ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-23454
DATE: 2012-02-08
BETWEEN:
SARAH CITROEN and ALEXANDRA CITROEN and RICHARD CITROEN and ALEXANDRA CITROEN as Trustee of the Estate of LENA MALLIS
Plaintiffs
-and-
HER MAJESTY THE QUEEN IN RIGHT ON THE PROVINCE OF ONTARIO, represented by THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO and THE DOMINION OF CANADA GENERAL INSURANCE COMPANY
Defendants
Appearances:
L. Hillyer, Counsel for the Plaintiffs
A. Leckey, Counsel for the Defendant, Her Majesty the Queen
Heard: January 17, 2012
Presiding Judge: Turnbull, J.
ENDORSEMENT
1 . The plaintiffs seek an Order that the trial of this action take place in Hamilton, Ontario, which is where the the plaintiffs instituted these proceedings. It is the position of the defendant that pursuant to subsection 33(9) of the Public Transportation and Highway Improvement Act (the Act) R.S.O. 1990, c. P.50, the trial should take place in Peterborough County.
2 . The subject matter of this action is a single motor vehicle accident which occurred on November 24, 2004, on Highway 115 in Peterborough County. The plaintiff, Sarah Citroen, was the driver and sole occupant of the vehicle. The plaintiffs commenced this action in Hamilton on March 17, 2006.
3 . The Plaintiffs bring this action against the MTO under Section 33 of the Act alleging that the accident was caused or contributed to by alleged disrepair of the highway.
4 . Three Ontario Provincial Police Officers were involved in the investigation of the accident. At least two of those officers currently reside and/or work in the Peterborough/Bancroft area.
5 . At the time of the accident, the plaintiff Sarah Citroen (Sarah) was a student at Trent University in Peterborough, Ontario.
6 . Before the accident occurred, Sarah was receiving treatment and counselling for depression and other issues through Trent University Health Services. She attended treatment from November 2003 to November 2004. Dr. Kevin Nugent, who practices in Peterborough, prescribed Wellbutrin, an anti-depressant, to Sarah in November 2004. The defence will likely be calling Dr. Nugent and one or more counsellors from Trent University Health Services as witnesses at trial.
7 . Before the accident occurred, Sarah also underwent an assessment to determine if she has a learning disability. To date no documentation regarding that assessment as been produced; however, the reference to the assessment is contained in the records produced from Trent University. Counsel indicated that it is likely that assessor will be a witness at trial.
8 . Following the accident, Sarah was transported by ambulance to Peterborough Regional Health Centre where she received emergency treatment. Almost immediately thereafter, she was transferred to Sunnybrook Hospital in Toronto where she was a patient for eleven days before being discharged home to her parents’ home in Stoney Creek, Ontario.
The plaintiffs continue to live in Stoney Creek, now part of the City of Hamilton.
The lawyers for the plaintiffs are located in Hamilton. The lawyer for the Defendant, MTO, is located in Toronto. The lawyer for the defendant by counterclaim, Alexandra Citroen, and the defendant, The Dominion of Canada General Insurance Company, is located in St. Catharines.
Hamilton is approximately 200 kilometres from Peterborough. The normal driving time from Hamilton to Peterborough is about 2.5 hours, making the return trip from Hamilton to Peterborough approximately 5 hours.
Toronto is approximately 68 kilometres from Hamilton and approximately 132 kilometres from Peterborough. The normal driving time from Toronto to Hamilton is approximately 50 minutes and the normal driving time from Toronto to Peterborough is approximately 1 hour and 40 minutes, which is just about double the time required to travel to Hamilton.
The plaintiffs, Sarah Citroen, Alexandra Citroen and Richard Citroen, will probably give evidence at the trial. The plaintiffs wish to attend the entire trial which is estimated will take approximately four (4) weeks.
The plaintiff Richard Citroen, who is Sarah’s father, is legally blind. The plaintiffs argue that it would be a hardship for him to relocate to Peterborough for the duration of the trial where he would encounter difficulties adjusting to a new and unfamiliar residential environment.
It is alleged that the plaintiff Sarah Citroen has suffered serious injuries in the collision including:
• Brain injury with residual cognitive and emotional sequelae;
• Cervical spine fractures with residual mechanical myofascial neck pain;
• Residual dizziness related either due to brain injury, vestibular dysfunction, or neck injury;
• Clavicular fracture with range of motion loss in left shoulder – probable capsulopathy;
• Numbness of her right shin and numbness of her left thumb (radial nerve);
• Reported emotional adjustment difficulties;
• Presumed deconditioning and weight control issues related to emotional adjustment issues, decreased activity, etc.;
• Fatigability in relation to brain injury, emotional adjustment issues, and sleep problems; and
• Chronic pain
In the opinion of Dr. Joanna Hamilton, Sarah has suffered “...a serious and permanent impairment of an important mental and psychological function as a result of the motor vehicle accident.” Dr. Hamilton is a psychologist who was providing treatment to Sarah between November 2005 and August 2009 and the defence submits that she will be an important factual witness at the trial of this action. In Mr. Fould’s affidavit filed on behalf of the defendant, he noted that possible defence witnesses from the Peterborough area include Emily Cook who is a rehabilitation assistant, and Scott Maloney and Allan Dyke who are massage therapists, all of whom treated her after the accident.
