SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NOS.: CV-09-377962 and CV-09-387047 DATE HEARD: April 17, 2012 ENDORSEMENT RELEASED: May 14, 2012

RE: GLENN SAUVE v. DANIEL TAVARES and DAVID MACINNIS

AND RE: DANIEL TAVARES v. DAVIS MACINNIS

BEFORE: Master R. Dash

COUNSEL: Daniel Michaelson, for the plaintiff Sauve Juan Carranza, for the plaintiff Tavares Martin Forget, for the defendant MacInnis

REASONS FOR DECISION

[1] The plaintiffs, who are residents of Ajax, were travelling in a motor vehicle in a rural part of the Regional Municipality of Durham when they hit a cow that had wandered on to the highway. They were seriously injured and were treated in the Toronto area and in Durham. All counsel, all expert witnesses and most treating doctors and health care providers practise in Toronto. The plaintiffs commenced separate actions in Toronto. The owner of the cow brings this motion to transfer the action to Lindsay or alternatively to Oshawa.

THE LAW

[2] Rule 46.01 provides that the trial shall be held in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02 unless the court orders otherwise. Rule 13.1.02(2) provides:

(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.

[3] Subrules 13.1.02(1) and 13.1.02(2)(a) have no application to the motion before me. The motion is therefore to be decided under rule 13.1.02(2)(b), whether the transfer is desirable in the interest of justice having regard to the enumerated factors. The court must consider and weigh each of the enumerated factors in determining whether a transfer is desirable in the interest of justice.[^1] Although none of the enumerated factors are more important than the other and all relevant factors must be balanced to ensure that a proceeding be transferred only if desirable in the interests of justice[^2], yet any one or more of the criteria may become of greater importance in the balancing exercise to determine what the interests of justice require.[^3]

[4] The plaintiff has a prima facie right to select the venue in first instance. The onus is then on the moving party to establish that a transfer is in the interests of justice, having regard to the rule 13.1.02(2)(b) factors.[^4]

[5] Corbett J. has stated how the court should approach motions to change the venue of an action as follows:

[I]t is appropriate to interpret and apply R. 13.01(02)(b) in a manner that does not lead to frequent venue motions.

In the first instance, the court must be satisfied that the place of trial selected by the plaintiff is a reasonable place for trial. If it is not, then a change is in order, to the place suggested by the defendant, or to some other place if the defendant's suggestion is not a reasonable place for the trial. If the plaintiff's choice is reasonable, then some element of comparison is required to assess the relative merits of the place suggested by the plaintiff and the place suggested by the defendant. This comparison should not be a minute assessment designed to determine which is the "better" or the "best" choice. If there is something to be said for both of the suggestions, then the plaintiff's suggestion should prevail. However, if the defendant's suggestion is significantly better than the plaintiff's, then the change should be made.[^5]

[6] Strathy J. has added to how the court should approach such motions when the plaintiff’s choice and the defendant’s choice of venue are both reasonable:

Unless the plaintiff's choice is unreasonable, there will always be circumstances in favour of both venues. A rule that gives presumptive effect to the plaintiff's selection promotes certainty and efficiency and avoids costly motions.[^6]

[7] Therefore, to discourage venue motions and promote certainty, when the defendant’s choice of venue is not significantly better than the plaintiff’s, provided that the plaintiff’s choice of venue is reasonable, the courts should favour the plaintiff’s choice.

BACKGROUND AND POSITION OF PARTIES

[8] On August 12, 2008, the plaintiff Glenn Sauve was a passenger in the vehicle operated by the plaintiff/defendant Daniel Tavares on Highway 12 in the village of Sunderland, part of the Township of Brock in the Regional Municipality of Durham when it struck a cow owned by the defendant David MacInnis, who operated a farm in Sunderland from which the cow escaped. Sauve and Tavares live in Ajax. Sauve brought action against Tavares and MacInnis in one action and Tavares brought action against MacInnis in a separate action.

[9] Both actions were commenced in Toronto in 2009. The action has progressed thorough examinations for discovery in 2010 and a mediation on August 11, 2011, all conducted in Toronto. Counsel for MacInnis states that it was at that mediation that he first advised that he would be bringing a motion to change the venue of the actions, although counsel for the plaintiffs claim that they were not advised until October 2011, after the action was set down for trial and certification forms were circulated to set pre-trial and trial dates.

