ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER & PATTILLO JJ. ) ) ) ) Respondent )

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1 CITATION: Riddell v. Apple Canada Inc., 2016 ONSC 6014 DIVISIONAL COURT FILE NO.: DC (Oshawa DATE: ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER & PATTILLO JJ. BETWEEN: MATTHEW RIDDELL M. Riddell in person Applicant and APPLE CANADA INC. M. Jilesen, for the respondent Respondent HEARD at Toronto: September 19, ONSC 6014 (CanLII NORDHEIMER J.: [1] Mathew Riddell applies for judicial review of the order of Deputy Judge Stabile of the Small Claims Court dated November 27, Pursuant to that order, the Deputy Judge ordered the applicant to deliver to the respondent an iphone 5, belonging to the applicant, for the purpose of the respondent having the iphone 5 examined by an expert. [2] The importance of the iphone 5 arises from the fact that this action involves a claim by the applicant that the iphone 5 overheated and caused severe burns to the applicant s right arm. The applicant claims damages in the amount of $25,000. [3] Given the nature of the allegations made in the applicant s claim, the respondent wishes to have the iphone 5 examined by an expert. The respondent asked the applicant if he would provide the phone to the respondent for that purpose, but the applicant refused.

2 Page: 2 [4] There is some confusion in the record whether the applicant intends to call expert evidence about the iphone 5. Before the Deputy Judge, it appears that the applicant did not intend to call an expert but, rather, simply intended to produce the iphone 5 to the trial judge along with various photographs that show a charred iphone 5. However, the applicant had a couple of months earlier, in a letter to the respondent s counsel dated September 24, 2015, said that he would be providing an expert report authored by a professional in the electronics industry with a wealth of knowledge and experience working directly with iphone products. That said, the fact is that the applicant had not provided any expert report at the time of the motion, even though a previous order of another Deputy Judge had required that any expert reports from the applicant be delivered sixty days prior to trial. At the time of the motion, the trial was scheduled for December 16, However, ultimately that date was vacated by the Deputy Judge when he made the inspection order ONSC 6014 (CanLII [5] The Deputy Judge concluded that, given that the iphone 5 was the foundation for the applicant s claim, it would not be in keeping with the principles of natural justice to require the respondent to proceed to trial without the benefit of an inspection. [6] The applicant complains that the reasons of the Deputy Judge are insufficient. I do not agree. The Deputy Judge gave five pages of handwritten reasons outlining why he decided to grant the order that the respondent had requested. The form and adequacy of the reasons must also be considered in the context in which they are given, namely, in a busy court like the Small Claims Court. I am satisfied that the reasons of the Deputy Judge are sufficient to allow for meaningful appellate review of the correctness of the decision and that they apprise the parties of the reasons why the conclusion in question was reached. The reasons, therefore, satisfy the basic requirements underlying a court s obligation to give reasons: R. v. Shepherd, [2002] 1 S.C.R [7] More central to the issue before us is the applicant s submission that the Deputy Judge did not have jurisdiction to make the inspection order. The applicant points to the fact that there is no rule in the Small Claims Court Rules, O. Reg. 258/98 that authorizes a Deputy Judge to make such an order.

3 Page: 3 [8] The parties agree that the standard of review on the issue of jurisdiction is one of correctness. [9] I begin with the basic proposition that the Small Claims Court is a court that is intended to provide expeditious and low cost resolutions of the matters that come before it. That is clear from the statutory provisions that establish the Small Claims Court (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 25 and previous decisions of this court (Elguindy v. St. Joseph's Health Care, [2016] O.J. No (Div. Ct. at para. 9. In furtherance of that objective, the Small Claims Court Rules do not provide for oral examinations for discovery and the right to seek production of documents is very limited ONSC 6014 (CanLII [10] In terms of the granting of pre-trial orders, the applicant emphasizes, as have other decisions of the Small Claims Court that have considered the issue, the statement made by Sharpe J. in Phillips v. Dis-Management (1995, 24 O.R. (3d 435 (Gen. Div. at para. 10: The amount claimed here and in most claims of this nature falls within the jurisdiction of the Small Claims Court where no discovery is available and where the proceedings are similarly summary in nature. [emphasis added] [11] With respect, there has been a tendency to take that statement by Sharpe J. out of context. It is a general observation regarding the basic approach that prevails in proceedings in the Small Claims Court. It is not a declaration defining the complete procedure available under the Small Claims Court Rules because, as I have already pointed out, the Small Claims Court Rules do provide for a very limited form of discovery. For example, r. 7.01(22 provides that, where the plaintiff s claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim. The same requirement applies in the case of a defendant s defence. That is a form of discovery. Similarly, r (2 requires that, at a settlement conference, every party shall provide a copy of any document to be relied on at the trial, including an expert report, and that every party also provide a list of witnesses. Again, this is a form of discovery. Further, r (1 provides that, at trial, a document or written statement or an audio or visual record shall be received in evidence provided that it has been served at least 30 days before the trial. Once again, this is a form of discovery.

