COURT FILE NO.: CV-11-430530
DATE: 20120314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATHRYN MARY HAUGHTON and EDWARD RONALD HAUGHTON
Applicants
– and –
DEBORAH LYNNE WOOD, BARNES HOLDCO INC. (STEVEN BARNES), JOHN P. UREN, HELEN LOUISE UREN, BRENDA KATHERINE ROYCE, RONALD NIEDERMULLER, ADRIANA NIEDERMULLER, BENJAMIN JOEL TRISTER, AMALIA MALKA TRISTER, NANCY ELIZABETH PRITTIE, IDA VICTORIA ROHN, JANICE ELEANOR MERLI, FRANK JOSEPH MERLI, JANANNE N. MCWILLIAMS, SHAWNNA MARIE LOUISE MCGILL, DARYL CURTIS VARLEY, ANTHONY FREDRICK BRUYNS, 879959 ONTARIO INC. (ROBERT BRUYNS, BONNIE BRUYNS, MR. GRANDY), DEBORAH LOUISE WADE, JOHN ANDREW HAUGHTON, JACK EDMUND SHENTON, PHYLLIS MARIE SHENTON, RAY HAYHURST, TWILA STEIGER, MARK STEIGER, JOEL STEIGER AND KYLE STEIGER
Respondents
Jane Langford/Christine L. Lonsdale,
for the Applicants
Eric R. Finn, for the Respondents,
Deborah Lynne Wood, Barnes Holdco Inc. (Steven Barnes), John P. Uren, Helen Louise Uren, Brenda Katherine Royce, Ronald Niedermuller, Adriana Niedermuller, Nancy Elizabeth Prittie, Ida Victoria Rohn, Janice Eleanor Merli, Frank Joseph Merli, Jananne N. McWilliams, Shawnna Marie Louise McGill, Anthony Fredrick Bruyns, 879959 Ontario Inc. (Robert Bruyns, Bonnie Bruyns, Mr. Grandy), Twila Steiger, Mark Steiger, Joel Steiger and Kyle Steiger
D. Donald Perry, for the Respondents,
Deborah Louise Wade and
John Andrew Haughton
Benjamin Trister, self-represented
Larry W. Douglas, for the Respondent
Amalia Berg Trister
David Rubenstein, for the Respondent,
Bank of Montreal re 46 Curran Trail (Benjamin Joel Trister and Amalia Malka Trister)
HEARD: March 9, 2012 in Parry Sound, Ontario
DECISION ON MOTION
R.D. GORDON J.:
[1] The Respondents request an order changing the place of hearing for this Application from the City of Toronto to the Town of Parry Sound.
Background
[2] The Applicants are the registered owners of the property which forms the subject matter of this litigation. That property is located in the Township of Carling. On July 31, 2011 the Applicants began this application seeking a declaration that they are entitled to close a road, which they say is on their property, and a permanent injunction restraining the Respondents from using the road for vehicular access to and from their respective properties.
[3] The Applicants reside in the City of Victoria in the Province of British Columbia. Nine of the Respondents reside in the District of Parry Sound. The remaining Respondents reside in various other locations around the Province of Ontario.
[4] The Application is currently scheduled for hearing on June 19, 2012.
The Law
[5] Under Rule 14.05 of the Rules of Civil Procedure, the Applicants are entitled to bring an application in the venue of their choice unless a statute or rule requires the proceeding to be commenced, tried or heard in a particular county. There is no rule or statute requiring the Applicants to bring this application in any particular location.
[6] Rule 38.03(1.1) of the Rules of Civil Procedure provides that an Application shall be heard in the county where the proceeding was commenced or to which it has been transferred pursuant to Rule 13.1.02, unless the court orders otherwise. Accordingly, the starting point for this motion is that the application is to be heard in Toronto.
[7] Rule 13.1.02(2) of the Rules of Civil Procedure provides that 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 that: (a) 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 interests of justice having regard to enumerated factors. As there has been no suggestion that a fair hearing cannot be held in Toronto, the motion is brought under Rule 13.1.02(2)(b).
[8] Relying on the case of Siemens Canada Limited, PCL Constructors Canada Inc. and Ottawa LRT Corp. v. The Corporation of the City of Ottawa, 2008 CanLII 48152 (S.C.J.), the Applicants submit that the court must defer to the applicant’s choice of venue unless it can be shown that the venue proposed by the Respondents is substantially better, when the factors enumerated in R. 13.1.02(2)(b) are weighed. I am not certain I agree.
