ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-1398-00
DATE: 2012-09-07

B E T W E E N:

Donald Craig Renwick
Plaintiff

• and -

Durham Regional Police Services Board, William Paul Boland, Robert Aukema, Aaron Ficko, John Doe (No. 1) and John Doe (No. 2)
Defendants

J. Sanderson, for the Plaintiff
S. Hamilton, for the Defendants

HEARD: July 24, 2012

THE HONOURABLE MR. JUSTICE P.J FLYNN

REASONS ON A MOTION

[ 1 ] The Defendants bring a motion seeking an Order that the action be transferred from Kitchener to Oshawa, pursuant to Rule 13.1.02 of the Rules of Civil Procedure .

[ 2 ] The action was commenced in Kitchener and seeks a million dollars in general damages plus special, aggravated, and punitive damages as a result of an alleged assault said to have occurred on February 20, 2009 in Oshawa, Ontario.

[ 3 ] The claim was served in January 2010 and a Statement of Defence was delivered by all Defendants save for John Doe (No. 1) and John Doe (No. 2) who have not yet defended the action.

[ 4 ] The Plaintiff is a hockey dad who lives in Cambridge. While he was visiting Oshawa to watch his son’s weekend hockey tournament, the Plaintiff alleges he was viciously beaten by Durham Regional Police officers while waiting in line to enter a tavern. Besides the assault, he alleges false arrest and false imprisonment.

[ 5 ] Oshawa is within the Regional Municipality of Durham. Durham Regional Police Services Board regional headquarters is also located within the Region of Durham. The Defendants, Boland and Aukema, reside in that municipality while the Defendant, Aaron Ficko, resides in the Town of Cobourg, in the Regional Municipality of Northumberland.

[ 6 ] The Plaintiff returned to the Regional Municipality of Waterloo and was treated for his injuries, mainly in Cambridge, which is where he suffered the majority of his damages, including the loss of his job.

[ 7 ] On the material before me, the majority of the witnesses reside in or near Cambridge.

[ 8 ] Plaintiff’s counsel are situated in Richmond Hill, Ontario whilst Defendants’ counsel are located in downtown Toronto. In other words, both counsel are located in closer proximity to the Courthouse in Oshawa than to the Courthouse in Kitchener.

[ 9 ] The civil list in Kitchener is dealt with in four three week sittings per year. Counsel agree on the sittings at which they wish their trial to be heard at and it is. The last four or five years the list has been dealt with to completion.

[ 10 ] I am advised that the Oshawa Courthouse deals with non-jury civil cases in two sittings each year. In any event, this matter is pleasantly constituted as a jury matter. The parties have agreed to a timetable which showed that the parties would be ready for trial by June 2012. Trials could be scheduled and would be heard in both jurisdictions sometime in November of this year. This factor is “a wash”.

[ 11 ] The only question on this motion is whether it is desirable in the interests of justice that the action be transferred from Kitchener to Oshawa.

[ 12 ] The governing principles in considering whether a court ought to make an order of transfer to a county other than the one where it was commenced are set out in Rule 13.1.02(2)(b):

13.1.02(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

[ 13 ] Neither side has argued that 13.1.02(2)(a) is applicable in this case.

[ 14 ] The onus is on the Defendants to satisfy the court that it is desirable, in the interest of justice, to transfer this proceeding.

[ 15 ] I agree with Plaintiff’s counsel when he argues that having regard to the eight factors set out in the operative rule, I must determine whether Oshawa is a significantly better venue than Kitchener given the interests of justice.

[ 16 ] Moreover, the Plaintiff’s right to choose the place of the commencement of the action and the place of trial is not to be lightly set aside. The caselaw establishes that change of venue motions are fact specific and that none of the enumerated factors in Rule 13.1.02(2)(b) are more important than the others. All of those factors must be balanced to ensure that a proceeding is transferred from the county where it was commenced only if such a transfer is “desirable in the interest of justice”.

[ 17 ] The Plaintiff’s right to select the place of trial is a sacred one and this court is not required to consider whether or not the Plaintiff selected a reasonable place to commence the action in the first place. Dealing with the eight factors I mentioned, the following ought to be observed:

(i) The assault took place in Oshawa. This factor favours Oshawa.

(ii) The majority of the Plaintiff’s damages were suffered in Cambridge, including the Plaintiff’s medical treatment and the impact the assault had on his pattern of living, enjoyment of life and loss of his job. This factor favours Kitchener.

(iii) As to where the subject matter of the proceedings is located, the events took place in Oshawa and the damages were suffered in Cambridge. This factor must be neutral.

(iv) This factor deals with the local community’s interest in the subject matter of the proceedings. In Charette v. Sault Ste. Marie (City) Police Service , [2010] O.J. No. 1860 , Eberhard J. writes that with respect to this local community interest factor:

Based on common sense, and apart from the authorities, it seems logical that a case should be heard at a place where the cause of action arose or where all or at least some of the parties are located. The public most affected by a case has a right to observe the hearing.

The relevance of an open court is undermined if a hearing occurs in a place completely removed from the community giving rise to the dispute. (para. 17, (iv))

She goes on in the next paragraph:

Interest of a community in the integrity of local police is obvious. The Plaintiff argues that a wider provincial interest will be invoked. Through the discovery process in the action now before me, the Plaintiff believes he will obtain information to broaden his allegations to include senior OPP officials. In such case the Simcoe County court would best serve the openness concept since OPP headquarters, and presumably the decision making is in Orillia.

[ 18 ] But the problem with the Defendant’s argument that police cases ought to be tried in the local community, is that while the police action occurred in Oshawa, the damages, unlike in Charette , did not all occur or were not suffered within that community.

