



COURT OF APPEAL FOR ONTARIO

CITATION: Kelava v. Spadacini, 2021 ONCA 428

DATE: 20210617

DOCKET: C68394

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

David Kelava and The United
    Brotherhood of Retail, Food,
Industrial and Service Trades International Union

Defendants/Applicants
(Appellants)

and

Dante Spadacini

Plaintiff/Respondent
(Respondent)

Melvyn L. Solmon and Laney J. Paddock,
    for the appellants

Dante Spadacini, acting in person

Heard: April 21, 2021 by video conference

On appeal from the judgment of the
    Divisional Court (Justices Lynne Leitch, Harriet E. Sachs and David L. Corbett),
    dated October 30, 2019, with reasons reported at 2019 ONSC 6314, affirming the order
    of Deputy Judge Thomas H. Clemenhagen, dated June 21, 2018.

Benotto J.A
.:

[1]

This appeal involves the jurisdiction of the
    Small Claims Court to appoint a representative defendant for an unincorporated association.

A.

FACTS

[2]

The respondent, Dante Spadacini, brought a
    wrongful termination claim in Small Claims Court against the appellants David
    Kelava and The United Brotherhood of Retail, Food, Industrial and Service
    Trades International Union (the Union). The monetary amount of the claim is
    within the jurisdiction of the Small Claims Court.

[3]

The Deputy Judge made an order amending the style
    of the action to change the wording of the defendants name slightly by
    adding the named defendant David Kelava as a representative of the Union.
    Although the
Rules of the

Small
    Claims Court
, O. Reg. 258/98 do not explicitly
    deal with representation orders, the Deputy Judge applied r. 1.03(2) which gives
    the court discretion to refer to the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, if a matter is not
    adequately covered by the
Small Claims Court Rules
. The
    deputy judge then referred to r. 12.07 of the
Rules of Civil Procedure
. This rule (typically used when a union is sued) provides
    that one or more persons may be authorized by the court to defend an action
    when numerous persons have the same interest.

[4]

The Union applied for judicial review to the
    Divisional Court on the basis that the deputy judge lacked jurisdiction to make
    the order because there is a clear omission in the
Small Claim Court Rules
preventing reference to the
Rules of Civil Procedure
.

[5]

The Divisional Court upheld the deputy judges
    order, unanimously ruling that he did not err.

[6]

The Union now appeals to this court.
[1]

B.

POSITIONS OF THE PARTIES

(1)

Appellants

[7]

The appellants submit that
the Divisional Court erroneously expanded the jurisdiction of the
    Small Claims Court. They say that there is a precondition to the application of
    r. 1.03(2) and it was not met here. They submit that r. 1.03(2) can only be
    applied in order to refer to the Rules of Civil Procedure if there is a gap as
    opposed to an omission in the
Small Claims Court Rules
.

[8]

The appellants argue that there is an omission,
    not a gap, in the
Small Claims Court Rules
and rely on
this courts decisions in
Van
    de Vrande v. Butkowski
, 2010 ONCA 230, 99 O.R. (3d) 648, and
Riddel v.
    Apple Canada Inc.
, 2017 ONCA 590, 139 O.R. 595. They argue that a gap is
    something that is covered inadequately by the
Rules
, whereas an
    omission is not addressed in the
Rules
at all and consequently, there
    is no ability for the Small Claims Court to make reference to r. 1.03(2)
    or to the
Rules of Civil Procedure
.

[9]

The appellants further argue that the Small
    Claims Court does not have the jurisdiction to hear actions by or against
    unincorporated associations. They rely on the absence of reference to
    unincorporated associations in the
Small Claims Court Rules.

(2)

Respondent

[10]

The respondent submits that the
Small Claims
    Court Rules
are clear and unambiguous in that the court may give
    directions and make orders when the rules do not cover a matter adequately.
    This is exactly what the deputy judge did. He identified an area where the
    rules did not adequately cover a matter  the ability to make representation
    orders  and made reference to the
Rules of Civil Procedure
. There are
    also Ontario regulations premised on unincorporated associations falling under
    the jurisdiction of Small Claims Court. Specifically,
Ontario Regulation
    332/16 Small Claims Court  Fees and Allowance
includes unincorporated
    organizations in the definition of claimant.