[9] The rule requires only that the transfer be desirable in the interests of justice. In the context of this rule, “desirable” I take to mean useful or advantageous. “Justice” in the context of this rule, would refer to the fair and proper administration of the law.
[10] Another way to state the test would be to ask if the transfer would be useful or advantageous to the fair and proper administration of the law.
Analysis
[11] Rule 13.1.02(b) lists a number of factors for the court to consider in determining a motion to change venue. None of the factors is more important than any other and they must all be considered and balanced to determine whether the transfer of the trial is desirable in the interests of justice. I will consider each factor in turn.
[12] Under Rule 13.1.02(2)(b)(i) I am to consider whether a transfer is desirable in the interest of justice having regard to where a substantial part of the events or omissions that gave rise to the claim occurred. As stated by Corbett J., in Siemens, supra, this factor speaks to the importance of justice as a local institution. Ontario maintains a decentralized court system, allowing persons in most communities to access justice at or near their home community. If such a decentralized system is to be maintained, it is generally appropriate that events or omissions that give rise to a claim be adjudicated in that locale. Given that the events in this application took place in the District of Parry Sound, this factor favours a transfer of the application.
[13] Under Rule 13.1.02(2)(b)(ii) I am to consider whether a transfer is desirable in the interest of justice having regard to where a substantial part of the damages were sustained. The claims in this application are for declaratory relief and not damages and the parties have agreed that this factor is of no application in the case before me.
[14] Under Rule 13.1.02(2)(b)(iii) I am to consider whether a transfer is desirable in the interest of justice having regard to where the subject-matter of the proceeding is or was located. Based on the same “local justice” reasoning outlined above, this factor favours the hearing of this case in Parry Sound.
[15] Under Rule 13.1.02(2)(b)(iv) I am to consider whether a transfer is desirable in the interest of justice having regard to any local community’s interest in the subject-matter of the proceeding. The proper administration of justice requires that we maintain an open and transparent judicial system in which those interested in a proceeding are welcome to attend and observe. The notion of “local justice” outlined above also dictates that matters of local interest be adjudicated locally. There was no evidence before me to establish that any local community has a particular interest in the subject matter of this proceeding. Although one might reasonably argue that the “cottage community” has an interest in Road Access Act applications generally, that community exists well beyond the District of Parry Sound. Indeed, as pointed out by counsel for the Applicants, there are many cottage owners in Toronto who would have an equivalent interest in this type of application. Accordingly, this factor favours the hearing of the matter in Parry Sound, based upon the notion of local justice.
[16] Under Rule 13.1.02(2)(b)(v) I am to consider whether a transfer is desirable in the interest of justice having regard to the convenience of the parties, the witnesses and the court. The fair and proper administration of our laws requires that a hearing be held where it is most convenient to those involved in the proceeding. As it stands, this matter has not been converted to an action and it will not proceed by trial. The application will be argued based upon a paper record without the necessity of attendance of witnesses, or even the parties themselves. Accordingly, the convenience of the parties and the witnesses is not as significant a factor as it might be if a trial were to be conducted. Nonetheless, it is fair to presume that the parties may wish to attend at the hearing of this case, and as such, the issue of convenience falls to be considered. The style of cause discloses 31 individuals with an interest in this application. Of that 31, nine respondents reside in or about the Town of Parry Sound, the two Applicants live in British Columbia, and the remainder of the respondents live in various other locations in Ontario.
[17] The applicants submit that there is no evidence from the Respondents on the issue of convenience other than the bare allegation of the residence of nine of them. In contrast, the Applicants have filed an affidavit indicating that Toronto is most convenient for them given their ages, and the additional travel and expense that would be incurred travelling from Toronto to Parry Sound for the hearing of the matter. In my view, it is fair to presume that parties to litigation will want to be present when the matter is argued. On the evidence before me, it would be more convenient for nine of the parties to attend in Parry Sound for the hearing of the matter. For the two applicants the evidence establishes that it will be considerably more convenient for them to attend in Toronto. For the balance of the parties, I note that many are in closer proximity to the Greater Toronto Area than to Parry Sound. For many of those Respondents, it may well be more convenient to attend a hearing in Toronto. In all, the evidence I have pertaining to this factor is not sufficient todetermine that it would be advantageous to have the matter heard in Parry Sound.
[18] Rule 13.1.02(2)(b)(vi) requires me to consider if a transfer of the hearing is desirable in the interest of justice having regard to any counterclaims, crossclaims, or third or subsequent party claims. There are no such claims in this proceeding.
