Court File and Parties

COURT FILE NO.: 1104/12; 1104A/12; 1104AA/12; 1104AAA/13 DATE: 20160708 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2305769 Ontario Ltd. AND: Youth Opportunities Unlimited et al, Defendants AND: Ontario and King Limited et al, Third Parties

BEFORE: Regional Senior Justice P.A. Daley

COUNSEL: Angela Assuras, Counsel for the Plaintiff Matthew Urback, Counsel for the Third Party, Wasylko Architect Inc.

HEARD: June 13, 2016

Endorsement

[1] The third-party Wasylko Architect Inc. (Moving Party) brings this motion for an order transferring this action from Milton to London.

[2] All parties, other than the plaintiff, including third parties in the third-party actions, consent to the order sought.

[3] By way of background, this action relates to a claim by the plaintiff for damages sustained to its property, municipally known as 340 Richmond Street, London, Ontario. The defendant Youth Opportunities Unlimited (“YOU”) is the owner and principal occupant of the property next-door to the plaintiff’s property and is municipally known as 332 – 338 Richmond Street, London, Ontario. The buildings share a common wall.

[4] In the course of construction and renovation work carried out by YOU on its property in 2009, the plaintiff alleges that damages were occasioned to its property.

[5] The plaintiff has commenced this action against YOU and the defendants Ontario and King Limited and Hayman Construction Inc., who were retained by YOU to carry out the construction and renovation work on its property. The plaintiff has also claimed damages from the Corporation of the City of London (“the City”) for its alleged negligence in the approval of the construction plans, and in respect of the issuance of the building permit for the work to be carried out on YOU’s property.

[6] Various defendants have instituted three third-party actions, seeking contribution and indemnity, including from the structural engineer, and the Moving Party, as the project architect.

[7] Pleadings have been closed, and discoveries completed in this nonjury action. Counsel estimate that this trial, including the trial of the third-party actions, will take approximately 3 weeks. There have been no pretrial conferences conducted.

[8] There is a related action wherein the plaintiff has sued its property insurer. That action was also instituted in Milton. There is no motion before the court seeking to have that action transferred to London, however counsel for the defending insurer did appear in court on the return of this motion and indicated that his client would be seeking to have that action transferred to London as well. Given that this action was not before the court and no order had been made to transfer it to London, no evidentiary weight was accorded to the existence of this action in considering this motion before the court.

Position of the Parties

[9] It was urged on behalf of the Moving Party that although the plaintiff was entitled to institute this action in any region of the Superior Court of Justice that it wished, the choice made by the plaintiff was unreasonable and as such based on the evidentiary record offered and within the context of the considerations outlined in Rule 13.1.02 (2)(b) of the Rules of Civil Procedure, the action should be transferred to London.

[10] It was the position of the plaintiff that it has a presumptive entitlement to commence this action where it sees fit, namely in Milton, and that the Moving Party has failed to meet the evidentiary burden to justify the transfer of this action to London.

Analysis

[11] This motion is governed by the terms of rules 13.1.01 and 13.1.02. Subrule 13.1.01(1) applies in this case and as such the plaintiff was entitled to commence this proceeding at any court office in the Province of Ontario. Thus, the Moving Party’s motion must be considered under subrule 13.1.02(2)(b) of the Rules of Civil Procedure which reads as follows:

(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.

[12] Although counsel for both parties cited various cases as to the application of this rule, I have concluded that the decision of Associate Chief Justice Marrocco in the Divisional Court decision in Chatterston v. M. & M. Meat Shops Ltd., 2014 ONSC 1897, [2014] O.J. No. 1436, governs the determination of this motion. In that decision the court reviewed the earlier jurisprudence in relation to this type of motion as well as the considerations that must be examined on a motion under subrule 13.1.02(2)(b) of the Rules of Civil Procedure.

[13] In response to this motion, the plaintiff has also asserted that the motion should be dismissed on the basis of the delay by the Moving Party. While undue delay in bringing such a motion may be a factor to be considered, there is no evidence of any prejudice that would result to the plaintiff, even if it was determined that in fact the delay was lengthy and unexplained.

