Court File and Parties
COURT FILE NO.: CV-12-1970-00-OT DATE: 20160413 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Concept Plastics Ltd., Plaintiff/Defendant to the Counterclaim AND: Plasponics Inc., Defendant/Plaintiff by Counterclaim
BEFORE: Howard J.
COUNSEL: Jayson W. Thomas, for the Plaintiff/Defendant to the Counterclaim Owen D. Thomas, for the Defendant/Plaintiff by Counterclaim
HEARD: November 30, 2015
Endorsement
Overview
[1] This is a motion by the defendant/plaintiff by counterclaim, Plasponics Inc., for an order pursuant to rule 13.1.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, transferring this proceeding to the County of Essex, for trial in Windsor.
[2] The case involves the sale of six injection molds designed to manufacture different types of clips used in the tomato greenhouse industry. The clips hold the tomato plants as they grow. The six molds were supplied by the defendant to the plaintiff.
[3] The plaintiff claims that the injection molds were defective and incapable of producing the tomato clips, which, the plaintiff says, amounts to a fundamental breach of the contract, for which the plaintiff seeks rescission of the contract in its entirety. The plaintiff claims that the clips have sharp edges that cause damage to the plants. The defendant counterclaims for payment of the purchase price and other damages resulting from the plaintiff’s alleged breach of its duties of good faith as a partner in what the defendant pleads was a joint venture between the parties.
[4] The proceeding was commenced by statement of claim issued in Brampton, in the Regional Municipality of Peel, because, at the time, the plaintiff’s head office was located in Mississauga, which is also within the Region of Peel. The defendant’s head office and operations are located in Leamington, in the County of Essex.
[5] The issue is whether the defendant has met its burden of establishing that the proposed place of venue (Windsor) is significantly better than the plaintiff’s choice of venue (Brampton), upon consideration of the enumerated factors in rule 13.1.02(2), using a “holistic approach.”
[6] Under s. 79.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for administrative purposes related to the administration of justice, Brampton is situate within the Central West judicial region, and Windsor is situate within the Southwest region. Accordingly, if the defendant satisfies its burden on the motion to change venue, the transfer of the proceeding to Windsor would be subject to the approval of the Regional Senior Justice of the receiving jurisdiction (Southwest), pursuant to the Inter-Regional File Transfer protocol.
Factual Background
[7] The plaintiff manufactures and distributes injection-molded plastic goods for the greenhouse industry, such as, flowerpots, trays, cooler parts, plastic pails, lids, and other plastic products, and is part of a group of companies that has been engaged in this business since 1977.
[8] Ester Mastronardi (“Mastronardi”), the president and a principal of the defendant, was the guarantor for a substantial bank debt for the defendant that was secured against three injection mold machines and molds that the defendant owned. Mastronardi believed it was better for her to seek a buyer of the assets to cover the bank debt than have the bank attempt to do so; therefore, she made arrangements with the bank to oversee the sale of the assets that otherwise would have been seized and sold by the bank at a loss.
[9] Mastronardi sent notification within the industry to try to get as many people as possible aware that she was going to be selling the molds in question. Mastronardi states that she made everyone aware of the condition of the molds.
[10] In November 2011, the plaintiff and defendant entered into a contract whereby the defendant agreed to supply the plaintiff with six injection molds. In particular, on November 24, 2011, Mastronardi met with the plaintiff’s representative, Arun Kulkarni (“Kulkarni”), to negotiate the sale of the molds to the plaintiff. This meeting resulted in an agreement by the plaintiff to purchase the molds from the defendant, together with related items, for $300,000, payable in instalments.
[11] The place where the November 24th meeting occurred is a strongly contested issue of fact between the parties.
[12] At the time of sale, the molds were located at Eagle Tool & Mold, the defendant’s mold-maker facility, located in Windsor. The molds were tested for sale at Eagle Tool. Mastronardi states that she had arranged to have the plaintiff’s technicians and production staff attend for a demonstration and the run of some “trial shots,” which was a means of letting the plaintiff test the molds and learn how to use them properly, but no one from the plaintiff attended to run the trial shots. The plaintiff disputes Mastronardi’s version of events.
[13] The plaintiff retrieved the molds the day following their sale, i.e., November 25, 2011, from the defendant at its Kingsville facility and at Eagle Tool’s facility in Windsor.
[14] The plaintiff states that it experienced problems with one of the main molds almost immediately upon testing it and advised the defendant of this.