Mr. Foulds also swore that at least three witnesses will be called to give testimony on behalf of the MTO and that all of those individuals work and/or reside in the Peterborough area.
A review of the record indicates that Dr. Garner found that the plaintiff suffers fatigue, residual dizziness and emotional problems. During a functional abilities consultation, she had to leave the room to reportedly be sick due to her dizziness.
Position of the Plaintiffs
Counsel for the plaintiffs submitted that it would be a hardship for Sarah and her father to relocate to Peterborough for the anticipated time of approximately four (4) weeks for the trial taking into account her physical and psychological difficulties and his visual limitations.
Furthermore, counsel argued the plaintiffs will face an increased financial burden for hotel and food expenses to remain in Peterborough during the trial.
It is anticipated that the witnesses to be called on behalf of the plaintiffs will include:
a) Dr. Alan Finlayson, psychologist located in Hamilton;
b) Oliver Foese, Dipl.-Psych., psychologist associate, located in Hamilton;
c) Katie Schinkel, occupational therapist, located in Grimsby;
d) Dr. Robert Ambis, physician, located in Hamilton;
e) Dr. Scott Garner, physiatrist, located in Burlington;
f) Dr. Joanna Hamilton, psychologist, located in Peterborough;
g) Maria Ross, occupational therapist, located in Hamilton;
h) Robert Gilchrist, professional engineer, located in Ancaster; and
i) Brent Pyper, chartered accountant, located in City of Hamilton.
Ms. Hillyer noted that it is a realistic possibility that in giving evidence, the witnesses in paragraph 25 above will be required to attend on more than one day of trial.
The health records and statutory accident benefits records of the plaintiff indicate that the plaintiff has received health treatment and/or assessments from approximately 41 health practitioners or institutions including those listed in paragraph 25 above. Of these possible witness, 25 are located in Hamilton-Burlington-Grimsby; 1 in Carlisle; 1 in Oakville; 4 in Toronto; 1 in Bolton; 1 in Mississauga and 8 in Peterborough.
In addition to the witnesses whose evidence will include opinion evidence as listed in paragraph 25 above, it may be necessary for the investigating police officer, Trevor Banbury of Peterborough, Andrea Creaser of Bancroft and John Dawson of Espanola to be called as witnesses at trial. Two of those officers are still posted in the Peterborough area.
The defendant, MTO, has served an engineering report of Alan M. Biling, professional engineer, whose place of business is Toronto, Ontario.
The defendant, MTO, has retained a neuropsychologist located in Mississauga, Ontario, to assess the plaintiff.
It is anticipated that witnesses may be called to introduce business records from the Peterborough Hospital located in Peterborough, Trent University located in Peterborough, Sunnybrook Hospital located in Toronto, and Redeemer College University located in Hamilton. The plaintiffs assert however, that it is probable that counsel will agree on a joint document brief which will avoid the necessity of witnesses from the institutions being required to attend the trial. I accept that is probably the case.
Counsel for the plaintiffs has urged the court to consider that a trial in Peterborough would require counsel for the plaintiffs, together with reasonable clerical support staff to relocate in Peterborough, including overnight accommodation for consecutive trial dates. Counsel for the MTO who resides in Toronto, and for the defendant The Dominion of Canada General Insurance Company would not probably have those expenses if the action takes place in Hamilton.
Position of the Defendant
Counsel for the defendant noted that there is currently no case law addressing the issue before this court. She noted that the starting point must be that the Act provides that the action must be started in Peterborough and hence, there must be a presumption that the action should be tried there.
Counsel noted that at the time the accident occurred, Sarah was living in Peterborough. After the accident, she argued that Sarah did return return to Peterborough and continued to reside there on a full or part time basis until she finished her studies in April 2008. However, in his responding affidavit, Mr. Munro stated that at all material times prior to the accident and continuing to the present time, he permanent residence has been in Hamilton, where she resides with her parents. Furthermore, counsel for the plaintiffs submitted that since April 2008, Sarah has not maintained any residence in Peterborough and has resided in Hamilton with her parents.
