose not to expressly reference deputy judges in s. 137.1 as
    it had done in all of these other sections.

[17]

Further,
    if one was to accede to the suggestion that the use of the term judge in the
CJA
was intended to include deputy judges, then that result creates difficulties
    with respect to other sections of the
CJA
. One such section is s. 101(1)
    of the
CJA
which reads:

In the Superior Court of Justice, an interlocutory injunction
    or mandatory order may be granted or a receiver or receiver and manager may be
    appointed by an interlocutory order, where it appears to a
judge
of the court to be just or convenient to do so. [Emphasis
    added.]

[18]

Since
    the Small Claims Court is a branch of the Superior Court of Justice, if the term
    judge includes deputy judges, then s. 101(1) would give authority to deputy
    judges to grant injunctions or appoint receivers. To my knowledge, it has never
    been suggested that the Small Claims Court has ever had jurisdiction to grant
    interlocutory injunctions or to appoint receivers, nor am I aware of any case
    where the Small Claims Court has purported to exercise that jurisdiction. Indeed,
    in
936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo
    Bear Ltd.
(2003), 74 OR (3d) 45 (Div. Ct.), it was concluded that the
    Small Claims Court is not empowered to grant any other form of equitable
    relief, such as injunctions: at para. 29.

[19]

In
    response to these issues, the parties refer to the decisions of this court in
Ontario
    Deputy Judges Assn. v. Ontario
(2006), 80 O.R. (3d) 481 (C.A.) and
Grover
    v. Hodgins
, 2011 ONCA 72, 103 O.R. (3d) 721. In my view, neither of those
    decisions assist the parties. In the
Deputy Judges
case, this court
    said, at para. 27:

Even though Deputy Judges sit part-time, when sitting, they
    fully assume the judicial role. They are perceived as judges by the many
    litigants who turn to the Small Claims Court for the resolution of their
    disputes.

[20]

That
    statement does not assist in determining the proper meaning to be given to the
    term judge in s. 137.1. No one disputes that deputy judges assume a judicial
    role in presiding over cases in the Small Claims Court but that fact does not
    determine, or assist in determining, what their jurisdiction or statutory
    authority is. The Small Claims Court is a statutory court and it must find its
    jurisdiction in a statute. All of the parties accept that neither the Small
    Claims Court nor the deputy judges have any inherent jurisdiction. If either
    are to exercise any jurisdiction, it must be found in a statute, principally,
    the
CJA
.

[21]

In
    the
Grover
case, this court was dealing with the interpretation to be
    given to s. 96 of the
CJA
in order to determine whether the Small
    Claims Court has jurisdiction to grant equitable relief and, if so, to what
    extent. Section 96(3) reads:

Only the Court of Appeal and the Superior Court of
    Justice, exclusive of the Small Claims Court, may grant equitable relief, unless
    otherwise provided.

[22]

Based
    on the words unless otherwise provided that appear in s. 96(3), this court
    found that a narrow jurisdiction existed in the Small Claims Court to grant
    equitable relief as limited by s. 23 of the
CJA
, that is, for claims
    of a monetary payment under the limit of $25,000 or the return of personal
    property valued within that limit:
Grover
at para. 49. Again, that
    decision provides little assistance in arriving at the proper interpretation of
    judge in s. 137.1. I would note, though, that the court in
Grover
did conclude that the fact that the Small Claims Court had become part of the Superior
    Court of Justice did not alter the courts jurisdiction: at para. 44.

[23]

Finally,
    the parties also rely on the decision in
Stockey v. Peel Condominium Corp.
    No. 174
(1996), 30 O.R. (3d) 464 (Div. Ct.). In
Stockey
, Webber
    J., sitting as a single judge of the Divisional Court upheld, on appeal, the
    decision of a deputy judge to exercise authority under what was then s. 49(1)
    of the
Condominium Act
, R.S.O. 1990, c. C.26. Section 49(1) read:

Where a duty imposed by this Act, the declaration, the by-laws
    or the rules is not performed, the corporation, any owner, the bureau, or any
    person having a registered mortgage against a unit and common interest, may
    apply to the Ontario Court (General Division) for an order directing the
    performance of the duty.