[15] A central dispute in this case is whether the molds were sold on an “as-is” basis. The defendant insists they were and relies on invoices that the defendant sent to the plaintiff after the agreement was reached as evidence that the plaintiff agreed to this. The plaintiff denies that this was a term of the agreement, noting that the exchange of emails between the parties does not reflect this, nor is such a term mentioned in any other communication between the parties.
[16] The plaintiff states that it made the first of the scheduled payments to the defendant under the agreement on the basis of the defendant’s assurances that the molds were in good working order and the defendant’s willingness to make any necessary repairs. On January 18, 2012, Mastronardi and a representative of Eagle Tool attended at the plaintiff’s facility in Mississauga, as well as the plaintiff’s mold-maker’s facility in Mississauga, to view the defects with the two main molds, after which one of the molds was sent back to Eagle Tool for repair.
[17] The plaintiff alleges that months after the agreement had been reached, when it became apparent that the defendant could not make the two main molds operational, the defendant abruptly had its lawyer demand the next of the scheduled payments and asserted that the plaintiff acquired the molds in an “as-is” condition.
[18] The plaintiff states that, in light of the defendant’s refusal or inability to make the main molds operational and the defendant’s after-the-fact insistence that the molds were sold in an “as-is” condition, the plaintiff commenced this proceeding in Brampton, by statement of claim issued May 7, 2012, seeking rescission of the parties’ agreement and, additionally or alternatively, damages for its losses, including the moneys it had paid to the defendant towards acquiring the defective molds.
[19] In or about 2014, the plaintiff relocated its Mississauga facility to Brantford, which lies in the Central South judicial region.
[20] Most of the molds in question currently remain in the relocated facility of the plaintiff in Brantford.
The Test
[21] The defendant did not contest in oral argument before me that the plaintiff has the prima facie right to select a venue for its action. This is not a case where there is some statute or rule that required the trial of this claim in a particular county, as contemplated by rule 13.1.01(1). As such, rule 13.1.01(2) applied and the plaintiff was entitled to commence this proceeding at any court office in the Province of Ontario.
[22] The plaintiff chose to commence its action in Brampton, in the Regional Municipality of Peel, because, at the time, its head office was located in Mississauga. For these and other reasons, it certainly cannot be said that the choice of venue of the plaintiff was unreasonable at the time it commenced its action.
[23] The defendant now seeks to transfer the proceeding from Brampton, in the Central West judicial region, to Windsor, in the Southwest judicial region.
[24] The relevant factors in considering a motion to transfer a proceeding to a county other than the one in which it was commenced are enumerated in rule 13.1.02(2) of the Rules of Civil Procedure, which provides that:
(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
[25] The parties are agreed that on a motion to transfer under rule 13.1.01(2),
… the court should engage in the “holistic” exercise described in Eveready of considering the enumerated factors, including “any other relevant matter,” in order to determine whether the moving party has demonstrated that “a transfer is desirable in the interest of justice.”
… While the connection of the venue to the parties and the subject-matter of the dispute are factors to be take into account in the overall analysis under Rule 13.1.02(2), I agree with the analysis in Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc., [2005] O.J. No. 2285 (S.C.J.), that a court should approach the venue issue by weighing and considering each of the enumerated factors in order to determine whether a transfer of venue is desirable in the interests of justice. (Hallman Estate v. Cameron, [2009] O.J. No. 4001, at para. 28 (S.C.J.), citing Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc., [2005] O.J. No. 2285 (S.C.J.).)
[26] In that same vein, also relevant are the observations of Brown J. in Patry v. Sudbury Regional Hospital, [2009] O.J. No. 1060 (S.C.J.), at para. 13, where the court stated:
The law is well established that change of venue motions are fact specific. The current rule makes it clear that none of the enumerated factors are more important than the other and all of those factors and any other factors relevant to the location of the action must be balanced to ensure that a proceeding is transferred from the county where it was commenced only if such transfer is “desirable in the interests of justice.”
See also Wilcox v. Flintstone Glass & Mirror Ltd., [2009] O.J. No. 5613 (S.C.J.) at paras. 15-16.
[27] There is merit in the submission of the plaintiff that, in the circumstances of this case (i.e., where both considered venues for trial appear to be reasonable), the onus is on the defendant to show that the proposed place of venue is not only better, but significantly better, than the plaintiff’s choice of venue. In argument before me, counsel for the defendant acknowledged that the defendant must demonstrate that a change of venue to Windsor would be significantly better than a trial in Brampton.