[10] The defendant MacInnis now moves to transfer both actions, which will be tried together, to Lindsay or alternatively Oshawa. The plaintiff Sauve and the plaintiff Tavares both oppose the motion and ask that the action remain in Toronto. The lawyer for Tavares as defendant did not appear on the motion and filed no materials. By way of correspondence the lawyer indicates that he would be content with the matter being transferred to Lindsay or remaining in Toronto, but does not support Oshawa.

ANALYSIS: CONSIDERATION OF THE FACTORS

[11] I therefore consider the factors set out rule 13.1.02(2)(b) to ascertain if both Toronto and Lindsay or Oshawa are reasonable choices, and if so, ascertain if Lindsay or Oshawa are a significantly better choice than Toronto.

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

[12] The accident that gave rise to these claims occurred on a highway in Brock Township in the Regional Municipality of Durham adjacent to the farm owned by the defendant MacInnis located at 990 Brock Concession Rd. 7 in or near Sunderland. The defendant and the plaintiff Sauve both provided google searches for driving distances from Sunderland to the three courthouses under discussion, but the maps and distances provided by the parties are different. I prefer the defendant’s maps and distances since they are taken from the MacInnis farm rather than from the village of Sunderland. They show that the distance from the accident site to the Lindsay courthouse is 27.7 kilometres, to the Oshawa courthouse 51.2 kilometres and to the Toronto courthouse 103 kilometres. (The distances shown by the plaintiffs from the village of Sunderland to the same courthouses are respectively 37.2, 48.3 and 93.2 kilometres.)

[13] While the Lindsay courthouse is closer to the MacInnis farm than Oshawa, Lindsay is not in the same county as the MacInnis farm. Lindsay is in what was once known as the County of Victoria and now known as the City of Kawartha Lakes. The farm and the accident site are in the Regional Municipality of Durham. Oshawa is the county seat for the Regional Municipality of Durham. I am of the view that there is no connection between the location of the accident and the City of Kawartha Lakes and that this factor favours the City of Oshawa in the Regional Municipality of Durham.

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

[14] After sustaining injuries at the accident site near Sunderland, Sauve received emergency treatment primarily in Port Perry Hospital (in the Regional Municipality of Durham) but within hours was air lifted to Sunnybrook Hospital in Toronto where he spent the next six days because of the seriousness of his injuries. He then returned to Ajax where he resides, although he returns to Toronto from time to time to see his specialists. I have been given very little information about Tavares, but it appears he too received emergency treatment locally and brief subsequent treatment in Toronto, but the bulk of the damages continue to be suffered in Ajax, where he resides. Ajax is in the Regional Municipality of Durham. Therefore for both plaintiffs the damages were initially sustained in Sunderland, continued briefly in Toronto, but have been incurred for the vast majority of the subsequent years in Ajax. This factor favours Oshawa.

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

[15] The subject matter of the proceeding is the accident and the operation of the MacInnis farm which resulted in the escape of the cow onto the roadway, all of which took place in the Regional Municipality of Durham. This factor favours Oshawa.

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

[16] This is a private dispute between a passenger, a motorist and a farmer. No municipality is a party. There is no evidence of any interest by the community in this lawsuit. Had there been evidence for example that cows on the road are a problem in the area or that the community had an interest in the issue, this could have supported Oshawa. If such interest existed it would not have been difficult to obtain evidence, for example by newspaper articles or municipal council minutes. No such evidence has been provided. As a result this is a neutral factor and does not support any of the venues.

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

[17] Convenience of the Parties: Every party resides in the Regional Municipality of Durham. MacInnis is 51 kms. from the Oshawa courthouse and the plaintiffs approximately 17 kilometres from the Oshawa courthouse. Although the plaintiffs Sauve and Tavares live in Ajax they do not feel inconvenienced by travelling to Toronto for the trial; indeed they seek trial in Toronto which is approximately 49 kms. from Ajax. Even if the plaintiffs’ convenience is neutral, travel to Toronto would clear inconvenience MacInnis and as such, this factor favours Oshawa.

[18] Convenience of the Witnesses: This is the factor that typically receives the lion’s share of evidentiary attention on motions to transfer an action and the motion before me is no exception. All parties have tendered evidence as to the expected witnesses, but the defendant MacInnis is vague as to where the witnesses reside or work and in some cases even as to the identity of the witnesses. I give little to no weight to the defendant’s list of witnesses as being from “Ajax/Aurora” where no source of the information is provided, the particular location is not specified, there is no supporting documentary evidence and in some cases the attribution of “Ajax/Aurora” is proven to be factually incorrect by specific evidence from the plaintiffs. Where the plaintiffs’ evidence is more specific I accept the evidence of the plaintiffs. I have considered the witnesses separately by category.

[19] Liability Witnesses: Liability is a significant issue, involving evidence as to both the occurrence of the accident and the events leading to the escape of the cow, including the state of repair of the MacInnis fence and his farming practices. MacInnis suggests that in addition to himself, he has identified and will be calling his wife, his employee and his neighbour as witnesses. They all reside near Sunderland in the Regional Municipality of Durham. Although the defendant lists the investigating officer and five officers responding to the accident as witnesses, he identifies by name only the investigating officer. It is unlikely more than one responding officer needs to be called. The involved police force is not set out in the evidence, although in argument it is said to be the O.P.P. There is no information as to the location of their detachment, but I presume it is in the Regional Municipality of Durham. There are also five unidentified firefighters listed. It is uncertain if they would be liability or damage witnesses (e.g. relating to extraction of the plaintiffs from the vehicle). Again I assume not more than one will be required and that their home base is in the Regional Municipality of Durham. The liability witnesses will be inconvenienced if this action is tried in Toronto and as such favour Oshawa.

[20] Damage - Medical (Treating) Witnesses: In terms of medical witnesses, the plaintiffs were provided with emergency treatment at a hospital in Port Perry, in the Regional Municipality of Durham, although the plaintiff Sauve was transported to and from Oshawa Hospital (according to the hospital and ambulance records provided, not Lindsay hospital) for a CT scan. They were transported by ground ambulance, involving five ambulance attendants that operated out of a base in the Regional Municipality of Durham. Most ambulance and hospital records however are likely to be admitted as business records on consent without calling witnesses to introduce them.

[21] Within hours after their arrival at Port Perry Hospital, the plaintiffs were air lifted to Sunnybrook Hospital in Toronto because of the serious nature of their injuries where they spent approximately six days and were assessed and treated by a number of specialists. They also return from time to time for assessment and treatment to Toronto and areas adjacent to Toronto, such as Thornhill or Aurora, north of Toronto, in the case of Sauve and Mississauga and Brampton, west of Toronto, in the case of Tavares. Oshawa is east of Toronto.

[22] In the case of the plaintiff Sauve, his treating neurosurgeon and pain management specialist, who will be Mr. Sauve’s primary treating doctor witnesses, practise in Toronto. The plaintiff Sauve’s treating physiotherapists and occupational therapists (the latter of which are important witnesses for future care needs) have their offices in Toronto (from where they would travel to court), but have travelled to Ajax for treatment. He has been treated by two psychologists, one in Toronto and one in Pickering (between Toronto and Ajax) and was seen by a third in Toronto on behalf of his accident benefits insurer. His treating naturopathic doctor, chiropractor, kinesiologist and ophthalmologist all practise in Toronto. Sauve’s family doctor (Dr. Lo) practises in Ajax. Although Dr. Lo has written that he has had minimal influence on his medical care, most of which was provided at Sunnybrook Hospital in Toronto, his evidence as the primary care physician, both as to pre-accident and post-accident health must also be considered important. However, with the exception of the family doctor, the convenience of Sauve’s treating specialists and other health care providers strongly favours Toronto.

[23] With respect to the plaintiff Tavares, his family doctor, physiotherapist and kinesiologist all practice in Ajax, but his treating pain specialist, psychologist, optometrist, rehabilitation therapist, occupational therapist and a second physiotherapist all practise either in Toronto, Brampton or Mississauga. Based on the evidence before me, although there is a division among the Toronto based providers and the Ajax based providers, the convenience of Tavares’s treating specialists and other health care professionals also favours Toronto

[24] Damages - Expert Witnesses: The plaintiff Sauve has retained three expert medical specialists – a neurosurgeon, a psychiatrist and a chronic pain specialist, all of whom practise in Toronto. The plaintiff Tavares has retained three expert medical specialists – a neuropsychologist, a psychovocational expert and an occupational therapist, all of whom practise in Toronto or Thornhill. Therefore for the non-treating medical experts, like most of the treating medical specialists and health care providers, Toronto is a more convenient venue for the trial. Both treating specialists as well as expert medical witnesses, if required to travel to Oshawa, and even more so to Lindsay, will be required to take additional time away from their busy practices and patients than if they had to travel to downtown Toronto. Their convenience favours Toronto.

