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 settlement conference, the Deputy Judge ordered among other things, production of the plaintiff's medical records and the plaintiff's expert reports that were intended to be relied upon at trial.

The Superior Court asserted that, while there is no provision in the Rules of the Small Claims Court for discovery generally, Rule 13.05(2)(a)(vi) provides that a judge conducting a settlement conference may make an order relating to the conduct of an action that the court could make, including directing production of materials.

As such, the Superior Court held that the Deputy Judge had jurisdiction to order the plaintiff to produce the expert reports that were intended to be relied upon at trial.

The Superior Court was careful to say, however, that Rule 13.05(2)(a)(vi) only applies in the context of a settlement conference and only permits an order for production by a party to the action as part of the settlement conference.

In regard to the issue of whether the Small Claims Court has...