Discovery Rights At Small Claims Court

Introduction

Discovery can sometimes make or break a case.

There has been discussion of increasing the monetary limit of the Ontario Small Claims Court from $25,000 to $50,000. With this potential change, heightened consideration needs to be given to discovery rights at the Small Claims Court.

While the Small Claims Court and Ontario Superior Court of Justice share procedural similarities, a notable difference is the discovery process, or lack thereof, at the Small Claims Court.

The efficiency of the Smalls Claims Court process that results from the lack of oral and documentary discovery does not come without disadvantage. The lack of discovery is an especially pertinent issue when a plaintiff or defendant desires evidence from a non-party to an action.

In the Superior Court, a party to an action can seek production of documents from a non-party by bringing a Rule 30.10 motion.

In the Small Claims Court, this avenue is unavailable, although it is not uncommon to see counsel attempt to argue otherwise.

Jurisdiction to Order Production from Non-Party

Elguindy v. St. Joseph's Health Care (2016 ONSC 2847)

In Elguindy v. St. Joseph's Health Care, the Divisional Court addressed whether the Small Claims Court has jurisdiction to issue an order for production of documents from a non-party.

The plaintiff commenced an action in the Small Claims Court against a hospital, a nurse and two physicians as a result of a cancellation of a medical procedure. At the mandatory...