Visic v. University of Windsor et al. [Indexed as: Visic v. University of Windsor]
84 O.R. (3d) 56
Ontario Superior Court of Justice,
Divisional Court,
Ferrier J.
November 27, 2006
Civil procedure -- Costs -- Particular orders as to costs -- Motion judge not affording parties opportunity to make submissions before making interlocutory costs order -- Leave to appeal granted.
Civil procedure -- Trial -- Venue -- Motion judge granting defendants' motion for change of venue from Toronto to Windsor on condition that defendants undertook to pay plaintiff's reasonable transportation and accommodation costs in any event of cause if her presence was required in Windsor for court proceedings or discovery -- Plaintiff and defendants both seeking leave to appeal -- Good reason existing to doubt correctness of provision in order requiring defendants to cover plaintiff's travel and accommodation expenses -- Provision that expenses be covered in any event of cause making order even more questionable -- Change of venue might not have been ordered in absence of that condition -- Motion judge not affording parties opportunity to make submissions before making costs order -- Leave to appeal granted to both parties.
The plaintiff commenced an action in Toronto against Windsor defendants. The defendants brought a motion for an order for a change of venue from Toronto to Windsor. The motion judge granted the order on condition that the defendants undertook to pay the plaintiff's reasonable transportation and accommodation costs, in any event of the cause. The motion judge determined that there should be no order as to costs. Both the plaintiff and the defendants brought motions for leave to appeal.
Held, the motions should be granted.
There was good reason to doubt the correctness of the order. A party's impecuniosity may be a relevant circumstance in the determination of a motion for a change of venue, but there is nothing in the rules or the case law to the effect that an opposing party should be required to pay travel and accommodation expenses for the other party as a condition of obtaining a change of venue. The requirement that the expenses be covered in any event of the cause made the order even more questionable. The order created a precedent of such magnitude that leave to appeal should be granted to the defendants. Without the condition as to expenses, the order changing the venue might not have been made. There was, therefore, good reason to doubt the correctness of that order. Finally, absent extraordinary circumstances, parties are entitled to make submissions as to costs at every stage [page58 ]of the proceedings. The parties were not afforded that opportunity. Leave to appeal was granted on the costs issue.
MOTIONS for leave to appeal order for change of venue.
Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.01(2) (b), 62.02(4)(b)
Marilee Marcotte, for defendants. Self-represented, Anica Visic.
Introduction and Background
1Endorsement by FERRIER J.: -- The plaintiff and the defendants both seek leave to appeal the interlocutory order of Justice Wilson dated September 19, 2006, concerning a change of venue from Toronto to Windsor.
2Wilson J. ordered that the proceeding be transferred to Windsor, "on the condition that the defendants undertake in writing to pay the plaintiff's reasonable transportation and accommodation costs, in any event of the cause, if her presence is required in Windsor for the court proceedings or for discovery".
3Wilson J. also ordered that the discovery of the plaintiff may take place in Toronto, if the plaintiff wishes, and the discovery of the defendants shall take place in Windsor.
4Wilson J. determined that there should be no order as to costs.
5The plaintiff seeks leave, taking the position that the matter ought not to be transferred to Windsor.
6The defendants seek leave taking the position that the condition stipulated by Wilson J. requiring them to pay the reasonable transportation and accommodation costs of the plaintiff ought to be reversed. Furthermore, that the requirement that those costs be paid "in any event of the cause", should also be reversed.
7In addition, the defendants in effect submit that there was a denial of natural justice because they were deprived of the opportunity of arguing the issue of costs. No submissions were invited by the court on the question of costs and no opportunity was given to counsel or the unrepresented plaintiff, to make submissions as to costs.
8Although each motion was filed separately, and they were, technically, not cross-motions, in the circumstances it is appropriate that one set of reasons for both motions be delivered.
