SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-43560
DATE: July 13, 2012
MOTION HEARD : July 05, 2012

RE: Peter Splinter and Maurice Villeneuve et al

BEFORE: MASTER ROGER

COUNSEL:
Christine Powell for Paull N. Leamen, for the Plaintiff

email: leamenp@solowaywright.com

Ph: (613) 236-0111 Fax: (613) 238-8507

Ashley Deathe for Allan R. O’Brien, for the Defendants

email: allan.obrien@nelligan.ca

Ph: (613) 231-8224 Fax: (613) 788-3654

E N D O R S E M E N T

[ 1 ] This motion is brought by the Plaintiff to change the place of trial from Ottawa to Kingston.

[ 2 ] The claim arises out of an unpaid promissory note, drafted and signed in Kingston and allegations of negligent legal services provided in Kingston with a related property located in Kingston.

[ 3 ] The Defendants, Maurice and Tracey Ann Villeneuve have been noted in default and a default judgment was obtained against both. The action is ongoing against the other two Defendants, a lawyer and a law firm, alleging negligent legal services.

[ 4 ] This action was issued in Ottawa on December 19, 2008, and the steps taken to date in this action, including examinations for discovery and mediation, have occurred in Ottawa. The action was set down for trial by the Plaintiff in August 2011, and the Plaintiff requested a pre-trial conference in Ottawa. The Plaintiff now wishes for the trial to occur in Kingston but provides no reason for this other than inadvertence on the part of the previous lawyer (part of the same Ottawa firm). The Plaintiff states that the action was commenced and conducted to date in Ottawa without considering the balance of convenience to the witnesses and, further, that the Plaintiff has recently requested that the trial be held in Kingston. The Defendants oppose the transfer arguing lack of evidence or, alternatively, that the evidence weighs in support of Ottawa as a transfer would only increase costs for both parties.

[ 5 ] The Rules of Civil Procedure provide that a proceeding may be commenced at any court office in any county named in the originating process unless a statute or rule require the proceeding to be commenced in a particular county (rules 13.1.01(1) and (2)). Although a plaintiff may, for most actions, choose the place of trial, any party may, at any stage of the action bring a motion seeking to transfer the proceeding to another county if that party can satisfy the court that a fair hearing cannot be held or that a transfer is desirable in the interest of justice (rule 13.1.02). The latter is the issue to be decided on this motion, which is a discretionary remedy as the rule provides that the court may, in such circumstances, transfer the proceeding to another county.

[ 6 ] It is agreed that rule 13.1.02 (b) is the applicable rule to the circumstances of this case. Rule 13.1.02 (b) is a fairly recent rule (it came into force on July 1, 2004) that differs from the previous rule such that care should be exercised when reading earlier decisions. It 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,

...; 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. O. Reg. 14/04, s. 10.

[ 7 ] Any party may bring such a motion. The party bringing the motion has the onus of convincing the court that the transfer is “desirable in the interest of justice, having regard to” the enumerated factors. The rule no longer makes reference to “substantially favours”. The outcome is very much fact specific and it requires a balancing of all relevant factors to determine if a transfer is “desirable in the interests of justice”:see Gould v. BMO Nesbitt Burns Inc. (2006), 81 O.R. (3d) 695 (S.C.), at para 18.

[ 8 ] It is important that parties bringing such a motion file evidence addressing all factors. Otherwise, the Court may, depending on the circumstances of each specific case, either dismiss the motion for lack of evidence (see Foster v. Johnston et al. (2009), 98 O.R. (3d) 637 (S.C.), at para. 14) or incorrectly assess a relevant factor.

[ 9 ] Factors that can be particularly important to an analysis of whether it is desirable in the interest of justice to transfer the matter, but which are rarely addressed by the parties (including the parties on this motion), include the convenience to the court and the availability of court facilities. In this case, I am fully aware of the Ottawa trial schedule (as one of the two masters who book most civil trials in Ottawa) and, as Kingston is part of the East Region, I take judicial notice of the Kingston trial schedule as is outlined below and as was explained to the parties at the hearing of this motion.

