Jurisdiction

• Author: David A. Potts; Erin Stoik
• Pages: 101-102

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Jurisdiction

This chapter will brief‌ly examine the meaning of the word “judge” in section

137.1(3) of the Courts of Justice Act, RSO 1990, c C.43 [CJA]:

(3) On motion by a person against whom a proceeding is brought, a judge

shall, subject to subsection (4), dismiss the proceeding against the person if

the person satisf‌ies the judge that the proceeding arises from an expression

made by the person that relates to a matter of public interest.

A deputy judge of the small claims court does not have jurisdiction to make

an order under section 137.1 of the CJA.

The Court of Appeal through Nordheimer J, after deciding as a matter of

statutory interpretation that a deputy judge of the Small Claims court does

not have jurisdiction to make an order under section 137.1 of the CJA, rejected

a policy argument advanced by all parties that a deputy judge should be given

the powers to encourage access to justice.

See Bruyea v Canada (Veteran Af‌fairs), 2019 ONCA 599 at paras 27–30:

[27] Lastly, all of the parties place great emphasis on the fact that the Small

Claims Court is intended to provide for simpler and less expensive litigation.

They argue that the powers of a deputy judge should be given broad and

expansive interpretation to encourage access to justice. With respect, such

policy arguments cannot override the plain words of the statute. Either deputy

judges have been given the authority to provide certain relief, or they have not.

It is not for the court to f‌ind authority where the Legislature has chosen not

to clearly provide it. I would also note that, ironically, s. 137.1 is not a provision

providing access. To the contrary, at least viewed from the perspective of the

plaintif‌f, it is the very opposite. It is a provision that is intended, in proper

circumstances, to prohibit access to the courts.