[11]

The respondent points to several Small Claims
    Court actions commenced by and against unincorporated associations, including
    unions: see
Ryan v. PACI Band Parents Association
,

[2003]
    O.J. No. 3732 (Sup. Ct. (Sm. Cl. Div.))
;
De Yound v. Van Bart
,

[2006]
    O.J. No. 4491 (Sup. Ct. (Sm. Cl. Div.));
Communications, Energy and
    Paperworks Union of Canada, Local 593 v. Matthews
, [2006] O.J. No. 872 (Sup.
    Ct. (Sm. Cl. Div.));
Communications, Energy and Paperworks Union of Canada,
    Local 593 v. Dennis Garrat
t (unreported); and
Arnett v. Rail Canada
    Traffic Controllers
,
[1991] O.J. No. 2656 (Prov. Ct. Civ. Div. Sm. Cl. Ct.)).

C.

ANALYSIS

[12]

Is the Small Claims Court prevented from naming
    a representative defendant in an action against an unincorporated association?

[13]

I conclude that the answer is no.

[14]

I say this for these reasons: (i) the deputy judge
    had the authority under the
Small Claims Court Rules
to make the order
    without reference to the
Rules of Civil Procedure
; (ii) the deputy
    judge did not err by referring to the
Rules of Civil Procedure
; and (iii)
    the legislature did not deliberately omit unincorporated associations from the
    jurisdiction of the Small Claims Court.

The authority to make the order is in the Small
    Claims Court Rules

[15]

The Small Claims Court is a branch of the
    Superior Court of Justice. It handles nearly half of the civil disputes in the
    province. The court is meant to provide an efficient, cost-effective forum for
    the resolution of civil disputes involving less than $35,000. It hears cases in
    a summary way
and may make such order as is considered
    just and agreeable to good conscience:
The Courts
    of Justice Act,

R.S.O. 1990,
    c. C.43, s. 25.

[16]

In short, 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.

[17]

The authority to make a representation order is
    found in the
Small Claims

Court Rules
.

[18]

The rules are to be read in their entire context
    having regard to their nature, purpose, scheme, and object.  The
Small
    Claims Court Rules
, read in their entirety, emphasize facilitating access
    to justice. They begin with guidance as to their interpretation. Rule 1.03(1)
    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). [Emphasis added.]

[19]

To further provide for the achievement of their objectives, the rules
    give broad discretion to the court. If the rules do not directly address a
    matter, the court may give directions and make any order that is just. In
    order to implement the order, the practice is to be decided by
analogy to the

Small Claims Court Rules
. Then, if the
    court considers it appropriate the court
may

refer to the
Rules of Civil Procedure
.

Rule 1.03(2) provides:

If these
    rules do not cover a matter adequately, the court
may
give directions
    and make any order that is just, and the practice shall be decided
by
    analogy to these rules
, by reference to the
Courts of Justice Act
and the Act governing the action and
,
if the court
    considers it appropriate
, by reference to the Rules of Civil Procedure.
O. Reg.
    78/06, s. 3. [Emphasis added.]

[20]

The
Small Claims Court Rules
provided the authority to make the order even
without reference
to the

Rules
    of Civil Procedure.
I say this for several reasons.

[21]

First, pursuant to a plain reading of r. 1.03(2) the court may give
    directions and make any order that is just. This provides the court with
    authority to manage its own process.

[22]

Second, with respect to the pleadings, it has long been the case that a
    liberal, non-technical approach should be taken to the pleadings in Small
    Claims Court (
Brighton Heating & Air
    Conditioning
v.
Savoia
(2006), 79 O.R. (3d) 386 (Div. Ct.), at para. 40). The court has the
    power to grant necessary amendments to secure the just determination of the
    real matters in dispute. Rule 2 provides:

2.01
A
    failure to comply with these rules is an irregularity and does not render a
    proceeding or a step, document or order in a proceeding a nullity, and the
    court may grant all necessary amendments or other relief, on such terms as are
    just, to secure the just determination of the real matters in dispute.

2.02
If necessary in the interest of justice, the court may dispense with compliance
    with any rule at any time.

[23]

Third, if a matter is not adequately covered, the court is to decide
    the matter by analogy to other Small Claims Court rules  the very rules that
    emphasize the just, most expeditious and least expensive process. It is
    inconsistent with this objective to require a litigant to endure the time,
    expense and delay of an application to the Superior Court only to obtain a
    representation order when the matter is within the monetary jurisdiction of the
    Small Claims Court.

Reference to the Rules of Civil Procedure was
    not an error

[24]

The appellants submit that the Deputy Judge had no authority to apply
    r. 1.03(2) in order to refer to the
Rules of Civil
    Procedure
.

[25]

I disagree.

[26]

The Deputy Judge was not required to have reference to the procedure in
    r. 12 of the
Rules of Civil Procedure
at all. Reference to the
Rules of Civil
    Procedure
is discretionary and was not necessary in
    this case.