4 Page: 4 [12] So the assertion that there is no discovery in a proceeding in the Small Claims Court is a false assertion. Discovery does exist in the Small Claims Court, but only to an extremely limited degree. The issue that this case raises is to what extent, if any, that limited discovery right ought to be expanded. [13] The applicant is correct that there is no specific provision in the Small Claims Court Rules that authorizes a Deputy Judge to order a party to deliver property to another party for the purpose of inspection. The one rule that does address the issue of inspection is r which reads: 2016 ONSC 6014 (CanLII The trial judge may, in the presence of the parties or their representatives, inspect any real or personal property concerning which a question arises in the action. [14] One other rule is of importance to the resolution of this issue. It is r of the Small Claims Court Rules which reads: (1 These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. (2 If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. [15] There are at least two decisions of the Small Claims Court that address the specific issue of pre-trial inspection of property. The two decisions reach opposite conclusions. In National Service Dog Training Centre Inc. v. Hall, [2013] O.J. No (Sm. Cl. Ct. Deputy Judge McGill concluded that, by virtue of analogy to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as authorized by r. 1.03, an order could be made for the inspection/assessment of a service dog that was central to the issue in the proceeding. In contrast, in Garg v. Raywall Limited Partnership (c.o.b. Raywal Cabinets, [2014] O.J. No (Sm. Cl. Ct. Deputy Judge Winny found that r was not sufficient authority to warrant an order being made for pre-trial inspection. In reaching that conclusion, he expressly disagreed with the conclusion reached in

5 Page: 5 National Service Dog Training Centre Inc. As will become evident, I prefer the reasoning and conclusion reached in National Service Dog Training Centre Inc. to that reached in Garg. [16] In my view, the order made by the Deputy Judge in this case is authorized by a combination of the two subrules in r I reach that conclusion for two reasons. [17] First, as r makes clear, the trial judge could inspect the iphone 5 at trial. Indeed, the applicant told the Deputy Judge that he intended to produce the iphone 5 to the trial judge. It is a safe assumption that producing the iphone 5 to the trial judge is not going to permit the trial judge to undertake any meaningful inspection of it. I note in passing on this point that in Garg, Deputy Judge Winny found that r was a provision for taking a view of real property or personal property which cannot be brought into the courtroom. While that is an interesting interpretation of r , the express language of the rule does not bear it out. There is nothing in the language of r that restricts its operation to an out of court examination or view ONSC 6014 (CanLII [18] In any event, in order to make the authority to inspect a meaningful one, under r , in a case such as this, some expert assistance will be necessary. In the interests of an expeditious determination at trial of the issues raised in this action, that expert assistance needs to be provided in advance of the trial. The reality of that situation is a matter that is not adequately covered by the Small Claims Court Rules, specifically r , and, thus, the Deputy Judge had authority, pursuant to r. 1.03(2, to make an order analogous to the type of order that could be made under r of the Rules of Civil Procedure. [19] Second, before this court, the applicant made it clear that he intended to call an expert witness and elicit expert evidence from him/her based on an inspection of the iphone 5. The applicant can, of course, have an expert examine the iphone 5 because it is in the applicant s possession. The respondent does not enjoy the same entitlement since the applicant has refused its request to examine the iphone 5. Given that refusal, the only way of levelling the playing field and ensuring that fairness between the parties is achieved, was for the Deputy Judge to order the applicant to provide the iphone 5 to the respondent for an inspection. That was an order that was necessary to secure a just determination of the central issue raised in the proceeding.

