In Segura Mosquera v. Rogers Communications Inc., 2020 ONSC 6024, Justice Gomery stated that there is a relatively high onus on a party seeking to transfer an action from Small Claims Court to the Superior Court of Justice.
The applicant must submit evidence that commencing the claim in Small Claims Court was a mistake, or that a just and fair adjudication of the case cannot be made unless a transfer is ordered.
Justice Gomery indicated that the discretion to transfer should be rarely exercised. Her Honour noted that a transfer at the request of a defendant deprives the plaintiff of their choice of court. A transfer at the request of a plaintiff also has negative consequences. It exposes a defendant to much higher costs of pre-trial discovery and trial. In addition, a transfer undermines the jurisdictional legitimacy of the Small Claims Court.
Previous cases have considered factors such as the complexity of the litigation, the role and importance of pre-trial discovery and expert evidence, and whether the case raises issues of general importance.
However, Justice Gomery stated that there is no set, universally applicable list of relevant factors. Each case must be considered on its own facts. The court is guided by the overriding interests of justice to determine whether a fair and just resolution of the case compels its transfer to the Superior Court.