[25] The plaintiff Sauve has also retained an accounting expert who practises in Markham, for whom the courthouse in Toronto or Oshawa would be equally convenient.

[26] While the location of expert witnesses chosen by the plaintiff should not dictate the venue of the action[^7], their convenience is still to be considered like any other witness. Although the convenience of the experts should not be given greater weight than the convenience of the treating doctors[^8], in this case the treating specialists and the experts retained by the plaintiffs are all from the Toronto area.

[27] I also note that the plaintiffs’ experts were chosen before the defendant objected to Toronto as the venue for this action. Further, the defendant has yet to retain experts to conduct defence medical examinations. There is no evidence that the defendant intends to retain experts in the Lindsay or Oshawa area and as a result the defendant is still in a position to retain experts that will be least inconvenienced by a trial in Toronto.

[28] Other lay witnesses: Family members of both plaintiffs are likely to testify. They primarily reside in Ajax, but are willing to travel to Toronto. Although the defendant identifies five of Sauve’s past employers as witnesses, the location for only two have been identified, and that is Brampton and Scarborough. The defendant also identifies six of Mr. Tavares’s past employers but none of their locations are set out. Seneca College is also listed and it is in Toronto. It is likely that most employment and education records would be introduced in evidence as business records without the defendant requiring vive voce evidence from the custodian of those records. If the State Farm claims representative is required to give evidence as to property damage documentation, his office is in Burlington, to the west of Toronto. Similarly the claims representative at Lombard Insurance, the accident benefits insurer, who will provide evidence as to income replacement, medical and rehabilitation benefits has his office in downtown Toronto.

[29] Convenience of the Court: Rule 13.1.02 permits the court to consider not only the balance of convenience but also “the availability of court resources, the relative backlog of civil cases and the effect on other litigants of allowing the case to remain at the venue named by the plaintiff.”[^9]

[30] With respect to the convenience of the court, where an action that has no connection to Toronto is commenced and allowed to remain in Toronto, “litigants whose cases are properly brought in Toronto will be prejudiced and delayed by the presence of non-Toronto related cases. Thus the ‘convenience of the court’ factor supports a change of venue away from Toronto.”[^10] If this action has “no connection to Toronto” the convenience of the court would be a significant factor. In this case, however, there is a connection between Toronto and the plaintiffs’ medical treatment and the place where their medical specialists and experts practise. As such this factor is of lesser importance than in a situation where there is no connection to Toronto.

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

[31] Although Tavares and MacInnis have crossclaimed against each other in the Sauve action, this is not a relevant factor in the analysis.

(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

[32] Most Expeditious Determination: It appears that as of January of 2012 when enquiries were made, a five week trial could have been fixed for the November 2012 sittings in Oshawa or Lindsay if ordered by special appointment with the Regional Senior Judge of Central East Region, whereas long trials in Toronto were being booked into November 2013. Given the delay in hearing this motion it now appears to be the 2013 spring sittings in Oshawa or early to mid 2014 in Toronto. In any event the trial could be heard a year earlier in Oshawa than Toronto and it would be more expeditious for the trial to be conducted in Oshawa.

[33] It has been said that delay in obtaining a trial date may be a persuasive factor in determining whether to change the venue of an action, but “it can only be in an exceptional case that its influence will be decisive.”[^11] The “court will order a change of venue based on the overwhelming preponderance of convenience unless the delay resulting from such change of circumstances would be so substantial that it outweighs the convenience of the change of venue.”[^12] The enactment of rule 13.1.02 subsequent to these decisions however requires the court to balance a number of factors, including balance of convenience and delay in determining whether the action should be transferred in the interests of justice.[^13] If the delay obtaining a trial date is significantly greater in one venue over another this could have substantial weight in the balancing exercise, but all factors must still be balanced.