The Underlying Action
9In very short summary, the plaintiff is suing the University of Windsor and the individual defendants in connection with her failure to pass her first year in the Faculty of Law at the University of Windsor in the year 1999/ 2000. The plaintiff alleges that [page59 ]she was suffering a physical disability in her right shoulder and arm, which prevented her from completing the writing of her exams. She claims that she was discriminated against, in that the university did not accommodate her disabilities. In due course she did successfully complete first year law in the spring of 2003, at which time she received a transcript so indicating, but also reflecting the year which she failed to complete in 1999/2000. In the action, which was commenced in Toronto where she now lives, she seeks an injunction requiring the university to delete the reference to the unsuccessful year in her transcripts. She also seeks damages.
10Leave to appeal is granted to both the plaintiff and the defendants for the reasons which follow.
The Defendants' Motion
11I deal first with the provisions in the order requiring the defendants to cover the plaintiff's travel and accommodation expenses for any occasions in which she is required to be in Windsor for the proceedings. This is a novel provision in a change of venue order. Counsel for the defendants was unable to provide the court with any decisions on the point, and was unable to find any decisions where such a provision has been included in such an order.
12In brief reasons by way of endorsement the learned motions judge appears to have considered the factors set out in rule 13.01(2)(b) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. However, the learned motions judge took into account the financial need of the plaintiff, a factor not specifically referred to in the rule, and held that the above noted condition "overcomes this factor being the financial need of the plaintiff".
13I turn to rule 62.02(4)(b).
14In my view, there is good reason to doubt the correctness of the order of the learned motions judge. It seems to me that proven impecuniosity of a party may be a relevant circumstance in the determination of a motion to change the venue, but I see nothing in the rules or any case law to the effect that an opposing party should be required to pay travel and accommodation expenses for the other party as a condition of obtaining a change of venue. It seems to me that such a consideration should be taken into account, if at all, in the determination of the central question: Is this a case for a change of venue?
15Of even greater significance, in my view, is the provision of the order which requires that these expenses be covered for the plaintiff "in any event of the cause". This leaves the plaintiff free to bring whatever motions she likes in these proceedings, however ill-advised, with all the accommodation and travel expenses for her trips to Windsor being required to be paid by the defendants. The [page60 ]effect is to tie the hands of any judge or master hearing an interlocutory motion from this point onwards, and leaves the defendants in the position of having to finance such expenses for the plaintiff in what could turn out to be an unsuccessful lawsuit.
16Furthermore, the proposed appeal clearly involves matters of such importance that leave to appeal should be granted. In my respectful view, the order of the learned judge below creates a precedent of such magnitude that leave to appeal must be granted to the defendants.
The Plaintiff's Motion
17Turning now to the motion of the plaintiff.
18One can only speculate as to whether or not Wilson J. would have made the order transferring the proceedings to Windsor without the condition. In this context, there is good reason to doubt the correctness of the order in question. Furthermore, the proposed appeal does involve a matter of importance to the administration of justice concerning the propriety of adding such a condition to a change of venue order, and the impact of that condition on the central question of whether or not the venue should be changed.
The Costs Issue
19I turn now to the fact that the parties were not afforded an opportunity to argue the question of costs. With respect, it seems to me fundamental that absent extraordinary circumstances, the parties to the litigation are entitled to make submissions as to costs at every stage of the proceedings, following a decision on the issue in question or assuming a particular result if a decision on the issue is reserved. Here, the parties were not afforded that opportunity. Furthermore, a court should not make an order as to costs without first knowing if offers to settle have been made. In the case at bar, the defendants offered to settle the matter by waiving any claim for costs if the plaintiff agreed to a transfer of the proceedings. Because the learned motions judge did not hear submissions, she was unaware of these offers. While that may not have had a significant impact on the issue of costs, it was for the motions judge to determine that question and to afford the defendants the opportunity to make submissions on the effect of their offer on costs.
20Leave is granted on the issue of costs.
Costs of these Motions
21I have not heard submissions on costs concerning these motions for leave. The usual order when leave is granted is that the costs are referred to the panel hearing the appeal.
22If the parties are content with an order that the costs in these motions are reserved to the panel hearing the appeal, an order will so issue. If they are not so content, they will so indicate to one another, and file one page of written submissions as to costs within seven days.
Motions granted. [page61 ]