[ 10 ] Addressing the factors that are to be considered when assessing whether a transfer is desirable in the interest of justice, I make the following observations and comments.

[ 11 ] All of the events occurred in the Kingston area. It is generally recognized that a case should usually be heard where events occurred. This is an important part of the principle of openness and public access because the public most affected should have the right to observe the hearing. See for example Eveready Industrial Services Corp. v. Jacques Daoust Coating Management Inc. (2005), 76 O.R. (3d) 390 (S.C.), at paras. 12 and 14. This principle is, however, usually reflected more precisely in the fourth factor on which no evidence was presented on this motion.

[ 12 ] All damages were sustained in the Kingston area.

[ 13 ] The subject matter of the proceeding is or was located in the Kingston area.

[ 14 ] The Defendants argued at this motion that the above factors are, on the same facts, neutral. The parties agree that the events, damages and subject-matter occurred or are located in the Kingston area. The Defendants’ argument on this point is that since the Plaintiff selected Ottawa, despite these factors favouring Kingston, then these factors are neutral for the Plaintiff when the Plaintiff brings such a motion. Although there might be some merit to such an argument, I prefer instead to consider this when assessing the seventh and ninth factors as otherwise this could place too heavy a burden on Plaintiffs bringing such a motion. The Court can weigh all of these factors and can place different weight on different factors depending on the circumstances of each case. In my opinion, it is preferable to consider the impact of this argument more directly rather than finding factors neutral or not depending on which party is the moving party. The rule is clearly stated and when answering factors (i), (ii) and (iii), the answer is the area of Kingston.

[ 15 ] No evidence was presented on the fourth factor, which I therefore find to be neutral. That no evidence of local community interest was presented detracts to a slight extent from the importance or weight that might otherwise have been accorded to the first three factors as there is no evidence before this court that the public most affected has any interest in the subject-matter of this proceeding. One can see how more weight might be assigned on these first three factors in circumstances where there is local community interest and how these three factors might in some cases be assessed as slightly less important when there is no evidence of community interest.

[ 16 ] On the fifth factor, no party or witness resides in Ottawa. The Plaintiff would now prefer Kingston but the remaining Defendants would prefer Ottawa. In the trial scheduling portion of his pre-trial brief, the Plaintiff indicates that this action can be tried in two to three days and indicates that the only witness he intends to call at trial is himself. The Plaintiff is a business person with business interests in Kingston but also has some limited business interests in the region of Ottawa (his company builds homes in Kingston and also has built some in the Ottawa area). Although he maintains a house in Kingston, he stated at discovery that his residential address is in Santa Fe, California. He attended his examination for discovery in Ottawa and the mediation session occurred in Ottawa on September 19, 2011. No evidence was presented on this point by either party but I suspect that flying from Santa Fe to Ottawa is easier than to Kingston. No evidence was presented that the Plaintiff would suffer any financial hardship or that he would be inconvenienced if he had to travel to Ottawa rather than to Kingston from Santa Fe (or from Kingston to Ottawa should he coincidentally happen to be in Kingston rather than in Santa Fe just prior to the start of trial) for the expected two to three day trial. Although the Plaintiff’s affiant (the assistant to the Plaintiff’s lawyer) indicates that she is advised by the lawyer that one or more witnesses from Braebury Homes may have to testify, she does not name them and this appears to contradict the Plaintiff’s trial scheduling portion of his pre-trial brief. Mr Villeneuve, if he is called upon to testify currently resides in Stratford, Ontario. The lawyer involved in the transaction currently resides in London, Ontario and his colleagues, identified as potential witnesses by the Plaintiff in the affidavit filed on this motion, reside respectively in Brockville and Belleville. I have not been provided with evidence that any of the potential witnesses would find it more inconvenient to travel to Ottawa rather than to Kingston. No evidence was presented on the convenience to the court. However on the latter, as indicated to counsel at the outset of the motion, I understand from the Ottawa Regional Manager of Judicial Services that a two to three day civil trial (even a five day trial) can usually, at this time, be accommodated fairly similarly by this Court in either Ottawa or Kingston. Considering all of the above and all of the evidence on this point I find, in the circumstances of this case, that this factor is neutral.

[ 17 ] The sixth factor is not applicable and neutral.

[ 18 ] The seventh factor is, for the moving party, at best neutral but I find that it favours Ottawa. As the fifth factor is neutral and as the Plaintiff presented no other evidence addressing specifically this factor, I accept the evidence of the Defendants on this point that transferring the trial to Kingston will increase litigation costs for both parties due to travel time and out-of-town expenses incurred by lawyers. Most of the witnesses will have to travel whether the trial is in Kingston or Ottawa. Some will have to travel slightly more to Ottawa but no evidence was presented of this resulting in any difficulty for any of the witnesses. This is expected to be a short trial. It is, therefore, likely that if this trial is transferred to Kingston, with the exception of the Plaintiff, the bulk of out-of-town expenses will be incurred by the lawyers having to stay overnight. It is only fair when considering the least expensive determination of the proceeding, particularly in the circumstances of this case when the Plaintiff’s explanation for his last minute change of heart is inadvertence on the part of the Plaintiff or his lawyer, to factor in any added expenses resulting from the Defendants’ lawyer having to travel should this matter be transferred. Indeed, the selection of an Ottawa lawyer by the Defendants might have been affected, at the outset, by the venue selected by the Plaintiff when this action was issued and one can understand any reluctance to change lawyer essentially on the eve of trial. Consequently, whereas I would have discounted any claim of costs saving by the Plaintiff had this motion been brought by the Defendants (as the Plaintiff selected a venue with no connection with the events in dispute), I will obviously not do so in these circumstances and instead will put weight on these added costs to be incurred by the Defendants if this matter is transferred because the Plaintiff initially (and up to the eve of trial) choose a venue with no connection to the events in dispute.

[ 19 ] The eighth factor has already been addressed when considering the fifth factor. This factor is considered neutral as short civil trials can, at this time, usually be accommodated fairly similarly by this Court in either Ottawa or Kingston. In fact, Ottawa is currently able to book a short civil trial within a few months of the pre-trial and, looking at the current trial schedule, could accommodate this trial proceeding as early as the week of September 17, 2012.

[ 20 ] The ninth factor directs the court to consider “any other relevant matter”. At the hearing of this motion both counsel indicated that according to their respective research they had identified only three decisions where a plaintiff was the party bringing such a motion.

[ 21 ] In Laurin v. Favot (1996), 28 O.R. (3d) 114 (Gen. Div.), the Plaintiff was seeking to change the place of trial from Toronto to North Bay. The action arose from a car accident near Toronto. Following the accident, the Plaintiff moved near North Bay where his parents also resided. The action was started in Toronto, naming Toronto as the place for trial after the Plaintiff had moved to North Bay. The Defendants appointed Toronto lawyers. The evidence was of some 27 potential witnesses most from North Bay with evidence from the Plaintiff that he “lacks the resources to pay the expense involved in bringing them to Toronto to testify” and a finding that on the other hand “it would not cause financial hardship for the defendants to pay the cost involved in having their witnesses come to North Bay to testify (see para. 5). In this case the court dealt with the test under the former rule that required “the balance of convenience substantially favours the holding of the trial at another place”. It moved the trial to North Bay primarily because this would be convenient to most witnesses (and otherwise cause financial hardship for the Plaintiff) and because the proper allocation of court resources favoured North Bay. The Court did not appear to place a heavier burden on the Plaintiff bringing such a motion. However, in that case the Plaintiff provided a clear explanation of why he wanted the trial moved to North Bay: he now resided near North Bay, many of his witnesses resided in North Bay and it would cause him financial hardship to have them travel to Toronto.

