Endorsement

Court File No.: CV-24-00000513-00OT
Date: 2025-01-06
Superior Court of Justice – Ontario

Re: The Toronto-Dominion Bank, Plaintiff
And: The Other End Inc. and Amir Endalah, Defendants

Before: Frederick L. Firestone

Counsel:
Natalina Marconi, for the Plaintiff/Responding Party, TD Bank
Fred Wu, for the Defendants/Moving Parties, The Other End Inc. and Amir Endalah

Heard: In Writing

Introduction

[1] This is a collection action brought by the Plaintiff, The Toronto-Dominion Bank (“TD”) regarding loan and credit card amounts it says are owing by the Defendants, The Other End Inc. (“Other End”) and Amir Endalah (“Endalah”).

[2] Other End and Endalah bring this motion for an order transferring this action from London (Middlesex) in the Southwest Region to the Toronto Region. The motion is brought pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and the procedures set forth in the Consolidated Civil Provincial Practice Direction amended February 1, 2024 (the “Practice Direction”) regarding the transfer of a proceeding from one Region to another. The original Notice of Motion and supporting materials were filed on an opposed basis. Subsequently, an Amended Notice of Motion and consent were filed confirming that this transfer motion was now on the consent of all parties.

[3] In accordance with the Practice Direction, I am to determine this motion in writing in my capacity as the Regional Senior Judge for the Toronto Region. On December 18, 2024, by way of endorsement, I directed that TD deliver any responding submissions to the issues raised in the motion by December 31, 2024, after which time I would determine the motion based on the materials received. In response, on December 18, 2024, counsel for TD advised that TD has consented to the draft Order transferring the action to Toronto and therefore would not be filing responding material.

[4] This transfer motion raises important issues and has broader implications regarding the importance of commencing proceedings in a Judicial Region properly connected to the matters at issue; the practice of forum shopping between Judicial Regions; and the potential negative effect on other litigants and judicial resources when a proceeding is brought and continued in a Judicial Region that has no connection to the matter(s) at issue.

Procedural Background

[5] The Defendant Other End is a film and production company based in Toronto. The Defendant Endalah is the principal of Other End and resides in Toronto. TD’s head office is based in Toronto. All dealings between TD, Other End and Endalah have taken place in Toronto. Counsel for TD is located in the City of Vaughan. Counsel for Other End and Endalah is located in Toronto.

[6] On February 13, 2024, TD commenced this action in London, Ontario. Endalah and Other End delivered their Statement of Defence on or about April 9, 2024, in which they specifically plead that Toronto is the proper venue given the lack of any connection to London. They also collectively raise various defences to the indebtedness alleged by TD. Examinations for discovery have not taken place.

[7] On September 27, 2024, TD’s motion for summary judgment came before the Honourable Justice I.F. Leach. After addressing various preliminary issues, Justice Leach adjourned the summary judgment motion to provide the Defendants an opportunity to bring their contemplated Rule 13.1.02 motion seeking a change of venue.

[8] In his Endorsement dated September 27, 2024, Justice Leach addressed various concerns regarding TD’s motion for summary judgment including its prematurity. Foremost among those concerns was the Plaintiff’s selection of London as the venue for this proceeding.

[9] In this regard, at paragraph 4 of his Endorsement, Justice Leach states:

[A]s I indicated to plaintiff counsel, the phenomenon of financial institutions increasingly initiating collection proceedings and corresponding motions here in London, when the underlying matters seem to have no discernible connection with Middlesex County, (or the Southwest Region more generally), is a growing concern that has been noted by court staff and numerous judges here in London.

[10] At paragraphs 6 and 7 Justice Leach goes on to state:

[T]here frankly seems to be little reason for such proceedings to be pursued here apart from the reality that the parties are able to do so, pursuant to the Rules of Civil Procedure, and the newfound ability of parties to have their counsel just as easily argue matters “here” in London, rather than more suitable and appropriate judicial centres, after our court has transitioned to presumptively virtual hearings. In other words, the practical constraints that formerly encouraged litigants and their counsel to pursue litigation in the appropriate forums, associated with their respective disputes, have largely disappeared.

[P]roviding timely access to justice is an understandable concern across the province. However, potential “forum shopping” raises other concerns about justice from a broader perspective. In particular, plaintiff counsel emphasized concerns about possible injustice to her client, our court needs to be mindful of broader concerns in that regard, including the potential injustice caused to other litigants, whose matters have clear and obvious connections with Middlesex County, having their access to justice delayed and complicated by litigants from elsewhere choosing to impose an additional inappropriate burden on the limited resources of this judicial centre and/or region, when their matters properly should be dealt with elsewhere.

Applicable Legal Principles

[11] Rule 46.01 provides that the trial of an action shall be held in the county where the proceeding was commenced or to which it has been transferred under Rule 13.01.02 unless the court orders otherwise. Rule 13.1.02 and the Practice Directions direct how a change of venue motion should proceed. Subsection (2) of the Rule provides:

…[T]he court may, on any party’s motion, make an order transferring the proceeding to a county other than 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.

[12] Subsection (2)(a) has no application. There is no suggestion that a fair hearing cannot be held in London.

