Court of Appeal Decision Supports Access to Justice in Small Claims Court

On April 25, 2016, the Court of Appeal for Ontario released its decision in Hervieux v Huronia Optical.  Roberts JA, writing for a unanimous Court, dismissed the defendants’ appeal in a medical negligence case that tested the limits of a motion to strike in Small Claims Court.  Citing its own decision last year in Westerhof v Gee, the Court of Appeal held that litigants in Small Claims Court may rely on the opinion evidence of treating physicians and are not required to engage independent experts or submit formal reports.  Justice Roberts found that to hold otherwise would be to “undermine the fundamental objective of the Small Claims Court to provide easier and less expensive access to justice, especially for self-represented litigants”.  The Court accordingly held that the plaintiff’s claim was not a “waste of time” as contemplated by rule 12.02(1)(c) of the Rules of the Small Claims Court and could not be dismissed on a motion to strike after he sought to rely on the testimony of his own doctors instead of providing formal expert reports.

The plaintiff, Mr. Hervieux, was self-represented in the Small Claims Court.  He alleges in his statement of claim that he suffered significant vision loss in one eye after he was not promptly treated by the defendant eye doctors.  His claim was dismissed by Deputy Judge Stabile on a motion to strike under rule 12.02 after he failed to comply with a settlement conference order that he provide all his documents for trial by a specific date, including expert reports.  Instead, after the court-ordered deadline but prior to the motion to strike, the plaintiff provided a number of medical records and a witness list of doctors who had treated his eye.  He advised that he had signed authorizations for further medical records and that he would provide will says for the treating physicians on his witness list.  However, the Deputy Judge held that the testimony of treating physicians was categorically inadmissible as expert opinion evidence.  The Deputy Judge denied the plaintiff any extension of time to provide expert reports and struck his claim for being a “waste of time”, finding that there was “no prospect” that he could provide suitable evidence.

The Deputy Judge’s decision was overturned on appeal by Justice Mulligan of the Divisional Court.  Justice Mulligan held that the Deputy Judge had exceeded his jurisdiction by effectively requiring the plaintiff to “put his best foot forward” and then granting summary judgment on a motion to strike.  Upon further appeal by the defendants, the Court of Appeal agreed with Justice Mulligan that the Deputy Judge’s decision constituted a breach of natural justice on the facts of this case.   Justice Roberts observed that it is open to a judge of the Small Claims Court under its rule 13 settlement conference powers to order production of expert evidence before trial and even to dismiss an action for breach of court orders.  Justice Roberts held that the Small Claims Court may also dismiss a claim for breach of court orders under rule 12.02, but only if the conditions set out in that rule are met.  In this case, Justice Roberts found that there was “ample evidence” that the plaintiff could provide expert evidence from his treating physicians and that the claim was not a “waste of time”.

Asha James and Marc Gibson of Falconers LLP represented Mr. Hervieux at the Court of Appeal.


Related Documents


Reasons of Justice Mulligan

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