Social Policy in Ontario

For one thing, the notion that expanding small claims court will save the province money ignores a crucial reality: Justices of the Ontario Superior Court are funded by the federal government. Small claims court is entirely funded by the province. Doubling the size of the already overburdened small claims court could therefore double the financial burden on the province. Regardless of whether one agrees with this government’s policy objectives, this move would hardly seem to be in line with them.

Cases worth over $25,000 also currently benefit from two crucial steps in the litigation process that are absent from Small Claims: mandatory mediation and examinations for discovery. These steps force litigants to seriously consider the shortcomings of their case and are immensely helpful in promoting early settlement.

As someone who has represented clients in both Small Claims and the Superior Court of Justice, I have seen first-hand the consequences of not having mediation or discoveries. In small claims court, litigants are only forced to do a pretrial conference. These conferences often last less than 15 minutes, and much of the time, settlement is not even seriously discussed.

This problem is exacerbated by the fact that corporations are not required to obtain legal representation at small claims court. This leads some corporations to walk into court completely ignorant of the law, forcing matters to trial that could have easily been resolved with the right legal advice in Superior Court.

Small claims court lacks any strong disincentive for parties to proceed to trial, since the amounts one can collect as compensation for legal fees are minimal. The Superior Court of Justice forces litigants to make realistic offers to settle, or face consequences after judgment by way of a high costs award.

The notion that Superior Court requires a huge investment on the part of individuals is a fallacy. Many plaintiff lawyers in Ontario operate under deferred or contingency arrangements that can fully accommodate those with limited means. In contrast, self-represented individuals (who will increase if the Small Claims limit is increased) operate at a distinct disadvantage against corporations with experienced legal representation.

Someone involved in a Superior Court claim also has many options to streamline this process. Actions under $100,000 are subject to a streamlined procedure, and other actions can proceed by way of a three-hour summary hearing or a short summary trial. Therefore, in the rare cases where matters proceed to adjudication in Superior Court, there are several mechanisms to ensure they are heard in a timely and efficient manner.

Expanding Small Claims will not improve access to justice. Cases that were once eligible for mandatory mediation, summary trials, and summary judgment, will be forced into traditional long-form trials. If the jurisdiction is increased without the province committing a corresponding increase in funding, it will be a disaster. Cases will take even longer to go through the system, and access to justice will suffer terribly.

The hard truth is this: if this government wants to improve access to justice, the answer is better funding. Better funding for our judiciary, legal aid, and the human rights legal support centre, would do much more for access to justice than tossing cases from one level of court to another.

As for our clogged Superior Court, rather than simply clogging up small claims court instead, why not expand the mandatory mediation program provincewide? This is a tool that has been immensely helpful to the limited jurisdictions in which it has been implemented.

Difficult problems sometimes require uncomfortable solutions. If we are not going to properly fund our court system, let’s at least not make things worse.

https://www.thestar.com/opinion/contributors/2019/07/24/expanding-small-claims-court-will-not-increase-access-to-justice.html