The plaintiff has not suggested that her inability to fund a trial in Peterborough will deny her the right to a trial. If the trial takes place in Peterborough, there is no evidence that the trial will be delayed or that witnesses will be unavailable.
Counsel for the Defendant has submitted that the Act creates a presumption of convenience for the investigating officers, first responders, and the health care professionals who initially attended to her medical needs. Its purpose is clear. While their evidence may not necessarily be lengthy, a trial in Hamilton will necessitate them leaving the Peterborough area to give their testimony and during that time, they will not be available to provide their needed services in the community to which they have been assigned. She argued that Sarah’s situation is not uncommon in a large province such as Ontario and it is this exact situation that this legislation is aimed at regulating.
Legal Issues:
Issue #1 : Does the court have discretion to order that the trial of this action proceed in Hamilton?
Issue #2 : If so, what factors should be taken into account by the court in exercising its discretion?
Analysis:
Issue #1:
- The analysis of this issue requires an analysis of Rule 13.1 of the Rules of Civil Procedure and subsection 33(9) of the Public Transportation and Highway Improvement Act R.S.O. 1990, c. P.50 ( the Act) . Rule 13.1 deals with where an action is to be commenced. Subsection 33(9) deals with where an action shall be tried.
The Applicability of Rule 13:
- Rule 13.1.01(1) of the Rules of Civil Procedure provides as follows:
If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced in that county and the county shall be named in the originating process.
However, Rule 13.1.02 (1) of the Rules of Civil Procedure provides as follows :
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 in which it should have been commenced.
Under that Rule, the powers of the court are clearly defined. On the facts of the case at bar, the motion to change the place of trial must be brought by the defendant. The defendant has not brought a motion before the court requesting that the proceeding be transferred to Peterborough, which is where Rule 13.1.01(1) required the action to be commenced. As I read the Rule, the plaintiffs have no remedy available to them under Rule 13.1.02 (2).
Hence, the court must determine if it is prepared in this case to exercise its discretion under the Rule to transfer the proceeding to Peterborough, where it ought to have been commenced.
In this case, I do not think the court should act on its own initiative under Rule 13. 1.02 (1). First, counsel did not urge the court to act on its own initiative. In my view, the parties are best able to determine where they want the action to be tried and unless there is a compelling and overwhelming reason, such as a lack of judicial resources or difficulties in scheduling the trial, the court should not often intervene on its own initiative in such matters. I am reinforced in that view by the provisions of of Rule 13.1.02 (4) and (5) which permit the Regional Senior Justice to move on his or her own initiative to change the place of trial in certain cases.
Thus, I find that based on the fact that the only motion record before the court is that of the plaintiffs, the Court does not have discretion under Rule 13.1 to order that the trial proceed in Hamilton.
The Applicability of S. 33(9) of The Act
Unless otherwise ordered upon application by any party, s. 33(9) of the Public Transportation and Highway Improvement Act requires that trials against the MTO for default in repair of public highways “...shall take place in the county where the default occurred...”. That subsection creates a clear presumption that a trial will take place in the county where the accident occurred. The plaintiffs must rebut that presumption if they wish to have the action tried elsewhere. That right to rebut the presumption is found in the concluding words of the subsection which provide that the trial shall be held in that county “unless otherwise ordered upon an application by any party”.
Thus, subsection 33(9) of the Act permits the court to exercise its discretion to order that the trial of this action take place in a county other than Peterborough once an application or motion is made by a party. The plaintiffs have properly brought this motion and engaged the jurisdiction of this court. It is noteworthy that subsection 33(9) does not state that an action must be commenced in the county where the default occurred. However, when read in conjunction with the mandatory provisions of Rule 13.1.01 (1), it is clear the plaintiffs ought to have commenced this action in Peterborough.
Under Rule 2, non compliance with the Rules is an irregularity, not a nullity. Rule 2.03 permits the court to dispense with compliance with any rule in the interest of justice.
It is clear to me that the parties want the issue determined. Thus, strict adherence to the Rules would require me to dismiss this motion and await a fresh motion record from the defendant raising the same issues. I am mindful of Rule 1.04 of the Rules of Civil Procedure and its requirement that the rules be “liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on the merits”. In my view, requiring the defendant to bring a fresh motion record and then having the same issue re-argued would not reflect the goals of Rule 1.04. If the defendant then did bring the appropriate motion under Rule 13.1.02 (1), I would be obliged to consider if the if the transfer of this action to Peterborough is desirable in the interest of justice, having regard to the factors set out in rule 13.1.02 (2)(b).
Counsel have fully argued those factors in their capable submissions and they have been of considerable assistance in determining where this trial should take place.