[28] The “significantly better” dictum comes out of the decision in Siemens Canada Ltd. v. Ottawa (City) (2008), 93 O.R. (3d) 220, at para. 25. The previous leading decisions of this court in Hallman Estate and Eveready Industrial Services Corp. had not used the language of “significantly better,” resting their analysis on merely the holistic approach. The Siemens decision had attracted some commentary for its seeming insistence that the plaintiff’s choice of venue must be “rationally connected” to the plaintiff’s claim, which was seen to be a departure from the holistic approach embraced by decisions such as Hallman Estate and Eveready Industrial Services Corp.
[29] In my view, the apparent discrepancy in the caselaw, particularly insofar as the “significantly better” dictum is concerned, was reconciled by the Divisional Court in its decision in Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, 2014 CarswellOnt 3840 (Div. Ct.), at para. 29, where Marrocco A.C.J.S.C., on behalf of a unanimous court, said:
The same paragraph [para. 24 of the Siemens decision] establishes that if the plaintiff’s choice of venue is reasonable and the defendant moves for a change of venue, then a comparison of the two venues is required. The court also stated that in this situation the defendant’s choice has to be significantly better in order to prevail. This is because the Rules permit the plaintiff to choose the venue at the commencement of the claim. [Emphasis added.]
[30] That is, given that the Rules of Civil Procedure permit the plaintiff (absent requirements under rule 13.1.01(1)) the prima facie right to select a venue for its action, it is not enough for the defendant to propose a merely competing or similarly reasonable alternative place of venue for trial; the defendant should be required to demonstrate that its proposed venue is better in some significant aspect(s) than that selected by the plaintiff. Whether the defendant has satisfied that onus should be determined using the holistic approach embraced by the Hallman Estate and Eveready Industrial Services Corp. line of decisions.
Analysis
[31] In my view, it cannot be said that “it is likely that a fair hearing cannot be held” in Brampton, where the proceeding was commenced, within the meaning of rule 13.1.02(2)(a). In fairness, I did not understand counsel for the defendant to advance such an argument.
[32] The court must consider whether the transfer is desirable in the interests of justice, on a holistic approach, having regard to the factors enumerated in rule 13.1.02(2)(b).
[33] Having considered the 13.1.02(2)(b) factors using such a holistic approach, I find that the defendant has not satisfied its onus of demonstrating that a transfer of this proceeding to Windsor would be significantly better than the venue selected by the plaintiff, for the reasons that follow.
[34] I should say at the outset that, in the circumstances of the instant case, I do not regard the considerations enumerated in subclauses (i)-(iv) and (vi) to be particularly significant for the purposes of the analysis here; however, it is appropriate to briefly consider them.
Subclause 13.1.02(2)(b)(i): “where a substantial part of the events or omissions that gave rise to the claim occurred”
[35] The events in question occurred in Windsor, Mississauga, and perhaps also Brantford, as follows:
a. at the time of sale, the six injection molds in question were located at Eagle Tool’s facility in Windsor; b. the molds were tested for sale at Eagle Tool in Windsor; c. the defendant states that Kulkarni attended in Windsor to examine the six injection molds prior to the time of sale; d. the plaintiff says that Mastronardi’s first meeting with Kulkarni to negotiate the agreement in issue occurred in Brantford. The defendant maintains the contract was concluded at a meeting of the principals in Windsor; e. the plaintiff had testing of the molds performed at its Mississauga facility in December 2011; and f. Mastronardi and Eagle Tool attended at the plaintiff’s Mississauga facility in January 2012 to examine the molds.
[36] The considerations under subclause (i) do not clearly point to one place of venue over another and, thus, they cannot be said to significantly favour the defendant’s proposed change of venue to Windsor.
Subclause 13.1.02(2)(b)(ii): “where a substantial part of the damages were sustained”
[37] Any damages held to have been sustained by the plaintiff would have been sustained in Mississauga, where the plaintiff’s head office was located at the time.
[38] Any damages held to have been sustained by the defendant on its counterclaim would have been sustained in Leamington, where the defendant’s head office is located.
[39] The considerations under subclause (ii) implicate both venues for trial relatively equally and, thus, they cannot be said to significantly favour the proposed change of venue.
Subclause 13.1.02(2)(b)(iii): “where the subject-matter of the proceeding is or was located”
[40] The subject-matter of the proceeding for the purposes of subclause (iii) consists of the molds themselves and the parties’ agreement to sell the molds.