[34] I note that the defendant did not indicate any intention to change the venue of the action when his defence was delivered in November 2009 or during discoveries in April and November 2010. It was not until after the action was set down for trial and the trial certification forms were circulated in October 2011 (according to the plaintiffs) or alternatively until the mediation in August 2011 (according to the defendant) that Mr. Forget first indicated his intention to move to transfer the venue of the action out of Toronto. That delay has never been explained. Unexplained delay in bringing a motion to transfer the venue for an action can “weigh heavily” against the party seeking the transfer.[^14]

[35] Furthermore, if the defendant had agreed to complete the Toronto certification forms in October 2011, it is likely that a five week trial in Toronto could have been booked for June (or possibly September) 2013, closer to the current availability in Oshawa or Lindsay.

[36] Least Expensive Determination: It will be far more expensive to try the case in Oshawa (even more so Lindsay) than Toronto. Lawyers for all four parties (Tavares has separate counsel as plaintiff and as defendant) practise in Toronto (three in downtown Toronto close to the court house and one in north Toronto). In will be expensive to have four lawyers, together with their supporting staff and files, travel every day for five weeks to Oshawa. This would be even more costly in Lindsay where counsel would likely have to remain overnight during each week of the trial. Furthermore, if the numerous treating specialists and other health care providers and medical experts must be transported to Oshawa to give their evidence, their travel time and expenses will substantially increase the costs of the proceedings to the parties, and even more so if the travel is to Lindsay. I appreciate that the defendant MacInnis and his witnesses relating to the escape of the cow will have to travel twice as far to Toronto (103 kms.) as to Oshawa (51 kms.) they need not make the trip more than once. Even though MacInnis is a party, he is insured and except for his attendance as a witness there is no compulsion on him to attend more than that unless he chooses to do so. I also note that MacInnis voluntarily attended Toronto for his examination for discovery.

[37] Several authorities have commented that where parties retain Toronto lawyers who commence an action in Toronto, the cost saving to the plaintiffs to keep the action in Toronto must be discounted if Toronto has no connection to the events in dispute. For example:

In weighing these factors I would discount the costs saving that might accrue to the plaintiff were the case to remain in Toronto. A party who chooses to retain counsel who practices in a judicial centre that has no connection with the events in dispute should not be permitted to point to the expense involved in having counsel attend at a trial at a venue closer to the location at which the events occurred as justification for resisting that transfer. Once again, to give weight to that expense would defeat the purpose of the new rule.[^15]

[38] On the other hand Brown J. stated recently, albeit on an application and not a trial, that the increase in costs of moving an action out of Toronto where counsel are from Toronto was a valid consideration which was to be weighed against the added inconvenience to the parties travelling to Toronto:

I think common sense makes it safe to anticipate that the overall legal costs of this application will be higher if five sets of counsel have to travel up to Kitchener-Waterloo, rather than having two sets of counsel come down to Toronto. I do not accept the position advanced by those parties supporting the transfer that it would be cost-neutral; that proposition I find to be counter-intuitive and unrealistic. I conclude that transferring the proceeding to Kitchener-Waterloo would not have the advantage of securing its least expensive determination; on the contrary, I expect it would run the disadvantage of significantly increasing costs.

So, at the end of the day, I am left with two competing factors - the added inconvenience to a majority of the parties in traveling to Toronto to attend hearings of the motions and the application, weighed against the probable increase in overall litigation costs should the proceeding be transferred to Kitchener-Waterloo.[^16]

[39] Master Brott also very recently stated in refusing a motion to change the venue of a medical malpractice action where a lengthy trial was anticipated:

Three of the four counsel practice in Toronto. Counsel for the moving parties practices in London but has an office in Toronto. The cost of the litigation would increase if the three counsel and potentially nine experts were forced to travel outside of Toronto for this long trial.[^17]

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

[40] Judges and court facilities are available in Toronto and Oshawa and can be made available in Lindsay.