6 Page: 6 [20] On that latter point, I agree with the observations made by Deputy Judge McGill in National Service Dog Training Centre Inc. at para. 30: The lack of pre-trial inspections of property represents a gap in the Small Claims Court rules that has disparate impact on the parties. The party in possession of the property experiences no side effects whatsoever while the non-possessory party has its ability to prepare for trial severely restricted. An unlevel playing field is the result which is not just, fair or agreeable to good conscience. [21] There is another element of the Small Claims Court Rules that reinforces the need for the type of order that the Deputy Judge made in this case. Unlike the Rules of Civil Procedure, the Small Claims Court Rules do not require, as a prerequisite to calling an expert witness, that an expert report be delivered to the other side: Steckley v. Haid, [2009] O.J. No (Sm. Cl. Ct; M.A. Zuker and J.S. Winny, Ontario Small Claims Court Practice, 2016 (Toronto: Carswell, 2016 at p To the contrary, the Small Claims Court Rules appear to proceed on the basis that, in the usual course, a party will not call his or her own expert but will, rather, deliver the expert s report, which is admissible on its own (r (1, and then leave it to the opposing party to summons the expert for the purpose of cross-examination (r , if they wish to do so. Presumably this is done in the interests of expediting the hearing of the matter and reducing the costs associated with eliciting expert evidence ONSC 6014 (CanLII [22] What this allows for in a case such as this, however, is the possibility that the applicant will simply call his expert at the trial, without any prior disclosure of the evidence of the expert. If the trial judge permits the expert to testify, the respondent is then placed in the position that it is unable to respond to that evidence due to the lack of any prior opportunity to know what the expert would say or any opportunity to undertake any examination or testing of its own. The most that the respondent could do would be to have its expert at the trial to listen to the applicant s expert and then request an adjournment of the trial so that it can have the opportunity to make a proper response, including the requisite opportunity to do an inspection and conduct tests. If that request was granted, the trial would then be disrupted, potentially for some period of time, to the benefit of neither party. [23] I appreciate the natural tension that exists between, on the one hand, maintaining the summary approach to dispositions that the Small Claims Court is founded on, with the requisite

7 Page: 7 savings of time and expense, and the need, on the other hand, to ensure that the Small Claims Court arrives at a result that is just and agreeable to good conscience Courts of Justice Act, s. 25. This requires an essential balance between ensuring expeditious, low cost proceedings and making pre-trial orders that are necessary to ensure that the trial judge can reach a just result. [24] This balance will generally tip in favour of not making pre-trial orders for discovery type relief. This is especially true when those orders seek information from third parties of the type that was addressed by this court in Elguindy. Indeed, the granting of any such form of pre-trial order, even when it only involves the parties to the proceeding, should be done sparingly and only in situations where it is clearly demonstrated that, without the requested pre-trial relief, justice cannot possibly be done between the parties given the nature of the claim at issue ONSC 6014 (CanLII [25] Recognizing, however, that there will be a small subset of cases in the Small Claims Court where an order for pre-trial inspection is necessary in order to do justice, especially in light of the increased monetary jurisdiction of that court, does not undermine the effectiveness and expediency of that court. It does not open the floodgates to discovery requests. It is a narrow and limited expansion of the existing discovery procedures in that court that reflects the need, in those rare cases, to grant an order that will secure the just, most expeditious and least expensive determination of every proceeding on its merits. On this point, I again adopt the observations made by Deputy Judge McGill in National Service Dog Training Centre Inc. at para. 31: Ordering a pre-trial inspection of the property is not hostile to the objectives of the court, it is central to principles of natural justice. This is an issue of fundamental fairness which the court must be allowed to address in the context of controlling its own proceedings and to support the most just, agreeable and in good conscience determination. A question about the condition of the property cannot be determined on the merits if only one side is allowed to collect relevant evidence. A party will not perceive the justice system as fair if it is denied the basic opportunity afforded to the other party. The playing field must be level or the administration of justice will fall into disrepute. [26] In this case, it is clear that an examination of the iphone 5 is critical to a proper determination whether it could have caused the damages that the applicant claims. The applicant categorically said that he would be calling expert evidence. In light of that stated intent, fairness

8 Page: 8 required that the respondent be given the same opportunity, that the applicant would have, to inspect the iphone 5. [27] The application for judicial review is dismissed. Given that the issue raised is a novel one, and one that has broader ramifications for proceedings in the Small Claims Court than just this one case, I would make no order as to costs ONSC 6014 (CanLII NORDHEIMER J. SACHS J. PATTILLO J. Date of Release:

9 CITATION: Riddell v. Apple Canada Inc., 2016 ONSC 6014 DIVISIONAL COURT FILE NO.: DC (Oshawa BETWEEN: ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER & PATTILLO JJ ONSC 6014 (CanLII MATTHEW RIDDELL Applicant and APPLE CANADA INC. Respondent REASONS FOR JUDGMENT NORDHEIMER J. Date of Release: