- 1 See Also
- 2 Residential Tenancies Act, 2006
- 3 Kent v. Conquest Vacations Co. 2005 CarswellOnt 335, 194 O.A.C. 302
- 4 Lock v Waterloo (Regional Municipality)
- 5 Bleeks v Keenan, 2014 CanLII 90436 (ON SCSM)
- 6 Kent v. Conquest Vacations Co., 2005 CanLII 2321 (ON SCDC)
- 7 McCruden v Nead, 2018 CanLII 123230 (ON SCSM)
207 (1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court. 2006, c. 17, s. 207 (1).
- (2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.
1 This appeal involves two actions in Small Claims Court. Amita Kent and Rohit Kent (the Kents) are married. Together, they purchased an all-inclusive vacation from the appellant, Conquest Vacations Company (Conquest). Although both trips (and their toddler child's trip) were contracted for and paid for together, the terms of the contract set out that each traveller is a party to a contract with Conquest. As the vacation did not meet the description that was presented by Conquest's brochure, the Kents each brought an action against Conquest for breach of contract.
2 The Small Claims Court judge found in favour of the Kents, awarding Mr. Kent $7,185.80 plus costs and interest, and Mrs. Kent $8,544.90, plus costs and interest. Conquest appeals on three grounds: first, that the Small Claims Court did not have monetary jurisdiction because the Kents had split their case; second, that Conquest was not responsible for their disappointing holiday; and third, that the damages awarded were excessive.
5 The Kents dispute Conquest's allegations of case splitting, relying on the terms of the contract, which state that each traveler has a contract with Conquest. Since each has a contract, each has an action for breach. Multiple plaintiffs, even if married to each other, maintain rights to seek relief before the Small Claims Court up to the maximum $10,000 per claim.
6 The "Terms and Conditions" issued to vacationers by Conquest contains the following:
- In booking a Conquest Holiday, or Air only, you and those on whose behalf you are booking become party to a contract with Conquest and those companies providing the services included in your holiday.
7 This is Conquest's language, inserted by it in its own interest and it clearly provides that not only the person booking the holiday, here Mrs. Kent, but also those for whom she booked, here Mr. Kent, become party to the contract. Why then cannot each party to the contract assert his or her damages for a breach of it in an action? "The right to sue for damages for breach of contract does not arise out of the contract itself, that is, it is not a matter of agreement but is an independent right given by the law."
13 As to Mr. Kent, the fact that he did not give evidence does not materially assist the appellant. Mrs. Kent gave detailed evidence as to the deplorable lack of facilities and the impact on their vacation in terms of stress and disappointment. She also spoke to the fact that her husband could not dive as the promised facility did not exist, they could not play tennis as there was no court, the beach was so bad there was no beach enjoyment at all. She spoke of their mutual disappointment at the loss of the expected opportunity to spend time on the beach with their three-year-old, "probably the biggest disappointment to us." This evidence goes to support the damages award to Mr. Kent as well as that to Mrs. Kent.
17 In the case of the Kents, the amount awarded to each of them is certainly within the bounds of the reasonable award in their particular circumstances as established in the evidence. It must not be forgotten, in assessing this sort of damages, that for many people, the Kents no doubt included, the real loss is not the cost, but the scarce vacation time expended in vain and never recoverable.
18 I see no error in the assessment of the damages by the trial judge. The appeal is dismissed with costs. If the parties cannot agree on the costs, they may make brief written submissions within 30 days of the release of these reasons.
17 The Courts of Justice Act and its regulations should be interpreted liberally and as a coherent package. In my view, properly interpreted, the effect of the applicable provisions is that plaintiffs suing together in one action in the Small Claims Court may properly each claim damages up to the maximum monetary jurisdiction of the court.
18 Accordingly, both plaintiffs in this case are limited to claiming damages of $25,000 each rather than $25,000 in total, exclusive of interest and costs, and their claims are amended accordingly
Letang v. Cooper [ 1964] All E.R. 1929 (C.A.) ] defines a cause of action as “ a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person”. That definition was cited in Royal Bank of Canada v. Metcalf in (1985) 3 C.P.C. (2nd) 228 (ONT. DIST. COURT), which case went on to say that a cause of action is “a factual situation which entitles one person to recover damages from a Defendant” (paragraph 5). In this case, each Plaintiff had an individual retainer with Defendant Keenan and his firm, and, each of the Plaintiffs paid one-fifth of the amount owing pursuant to the cost award and each suffered an individual amount of damages if they are ultimately found to be successful.
Secondly, the Plaintiffs made a claim based on negligence. In Lock v Waterloo (Regional Municipality), it was held that each Plaintiff had a separate cause of action arising from the same tort. See also Tope v. Stratford (City)  OJ No.3097.
