ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-40851600A (Chatham)
DATE: 2012-11-14

BETWEEN:

BELL ALIANT REGIONAL COMMUNICATIONS, LIMITED PARTNERSHIP Plaintiff – and – M.R. DUNN CONTRACTORS LTD. and FACCA INCORPORATED Defendants AND BETWEEN : DILLON CONSULTING LIMITED and G-TEL ENGINEERING Third Parties

TASNEEM JIVANJI, Counsel for the Plaintiff

JOSEPH BALDANZA, Counsel for the Defendants
ROBERT HUTTON, Counsel for the Third Party, Dillon Consulting Limited
JOHN GOUDY, Counsel for the Third Party, G-Tel Engineering

HEARD : NOVEMBER 14, 2012

DESOTTI, J.

A. The Facts

[ 1 ] This is a change of venue motion returnable before me in Chatham brought by the third party G-Tel Engineering. The matter or motion that originally came before the Superior Court in Chatham also sought a summary judgment dismissing the third party claim by the defendants.

[ 2 ] On the return date of the motion on June 12 th , 2012, Justice Bondy determined that there would be a special appointment to consider the change of venue motion and if successful the summary judgment component of the motion could be heard in Chatham. However, Justice Bondy made it also quite clear in his endorsement that if the change of venue motion was unsuccessful that the motion for summary judgment would have to be heard in Toronto.

[ 3 ] There appears to be some merit in the position of the third party that the defendants considered having their third party action dismissed. However, the letter referencing this position makes it clear that their dismissal of their third party claim was to be without costs . This position was not to be recommended by counsel for the third party, G-Tel.

[ 4 ] On August 2, 2012, counsel for the plaintiff wrote a most reasonable letter to all of the parties. The applicable paragraphs are as follows:

Litigation has not proceeded very far and at this juncture I do not believe any court would grant costs to Mr. Wright for a higher amount. ...

Despite this, we are being forced to prepare materials for Mr. Wright’s change of venue motion, the only purpose of which is to have his summary judgment motion heard in Chatham. Summary judgment at this point is moot and the only remaining issue between these parties is costs. It does not make sense to force the plaintiff and defendant, both of whom are happy to litigate the matter in Toronto ...

While Mr. Wright is keen to argue that continuing proceedings in Chatham will be best for all the witnesses involved (which is denied) and will only inconvenience counsel, he has to acknowledge that the only reason for the motion is to convenience him so that he could avoid travelling to Toronto for his summary judgment motion.

B. Analysis

[ 5 ] In the course of hearing this motion, I indicated to counsel two things. Firstly, I indicated that I thought that the motion to change venue did not satisfy the threshold issue for such a change even though the defendants and other third party now supported the third party’s motion to change. Secondly, if the third party was left out of this litigation and even with the consent of the defendants and other third party to proceed with this change of venue motion(although not appearing on the motion), the rationale for the motion brought by this third party was, as submitted by counsel for the plaintiff, decidedly moot in the circumstances.

[ 6 ] Furthermore, I indicated that I would wait until the end of November to ascertain if the matter would be resolved prior to my determination. I am now advised that no such resolution is forthcoming.

[ 7 ] Under Rule 13.1.02 (2) of the Rules of Civil Procedure , a motion to change venue have eight factors that are to be considered with none particularly outweighing the other. There is no issue that the matter could not fairly be heard in Toronto.

[ 8 ] As Justice Corbett stated in the Siemens decision, (and this specific part of the judgment was confirmed in the Hallman decision) is the change of venue that is proposed “significantly better” than the forum chosen by the plaintiff?

[ 9 ] While the damage occurred in Chatham and at least some witnesses will be from Chatham, including one witness of the third party, G-Tel, a great number of witnesses will be called from Toronto to verify the plaintiff’s claim for damages. The actual damage has been repaired and thus damages seem to me to be a primary concern and not the location of the damage. I would also note that no witness list was provided to the court of the proposed witnesses of the third party Dillon or the defendants.

[ 10 ] The lawyers are from Toronto and London and the corporate businesses are stated to be in Toronto, London and Windsor. I would agree that London and Windsor are closer to Chatham but I do not agree that the issue of damages is of lesser significance than liability. Moreover, I can see little community interest in the reality of the claim before the court as contrasted with at least three decisions provided to me by counsel for the third party.

