SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 06-CV-315145PD2
DATE: 2012-09-17

RE: DEVANSHI BHATT, a minor by her Litigation Guardian, Tushar Bhatt, TUSHAR BHATT, personally and NIMISHA BHATT

AND:

KWOK-CHING CHAN, LAN-FEN CHAN, GENERAL COMPUSOFT CO. LTD., VINAY RATHOD, SUCHETA RATHOD, JOHN DOE SUPERINTENDENT and JOHN DOE PROPERTY MANAGER

BEFORE: The Honourable Mr. Justice D.A.BROAD

COUNSEL:
M. LAMERS and CHRISTOPHER R. DAWSON, for the Plaintiffs

B.R. BACCHUS, for the Defendants KWOK-CHING CHAN, LAN-FEN CHAN

DATE HEARD: September 13, 2012

E N D O R S E M E N T

Background

[ 1 ] This is a motion brought by the Defendants Kwok-Ching Chan and Lan-Fen Chan (the “Chan Defendants”) to transfer the action from Toronto to Kitchener. The other remaining Defendants Vinay Rathod and Sucheta Rathod (the “Rathod Defendants”) consent to the motion.

[ 2 ] The action arises from a very tragic accident, which occurred on June 17, 2004, in which the infant Plaintiff Devanshi Bhatt, while playing in the master bedroom of an apartment, fell out of a third story window and sustained serious head injuries. The Chan Defendants are the owners of the apartment building and the Rathod Defendants were the tenants of the apartment unit at the time of the accident. The apartment building was located in Waterloo. At the time of the accident the plaintiffs resided in Waterloo Region, but they now reside in Sarnia.

[ 3 ] The Statement of Claim was issued at Toronto on July 14, 2006 by the Plaintiffs’ former counsel who practiced in that city. The Plaintiffs served a Trial Record on May 3, 2007, and, although the material indicates that the action may be tried at Toronto in the spring of 2014, neither a trial date nor a pre-trial date have been secured pending the outcome of this motion.

Governing Principles

[ 4 ] Change of venue motions are governed by Rule 13.1.01(1) and (2), promulgated in 2004, which provides as follows:

13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced. O. Reg. 14/04, s. 10.

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

[ 5 ] As pointed out by D.M. Brown, J. in Hallman v. Pure Spousal Trust (Trustee of) (2009) , 80 C.P.C. (6 th ) 139 (SCJ), this Court adopted two slightly different approaches to the interpretation of Rule 13.1 having to do with the question of whether, as a preliminary step, it must be shown that the plaintiff’s choice of venue has a rational connection to the cause of action or the parties, as was suggested by Corbett, J. in Siemens Canada Ltd. v Ottawa (City) , [2008] O.J. No 3740 (SCJ). Justice Brown declined to follow that approach, holding that to impose such a “threshold” condition places a gloss on the rule which is not supported by its language which permits a plaintiff to commence a proceeding in any county so long as a statute or rule does not mandate the place of commencement. If one of the parties seeks to change the place of trial by motion the court should engage in a “holistic” exercise of considering the enumerated factors in the rule in order to determine whether the moving party has demonstrated that “a transfer is desirable in the interest of justice” (see Hallman at para. 28 ).

[ 6 ] The approach proposed by D.M. Brown, J. in Hallman appears to have been largely followed by masters and judges subsequently, as exemplified by the cases of Wilcox v Flintstone Glass & Mirror Ltd. (2009) , 85 C.P.C. (6 th ) 394 (Master), Aherne v. Chang 2012 ONSC 2689 (Master) and Rahemtulla v. Bell 2012 ONSC 2181 (SCJ), another decision of D.M. Brown, J.

[ 7 ] Justice D.M. Brown provided, at paragraphs 19 to 21 of his decision in Rahemtulla , a very useful summary of the approach to be taken by the Court on a change of venue motion, concluding, after noting that there is no “bright line” test on how much more desirable the county proffered by the moving party must be over that initially selected by the plaintiff, as follows:

Suffice it to say that a party seeking to transfer a proceeding to a new county must demonstrate, on cogent and persuasive evidence, that such a transfer would be in the interest of justice in the sense that the adjudication of the dispute in another venue would better secure "the just, most expeditious and least expensive determination of [the] civil proceeding on its merit s”

Analysis

A. Connection of Events to Local Community

[ 8 ] The first four factors at subparagraphs 13.1.02(2)(b)(i) to (iv) focus on the connection of the facts and issues in the case to the locality of the court. There is no dispute that the accident occurred in Waterloo Region and therefore, as between Kitchener and Toronto, the Kitchener court would be the one with the closest connection to the events. Mr. Lamers for the Plaintiffs argues that a major focus of the trial will be on the infant plaintiff’s future damages, in terms of the ongoing effects of the injury throughout her life, including her future employment prospects and the nature and degree of care which she will require, and therefore Kitchener does not have any greater relevance or connection to the matter than Toronto does. It is sufficient to note that the accident occurred in Waterloo and therefore prima facie the action is connected to that community, however, in my view, that factor should not be given overriding weight, when balanced with the other factors to be considered.

