In a recent unreported decision won by Robert Richler of Davies Howe Partners LLP, the Small Claims Court re-affirmed the law regarding addition and substitution of parties in Small Claims Court proceedings, and awarded significant costs against the Plaintiffs whose counsel brought a motion to do so on the eve of trial.
The Plaintiffs’ motion sought to add our client to the main action well after the expiry of the applicable limitation period. As an alternative argument, the Plaintiffs’ lawyer suggested that the court could substitute the non-party into the shoes of one of the existing Defendants if the Court was not prepared to simply add our client as a Defendant. The Court recognized that the Plaintiffs’ true intent was to keep both parties involved in the action and dismissed the motion.
The Court also considered the timing of the motion and re-affirmed that existing law that the Small Claims Court will not add non-parties to small claims litigation on the eve of trial.
In the same decision, the court clarified the limits of “discovery” in Small Claims Court proceedings. The Plaintiffs brought a second motion on the eve of trial requesting that the Defendants disclose a significant number of additional documents. For all intents and purposes, the Plaintiffs abandoned their motion against one Defendant prior to the hearing of the motion but pursued the motion against the co-Defendant. After hearing arguments from the parties, the Court affirmed that the appropriate time to bring motions for disclosure of documents in Small Claims Court proceedings is during the settlement conference process. After that time, the Court has no jurisdiction to make such orders.
By: Robert Richler