[24]

The
    important distinguishing feature between the decision in
Stockey
and
    the case here is that s. 49(1) of the
Condominium Act
referred to the
    Ontario Court (General Division) not to a judge of that court. Had the section
    provided that a person could apply to a judge of the Ontario Court (General
    Division) then, in my view, a deputy judge of the Small Claims Court would not
    have been able to exercise authority under that section, and I expect that the
    appeal judge would have so concluded.

[25]

Two
    points raised by the Attorney General of Ontario, in his submissions, bear
    mention. One is the submission that [t]here is no principled reason why the
    Small Claims Court could hear a motion to strike a claim under r. 12.02 of the
Small Claims Court Rules
but not a motion to strike under s. 137.1. I
    do not agree. The
Rules of Civil Procedure
permit Masters and Case
    Management Masters to hear certain motions but restrict other motions to be
    heard only by judges. In this context, it is apparent that the Legislature has
    decided that some motions take on a significance for the parties where the
    result should only be determined by a judge. For example, only a judge may hear
    and determine a pre-trial motion under Rule 21 of the
Rules of Civil
    Procedure
, including dismissing actions that are frivolous, vexatious or
    an abuse of process. As I earlier noted, s. 137.1 provided a new mechanism to
    summarily dispose of a proceeding. It was open to the Legislature to decide
    that this new mechanism should only be employed by a judge.

[26]

The
    other point raised by the Attorney General of Ontario is the submission that unlike
    sections 96(3), 97, 101 and 140, the
CJA
does not expressly exclude section
    137.1(3) relief from the Small Claims Courts powers. Two problems arise from
    this submission. One is that we are not dealing here with the exclusion of
    powers. As earlier noted, the Small Claims Court must find its jurisdiction in a
    statute. Absent express statutory authority, the Small Claims court has no
    jurisdiction. The other is that not all of those sections expressly exclude
    relief from the Small Claims Court. Sections 101 and 140 do not do so, for
    example. And, contrary to the thrust of the Attorney Generals submission, the
    wording of s. 96(3) was expressly relied upon by this court in
Grover
to
    find jurisdiction in the Small Claims Court to grant equitable relief, albeit
    in very limited situations.

[27]

Lastly,
    all of the parties place great emphasis on the fact that the Small Claims Court
    is intended to provide for simpler and less expensive litigation. They argue
    that the powers of a deputy judge should be given broad and expansive
    interpretation to encourage access to justice. With respect, such policy
    arguments cannot override the plain words of the statute. Either deputy judges
    have been given the authority to provide certain relief, or they have not. It
    is not for the court to find authority where the Legislature has chosen not to
    clearly provide it. I would also note that, ironically, s. 137.1 is not a
    provision providing access. To the contrary, at least viewed from the
    perspective of the plaintiff, it is the very opposite. It is a provision that
    is intended, in proper circumstances, to prohibit access to the courts.

[28]

In
    the end result, it would have been open to the Legislature to expressly provide
    in s. 137.1 that deputy judges of the Small Claims Court could grant orders
    under that section. The Legislature chose not to do so in the same fashion that,
    in wording s. 137.1 as it did, it did not give that authority to masters or
    case management masters. For its own reasons, the Legislature clearly concluded
    that this new jurisdiction should only be exercised by a judge. It is not for
    this court to strain the language of the section to provide a power to deputy
    judges that the Legislature did not, itself, plainly choose to provide.

[29]

For
    these reasons, I conclude that deputy judges of the Small Claims Court do not
    have authority to grant orders under s. 137.1 of the
CJA
.

[30]

The
    parties asked, if we reached the conclusion that jurisdiction did not exist to
    grant the order, that this court make the determination of the merits of the s.
    137.1 motion. I would not accede to that request. It is not appropriate, as a
    matter of general application, for this court to engage in determining matters
    of first instance. Among other reasons, doing so has a direct and significant
    effect on appeal rights.

C
onclusion

[31]

The
    appeal is allowed, the order dismissing the action is set aside, and the matter
    is returned to the Small Claims Court, without prejudice to any fresh motion
    that might be brought before a judge. The appellant is entitled to his costs of
    the appeal in the agreed amount of $13,000 inclusive of disbursements and HST.

Released: IN July 12, 2019


I.V.B.
    Nordheimer J.A.



I agree.
    P. Lauwers J.A.


I agree. Fairburn J.A.






[1]

I note that by virtue of r. 1.03(2) of the
Rules of the
    Small Claims Court
where those rules do not cover a matter adequately, the
    court may have reference to the
Rules of Civil Procedure
.