[14] Although I cannot conclude that the plaintiff’s choice of trial at Milton was unreasonable, that choice of venue has only a very tenuous rational connection to the parties in this action, where the alleged acts and omissions occurred, where the damages were sustained and where the subject matter of the proceeding was located.

[15] The considerations to be examined under rule 13.1.02(2)(b) of the Rules of Civil Procedure must be examined holistically: Chatterson at para. 35.

(a) Where a Substantial Part of the Events or Omissions That Gave Rise to the Claim Occurred

[16] It is clear that virtually all events and alleged omissions or acts of negligence giving rise to the claim in this action occurred in London. The work carried out was done in London with respect to the defendant’s property in London. There is no link between the events and the alleged negligence with Milton. All permits relating to the construction on the defendant’s property were obtained from the defendant City.

[17] Examination of this factor favours the transfer of the action from Milton to London.

(b) Where a Substantial Part of the Damages Were Sustained

[18] Although the plaintiff corporation has its offices in Burlington, Ontario, the most significant element of the plaintiff’s claim relates to damages alleged to have been suffered to its property in London as a result of the work performed on the property owned by the defendant, YOU. In addition to the actual property damage sustained to the plaintiff’s building, the plaintiff also seeks damages as a result of the depreciation in value of the property and lost income that would have otherwise been generated from this commercial property.

[19] Thus, on examination of this consideration, the evidence is clear that a substantial part of the damages were sustained in London and not in Milton.

(c) Where the Subject Matter of the Proceeding Is or Was Located

[20] The subject matter of this dispute is the property municipally known as 340 Richmond Street, London, Ontario. Consideration of this factor favours the trial of this action being at London.

(d) Any Local Community’s Interest in the Subject Matter of the Proceeding

[21] The City is a defendant in this action. The local community has a direct interest in any claim when the municipal corporation is a defendant and where municipal tax dollars are at stake, both with respect to the defence of this action and the potential liability under any judgment obtained by the plaintiff. Further, the plaintiff has alleged negligence and misconduct on the part of the City with respect to how it granted permits and as such the local community has a direct interest in how the City carries out its policies and decision-making regarding the issuance and enforcement of building permits. This factor also favours the trial of this action at London.

[22] While the local community’s interest in this litigation involving the City is not in and of itself determinative of this motion, the relevant rules regarding the choice venue give more recognition to the importance of providing justice locally than did the former rules about venue: Siemens Canada Ltd. v. Ottawa (City) (2008) 2008 ONSC 48152, 93 O.R. (3d) 220 at paras. 17 – 27.

(e) The Convenience of the Parties, the Witnesses and the Court

[23] As demonstrated in the evidence provided on this motion, other than the plaintiff corporation which is based in Burlington, Ontario, all of the defendants and third parties have their office’s located in London. The lawyers are all based in Toronto, other than counsel for the City and YOU.

[24] Apart from the representatives of the defendants and third parties who are all based in London, the plaintiff has offered evidence of its intention to call five engineering experts, one from Milton, one from Burlington, one from Newmarket and two from London.

[25] As to experts who may be called on behalf of the defendants and third parties, one is located in Guelph, one in Newmarket and one in Toronto.

[26] Although only two of the legal counsel involved have offices in London, the location of the lawyers’ offices is not a factor that rises to a significant level of consideration in determining the outcome of a motion like this. There will be travel and accommodation costs incurred if this action is transferred from Milton to London.

(f) Whether There Are Counterclaims, Cross-Claims or Third or Subsequent Party Claims

[27] There are three sets of third-party proceedings, several counterclaims and cross-claims and all claims as set out in these pleadings emanate from the same facts and relate to the allegations of negligence made by the plaintiff and the damages claimed. As part of the Moving Party’s motion, an order is sought that not only the main action but all third-party actions be transferred to London.

(g) 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

[28] As noted, whether the trial of this action takes place in Milton or London, the lawyers representing the parties will have to make travel arrangements. However, apart from the plaintiff’s corporate representative, all of the defendants and third parties’ representatives are based in London, and as such, having the trial conducted in London would save the cost of all of the defendants’ representatives having to travel to Milton, where the plaintiff’s representative is the only party convenienced by the trial being held there.