[19] Under Rule 13.1.02(2)(b)(vii) I am to consider whether a transfer is desirable in the interest of justice having regard to 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. In the case before me, counsel for the applicants practises in Toronto. She advised that if the matter were to be heard in Parry Sound, it would be necessary for her to travel the day prior to the hearing, with resultant additional cost to her clients. Counsel for several of the Respondents is Mr. Finn, who practises in Barrie. Counsel for other Respondents includes Mr. Perry who practises in Midland and Mr. Douglas who practises in Parry Sound. It was suggested, and not disputed, that Mr. Finn and Mr. Perry would face the same convenience (or perhaps inconvenience) in attending either Toronto or Parry Sound. Mr. Douglas would face the same inconvenience as counsel for the applicants if the matter continued in Toronto. There would not appear to be significant costs savings to having the matter heard in either jurisdiction. There is a concern about having this application heard expeditiously. As noted, there is currently a hearing date scheduled in Toronto of June 19 and counsel for the applicants indicated a strong desire to have the matter heard as expeditiously as possible so that another cottage season would not pass with the matter unresolved. My impression is that the Respondents would agree with this premise. Counsel for the Respondents represented to the court that he had contacted the trial coordinator’s office and determined that the application could be scheduled for hearing within that same general time frame. Counsel for the applicants was content to accept this representation. The difficulty I see is that although the court may be able to accommodate the parties by providing a hearing date sometime in June, there is no evidence before me that the schedules of all counsel can accommodate an expeditious hearing date other than the one that has been set. In this respect, the interest of justice favours the completion of this matter in Toronto.
[20] Under Rule 13.1.02(2)(b)(viii) I am to consider whether Judges and Court Facilities are available at the other county. There are Judges and Court facilities in Parry Sound that are available to accommodate the hearing of this matter. However, as noted above, it would be most unfortunate to have the matter delayed through another cottage season.
Conclusion
[21] In my view, it is not desirable in the interests of justice that this application be transferred from Toronto to Parry Sound. Although it may be more convenient for nine of the parties to attend a hearing in Parry Sound, there remain 22 parties for whom it may be less convenient. Although it is generally preferable to have matters heard in the jurisdiction where they arise, in the circumstances of this case it is of some importance to have the matter heard at an early date, and such an early date has already been obtained in Toronto. In all, the Respondents have not met the onus and the motion is dismissed.
[22] I was provided with a costs outline by both counsel at the conclusion of argument. I see no reason why costs should not be ordered in favour of the applicants on a partial indemnity basis. The matter was not particularly complex. The issue was not of particular importance to the resolution of the case on it merits. The fees incurred by both parties are similar and represent what might have been reasonably expected. However, I would reduce the amount claimed by $1,830, representing fees and HST incurred on the cross-examination of the Respondents’ affiant, which, given the contents of the affidavit, appears to have been completely unnecessary. Accordingly, costs are awarded to the Applicants in the amount of $11,929.10.
Mr. Justice R.D. Gordon
Released: March 14, 2012
COURT FILE NO.: CV-11-430530
DATE: 20120314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATHRYN MARY HAUGHTON and EDWARD RONALD HAUGHTON
Applicants
– and –
DEBORAH LYNNE WOOD, BARNES HOLDCO INC. (STEVEN BARNES), JOHN P. UREN, HELEN LOUISE UREN, BRENDA KATHERINE ROYCE, RONALD NIEDERMULLER, ADRIANA NIEDERMULLER, BENJAMIN JOEL TRISTER, AMALIA MALKA TRISTER, NANCY ELIZABETH PRITTIE, IDA VICTORIA ROHN, JANICE ELEANOR MERLI, FRANK JOSEPH MERLI, JANANNE N. MCWILLIAMS, SHAWNNA MARIE LOUISE MCGILL, DARYL CURTIS VARLEY, ANTHONY FREDRICK BRUYNS, 879959 ONTARIO INC. (ROBERT BRUYNS, BONNIE BRUYNS, MR. GRANDY), DEBORAH LOUISE WADE, JOHN ANDREW HAUGHTON, JACK EDMUND SHENTON, PHYLLIS MARIE SHENTON, RAY HAYHURST, TWILA STEIGER, MARK STEIGER, JOEL STEIGER AND KYLE STEIGER
Respondents
DECISION ON MOTION
R.D. Gordon J.
Released: March 14, 2012