When I began Articling in Toronto, 29 years ago the monetary limit of the Small Claims Court in Toronto was $ 3,000.00 and $1,000.00 elsewhere. It appears the powers that be think that is still the limit. It is not.
The Small Claims Court limit was increased to $ 35,000.00 throughout Ontario in January 2020. This has resulted in it becoming the forum for low wage earner’s wrongful dismissal claims, credit card and line of credit litigation and some aspects of Construction Act litigation. The claims in this Court matter to the parties involved, they’re not $1,000.00 disputes. They mean something.
Ironically, while the monetary limited has increased over 29 years, the permanent Judges of the Small Claims Court have all but vanished, replaced by Deputy Judges, who are practicing lawyers retained as independent contractors by the Ministry of the Attorney General.
When the Pandemic shut down physical entry to the Courts, our Chief Justice of the Superior Court of Justice, of which the Small Claims Court in Ontario is a branch, stated that the Courts have never closed.
For Small Claims that simply isn’t true.
Initially the only matters that Small Claims would hear after the pandemic were emergency motions by debtors who failed to attend examinations to explain why they were not paying their Judgments, were found in contempt of Court and were arrested, usually during a traffic stop when the officer found the contempt order.
Recently, settlement conferences are being heard by phone or by Zoom, but only in limited circumstances.
On July 10, 2020, all Small Claims hearings were adjourned to November 2, 2020, which will mean that Court has been closed for 9 months. The backlog will be very difficult to overcome: this is a disaster of the Ministry’s own creation.
This has not been the case in the rest of Civil Superior Court: matters have been proceeding and there have been alternatives to in Court hearings that are working well. There is no reason that this could not be applied to Small Claims Court.
You cannot increase the limit of a Court, but treat it as if it doesn’t matter. The parties in Small Claims Court matter.
Leaving aside the parties for a moment, there are many Licensed Paralegals whose sole income is from representing people in Small Claims Court. These Paralegals have had their practice gutted due to the Ministry’s failure to treat this Court equally. The LSO’s lack of lobbying to protect those Paralegals shows the continued divide between the way Lawyers and Paralegals are treated. I cannot imagine that if Lawyers were shut out of practice for 9 months that the LSO wouldn’t get involved.
Once can only imagine the lack of rumblings about this in the media is due to a lack of understanding the true impact of shutting down this Court for 9 months.
So why do I care? I care because part of the practice in our firm is Small Claims. I care because the clients we represent in Small Claims are going to be dealing with lengthy delays for many years to come due to this 9 month shut down. More importantly though, I care because someone needs to point out how unfair this shut down is to Small Claims and no one else seems to care.
Inga B. Andriessen, JD