(h) Whether Judges and Court Facilities Are Available at the Other County

[29] In accordance with the Consolidated Provincial Practice Direction, the Regional Senior Judge will personally address this factor which involves consultation by the Regional Senior Judge in the region where the motion is brought with the Local Administrative Judge or Regional Senior Judge in the other County.

[30] As the Regional Senior Judge in Central West Region, I have consulted with the London Local Administrative Judge, The Honourable Justice Duncan Grace as to the availability of a trial date for an action such as this at London.

[31] Although it was proposed that the trial of this action would take in the order of 3 weeks, based on my review of this matter and considering the lengthy and difficult history of this case and recognizing that both liability and damages are most vigorously disputed, with several expert witnesses to be called, I estimate that the trial of this action will take at least 4 to 5 weeks if not longer.

[32] As is widely known, the Milton courthouse is incapable of accommodating lengthy trials involving several counsel. There is simply not enough courtroom space available for trials such as this. The courtroom facilities in the Milton courthouse are overburdened and courtrooms are required on a day-to-day basis for family and criminal matters, and as such any available courtroom space cannot be reasonably allocated to a 4 to 5 week civil trial. Such an allocation would result in a significant delay in having urgent and pressing matters dealt with by the court in a timely manner.

[33] Further, the court at Milton cannot accommodate a trial of this length at its regular sittings and further, given the number of counsel involved, and the length of the trial, if this case were to remain in Milton, there is a high likelihood that, with the consent and cooperation of the Regional Senior Judge in Central South Region, I would direct that the case be tried in Kitchener. This type of arrangement has been put in place with respect to previous cases pending in Central West Region with the approval of the Chief Justice of the Superior Court of Justice. Several trials, including criminal jury trials, have been transferred from judicial centers in Central West Region to Kitchener for trial in accordance with the Chief Justice’s approval.

[34] The court at Milton has concentrated civil and family trial sittings in the spring and fall of each year for approximately one month each. Given the anticipated length of the trial of this action and the third-party proceedings, this case would not be assigned to either of the concentrated sittings, but would likely require a fixed trial date and in turn, as noted, the transfer of the trial to Kitchener.

[35] Given the current state of the civil trial list in Milton, the earliest possible time for a fixed trial date would be in 2018, with the trial likely taking place in Kitchener.

[36] Local Administrative Judge Grace has advised that the civil trial lists at London are not closed off and parties are free to choose a trial date that is mutually convenient to them. Given the number of parties and counsel involved in this case, he further advises that, assuming the case is trial ready, the trial of this case could be scheduled in early 2017.

[37] As access to justice in a reasonable and economic way is a most important consideration overall, I have concluded that the court at London has the ability to meet those needs with more readily available judicial and courtroom resources, when compared to Milton.

Conclusion

[38] While consideration of the factors in rule 13.1.02(2)(b) of the Rules of Civil Procedure on a motion such as this requires that each of those factors be examined, it is not a simple mathematical exercise involving the weighing of these considerations. Each case turns on its own unique facts which must be considered in a holistic fashion.

[39] On a holistic examination of the factors under subrule 13.1.02(2)(b) of the Rules of Civil Procedure, I have concluded that the proposed place of trial at London is significantly better than having the trial at Milton. I am satisfied that on examining all of the evidence proffered on this motion and weighing the considerations in the rule, having the trial in London will result in readily available access to justice and a fair hearing and that such a transfer of the action to London is desirable in the interest of justice.

[40] In the result, the motion is granted and this action and the related third-party actions shall be transferred from Milton to London.

[41] In the event the parties cannot resolve the issue of costs, submissions on behalf of the Moving Party shall be served and filed within 15 days from the release of these reasons. The costs submissions shall be limited to two pages plus a costs outline. The submissions on behalf of the plaintiff shall be delivered within 15 days thereafter and shall be of a similar length. No reply submissions shall be filed.

Daley RSJ. Date: July 8, 2016