[ 22 ] In Pinnacle Millwork Inc. v. Bailey Metal Products Ltd., [2008] O.J. No. 390 (S.C.), the plaintiff wanted to move the place of trial from Toronto to Kitchener. The action involved a property located in Kitchener and factors (i), (ii) and (iii) favoured Kitchener such that the master noted that “If Kitchener were the original location of the action, I would be hard pressed to argue that it should be transferred to Toronto”. The court, in that decision, required a plaintiff, bringing such a motion after making the original choice of venue to demonstrate “a significant change in circumstances arising subsequent to the commencement of the action” and dismissed the plaintiff’s motion with no order as to costs.

[ 23 ] In Northern Sawmills Inc. v. Northwest Installations Inc. (2009), 82 C.P.C. (6th) 317 (S.C.), the plaintiff wanted to change the place of trial from Toronto to Thunder Bay. In that case, the vast majority of the key witnesses resided in the Thunder Bay area and one of the two defendants supported the plaintiff’s motion that was the appropriate place for trial. This defendant in fact informed the court that it would have brought this motion if the Plaintiff had not or should the Plaintiff be unsuccessful. The master in that case noted, at paras. 8 and 10, that “plaintiffs initial choices ought to be subject to second thoughts” and that he did not “read the rule [a]s requiring the proof of a significant change in circumstances”. In the circumstances of this case, Master Short gave substantial weight to the first four factors and ordered the trial transferred to Thunder Bay with no order as to costs considering that the plaintiff was seeking the indulgence of the court.

[ 24 ] Considering the above decisions and respectfully agreeing in part with both my colleagues, I read the ninth factor, directing the court to consider “any other relevant matter”, to include the presence or absence of an explanation as to why any party bringing the motion seeks to transfer the trial to a different location.

[ 25 ] There can be many other relevant matters that need to be considered on such a motion and the list of factors at Rule 13.1.02 (2) (b) is purposefully not exhaustive. These will vary from case to case and different weight will be assigned to them depending on the circumstances of each case.

[ 26 ] An explanation or the lack thereof is one of many factors that the court may consider as part of the ninth item listed in the rule. The rule makes no reference to a different test for plaintiffs and makes no reference to a requirement for plaintiffs of a significant change in circumstances. In my opinion, this can rather be addressed by considering, when the circumstances of the case make this a relevant factor, the moving party’s explanation or lack thereof for seeking the change of venue. The explanation does not have to be significant or does not have to be a change in circumstances to be considered however one can easily see how more or less weight might be placed by the court on the explanation depending on the explanation and circumstances at play in a particular case.

[ 27 ] The decision in Laurin provides a good example of how an explanation can weigh in the analysis, sometimes by way of background and sometimes more directly.

[ 28 ] In this case, I find that the explanation provided by the Plaintiff does not tip any balance in favour of Kingston. I find the explanations provided by the Plaintiff to be at best, for the Plaintiff, a neutral factor and, considering the circumstances of this case and the late stage at which this motion is brought, I put some adverse weight on the Plaintiff considering the absence of a more compelling explanation. I also put more weight on the fact that court resources are available in Ottawa just as in Kingston, and that it would likely be more expensive for the Defendants (and likely for both parties) to conduct this trial in Kingston rather than Ottawa.

[ 29 ] Overall, considering all of the factors outlined above and the evidence filed on this motion, I find, based on the weight that I have placed on the factors, that the factors do not favour Kingston as the trial venue sufficiently to convince me, in these circumstances, that a transfer is desirable in the interest of justice.

[ 30 ] The Plaintiff’s motion is therefore dismissed. In these circumstances, the costs of the motion should follow the event and should be payable on a partial indemnity basis. Having reviewed the Costs Outline of both parties and the factors relevant to costs, I order the Plaintiff to pay to the Defendants herein, within the next 30 days, the all inclusive amount of $1,950.00 for the costs of this motion (inclusive of fees, disbursements and HST).

[ 31 ] In closing, I congratulate both counsel who appeared on this motion for the professional manner that this motion was argued.

Master Pierre E. Roger

Date: July 13, 2012