Focus On

CIVIL PROCEDURE - Parties - Trade unions - Adding or substituting - On court’s motion

Thursday, July 22, 2021 @ 5:44 AM  


Lexis Advance® Quicklaw®
Appeal by the defendants from a decision of a deputy judge adding the named defendant Kelava as a representative of the defendant Union in a wrongful dismissal action. Although the Rules of the Small Claims Court did not explicitly deal with representation orders, the deputy judge applied Rule 1.03(2) which gave the court discretion to refer to the Rules of Civil Procedure, if a matter was not adequately covered by the Small Claims Court Rules. The appellants argued that Rule 1.03(2) could only be applied to refer to the Rules of Civil Procedure if there was a gap as opposed to an omission in the Small Claims Court Rules. The appellants further argued that the Small Claims Court did not have the jurisdiction to hear actions by or against unincorporated associations. They relied on the absence of reference to unincorporated associations in the Small Claims Court Rules.

HELD: Appeal dismissed. The Small Claims Court was not prevented from naming a representative defendant in an action against an unincorporated association. The deputy judge had the authority under the Small Claims Court Rules to make the order without reference to the Rules of Civil Procedure. Rule 1.03(2) provided the court with authority to manage its own process. The court had the power to grant necessary amendments to secure the just determination of the real matters in dispute. The deputy judge did not err by referring to the Rules of Civil Procedure. Reference to the Rules of Civil Procedure was discretionary and was not necessary in this case. The legislature did not deliberately omit unincorporated associations from the jurisdiction of the Small Claims Court. There was no language in a statute that marked a clear intent to exclude representative defendants from the court’s jurisdiction, but there was extensive language regarding the ability of the court to manage its process in a cost-effective way.

Kelava v. Spadacini, [2021] O.J. No. 3322, Ontario Court of Appeal, M.L. Benotto, B. Miller and G.T. Trotter JJ.A., June 17, 2021. Digest No. TLD-July192021008