SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-4214-SR
DATE: 2013-06-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jane Lois Siegel
Plaintiff
- and -
The Canadian Mental Health Association
Defendant
Melissa Knox, for the Plaintiff
Frank Kolenko, for the Defendant
HEARD: June 13, 2013
THE HONOURABLE MR. JUSTICE P. B. HAMBLY
REASONS FOR JUDGMENT
Introduction
[1] This is a motion by the defendant, in a wrongful dismissal action, to change the place of trial proposed by the plaintiff in Kitchener to either Walkerton or Owen Sound.
The Facts
[2] The plaintiff, Jane Lois Spiegel, was employed by the defendant, The Canadian Mental Health Association, as a social rehabilitation worker for 9 years from July 2001 to June 2010. She was dismissed from her employment on June 28, 2010, allegedly for an improper relationship with a client. She was earning about $30,000 per year. The defendant gave her severance pay in the amount of $4,579.12, which is about 1.8 months of her salary. She alleges wrongful dismissal and that she was entitled to 10 months in lieu of notice. She also claims aggravated damages and punitive damages based on the manner of her dismissal. She claims damages of $30,000, aggravated damages of $10,000, punitive damages of $10,000 and costs. The defendant alleges that she was dismissed with cause and that her claim should be dismissed with costs.
[3] The plaintiff caused the statement of claim to be issued on June 22, 2012. The defendant filed a statement defence on October 2, 2012. The plaintiff proposed the place of trial in her statement of claim as Kitchener. The defendant did not dispute the place of trial in its statement of defence. Examination for discovery took place on January 10, 2013. A pre-trial is scheduled for July 2, 2013. The action could be tried in Kitchener at the sittings commencing on September 16, 2013.
[4] The plaintiff resides in Walkerton. The defendant has an office in Owen Sound, out of which the plaintiff worked. This is where two meetings were held in June 2010, which resulted in the plaintiff's dismissal. The defendant proposes to call four witnesses at the trial, all of whom reside in Owen Sound. The Plaintiff's lawyer has an office in Waterloo, located at a short distance from the courthouse in Kitchener. The office of the defendant's lawyer is in Hamilton. The office of the defendant's lawyer is 197 km. from the courthouse in Owen Sound, 170 km. from the courthouse in Walkerton and 70 km. from the courthouse in Kitchener. The distance between the Kitchener Court House and the Owen Sound Court House is 150 km. The plaintiff states frankly that she chose Kitchener as the place of trial because of the proximity of the Kitchener court house to her lawyer’s office.
Applicable Rules of Civil Procedure
[5] 1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
46.01 The trial of an action shall be held in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02, unless the court orders otherwise.
13.1.01 (1) If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced at a court office in that county and the county shall be named in the originating process.
Choice of Place
(2) If subrule (1) does not apply, the proceeding may be commenced at any court office in any county named in the originating process.
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.
(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.
Analysis
[6] The plaintiff proposed Kitchener as the place of trial. The fact that she resides in Walkerton cannot tell against her because she proposed Kitchener as the place of trial in her statement of claim. Her residing in Walkerton is the only factor that could support the trial being held in Walkerton. Similarly, the fact that a trial in Owen Sound will require the lawyer for the defendant to travel further than would a trial in Kitchener cannot tell against the defendant because it is the defendant who has brought the motion.
[7] The defendant does not suggest that a fair hearing of this case cannot take place in Kitchener. What this motion comes down to is whether ,in the interest of justice, the trial should be transferred to Owen Sound from Kitchener, the place proposed by the Plaintiff, because the defendant’s witnesses reside in Owen Sound.
[8] In Paul’s Hauling Ltd. v. Ministry of Transportation and 463501 Ontario Ltd. 2011 ONSC 3970, Justice Pierce denied a motion to move a trial from Kenora, the place proposed by the plaintiff and the place where the action was commenced, to Thunder Bay or Fort Frances. The case arose out of a motor vehicle accident which took place in the District of Rainy River of which Fort Frances is the district seat. Thunder Bay is the city from where the courts in North Western Ontario are administered. She pointed out that “Rule 46 establishes a default position to the selected place of trial” (para. 14) namely the county where the proceeding was commenced. After a review of relevant cases she concluded that “there is no pre-condition that the place of trial must have a rational connection to the cause of action.” ( para. 22)
[9] In Rahemtulla v. Bell 2012 ONSC 2181, 2012 ONSC2181, Justice D.M. Brown declined to move a trial from the commercial list in Toronto to Kitchener. He observed that a court must take a “holistic review” (para. 19) of the factors in Rule 13.1.02(2)(b). He stated the following:
21 … 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 merits".
[10] In Bhatt v. Chan 2012 O.J. No. 4492 the plaintiffs were claiming damages arising from a fall from an apartment building located in Waterloo. Justice Broad declined to move the place of trial from Toronto, which was the place proposed by the plaintiff, to Kitchener. He noted that the defendant waited 6 years to bring its motion which showed a “lack of urgency” (para. 17). He also noted the following:
10 … 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] Gravelle v. CTV Television and Glbank, [2012] O.J. No. 1450 was an action for defamation arising out of a murder in Hamilton. The plaintiff proposed Toronto as the place of trial. Justice Matlow allowed an appeal from an order of a master transferring the place of trial to Hamilton. He stated the following:
13 The starting point in every motion under rule 13.1.02 (2) is that there is a presumption of entitlement in favour of the place proposed for trial by a plaintiff, or the place where the action is commenced, which should not be disturbed unless there is a clear need to make a change or a clear advantage to do so. The exercise is not simply to choose between two alternative places.
[12] Applying Rule 13.1.02(2)(b), the events which gave rise to the claim occurred in Owen Sound (2(b) (i)); the damages were sustained in Walkerton (2(b) (ii)); the subject matter of the proceeding is located in Owen Sound (2(b)(iii) and the most convenient place for the witnesses and the defendant is Owen Sound, but for the plaintiff is Kitchener, which is where her lawyer is located (2(b)(v)). These witnesses will all be able to reach the Kitchener court house in a maximum of two hours by car. They will not be required to travel by air or stay overnight. I have no evidence as to when the case could be tried in Owen Sound. It could be tried in Kitchener in September, if it is not settled after the pre-trial scheduled in Kitchener on July 2 (2(b)(viii)).
Result
[13] I find that the defendant has failed to establish that it is in the interests of justice to change the place of trial from Kitchener to Owen Sound. The motion is dismissed.
[14] The plaintiff may make written submissions on costs within 10 days and the defendant may make written submissions on costs within 10 days of receipt of the plaintiff’s submissions.
Justice P. B. Hambly
Released: June 24, 2013
COURT FILE NO.: 12-4214-SR
DATE: 2013-06-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jane Lois Siegel
and -
The Canadian Mental Health Association
REASONS FOR JUDGMENT
Justice P.B. Hambly
Released: June 24, 2013