SUPERIOR COURT OF JUSTICE

THUNDER BAY SMALL CLAIMS COURT

SC-12-1012

1037762 ONTARIO INC.,
Plaintiff

-and-

DISCOUNT CAR AND TRUCK RENTALS LTD.,
Defendant.

REASONS ON MOTION

of Deputy Judge K. Cleghorn, delivered
April 17, 2013 at Thunder Bay, Ontario

APPEARANCES

Richard Bialachowski, For Defendant (Moving Party).

Alexander Demeo, For Plaintiff (Responding Party).

REASONS ON MOTION

CLEGHORN (Dep. Judge-SCC)

This motion was heard on March 22, 2013 at Thunder Bay, Ontario. The decision was reserved on that day.

THE ISSUE

The Defendant has brought a motion to stay the Plaintiff’s action or, alternatively, to change the venue of this action to the Toronto Small Claims Court.

There is no dispute with respect to the essential facts of the matter. The Plaintiff issued the Plaintiff’s Claim on November 30, 2012 in the Thunder Bay Small Claims Court. The Defendant delivered a Defence dated January 7, 2013. The Plaintiff was once a franchisee of the Defendant, engaging in the rental of motor vehicles in the City of Thunder Bay. That relationship ceased in or about June of 2007. The claim alleges that the Defendant has failed to return an insurance deposit to the Plaintiff in the amount of $12,301.20 pursuant to a contract.

Although the Defendant requests that the Plaintiff’s action be stayed, argument on the Motion centered around the change of venue issue; the Defendant seeks the transfer of this matter from the Thunder Bay Small Claims Court to the Toronto Small Claims Court. The Defendant specifically pleads that relief in its Defence. As such, it has not attorned to the jurisdiction of the Thunder Bay Small Claims Court and none of the steps taken to date by the Defendant shall be construed as suggesting that it has so attorned. The Defendant relies upon the provisions of Rule 6 of the Rules of the Small Claims Court in support of its request, which reads as follows:

“6.01 (1) An action shall be commenced,

(a) in the territorial division,

(i) in which the cause of action arose, or

(ii) in which the defendant or, if there are several defendants, in which any one of them resides or carries on business; or

(b) at the court’s place of sitting that is nearest to the place where the defendant or, if there are several defendants, where any one of them resides or carries on business. O. Reg. 78/06, s. 8 (1).

(2) An action shall be tried in the place where it is commenced, but if the court is satisfied that the balance of convenience substantially favours holding the trial at another place than those described in subrule (1), the court may order that the action be tried at that other place. O. Reg. 78/06, s. 8 (1).”

THE EVIDENCE

I find as follows in relation to the evidence:

(1) the primary business location (or head office) of the Defendant is at 720 Arrow Road, Toronto, Ontario;

(2) the general public would accept, based upon advertising and signage, that the Defendant carries on business in a variety of locations throughout Canada and Australia, including Thunder Bay, Ontario;

(3) the issues in this proceeding turn on the interpretation of an Agreement dated June 18, 2003, not the franchise agreement- the franchise agreement has not been referred to in either party’s pleading;

(4) since the issues in this matter involve an interpretation of one agreement, it is highly doubtful that the evidence of witnesses needs to be relied on to any significant extent;

(5) there is no need for production of other documentation, in massive quantities or otherwise, to interpret one contract for the reasons set out as above-mentioned;

(6) this cause of action arose as a result of either the Plaintiff’s failure to pay or the Defendant’s failure to receive a sum of money described as an insurance deposit. There appears to be no issue with respect to the amount owed, or that it must eventually be paid. The only issue, and it is a very narrow one indeed, is the timing of that payment; and

(7) the findings that I have made lead to the conclusion that this trial may involve one witness for each party and the introduction of one principle document (the contract dated June 18, 2003).

DISCUSSION

This Court is guided by the directive set out in Rule 1 of the Rules of the Small Claims Court:

“1.03 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. O. Reg. 258/98, r. 1.03 (1).”