[ 11 ] The third party has provided me with an excellent Book of Authorities where a change of venue was warranted. I would be remiss if I did not indicate that while I agree with the decisions so presented, I would confirm the obvious that each case is driven by the specific facts so presented to the court. For example the decisions of Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. , Patry v. Sudbury Regional Hospital , and Chippewas of Sarnia Band v. Canada (Attorney General) , have a significant community interest in the outcome. Counsel for the third party acknowledges that there is little community interest in the matter before the Superior Court in Chatham or Toronto.

[ 12 ] Finally, under the ninth factor, “other relevant matter”, I would agree with counsel for the plaintiff that there does seem to be a rather lame explanation for this motion to change venue in light of the clear indication by counsel for the defendants that the third party will be left out of these proceedings (subject to an agreement as to costs)and that this motion to change was companioned originally with an erroneous motion for summary judgment.

[ 13 ] For all of the above reasons, the motion to change is dismissed with costs to the plaintiff fixed at $3,500.00 plus disbursements and H.S.T. I presume, since all of the defendants and the third party Dillon Consulting Limited desired this change of venue and consented to motion, that all will be equally responsible for the costs so occasioned by the plaintiff. If I am wrong in that assumption, then I can be approached through my trial coordinator.

“Justice J.A. Desotti”

The Honourable Mr. Justice John A. Desotti

Released: December 3, 2012

CASES CONSIDERED

Chorny v 892315 Ontario Inc. (c.o.b. HB Contracting) , [2004] O.J. 4393 (S.C.J.) ; Eveready Industries v. Jacques Daoust Coatings, [2005] O.J. 951 (S.C.J.) ; Eveready Industries v. Jacques Daoust Coatings Management Inc., 2005 19797 (ON SC) , [2005] O.J. 2285 (S.C.J.) ; Siemens Canada Limited et al v. Ottawa (City) (2008), 2008 48152 (ON SC) , 93 O.R. (3d) 220 (S.C.J.) ; Hallman Estate v. Cameron , 2009 51192 (ON SC) , [2009] O.J. 4001 (S.C.J.) ; Patry v. Sudbury Regional Hospital , [2009] O.J. 1060 (S.C.J.) ; Rahemtulla v. Bell , [2012] O.J. 1601 (S.C.J.) ; Currie v. Halton (Region) Police Services Board, 2003 7815 (ON CA) , [2003] O.J. No. 4516 (ONCA) ; Weisgerber v. Weisgerber , 2003 ABQB 763 () , [2003] A.J. No. 1120 ; Gould v. BMO Nesbitt Burns Inc. (2006), 2006 63726 (ON SC) , 81 O.R. (3d) 695 ; Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. (2005), 76 O.R. (3d) 390; McDonald v. Dawson (1904), 8 O.L.R. 72 (Ch.) ; Renwick v. Durham (Regional Municipality) Police Services Board, [2012] O.J. No. 4272 (S.C.J.) ; Hallman Estate v Cameron , [2009] O.J. No. 4001 (Sup. Ct.); Paul’s Hauling Ltd. v. Ontario (Minister of Transportation) 2011 ONSC 3970 () , 2011, 106 O.R. (3d) 590 ; Aherne v Chang , 2012 ONSC 2689 ; Wilcox v Flintstone Glass & Mirror Ltd., 2009 73279 (ON SC) , [2009] O.J. No. 5613 ; Klotz v Kitchener (City) (2008), 46 M.P.L.R. (4 th ) 149 ; Chippewas of Sarnia Band v. Canada(Attorney General), [1996] O.J. No. 627 ; Splinter v Villeneuve , [2012] O.J. No. 3271 (S.C.J.) ; Latkiewicz v Murray (1985), 1985 2112 (ON SC) , 53 O.R. (2d) 306 (High Ct. J.) (QL) ; Mkangwana v Lover (1996) Ltd. (c.o.b. Lovers at Work Office Furniture), [2001] O.J. No. 350 (S.C.J.)

COURT FILE NO.: CV-10-40851600A (Chatham)

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BELL ALIANT REGIONAL COMMUNICATIONS LIMITED PARTNERSHIP Plaintiff - and – M.R. DUNN CONTRACTORS LTD. and FACCA INCORPORATED Defendants - and - DILLON CONSULTING LIMITE and G-TEL ENGINEERING Third Parties REASONS FOR JUDGMENT DESOTTI, J.

Released: December 3, 2012