[41] The molds were originally situate in the County of Essex but were then moved to the Regional Municipality of Peel pursuant to their sale to the plaintiff. As indicated above, most of the molds in question now remain in the plaintiff’s relocated facility in Brantford. The plaintiff states that the molds themselves are not expected to be brought to court by the plaintiff, as a visual presentation of the molds will not show the defects in issue.
[42] The plaintiff alleges that the agreement between the parties was reached in Brantford. The defendant maintains the contract was concluded in Windsor.
[43] The considerations under subclause (iii) do not favour the proposed change of venue.
Subclause 13.1.02(2)(b)(iv): “any local community’s interest in the subject-matter of the proceeding”
[44] I do not agree with the plaintiff’s submission that no local community has an interest in the subject-matter of the proceeding, which involves injection molds designed to manufacture different types of clips used in the tomato greenhouse industry. In my view, the subject-matter of the proceeding would be of interest to the tomato greenhouse industry located in Leamington and the County of Essex.
[45] While it is plain that the County of Essex is not the only community in which tomatoes are grown in Ontario, it is also true that there is a particular concentration of the tomato greenhouse industry in the County of Essex. Leamington itself is widely known throughout southwestern Ontario as the “Tomato Capital of Canada,” which, while it may originally have been a self-proclaimed title, in part reflects the establishment by the H.J. Heinz Company of its heralded tomato processing factory in Leamington in the early 1900s. I should think that the strong reaction of the Leamington community to the closure of the Heinz business in 2014 amply demonstrates the interest of the local community in developments affecting the tomato greenhouse industry.
[46] While the plaintiff is correct that no greenhouse-related entity or organization has come forward and expressed an interest in the proceeding by bringing a formal motion to intervene in the proceeding, the language of subclause (iv) does not require that there be formal interveners in the proceeding in order for the court to consider any local community’s interest in the subject-matter of the proceeding.
[47] The considerations under subclause (iv) favour the proposed change of venue.
Subclause 13.1.02(2)(b)(v): “the convenience of the parties, the witnesses and the court”
[48] The plaintiff argues that a trial in Brampton would be more convenient and cost-effective for the plaintiff and its proposed witnesses. In particular:
a. the plaintiff expects to call five witnesses; b. two of the plaintiff’s key employees (Ram Singh and Almiro Fonseca) reside in Mississauga; c. the plaintiff’s in-house mold designer (Jason Zhang) resides in Milton, which border the Region of Peel; d. HC Moulds Inc., the mold-maker to whom the plaintiff brought one of the damaged molds, whose employees are expected to give evidence, is located in Mississauga; e. Kulkarni, who is expected to give evidence for the plaintiff as its principal, resides in Brantford; f. the plaintiff’s lawyers have offices in Brampton and Toronto.
[49] The defendant argues that a trial in Windsor would be more convenient and cost-effective for the defendant and its proposed witnesses. In particular:
a. the defendant expects to call seven to ten witnesses (some of whom would definitely be very short witnesses), as follows: i. Mastronardi, the principal of the defendant; ii. the principal of the defendant’s mold-maker, Eagle Tool; iii. two to three employees who worked on the molds in the defendant’s shop; iv. two to three parties who received product in Windsor, i.e., growers; and v. the original manufacturer of the molds in question. b. all of the defendant’s witnesses reside within the county of Essex; and c. the defendant’s lawyers have offices in Windsor.
[50] While a trial in Brampton may be inconvenient for the defendant and its witnesses, a trial in Windsor would be similarly inconvenient for the plaintiff and its witnesses. In the circumstances, it cannot be said that the considerations under subclause (v) significantly favour the change of venue proposed by the defendant.
Subclause 13.1.02(2)(b)(vi): “whether there are counterclaims, crossclaims, or third or subsequent party claims”
[51] There is a counterclaim by the defendant. However, in the instant case, the existence of the counterclaim does not influence the analysis to any appreciable extent.
Subclause 13.1.02(2)(b)(vii): “any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits”
[52] The defendant submits that a critical factor on this motion is that the attributes of the mandatory mediation and case management system available in Windsor, which is not available in Brampton, including “timelines, automatic referrals to mediation, access to case conferences, settlement conferences and fixed trial dates,” will facilitate the expeditious determination of this proceeding, thus favouring the transfer of the proceeding to Windsor.