(ix) Any other relevant matter

[41] Counsel for the defendant suggests that “farming cases belong in farming country, not in a courtroom in downtown Toronto.” He submits that a local jury in Lindsay or Oshawa would have a better understanding of the evidence pertaining to farming and livestock. This is no more than a bald statement with no evidence to support the proposition, no breakdown of the demographics of the county and no analysis as to the makeup of a jury pool that would sit in Oshawa or Lindsay. Although I would presume that the jury pool would be drawn from across the county, Oshawa is an urban centre with a manufacturing base and I am not satisfied that a resident of Oshawa would have any better understanding of the maintenance of livestock enclosures than a Toronto juror. While Lindsay is less of an urban centre there is still no evidence to support the plaintiff’s contention as to its jurors understanding of farming and livestock and no analysis of the demographics of the jury pool that would be summonsed to Lindsay. In any event the function of a juror is to decide cases based on the evidence presented to it at trial, including evidence as to how livestock should be secured and how MacInnis secured his own cows, and not based on any pre-conceived knowledge of farming practices. There is no merit to the defendant’s submission.

CONCLUSION

[42] In my view Lindsay has absolutely no connection to this action or the parties other than being a little over 20 kms. closer than Oshawa to MacInnes and his farming witnesses, but Oshawa is the county seat for the Regional Municipality of Durham where the accident occurred and MacInnes resides. Lindsay will not be considered further in this analysis. The only appropriate alternate venue to Toronto is Oshawa.

[43] There is something to be said for both Toronto and Oshawa, both of which are rational and reasonable venues for these actions.

[44] The events that gave rise to these actions and the subject matter of the actions are located in the Regional Municipality of Durham, factors that favour Oshawa. The defendant MacInnis, his wife, neighbour and employee (presumably witnesses on MacInnis’s farming practices), as well as first responders (not all of whom will be witnesses) all reside in the Regional Municipality of Durham and their convenience also favours Oshawa. The family doctors of both plaintiffs and two of Tavares’s therapists practice in Ajax, and although it is part of the Regional Municipality of Durham, it is geographically situate between Toronto and Oshawa. Although Sauve and Tavares as well as their family members who may be lay witnesses all live in Ajax, they do not feel inconvenienced by travel to Toronto, the venue they prefer for this action.

[45] On the other hand, all of the treating specialists, the overwhelming majority of other health care providers and all of the medical experts have their practices in or near Toronto. Taking time away from busy medical practices and the effect on their other patients is a significant factor in favour of keeping medical specialists (treating and expert) near to their practice locations, in addition to the costs to the parties in paying for their travel time and travel expenses. All four lawyers practise in Toronto. There will be a substantial increase in costs for all four lawyers and their staff to travel outside Toronto each day for a five week trial. It is certainly not a case that has no connection to Toronto and as such the expense of counsel and their expert witnesses, all based in Toronto, is a proper and necessary consideration. Toronto is thus the more convenient jurisdiction for the vast majority of the witnesses, parties and counsel.

[46] The fact that it will take a year longer to get a trial date in Toronto than in Oshawa should not predominate when the balance of convenience favours Toronto, particularly when over six months of the delay in getting a trial date in Toronto can be attributed to the defendant refusing to complete the certification form until this motion was determined.

[47] This is a case where the added expense of conducting the trial outside of Toronto and the convenience of almost all of the treating doctors and expert witnesses must take precedence over the inconvenience to the defendant MacInnis and several of his witnesses and the geographical connection of the accident to Durham region. While the factors support both Oshawa and Toronto for different reasons, in my view Toronto is the better choice. Even if I had concluded that Oshawa was a better choice of venue, I could certainly not say that Oshawa (or Lindsay) is “significantly better” than the plaintiff's choice of Toronto. Since neither Oshawa nor Lindsay is a significantly better choice than Toronto, the plaintiffs’ choice should prevail. The defendant has failed to satisfy me that a transfer of this action from Toronto to Oshawa or Lindsay is desirable in the interest of justice.

[48] The motion to transfer the action from Toronto to Oshawa or Lindsay is denied. I trust that the defendant will now immediately co-operate with the plaintiffs in completing the certification forms so as to avoid further delay in setting a trial date and avoid the actions being struck from the trial list.

COSTS

[49] Both plaintiffs were successful in resisting the motion by the defendant MacInnis to transfer the action out of Toronto and are entitled to their costs. Further, the plaintiff Sauve brought a motion to amend his statement of claim to include a claim in nuisance, which was resisted by the defendant MacInnis both on the ground that a new cause of action was raised by the amendments after passage of the limitation period and on the ground that the claim in nuisance as pleaded was untenable as failing to plead the constituent elements of nuisance. Sauve was successful on both grounds, the amendments were allowed and Sauve is entitled to his costs of that motion, which I agreed to fix together with the costs of the venue motion.