In Kent v. Conquest Vacations Co. (2005) No. 1311, 138 A. C.W.S. (3rd) 426 it was held that both Plaintiffs, Mr. Kent and Mrs. Kent entered into separate contracts with Conquest Vacations and accordingly had an independent cause of action against Conquest Vacations. That decision was affirmed in KNP Headwear Inc. v. Levinson  OJ No.5438, 2605 OAC 291. In this matter we are dealing with a lawyer/client relationship in which there is a claim for breach of contract, Negligence, misrepresentation etc.
I find that each Plaintiff has a separate contract with the Defendant Keenan and his firm the Defendant Collucci and each Plaintiff may have a separate claim for negligence as well. Therefore, each is entitled to a separate claim in Small Claims Court against the Defendants. Accordingly the Plaintiffs’ claims shall be tried together as directed by the Trial Judge.
 Conquest argues that the Small Claims Court did not have jurisdiction to hear these actions because there should have been only one action. Conquest submits that the Kents split their single action into two in order to get around the $10,000 limit applicable in Small Claims Court. Conquest claims that, since the contract was for two adults and one child to take a vacation together, “it was not in any way separated by individuals.” Conquest relies on the facts that the family paid for the vacation with one Visa card, traveled together, and spent time together as a family on the vacation to argue that there is only one cause of action. Conquest claims that the Kents are in breach of Rule 6.02 of the Rules of the Small Claims Court, Ontario Regulation 258/98: 6.02 A cause of action shall not be divided into two or more actions for the purpose of bringing it within the court's jurisdiction.
 If the two actions are more correctly heard as one, the total award of damages of $15,730.70 exceeds the jurisdiction of the Small Claims Court.
 The Kents dispute Conquest’s allegations of case splitting, relying on the terms of the contract, which state that each traveler has a contract with Conquest. Since each has a contract, each has an action for breach. Multiple plaintiffs, even if married to each other, maintain rights to seek relief before the Small Claims Court up to the maximum $10,000 per claim.
 While the damages of the individual parties arise out of a common transaction, they need not be asserted in a single action. Rule 5 of the Rules of the Superior Court, although not directly applicable to the Small Claims Court, is instructive. It provides that two or more plaintiffs, if represented by the same solicitor, “may” join as the plaintiffs in the same proceeding where their claims arise out of the same transaction. The joinder is voluntary.
 The Kents have not split their case, as prohibited by Rule 6.02. This rule prevents a single plaintiff from dividing an action to come within the court’s jurisdiction. This is not so in the case at bar, as both Mr. Kent and Mrs. Kent were parties to the contract and had the right to bring separate actions against Conquest.
I find that the loan was a contract between John and Adriana as lenders and MedviewMD as borrower and that the contract has been breached by the failure of MedviewMD to repay the loan. Each of John and Adriana claim the sum of $33,500.00 (one-half the amount of the loan) on the basis that each has a separate cause of action against MedviewMD. In paragraph 79 of the Claim they waive any damages in excess of the Court’s monetary jurisdiction of $25,000.00.
“A cause of action has been defined as a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” as per Lord Justice Diplock in Letang v. Cooper,  All E.R. 929 (C.A.) at page 934. This definition has been accepted by Canadian courts many times.
The loan funds came from a joint line of credit for which the plaintiffs would be jointly and severally liable. They have separate causes of action both arising from the same factual situation. Each could have separately brought an action in this court for $25,000.00 for breach of contract without infringing Rule 6.02 which provides that a cause of action shall not be divided into two or more actions for the purpose of bringing it into the court’s jurisdiction. To commence separate actions, however, would cause a multiplicity of proceedings which is, in the interest of justice, to be avoided.
In Lock v Waterloo (Regional Municipality), Deputy Judge Winny, in an action for damages based on personal injury to the two plaintiffs, found that each of the plaintiffs was entitled to claim damages up to the court’s monetary limit as they had two separate causes of action.
In the case of Kent v. Conquest Vacations Co., 2005 CanLII 2321 (ON SCDC), the Divisional Court on appeal from the Small Claims Court decided that each of the plaintiffs was entitled to assert his/her cause of action for damages for breach of contract against the defendant in the same action.
The plaintiff, John Michael McCruden, shall have judgment jointly and severally against the defendants, Daniel Nead and MedviewMD Inc. in the amount of $25,000.00 together with pre-judgment interest at the Courts of Justice Act rate from June 20, 2016 to date of judgment and post-judgment interest at the Courts of Justice Act rate.
The plaintiff, Adriana McCruden, shall have judgment jointly and severally against the defendants, Daniel Nead and MedviewMD Inc. in the amount of $25,000.00 together with pre-judgment interest at the Courts of Justice Act rate from June 20, 2016 to date of judgment and post-judgment interest at the Courts of Justice Act rate.
I therefore find that each of John McCruden and Adriana McCruden are entitled to judgment against MedviewMD in the amount of $25,000.00 each.