[13] The factors set forth in Rule 13.1.02(2)(b) are to be applied holistically. No one of the enumerated factors is more important than the other. These factors are to be examined together and balanced in order to determine whether a requested transfer is desirable in the interests of justice: Darteh v. Gross, 2017 ONSC 2479, paras. 8-9; Hilson v. 1336365 Alberta Ltd., 2017 ONSC 4990, paras. 12-13; Chatterson et. al. v. M&M Meat Shops Ltd., 2014 ONSC 1897, para. 22; Siemens Canada v. Ottawa (City), para. 25; and Walcott v. Zheng, 2021 ONSC 4679, paras. 20, 22-23.

[14] In applying the “holistic approach” it is important to recognize that the balancing of the Rule 13.1.02(2)(b) factors is not a purely numerical or mathematical counting exercise: Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968, para. 16.

[15] At first instance a plaintiff(s) is entitled to commence a proceeding at any court location: Chatterson, at para. 14. If the plaintiff’s choice of venue is reasonable and the defendant challenges that venue, then a comparison of the two venues is required. The defendant must establish that its proposed choice of venue is significantly better than the one chosen by the plaintiff: Chatterson, at paras. 28-29; Walcott, at para. 28.

Analysis

[16] In applying the factors under Rule 13.1.02(2)(b) to the facts of this case, it is clear that London (Middlesex) was not a reasonable choice of venue for this proceeding. Based on the following analysis of these factors, I conclude that the requested transfer is desirable in the interest of justice.

(i) Where a substantial part of the events or omissions that gave rise to the proceeding occurred.

[17] All of the events or omissions that gave rise to the claim occurred in Toronto.

(ii) Where a substantial part of the damages were sustained

[18] The claim pertains exclusively to monies owing. TD’s damages are presumed to take place where TD is located: Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968, para. 24. TD operates in many locations but their head office is located in Toronto. A substantial part of the damages were therefore sustained in Toronto.

(iii) Where the subject-matter of the proceeding is or was located

[19] All dealings between the parties took place in Toronto. The subject matter of the claim is located in Toronto.

(iv) Any local community’s interest in the subject matter of the proceeding

[20] The dispute between the parties is of a private nature. There is no demonstrated community interest. Even if there were, such interest would be in Toronto.

(v) The convenience of the parties, the witnesses, and the court

[21] In accordance with the Presumptive Guidelines to Determine Mode of Proceeding in Civil Matters at Part V of the Practice Direction, contested motions will be held either virtually or in-person depending on the length of the motion. Judge-alone trials will be held in person unless all parties consent to a virtual trial and the Court approves. At this time there is no evidence that both parties consent to a virtual trial or that the Court would approve it. The parties are located in Toronto. Counsel for the Plaintiff is located in Vaughan. Counsel for the Defendants is located in Toronto. On balance, Toronto is the most convenient location.

(vi) Whether there are counterclaims, crossclaims, or third- or subsequent-party claims.

[22] There are currently no 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

[23] There is no evidence in the record regarding this factor.

(viii) Whether judges and court facilities are available at the other county

[24] Paragraph 50 of the Practice Direction provides that counsel are not required to provide affidavit evidence about the availability of judges and court facilities in the other county to satisfy this factor. This factor is to be addressed by the regional senior judge where the motion is brought, after consulting with the local administrative judge or regional senior judge for the other county. I have consulted with the RSJ for the Southwest Region and have concluded that there is no appreciable difference in the scheduling of short non-jury trial dates. Earlier dates for long motions are available in the Southwest Region.

[25] In applying the factors under Rule 13.1.02(2)(b) holistically to the factual matrix of this proceeding, it is clear that there is no rational connection to London (Middlesex) and that Toronto is the proper venue for this action.

[26] More broadly, while plaintiffs are generally entitled at first instance to choose where they commence proceedings, their decisions must be informed and reasonable. They do not have “carte blanche” to choose a particular venue without first considering whether the proposed Judicial Region and location has a rational connection to the matters at issue in the proceeding. In making this determination, consideration should be given to the relevant factors enumerated under Rule 13.1.02(2). Forum shopping is never appropriate.

[27] In this respect, I agree with the broader concerns raised by Justice Leach, namely the increased burden on judicial resources and delay that results from commencing a proceeding in a Judicial Region that has no connection to the matter.

[28] Delay in a particular location on its own, without due consideration of other connecting factors, is not a valid basis to choose one location over another.

[29] The same is true with respect to the availability of virtual hearings across regions. The introduction of virtual platforms as a method of appearance is meant to provide greater flexibility and proportionality and enhance access to justice. They are not intended as a means for circumventing the requirement to choose a venue rationally connected to the matters at issue or to otherwise engage in forum shopping. The availability of this mode of proceeding is not, on its own, a valid basis to choose a particular Region.

[30] The practice of forum shopping must stop. It is not fair to other litigants or the court system as a whole.

Disposition

[31] Counsel has advised that Other End is bankrupt. I grant the order transferring this proceeding to the Toronto Region. No further steps are to be taken regarding The Other End until an Order to Continue is obtained in accordance with Rule 11 of the Rules.

[32] Given this motion is on consent the parties have agreed that no costs are sought. There shall be no order as to costs.

Frederick L. Firestone
Released: January 6, 2025