[ 19 ] I am advised that there was one article about this matter in the Oshawa paper but that the case has attracted some notoriety around the City of Cambridge. The community of Oshawa of course, has an interest in the behaviour and integrity of its police service. But the broader provincial community of “hockey dads” and those visiting various communities equally have an interest in the integrity of how police treat visitors. And the Plaintiff forcefully argues that this case is about how police treat visitors. For this proposition, the Plaintiff cites the case of Klotz v. Kitchener (City) 2008 CarswellOnt 2557, 46 M.P.L.R. (4th) 149 , a case involving a Brampton resident who fell on a City sidewalk in Kitchener. The Plaintiff brought the action in Brampton and the Defendants brought a motion to transfer the action from Brampton to Kitchener. The Defendants were not successful. Baltman J. found in dismissing the motion that factors favouring Kitchener were not so compelling that the interest of justice required moving the action from Brampton. The subject matter of the action and the events occurred in Kitchener but the convenience of the parties strongly favoured Brampton because the majority of key witnesses were located there. As to the community interest Baltman J. says this:

This case is a straightforward slip and fall, one of the many that Kitchener undoubtedly litigates each year. Fortunately the damages have not proven to be catastrophic, and while liability is in dispute, the proceeding is not unusual or complex such that the public is likely to have a particularly strong interest in it. I question whether many citizens would attend court to observe a case involving a routine slip and fall. If the Kitchener press believes the case is newsworthy it can send a reporter to Brampton to cover the case. (para. 9)

[ 20 ] Now, of course, these two cases are entirely different. This isn’t a straightforward case seen in the courts every day and it does involve a claim against the Police Service of Durham. I cannot speculate as to whether many citizens would attend court to observe this case but it seems to me that the local community concern must be broadened to include visitors to Durham Region who attend with their families for events like their children’s hockey tournaments. It is interesting to note that the one article written about the Defendants’ assault of the Plaintiff in the Oshawa local paper did set out that the story was “going around Cambridge like crazy”, so I would take from the arguments of the parties and the facts of this case that that factor is neutral or does not so strongly favour Oshawa that it requires the matter to be transferred.

(v) In this case, convenience of the parties, witnesses and the court must be seen mainly in a neutral way. The majority of the parties and witnesses (not by much) indicated to me thus far would come from Cambridge.

(vi) There is no concern about counterclaims, crossclaims or third party claims in this case.

(vii) There is no evidence that the location of one court or the other would prevent counsel from being able to act in the litigation and so this factor, any advantage or disadvantage of the particular place, is rendered neutral.

(viii) Availability of judges and court facilities. As I have indicated earlier this case could be reached in both courthouses by November, so this factor is also neutral.

[ 21 ] In Skidmore v. Carlton University 2009 CarswellOnt 2448, 79 C.P.C. (6th) 306 , Strathy J. in upholding a Master’s ruling dismissing a motion to transfer an action refers to the decision by Corbett J. in Siemens Canada Ltd. v. Ottawa (City) 2008 48152 (ON SC) , 93 O.R. (3d) 220. And Strathy J. in essence affirms Corbett J.’s analysis in his thorough review of what were then new provisions. Corbett J. had written:

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 … In my view, this phrase (“ is desirable in the interest of justice ”) requires that the moving party show, not that a comparison of the proposed venues establishes that the new venue is “better than” the original venue, or is the “best” venue, but rather that the cause of justice will be served by ordering the transfer. (paras. 9, 10)

[ 22 ] Strathy J. in considering the conclusions made by Corbett J., said “Justice Corbett’s use of the comparative term “substantially better” or “significantly better” must be considered in the context of the focus of the rule, namely the interests of justice. It is not very different from expressions used in other cases, such as “substantially in favour of” … or “substantially more convenient” …

[ 23 ] As Justice Corbett said in Siemens “this comparison should not be a minute assessment designed to determine which is the “better” or the “best” choice”.

[ 24 ] I am unable to conclude that the Defendants’ suggestion of Oshawa is “significantly better” than the Plaintiff’s so as to require me to transfer this matter because it is desirable in the interests of justice. Accordingly, the Defendants’ motion must be dismissed.

Costs

[ 25 ] As they were required to do, both counsel brought with them to the hearing of the motion their Costs Outlines. They were handed to the registrar and sealed and put into the file for my consideration now. The Plaintiff had complete success in this matter and is entitled to his costs. There is nothing in the conduct of the matter that would require or allow the Plaintiff to claim costs on a substantial or full indemnity basis. On a partial indemnity basis, the Plaintiff claims a total amount for fees and disbursements, including HST of $6,001.03. While there is a difference related to the estimated counsel fee for the appearance on the hearing of the motion contained in the Costs Outline of the Defendants, the Defendants also deal with the Plaintiff’s motion on the timetable in their Costs Outline and that has of course increased slightly the amount of fees and HST that Defendants’ counsel would claim. But by a close reading of that Costs Outline it becomes apparent to me that the costs claimed by the Plaintiff are fair and reasonable and within the reasonable expectations of the losing side in this case. Accordingly, the Plaintiff shall have costs in the amount of $6,000, all inclusive. Motion dismissed.

P.J. Flynn J.

Released: September 7, 2012

COURT FILE NO.: CV-09-1398-00
DATE: 2012-09-07

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

Donald Craig Renwick Plaintiff - and - Durham Regional Police Services Board, William Paul Boland, Robert Aukema, Aaron Ficko John Doe (No. 1) and John Doe (No. 2) Defendants

REASONS ON A MOTION P.J. Flynn J.

Released: September 7, 2012