Does a Deputy Judge In the Small Claims Court Have the Power to Dismiss a Defamation Lawsuit Early If the Case Looks Like Just An Intent to Use the Lawsuit As a Way to Victimize An Opinionated Person?
In Ontario, the Small Claims Court Lacks the Authority to Hear a Motion to Dismiss Per the Anti-Gag Law, Also Known As a SLAPP Motion, That Would Otherwise Enable a Defendant Within a Defamation Case to Seek Early Dismissal of a Lawsuit
Understanding the Lack of Jurisdiction For a SLAPP Motion to Dismiss a Defamation Case Within the Small Claims Court
In Ontario, a law exists that is intended as a law to prevent lawsuits from becoming illicit tools for retribution against expressive people who write or speak about concerns within the public interest. The law helps to ensure against the self-censorship and the loss of healthy debates as are viewed important within a democracy.
"... provides courts with the ability to scrutinize what is really going on in the particular case ..."
Supreme Court of Canada
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22
The law enables a defendant within a defamation lawsuit to bring a Motion to Dismiss as a means to provide an early end and resolve to a defamation claims that appear as intending to use the costly court process, or risk of a costly court process, as a tool or method of stifling criticism, debate, and opinion as a form of freedom of expression.
The anti-gag law, or law against Strategic Lawsuits Against Public Participation (SLAPP), involved an amendment to the Courts of Justice Act, R.S.O. 1990, c. C.43, and the additions of section 137.1 to section 137.5 which state:
Dismissal of proceeding that limits debate
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
(2) In this section,
“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
Order to dismiss
(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) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
No further steps in proceeding
(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.
No amendment to pleadings
(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the proceeding.
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.
137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.
Motion to be heard within 60 days
Hearing date to be obtained in advance
(3) The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.
Limit on cross-examinations
(4) Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants.
Same, extension of time
(5) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.
Appeal to be heard as soon as practicable
Stay of related tribunal proceeding
137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.
(a) notice of the stay; and
(b) a copy of the notice of motion that was filed with the tribunal.
Stay may be lifted
(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,
(a) the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or
(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal.
Statutory Powers Procedure Act
(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act.
Small Claims Court
Interestingly, a Motion to Dismiss based on the the anti-gag or SLAPP law is unavailable for proceedings within the Small Claims Court. This unavailability, or lack of jurisdiction, for the Small Claims Court to hear a Motion to Dismiss based on the anti-gag or SLAPP was was stated by the Court of Appeal and explained within the case of Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599 wherein it was said:
 I begin with the structure of the Small Claims Court. The Small Claims Court is a branch of the Superior Court of Justice: CJA, s. 22. Section 24 of the CJA determines who presides over matters in the Small Claims Court. It reads, in part:
(1) A proceeding in the Small Claims Court shall be heard and determined by one judge of the Superior Court of Justice.
(a) a provincial judge who was assigned to the Provincial Court (Civil Division) immediately before the 1st day of September, 1990;
(b) a deputy judge appointed under section 32; or
(c) the Small Claims Court Administrative Judge appointed under section 87.2.
 In practice, virtually all proceedings in the Small Claims Court are presided over by deputy judges. Deputy judges are lawyers who are appointed by a regional senior judge of the Superior Court of Justice, with the approval of the Attorney General, to act as a deputy judge of the Small Claims Court. Usually they are appointed for a term of three years: CJA, s. 32.
 I now turn to the specific provision in the CJA with which this case is concerned. Section 137.1 was added to the CJA to address concerns arising from the use of litigation to interfere with freedom of expression. The section was added to the CJA to provide “a pretrial procedure designed to quickly and inexpensively identify and dismiss those unmeritorious claims that unduly entrenched on an individual's right to freedom of expression on matters of public interest”: 1704604 Ontario Ltd v. Pointes Protection Association, 2018 ONCA 685, 142 OR (3d) 161, at para. 29. This was a new process to permit the summary dismissal of a proceeding that was not otherwise available to a party under the CJA or the Rules of Civil Procedure, R.R.O.1990, Reg. 194.
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. [Emphasis added.]