This test requires a fact specific analysis in which all of the factors listed in Rule 13.1.02(2)(b) are weighed to determine what trial venue will be “in the interests of justice”. Wilcox v. Flinstone Glass & Mirror Ltd . , (2009), 2009 73279 (ON SC) , 85 C.P.C. (6 th ) 394 (Ont. S.C. Master) paras 12-19 ; Paul’s Hauling Ltd. v. Ontario (Minister of Transportation), [2011] O.J.No 3447 (S.C.J.) paragraphs 17 through 22. Those factors are:
a. Where a substantial part of the events or omissions that gave rise to the claim occurred;
b. Where a substantial part of the damages were sustained;
c. Where the subject-matter of the proceeding is or was located;
d. Any local community’s interest in the subject-matter of the proceeding;
e. The convenience of the parties, the witnesses and the court;
f. Whether there are counterclaims, cross claims, or third or subsequent party claims;
g. 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;
h. Whether judges and court facilities are available at the other county; and
i. Any other relevant matter.
Where the events giving rise to the action occurred: The plaintiffs acknowledge that the events and omissions relating to the collision itself and the negligence of the defendant MTO relates primarily to the county where Peterborough is located and that S. 33(9) creates a presumption in favour of Peterborough. The plaintiffs submit, however, that this factor does not outweigh the factors set out below.
Where a substantial part of the damages were sustained: The initial severe injuries were sustained in the collision in Peterborough. However, Sarah Citroen has an injury which in the opinion of Dr. Hamilton is “...a serious and permanent impairment of an important mental and psychological function as a result of the motor vehicle accident”.
The injuries Sarah allegedly has suffered – especially her head trauma and the resulting dizziness, memory and cognitive difficulties, emotional trauma, as well as the pain and limitation of movement from which she allegedly continues to suffer allegedly affect her activities of daily living. That was not disputed on the arguing of the motion but clearly is a fact to be determined at trial. Sarah continues to live in Hamilton, and thus, there is a substantial and continuing connection between Hamilton and the loss relating to her continuing disability. The losses suffered by the other plaintiffs in this action are a direct result of their relationship with and caring for Sarah. This relationship continues and the care being given as a result of them is also taking place in the City of Hamilton. It is largely within the context of their daily activities in the City of Hamilton that the Family Law Act damages can be understood.
Is there a local community interest in the subject-matter of the proceeding: The subject matter of the proceeding involves an alleged failure to maintain a portion of Highway 115 which is located in the County of Peterborough. While there may be a local interest in the accident in Peterborough, the plaintiffs submit that the negligence of the MTO in the maintenance of a public highway is of general interest to Ontario residents generally, including residents of Hamilton. I find that the greater interest would be in the Peterborough area as it is a road in that county and one that would naturally be more frequently used by citizens of that community.
Factors that relate to the convenience of the witnesses, the parties and the courts:
a. Hamilton is the home of the plaintiffs;
b. The plaintiffs wish to attend the entire trial which will take approximately four weeks;
c. Two of the plaintiffs suffer a disability making relocating to Peterborough for trial a hardship;
d. The majority of treating and assessing health professionals are located in the vicinity of Hamilton;
e. Experts relied upon by the parties are located in the vicinity of Hamilton;
f. The lawyers for the plaintiffs practice in Hamilton;
g. The lawyers for the defendant, Her Majesty the Queen (“MTO”) are in Toronto which is closer to Hamilton than Peterborough; and
h. The lawyers for the defendant by counterclaim are located in St. Catharines.
Are there any counterclaims, cross claims or third party or subsequent claims: There is a counterclaim against the plaintiff Alexandra Citroen and counsel for the defendant by counterclaim is located in St. Catharines.
Are there judges and court facilities available at the named site: Judges and court facilities are available at either Peterborough or Hamilton.
Are there any other relevant factors to be considered: There is no evidence that the trial will be delayed or witnesses unavailable if the trial takes place in Peterborough. Furthermore, there is no evidence that if there are increased costs in holding the trial in Peterborough that those costs will deny the plaintiffs the ability to bring their action to trial.
Conclusion:
I find on the facts before the court that the interests of justice do warrant the court from deviating from the presumption that the trial take place in Peterborough. A trial is to be a hearing on the merits, not an endurance contest. In my view, based on the record before this court, the plaintiffs would experience significant personal hardship having to attend in Peterborough for four weeks due to the physical limitations both appear to have. Furthermore, considering all the evidence, I am satisfied that by a considerable margin, the most expeditious and least expensive determination of the proceeding on its merits favours the trial of this matter taking place in the City of Hamilton.
It is ordered that the trial of this action shall take place at the City of Hamilton.
If counsel cannot agree on the issue of costs, brief written submissions together with costs summaries can be submitted to the Trial Co-ordinator at the John Sopinka Courthouse on or before February 29, 2012.
Released: February 8, 2012
Turnbull, J.