[ 9 ] Under subparagraph (iv) the local community’s interest in the subject-matter of the proceeding may be a relevant factor. Ms. Bacchus for the Chan Defendants argues that the allegation in the Statement of Claim that the windows and screens in the building were in violation of local municipal by-laws and building codes points to a local public interest in the proceeding. Similar to the finding by D.M. Brown, J. in Hallman , at para. 42 , I do not accept that the factor of community interest should be given special weight in the circumstances. Neither the municipality nor any other local public authority is a party to the proceeding and there was no evidence put forward that the incident is the subject of any particular local public interest.

B. Convenience of the Parties and Witnesses

[ 10 ] With respect to the convenience of the parties and witnesses, referenced in subparagraph 3.1.02(2)(iv), it is apparent that there will likely be witnesses called to testify who reside in the Waterloo Region, however, there are a number of expert witnesses who may be called on behalf of the Plaintiffs who are located in the Toronto area. Kitchener and Toronto are not so distant from one another that travel from Waterloo Region will cause undue and unreasonable inconvenience to witnesses travelling from there or add considerably to the expense of the trial. Air travel will not be necessary and it is unlikely that overnight accommodation will be required for many of the witnesses, if any.

[ 11 ] Of more relevance in this case is the evidence of the Plaintiffs that they have been able to make arrangements with family friends to provide accommodation, dietary requirements, transportation and other supports for them and their children, including the infant Plaintiff who is disabled, in Toronto; assistance which will likely not be available to them in Waterloo Region. Although one might argue that this factor should not be determinative, it must be remembered that the onus is on the Chan Defendants to demonstrate that Kitchener is a more desirable venue than Toronto, not just as desirable (see Rahemtulla at para. 20 ).

[ 12 ] It is noted that counsel for the Chan Defendants practice in Toronto and counsel for the Plaintiffs maintain an office there. Conducting the trial in Toronto will therefore not add appreciably to the cost of the trial from the point of view of the location of counsel.

C. Crossclaims

[ 13 ] There are crossclaims between the Chan and Rathod Defendants, however, they would not appear to have any particular importance or relevance to the venue issue.

D. Court Facilities and Potential for Delay

[ 14 ] The factors at subparagraphs (vii) and (viii) relate to the availability of appropriate court facilities in the two localities which may impact on the ability to try the case on a timely and less costly basis. Ms. Bacchus suggests that I may take judicial notice of a greater likelihood of a backlog on the trial list in Toronto than in Kitchener. I am not sure that I can go that far, as the state of the trial lists in various jurisdictions may be subject to change from time to time. What has been disclosed on the record is that, once this motion is disposed of, the matter may be scheduled for trial on Toronto for the spring of 2014 in Toronto and a pre-trial date may be secured.

E. Other Relevant Considerations

[ 15 ] It has been observed in a number of cases that a plaintiff’s right to choose the place of trial should not lightly be abrogated (see for example Joseph v Lefaivre Investments [2005] O.J. No. 2324 (SCJ) at para. 10 ). In my view this is simply another way of confirming that the onus rests on the defendants/moving parties to satisfy the court that the interests of justice require a change in the place of trial from that selected by the plaintiff. This serves the purpose of discouraging the bringing of what can be expensive and time-consuming change of venue motions when they are not demonstrably necessary to serve the interests of justice.

[ 16 ] As stated by Corbett, J. in Siemens at para. 25, and echoed by D.M. Brown, J. in Hallman at para. 65 , Rule 13.1 does not call for a “minute assessment designed to determine which is the ‘better’ or ‘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.”

[ 17 ] It is noted that the Chan Defendants did not dispute the plaintiffs’ choice of venue in their Statement of Defence, and the motion was only brought some six years after the action was commenced, and long after the Trial Record was served. Although not determinative of the matter, this may speak to a perceived lack of urgency on the part of the Chan Defendants to change the venue in the interests of justice.

Disposition

[ 18 ] In consideration of all of the relevant factors, and notwithstanding Ms. Bacchus’ very capable argument, I find that the Chan Defendants have not satisfied the onus on them to show that a change of venue to Kitchener is desirable in the interests of justice. The motion is therefore dismissed.

[ 19 ] The parties may make brief written submissions with respect to costs; the Plaintiffs by October 15, 2012 and the Chan Defendants by October 31, 2012.

D. A. Broad J.

Date: September 17, 2012