[53] There is no doubt but that this matter has been stalled in its progress. The statement of claim was issued on May 2, 2012. The statement of defence and counterclaim was delivered on June 8, 2012. The reply and defence to counterclaim was delivered on July 3, 2012. The parties have not conducted examinations for discovery. Indeed, the parties have not yet exchanged affidavits of documents.
[54] The previous solicitors for the defendant (to be clear, not counsel before me) had brought an earlier motion, returnable on March 5, 2014, in Brampton, seeking a change of venue and summary judgment. However, that motion was never heard. The motion was first adjourned on consent of the parties to September 17, 2014, as Mastronardi was not available for cross-examination. Shortly before the September 17, 2014, return date, counsel for the plaintiff was advised that the defendant’s motion would not proceed on the return date and that another lawyer would be assuming carriage of the matter on behalf of the defendant. The defendant’s motion for summary judgment was not confirmed and was consequently struck from the motion list. However, strictly speaking, that motion remains outstanding.
[55] In my view, counsel for the defendant is likely correct in saying that, had this proceeding been commenced in Windsor, the parties would already have exchanged affidavits of documents, the parties would have decided whether to conduct the mediation before or after their examinations for discovery, the parties would have decided upon a schedule for examinations for discovery, and the mediation would have already been conducted.
[56] At the same time, counsel for the plaintiff is likely correct in his submission that, while the proceeding has certainly languished since July 2012 when pleadings were closed, it was largely because the defendant’s previous motion for summary judgment forestalled, for practical purposes, meaningful progress of the matter; as such, it is not open to the defendant to cast all of the blame for delay at the foot of the plaintiff. That said, the issue of the delay in the prosecution of the action is not squarely relevant for present purposes of the motion to change venue. But to the extent that there is blame to cast for the delay in the proceeding, in my view, both parties share responsibility.
[57] In any event, in argument before me counsel for the plaintiff confirmed that he had been instructed by his client to indicate on the record that the plaintiff will consent to mediation of this case. Fairly enough, counsel indicated that mediation had never been requested of the plaintiff, that the defendant’s motion for summary judgment indicated to the plaintiff that the defendant was not interested in mediation, and that had mediation been requested of the plaintiff, he would have inquired of his client to obtain instructions of his client to that end. However, as counsel indicated, upon seeing the emphasis placed on mediation in the defendant’s factum, counsel put that to his client, and the plaintiff said “absolutely, we will consent to mediation.” Counsel confirmed the plaintiff’s consent to mediation for the record, which, he indicated, could be noted in the court’s endorsement.
[58] In my view, the plaintiff’s confirmation on the record of its willingness to engage in mediation tends to empty the defendant’s submission of its force on this point. That said, the plaintiff’s undertaking to the court is noted and is something the court will, of course, expect the plaintiff to satisfy.
[59] Beyond that, the other attributes of case management hailed by the defendant can be relatively easily achieved by the parties acting in cooperation, complying with the provisions and underlying spirit of the Rules of Civil Procedure, agreeing to a discovery plan, and carrying that process out. That is what the court expects of both parties in this case.
[60] In sum, in the circumstances of the instant case, and in view of the plaintiff’s confirmation on the record that it is prepared to engage in mediation, it cannot be fairly said that the considerations under subclause (vii) favour the proposed change of venue.
Subclause 13.1.02(2)(b)(viii): “whether judges and court facilities are available at the other county”
[61] The trial of this matter is expected to require one week.
[62] In my view, a significant factor in the instant case – which might have been potentially decisive – are the considerations in subclauses 13.1.02(2)(b)(vii) (“any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits”) and (viii) (“whether judges and court facilities are available at the other county”). In the instant case, there is some overlap between subclauses (vii) and (viii), in that, one of the primary underlying concern here is how quickly this matter can be brought on for trial, which, in turn, involves consideration of the extent to which judicial resources are available to secure the most expeditious determination of the proceedings. In my view, this implicates both subclauses (vii) and (viii).
[63] In other words, if the evidence were that a civil non-jury action that was expected to require five days of trial could be heard within a matter of months in Windsor but could not reasonably be expected to be heard in Brampton before, say, a year-and-a-half, that could be an important consideration in the court’s holistic assessment of the 13.1.02(2)(b) factors. The greater the disparity in the respective times to reach trial, the more significant the considerations reflected in subclauses 13.1.02(2)(b)(vii) and (vii) may weigh in the holistic assessment.