 The issue is whether the use of the word “judge” in s. 137.1 includes a deputy judge of the Small Claims Court. The word “judge” is not defined in the CJA nor is it defined in the Rules of the Small Claims Court, O/Reg. 258/98. It is, however, defined in r. 1.03 of the Rules of Civil Procedure as: “judge” means a judge of the court. The term “court” is defined as:
“court” means the court in which a proceeding is pending and, in the case of a proceeding in the Superior Court of Justice, includes,
(a) a master having jurisdiction to hear motions under Rule 37, and
(b) a case management master
 There is a conscious effort made in the CJA and in the Rules of Civil Procedure to draw a distinction between what a court has jurisdiction to do and what a judge has jurisdiction to do. The primary purpose behind this distinction is that where the CJA or the Rules of Civil Procedure gives authority to the court to do something, a master or case management master has the same authority. If, however, the authority is expressly given to a judge, then only a judge may exercise that authority. This distinction is an important one.
 There is no reason to believe that the Legislature would have chosen to adopt any different approach when it comes to deputy judges of the Small Claims Court. As s. 24(2) demonstrates, deputy judges of the Small Claims Court are specifically referred to as such in the CJA. Other sections of the CJA also make specific reference to deputy judges. For example, s. 80 stipulates that “[e]very judge or officer of a court in Ontario, including a deputy judge of the Small Claims Court” must take and sign a specific oath or affirmation before entering upon their duties. Similarly, s. 82 provides that deputy judges have the same immunity from liability as judges of the Superior Court of Justice. Further, s. 123 establishes time limits for a judge to give a decision after they retire and by s. 123(1.1) these same time limits are expressly made applicable to deputy judges.
 Two points arise from the existence of these various sections of the CJA. First, it is clear that where the Legislature intends the term “judge” to include a “deputy judge”, it does so expressly. It follows that if the Legislature had intended that the term “judge”, whenever used in the CJA, would include deputy judges, then the express mention of deputy judges in these sections would have been unnecessary. Second, all of these sections of the CJA were in existence in 2015 when s. 137.1 of the CJA was passed and yet the Legislature chose not to expressly reference deputy judges in s. 137.1 as it had done in all of these other sections.
 Further, if one was to accede to the suggestion that the use of the term “judge” in the CJA was intended to include deputy judges, then that result creates difficulties with respect to other sections of the CJA. One such section is s. 101(1) of the CJA which reads:
In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. [Emphasis added.]
 Since the Small Claims Court is a branch of the Superior Court of Justice, if the term “judge” includes deputy judges, then s. 101(1) would give authority to deputy judges to grant injunctions or appoint receivers. To my knowledge, it has never been suggested that the Small Claims Court has ever had jurisdiction to grant interlocutory injunctions or to appoint receivers, nor am I aware of any case where the Small Claims Court has purported to exercise that jurisdiction. Indeed, in 936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo Bear Ltd. (2003), 2003 CanLII 72356 (ON SCDC), 74 OR (3d) 45 (Div. Ct.), it was concluded that the Small Claims Court is not empowered to grant “any other form of equitable relief, such as injunctions”: at para. 29.
 In response to these issues, the parties refer to the decisions of this court in Ontario Deputy Judges Assn. v. Ontario (2006), 2006 CanLII 17250 (ON CA), 80 O.R. (3d) 481 (C.A.) and Grover v. Hodgins, 2011 ONCA 72, 103 O.R. (3d) 721. In my view, neither of those decisions assist the parties. In the Deputy Judges case, this court said, at para. 27:
Even though Deputy Judges sit part-time, when sitting, they fully assume the judicial role. They are perceived as judges by the many litigants who turn to the Small Claims Court for the resolution of their disputes.
 That statement does not assist in determining the proper meaning to be given to the term “judge” in s. 137.1. No one disputes that deputy judges assume a judicial role in presiding over cases in the Small Claims Court but that fact does not determine, or assist in determining, what their jurisdiction or statutory authority is. The Small Claims Court is a statutory court and it must find its jurisdiction in a statute. All of the parties accept that neither the Small Claims Court nor the deputy judges have any inherent jurisdiction. If either are to exercise any jurisdiction, it must be found in a statute, principally, the CJA.
 In the Grover case, this court was dealing with the interpretation to be given to s. 96 of the CJA in order to determine whether the Small Claims Court has jurisdiction to grant equitable relief and, if so, to what extent. Section 96(3) reads:
Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided.