[50] Both motions were of moderate complexity and were considered important by all involved parties. All parties provided motion records, factums and authorities on the venue motion. Only the plaintiff Sauve prepared a motion record on the amendment motion but both Sauve and the defendant provided factums and authorities. (Tavares was not involved in the amendment motion.) The plaintiffs’ preparation for the venue motion was made more difficult by the defendant’s failure to file his factum in accordance with deadlines set out by court order. Even if Mr. Forget was tied up in an unrelated trial, his failure as the moving party to file a timely factum meant that the responding parties were forced to prepare the initial factum rather than responding to the moving party’s submissions.

[51] All parties provided costs outlines. The plaintiff Sauve seeks costs on a partial indemnity scale of $7390 inclusive of both motions. The fees are approximately $4525 for the venue motion, $1350 for the amendment motion and $200 counsel fee (but without calculation of or claim for HST) plus disbursements for both motions of $1315 inclusive of HST. The plaintiff Tavares seeks costs of $3884 on the venue motion on a partial indemnity scale inclusive of HST and disbursements. Had the defendant been successful he would have sought costs of $9,927 on a partial indemnity scale inclusive of both motions, consisting of $8204 fees plus disbursements and HST. Mr. Forget indicated that in his view those costs would be allocated approximately $7,000 for the venue motion and $2,900 for the amendment motion. In my view the costs sought by both plaintiffs are fair, reasonable and given the defendant’s own costs outline, within the reasonable expectation of the defendant.

ORDER

[52] I hereby order as follows:

(1) The motion by the defendant MacInnis to transfer actions CV-09-377962 and CV-09-387047 from Toronto to Lindsay or Oshawa is dismissed.

(2) In action CV-09-377962 the defendant MacInnis shall pay to the plaintiff Sauve his costs of this motion and of the plaintiff’s motion to amend the statement of claim within 30 days fixed in the sum of $7390.00

(3) In action CV-09-387047 the defendant MacInnis shall pay to the plaintiff Tavares his costs of this motion within 30 days fixed in the sum of $3884.00

Master R. Dash

DATE: May 14, 2012

[^1]: Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc., 2005 19797 (ON SC), 76 O.R. (3d) 390, [2005] O.J. No. 2285 (S.C.J.) at para. 19. [^2]: Hallman Estate v. Cameron, 2009 51192 (ON SC), [2009] O.J. No. 4001 (SCJ) at para. 29 [^3]: Skidmore v. Carleton University, [2009] O.J. No. 1854 (SCJ) at para. 21 [^4]: Skidmore v. Carleton University, supra, at para. 13; Nutech Brands Inc. v. Air Canada, 2007 56523 (ON SC), [2007] O.J. No. 5031 (SCJ) at para. 22 [^5]: Siemans Canada Ltd. v. Ottawa (City), 2008 48152 (ON SC), [2008] O.J. No. 3740, 93 O.R. (3d) 220 (SCJ) at paras. 24-25 [^6]: Skidmore v. Carleton University, supra, at para. 13 [^7]: Rowling v. Crotta, [1996] O.J. No. 1700 (OCGD) at para. 10; Chorney v. 892315 Ontario Inc., [2004] O.J. No. 4393 (SCJ) at para. 13 [^8]: Rushnell v. Belleville (City), [2007] O.J. No. 4246 (SCJ – master) at para. 21 [^9]: Eveready, supra, at para. 17 [^10]: Eveready, supra at para. 27. [^11]: Winter-Seal of Canada Ltd. V. Winter-Seal Windows (London) Ltd., [1956] O.J. No. 378 (H.C.J.) at para. 5 [^12]: Canadian Imperial Bank of Commerce v. Fraleigh, [1993] O.J. No. 890 (O.C.G.D.) at para. 12. [^13]: Rushnell v. Belleville (City), supra, at para. 27 [^14]: Hagar v. Toronto Transit Commission, [2011] O.J. No. 714 (SCJ) at para. 20 [^15]: Eveready, supra at para. 31. [^16]: Hallman Estate v. Cameron, 2009 51192 (ON SC), [2009] O.J. No. 4001 (SCJ) at paras. 64-65 [^17]: Aherne v. Chang, 2012 ONSC 2689 at para. 24