[64] In this regard, it is important to note the treatment of subclause (viii) by the Divisional Court in Chatterson, in the context of a motion to change the venue of an action commenced in Hamilton to Kitchener, where Marrocco A.C.J.S.C. held at para. 19 that:
Factor (viii) relates to the availability of judges and court facilities. As indicated earlier, Hamilton and Kitchener are located in the same Judicial Region. As a result this factor has little if any importance on this motion. Had the defendant wanted to transfer this claim to another Judicial Region then this factor would have been extremely important and the defendant would have been required to put forward evidence concerning the anticipated timing of the trial in the Region receiving the claim. Judicial resources are scarce. When a matter is transferred to a different Region, it will not be tried until it has been pre-tried in that Region. When a matter is transferred to a different Judicial Region, it will rank behind outstanding matters there. Some evidence from the receiving Judicial Region will be required concerning the availability of judicial resources for the incoming claim. Absent this evidence it will be virtually impossible for the motion judge to determine that the transfer is “desirable in the interests of justice” as required by subrule 13.1.02(6). [Emphasis supplied.]
[65] On the motion record before me, the court had no such evidence before it. There was reference to a newspaper article that spoke of the judicial vacancies that formerly existed in Brampton and the impact that the previous government’s delay in making appointments to those vacancies was having on the administration of justice in Brampton, i.e., in the putative transferring region. Put simply, that is not the type of evidence of which Marrocco A.C.J.S.C. was speaking in the Chatterson case.
[66] On motions to change the venue of trial where the considerations reflected in subclause 13.1.02(2)(b)(viii) are in issue, it will often assist the court to have included in the evidentiary record before it affidavit evidence from a lawyer in the office of the moving party to the effect that, inter alia, she or he has contacted the local trial coordinator’s office in the receiving judicial region to express the trial readiness of the matter and to inquire, to use the instant circumstances as an example, if a civil non-jury action were set down for trial at this point in time, where the action is expected to require some five days of trial, when would the matter reasonably be expected to be heard at a pre-trial conference and at trial. In the same vein, it is also useful for the court to have similar evidence obtained from similar inquiries of the local trial coordinator’s office in the putative transferring judicial region. In that way, the motion judge will then have some comparative information to reach a more informed decision as to when the trial of the matter might reasonably be expected to be heard in each judicial region.
[67] Regrettably, the defendant’s motion material here contained no such evidence.
[68] Neither did the plaintiff’s for that matter. And while I certainly appreciate that the plaintiff has no interest in, nor obligation to, further the motion advanced by the defendant, at the same time there are many motions for a change of venue where, as here, there is a fairly significant common interest in finding a way to secure “the just, most expeditious and least expensive determination of the proceeding on its merits” – which is of benefit to both parties, as well as the public interest – and in that regard, the court would certainly have welcomed and been assisted by similar affidavit evidence from the plaintiff as to how quickly its action could proceed to trial in Brampton and Windsor. However, that was not to be. The plaintiff was content to leave the matter, as reflected in para. 10(vii) of its factum, on the basis that there was “no evidence concerning the anticipated time of a trial in Windsor versus Brampton.” True. Neither party provided the court with same.
[69] In any event, in the absence of any such evidence and/or that otherwise contemplated by para. 19 of Chatterson, it is “virtually impossible for [me, as the] the motion judge to determine that the transfer is ‘desirable in the interests of justice’.”
Summary
[70] In sum, the evidence on this motion does not establish that the defendant’s proposed venue is significantly better than the venue selected by the plaintiff, as per its prima facie right under the Rules of Civil Procedure. Accordingly, the defendant’s motion to transfer the proceeding to Windsor is dismissed.
Costs
[71] If counsel are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than three double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:
a. the plaintiff shall deliver its submissions within 14 days following the release of this endorsement; b. the defendant shall deliver its submissions within 7 days following service of the defendant’s submissions; c. the plaintiff shall deliver its reply submissions, if any, within 3 days following service of the plaintiff’s submissions; d. if either party fails to deliver its submissions in accordance with the schedule, it shall be deemed to have waived their rights with respect to the issue.
[72] In view of the plaintiff’s confirmation on the record that it is willing to engage in mediation of this matter, it is appropriate that the costs submissions of the plaintiff should indicate to the court the extent to which steps have been taken or will be taken to schedule and conduct the mediation session, and the particulars of same.
Original signed by Justice J. Paul R. Howard
J. Paul R. Howard Justice
Date: April 13, 2016