[27]

Recall the wording of s. 1.03(2). If the matter is not adequately
    covered, the court may give directions and, 
if the court considers it appropriate,
 do
    so with reference to the
Rules of Civil Procedure
.

[28]

For these reasons, I conclude that the
Small
    Claims Court Rules
provide the authority to make the
    order appealed from. That said, I turn to the appellants submissions with
    respect to the courts jurisdiction.

Jurisdiction regarding unincorporated
    associations

[29]

The appellants say that nonetheless, the deputy judge could not make
    the order at all, because the Small Claims Court has no jurisdiction with
    respect to unincorporated associations. They submit that the legislative intent
    is evident from the fact that the rules do not refer to unincorporated
    associations. This prevents reference to the
Rules
    of Civil Procedure
which can only be used where there
    is a gap as opposed to an omission in the
Small
    Claims Court Rules
.

[30]

The appellants rely on this courts decisions in
Van de Vrande
and
Riddel
which, they submit, have
developed the test to apply when the Small Claims Court decides a
    practice following the
Rules of Civil Procedure
. That test is to determine whether there is a gap or an omission
    in the
Small Claims Court Rules
. If the former, the court can have reference to the
Rules of Civil Procedure
. If the latter,
    then the legislature must have intended there to be no jurisdiction.

[31]

The appellants misconstrue both
Van de
    Vrande
and
Riddel.


[32]

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
Small Claims Court
    Rules
, in part because the
Small Claims Court Rules
allow a process
    whereby a claim could be struck. Consequently, the omission of the summary
    judgment rule was an omission not a gap. Importantly, this court read the
Small Claims Court Rules
liberally and
    upheld the deputy judges order dismissing the claim.
Van de Vrande
actually confirms my view
    that it was not necessary to invoke the
Rules of
    Civil Procedure
at all because the court had the
    authority to give directions.

[33]

Nor does
Riddell
assist
    the appellants.

[34]

Riddel
, at
    para. 7,

clarifies that when there is a marker in the Rules of a
    deliberate legislative decision to omit a procedure, then the
Small Claims
    Court Rules
should not be supplemented.
Riddel
found no such
    marker when the court ordered an inspection of property. Rather the court
    concluded that the
Small Claims Court Rules
authorized the impugned
    order without reference to the
Rules of Civil Procedure
.

[35]

An example of a marker limiting jurisdiction is shown
    in
Bruyea
v.
Canada
    (Veteran Affairs)
,

2019
    ONCA 599, 147 O.R. (3d) 84. There, the issue was whether the Small Claims Court
    had the authority to dismiss an action under s. 137.1 of the
Courts of
    Justice Act
. This is the so-called anti-SLAPP
[2]
law. It is meant to address
    concerns arising from the use of litigation to interfere with freedom of
    expression and quickly dismiss unmeritorious claims that unduly encroach on an
    individuals right to freedom of expression on matters of public interest:
Bruyea
,
    at para. 11. The process permits the summary dismissal of an action. In
Bruyea
,
    this court determined that, by drafting the
Act
to refer exclusively
    to judge, not deputy judge or court, the legislature put down a marker
    of an intent to omit the jurisdiction from the Small Claims Court. Interestingly,
    the court commented on access to justice, at para. 27, by noting 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.

[36]

Here, there is no such marker. There is no language
    in a statute that marks a clear intent to exclude representative defendants
    from the courts jurisdiction.
On the contrary, there
    is extensive language regarding the ability of the court to manage its process in
    a cost-effective way
.

[37]

Finally, I note the appellant appears to have
    conflated the right to sue with the representation order. The appellant submits
    that unincorporated associations do not have legal personality. This is
    incorrect for trade unions. A trade union is a legal entity with legal
    personality: see
Berry v. Pulley
, 2002 SCC 40, [2002] 2 S.C.R. 493, at para. 39.  However, because of
    the statutory requirements in the
Rights of Labour
    Act
, R.S.O. 1990, c. R.33, the only way to sue a
    union in Ontario is to obtain a representation order:
Lawrence v. IBEW, Local 773
, 2017 ONCA
    321, 138 O.R. (3d) 129, at para. 16.

D.

CONCLUSION

[38]

I would dismiss the appeal with costs payable to
    the respondent fixed in the amount of $5,000 for the appeal, plus $2,000 for
    the motion for leave to appeal for a total of $7,000 inclusive of tax and
    disbursements.

Released: June 17, 2021 M.L.B.

M.L.
    Benotto J.A.

I
    agree B.W. Miller J.A.

I
    agree Gary Trotter J.A.





[1]

No submissions were made as to the standard of review. In
    any event, as I explain, the decision under review is correct.



[2]

Strategic Lawsuits Against Public Participation


