



COURT OF APPEAL FOR ONTARIO

CITATION: Riddell v. Apple Canada Inc., 2017 ONCA 590

DATE: 20170710

DOCKET: C63349

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Matthew Riddell

Appellant (Plaintiff)

and

Apple Canada Inc.

Respondent (Defendant)

Matthew Riddell, in person

Monique J. Jilesen and Laurel D. Hogg, for the
    respondent

Heard: July 5, 2017

On appeal from the order of the Divisional Court (Justices
    Harriet E. Sachs, Ian V.P. Nordheimer and Laurence Pattillo), dated September
    26, 2016, with reasons reported at 2016 ONSC 6014.

REASONS FOR DECISION

[1]

The primary issue on this appeal concerns the important question whether
    Deputy Judges of the Small Claims Court have jurisdiction to order the
    pre-trial inspection of property in a proper case.  If such jurisdiction
    exists, the second issue on appeal is whether that jurisdiction was properly
    exercised in the circumstances of this case.

[2]

The Divisional Court, for clear and cogent reasons, answered both of
    these questions in the affirmative.  We agree with the Divisional Courts
    conclusions and its reasoning on these issues.

[3]

Specifically, the
Rules of the Small Claims Court
, O. Reg.
    258/98 (the Rules), especially r. 17.03, do not adequately cover the matter of
    the pre-trial inspection of property.  As a result, where trial fairness and
    the interests of justice, including the expeditious and least expensive
    determination of a case on the merits, so require, Deputy Court Judges of the
    Small Claims Court have jurisdiction under r. 1.03(2) of the Rules to order the
    pre-trial inspection of property by reference to r. 32.01 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.

[4]

We make two additional comments on this issue.  First, in our opinion, this
    conclusion does not conflict with this courts decision in
Van de Vrande v.
    Butkowsky
, 2010 ONCA 230, 260 O.A.C. 323.

[5]

In
Van de Vrande
, this court held that motions for summary
    judgment based on principles emanating from r. 20 of the
Rules of Civil
    Procedure
are not available under the Rules.  This holding was based on
    the courts conclusion, having regard to r. 12.02 of the Rules (which permits a
    party to bring a motion to strike a document, including a claim, before trial)
    and other factors, that the failure to provide for summary judgment motions
    under the Rules was not a gap in those Rules but, rather, a deliberate
    omission.

[6]

In particular,
Van de Vrande
holds that r. 12.02 of the Rules
    specifically addresses the ability to bring a motion in the nature of those
    contemplated by rr. 20, 21 and 76 of the
Rules of Civil Procedure
. 
    Indeed, this court upheld the motion judges dismissal of the claim in
Van
    de Vrande
given her jurisdiction pursuant to r. 12.02.  It therefore could
    not be said that the Rules fail to adequately cover motions for summary
    judgment, so as to trigger the application of r. 1.03(2).

[7]

That is not this case.  Here, the Rules provide, under r. 17.03, for the
    inspection of property by a trial judge of the Small Claims Court, in certain
    circumstances.  They do not adequately address the pre-trial inspection of
    property at the instance of a litigant.  Unlike
Van de Vrande
, we see
    no marker in the Rules of a deliberate legislative decision to omit such a
    procedure.  Rather, as the Divisional Court explained, the failure to provide
    for such pre-trial inspection rights may be viewed as a deficiency in the scope
    and operation of r. 17.03.  In an exceptional case, therefore, resort may be
    had to r. 1.03(2) to cure this deficiency.  See Divisional Court reasons, at
    paras. 17-18.

[8]

Second, and relatedly, we do not accept the appellants submission that the
    recognition of the authority of Deputy Court Judges of the Small Claims Court
    to order the pre-trial inspection of property in exceptional circumstances will
    undermine the mandate of the Small Claims Court to hear and determine in a
    summary way those cases that come before it.  To the contrary, in our view, it
    will assist Deputy Judges of the Small Claims Court to fulfil this important
    function in accordance with s. 25 of the
Courts of Justice Act
, R.S.O.
    1990, c. 43.  In this regard, we agree with, and endorse, the comments of
    Deputy Judge S.M. McGill of the Small Claims Court in
National Service Dog
    Training Centre Inc. v. Hall
, [2013] O.J. No. 3216, at paras. 30-31:

The only Small Claims Court Rule expressly dealing with the
    inspection of personal property is part of the final phase of the process 
    trial.  Rule 17.03 authorizes a trial judge to inspect any real or personal
    property in the presence of the parties.  The lack of pre-trial inspections of
    property represents a gap in the Small Claims Court rules that has disparate
    impact on the parties.  The party in possession of the property experiences no
    side effects whatsoever while the non-possessory party has its ability to
    prepare for trial severely restricted.  An unlevel playing field is the result
    which is not just, fair or agreeable to good conscience.

Ordering a pre-trial inspection of the
    property is not hostile to the objectives of the court, it is central to
    principles of natural justice. This is an issue of fundamental fairness which
    the court must be allowed to address in the context of controlling its own
    proceedings and to support the most just, agreeable and in good conscience
    determination
.  A question about the condition of the property cannot be
    determined on the merits if only one side is allowed to collect relevant
    evidence.  A party will not perceive the justice system as fair if it is denied
    the basic opportunity afforded to the other party.
The
    playing field must be level or the administration of justice will fall into
    disrepute
.  [Emphasis added.]

[9]

We are also satisfied that the test for the invocation of the power to
    order the pre-trial inspection of property, set out above, was met here.  In
    this products liability case, the appellant seeks damages for what he alleges
    were personal injuries caused by the negligent manufacture of an iPhone by the
    respondent.  He claims that the iPhone overheated and caused severe burns to
    his right arm.  He declared his intention to lead expert evidence at trial
    regarding the iPhone and the overheating event in order to establish his case. 
    Yet he refused, absent a court order, to permit an independent third party
    expert to inspect the iPhone prior to trial, at no cost to him, to assist the
    trial judge in determining the central matter in dispute between the parties.

[10]

In these circumstances, Deputy Judge Stabiles impugned pre-trial
    inspection order was entirely justified.  Trial fairness, the interests of
    justice and the proper exercise of the trial judges functions under r. 17.03
    of the Rules all compelled this result.

[11]

The appeal is dismissed.  Given the novel and public interest dimensions
    of the issues raised on appeal, this is not an appropriate case for an award of
    costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