 Based on the words “unless otherwise provided” that appear in s. 96(3), this court found that a narrow jurisdiction existed in the Small Claims Court to grant equitable relief as limited by s. 23 of the CJA, that is, for claims of “a monetary payment under the limit of $25,000 or the return of personal property valued within that limit”: Grover at para. 49. Again, that decision provides little assistance in arriving at the proper interpretation of “judge” in s. 137.1. I would note, though, that the court in Grover did conclude that the fact that the Small Claims Court had become part of the Superior Court of Justice “did not alter the court’s jurisdiction”: at para. 44.
 Finally, the parties also rely on the decision in Stockey v. Peel Condominium Corp. No. 174 (1996), 1996 CanLII 11799 (ON SC), 30 O.R. (3d) 464 (Div. Ct.). In Stockey, Webber J., sitting as a single judge of the Divisional Court upheld, on appeal, the decision of a deputy judge to exercise authority under what was then s. 49(1) of the Condominium Act, R.S.O. 1990, c. C.26. Section 49(1) read:
Where a duty imposed by this Act, the declaration, the by-laws or the rules is not performed, the corporation, any owner, the bureau, or any person having a registered mortgage against a unit and common interest, may apply to the Ontario Court (General Division) for an order directing the performance of the duty.
 The important distinguishing feature between the decision in Stockey and the case here is that s. 49(1) of the Condominium Act referred to the Ontario Court (General Division) not to a judge of that court. Had the section provided that a person could apply to a judge of the Ontario Court (General Division) then, in my view, a deputy judge of the Small Claims Court would not have been able to exercise authority under that section, and I expect that the appeal judge would have so concluded.
 Two points raised by the Attorney General of Ontario, in his submissions, bear mention. One is the submission that “[t]here is no principled reason why the Small Claims Court” could hear a motion to strike a claim under r. 12.02 of the Small Claims Court Rules but not a motion to strike under s. 137.1. I do not agree. The Rules of Civil Procedure permit Masters and Case Management Masters to hear certain motions but restrict other motions to be heard only by judges. In this context, it is apparent that the Legislature has decided that some motions take on a significance for the parties where the result should only be determined by a judge. For example, only a judge may hear and determine a pre-trial motion under Rule 21 of the Rules of Civil Procedure, including dismissing actions that are frivolous, vexatious or an abuse of process. As I earlier noted, s. 137.1 provided a new mechanism to summarily dispose of a proceeding. It was open to the Legislature to decide that this new mechanism should only be employed by a judge.
 The other point raised by the Attorney General of Ontario is the submission that “unlike sections 96(3), 97, 101 and 140, the CJA does not expressly exclude section 137.1(3) relief from the Small Claims Court’s powers”. Two problems arise from this submission. One is that we are not dealing here with the exclusion of powers. As earlier noted, the Small Claims Court must find its jurisdiction in a statute. Absent express statutory authority, the Small Claims court has no jurisdiction. The other is that not all of those sections expressly exclude relief from the Small Claims Court. Sections 101 and 140 do not do so, for example. And, contrary to the thrust of the Attorney General’s submission, the wording of s. 96(3) was expressly relied upon by this court in Grover to find jurisdiction in the Small Claims Court to grant equitable relief, albeit in very limited situations.
 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.
 In the end result, it would have been open to the Legislature to expressly provide in s. 137.1 that deputy judges of the Small Claims Court could grant orders under that section. The Legislature chose not to do so in the same fashion that, in wording s. 137.1 as it did, it did not give that authority to masters or case management masters. For its own reasons, the Legislature clearly concluded that this new jurisdiction should only be exercised by a judge. It is not for this court to strain the language of the section to provide a power to deputy judges that the Legislature did not, itself, plainly choose to provide.
The anti-gag law, also known as SLAPP, as exists in Ontario and as is intended to prevent lawsuits from becoming tools with which to victimize persons who exercise the right of freedom of expression when voicing comments, opinions, or criticisms that are factually based, is inapplicable to the Small Claims Court whereas a Deputy Judge of the Small Claims Court is without the authority to hear the Motion to Dismiss that the anti-gag law provides for.