AuthorDavid A. Potts; Erin Stoik
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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.

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