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Order to inspect property in Small Claims Court

The relatively small number of rules governing procedure in Ontario’s Small Claims Court promotes flexibility and lends simplicity to litigation in that forum. However, one drawback is the uncertainty over whether a certain procedural remedy may exist if it is not specifically addressed in the rules. Unlike in the Superior Court of Justice, there is no rule, for example, governing the right of parties to inspect property prior to trial.


Parties who wish to obtain an inspection order in the Small Claims Court can look to Rule 1.03(2) (Matters not covered in rules) of the Small Claims Court Rules, and then to Rule 32 of Rules of Civil Procedure to fill the gap. This is what the Court did in National Service Dog Training Centre Inc. v. Hall [2013] O.J. No. 3216, in allowing the plaintiff to inspect a dog.


Rule 1.03(2) of the Small Claims Court Rules provides as follows:


Matters Not Covered in Rules


1.03 (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. O. Reg. 78/06, s. 3.


Rule 32 (Inspection of Property) of the Rules of Civil Procedureprovides as follows:


ORDER FOR INSPECTION


32.01 (1) The court may make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding. R.R.O. 1990, Reg. 194, r. 32.01 (1).


(2) For the purpose of the inspection, the court may,


(a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party;


(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or operation on the property; and


(c) permit the taking of samples, the making of observations or the conducting of tests or experiments. R.R.O. 1990, Reg. 194, r. 32.01 (2).


(3) The order shall specify the time, place and manner of the inspection and may impose such other terms, including the payment of compensation, as are just. R.R.O. 1990, Reg. 194, r. 32.01 (3).


(4) No order for inspection shall be made without notice to the person in possession of the property unless,


(a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving party; or


(b) the court dispenses with service of notice for any other sufficient reason. R.R.O. 1990, Reg. 194, r. 32.01 (4).


In National Service Dog Training Centre Inc. Deputy J. S.M. McGill, held that R. 1.03(2) of the Small Claims Court Rules could be invoked to fill in the gap in those rules and reference Rule 32 of the Rules of Civil Procedure.


In doing, so she stated that in the context of that case, ordering a pre-trial inspection of property would not be hostile to the objectives of the court, and that it was central to the principles of natural justice. She found no delay or complication that would arise from such order.


At paragraph 32, Dep. J. McGill stated the following:


“In the typical claim involving allegations of defective goods or services, the complaining party is seeking improvement or replacement of the defect and willing to show the defect of the responsible party in hope they will be able to resolve it. It is fundamental for a party accused of defective work to inspect the alleged defect and often parties attend at settlement conference already having viewed the property. Roofers accused of defective installation have been back to look at the roof. Mechanics accused of installing the wrong car part have looked at the part. Parties sometimes even bring the property to the settlement conference. A blanket prohibition against pre-trial inspections of property will undermine this de facto practice and result in trial delays and frustrate the settlement for hosts of typical defective goods and services disputes forced to wait for the trial judge to inspect the allegedly defective property at trial. This result would be contrary to the objectives of the court and could not have been the intention of the legislature.”


At paragraph 41 of the decision, Dep. J. McGill stated that the plaintiff was permitted to obtain the expert of their choosing, and allowing the expert’s qualifications to be established at trial.


Apart from the specific analysis contained in National Service Dog Training Inc., the interplay between the Rules of Civil Procedure in the Small Claims Court Rules also highlights the advantage of knowing both sets of rules. For the most part, that knowledge generally falls within the domain of lawyers and paralegals in, can pose a disadvantage to self represented parties in certain circumstances.


MZS Lawyers are experienced Ottawa Small Claims Court lawyers that can assist with every aspect of your case from an initial consultation to trial.


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