Since I have concluded that the issues in this matter involve an interpretation of one agreement, it is questionable how the evidence of any number of witnesses will ultimately assist the court. As such, despite the assertion of the Defendant that it may call as many as six witnesses at trial, it is unclear (particularly as there has been nothing offered whatsoever on the nature of the evidence to be given by any of the individuals referred to in the affidavit of Barry Singer sworn February 25, 2013) why this trial will be of any significant length. The parol evidence rule would vitiate against any witness testimony in any event. Parties simply cannot, as a matter of law, offer opinion, commentary, extrinsic information or other documents to interpret a contract in writing which is complete on its face. There is questionable relevance involved with hearing evidence through witnesses of “surrounding circumstances” and the “expectations of the Defendant” as the Defendant proposes to do at trial.

There is no doubt that one party is inconvenienced by the choice of venue of this proceeding, whichever it may be. I am not satisfied that the balance of convenience necessarily favors one location over another, as each party faces the costs and inconvenience of a trial in a location other than its primary, or home area(the Plaintiff is in Thunder Bay and the Defendant is in Toronto). I do note, however, that Plaintiff’s counsel practices law in Thunder Bay and Defendant’s counsel practices law in Hamilton, not Toronto.

I am satisfied that a company which advertises that it has locations throughout Canada and Australia cannot then, for another self-interested purpose, contend that it only does business in the City of Toronto. I am not convinced by the argument that the “Defendant” is separated into a holding company and an operating company; it is involved in a business which relies upon the public perception of it operating in a variety of centers for the convenience of the public. It would have been a simple matter for the parties to have contractually agreed upon the venue for resolution of disputes. This was not done, obviously, as it would have rendered this Motion unnecessary under the circumstances.

I am also not satisfied that moving cases in various locations throughout southern Ontario can in any way be equated with moving them from northern Ontario to southern Ontario. The inconvenience and expense associated with changing venues from northern Ontario to southern Ontario raises significant concerns about access to justice for individuals residing in northern Ontario. In the absence of detailed information about what the specific witnesses for the Defendant may have to offer in this matter, the reasons for other documents being necessary for the interpretation of a single contract and the true costs associated with the trial in one region or the other, I cannot draw any conclusions about the necessity or advisability for moving this matter from one venue to another. Indeed, I can take note of the inherent expense and delay associated with changing venues from Thunder Bay to Toronto, particularly when the matter has already proceeded through to Settlement Conference in the Thunder Bay Small Claims Court. Time and expense, both to the parties and to the administration of justice over-all, are minimized by advancing this matter to trial forthwith in the Thunder Bay Small Claims Court.

The onus is on the Defendant to establish that the pre-requisites to change the venue have been met. I am not satisfied that those pre-requisites have been established, nor that the balance of convenience necessarily favors one venue over another. On that basis, I am compelled by virtue of Rule 1.03(1) to expedite this process to the degree possible and ensure that the matter is moved along. To secure the just, most expeditious and least expensive result, I am required (my emphasis) to liberally construe the Rules. I have chosen to interpret the Rules in such a manner as to give effect to the prime directive. I find that there is no hardship, nothing inherently unfair and certainly nothing unjust associated with allowing the parties to complete this process by having a trial in the Thunder Bay Small Claims Court at the earliest possible opportunity.

It should be noted that this, ultimately, is a matter of judicial discretion. In all cases, parties should be allowed the opportunity to advance a claim and/or defend one in the appropriate Court. It remains a hallmark of our system of justice that matters should be decided, whenever possible, after a full and complete hearing on the merits, with the active participation of everyone involved. Those cases should consider all relevant and appropriate evidence and be decided based upon the applicable law by a neutral trier of fact. I am satisfied that this can be accomplished in the Thunder Bay Small Claims Court.

DECISION

As a result, the Defendant’s Motion is dismissed.

In most cases, the successful party would be awarded costs. I am mindful that the Defendant may be successful on its defence in the fullness of time and, indeed, may ultimately establish some basis for the need for witnesses to be called and the relevancy of additional documents to be submitted to the Court at trial. The costs of the Motion are reserved to the judge who ultimately disposes of this matter, bearing in mind that the Defendant was awarded no substantive relief on the Motion.

I thank all parties for their presentation of this interesting case and for their courtesy to the court and to each other.

Order accordingly.

K. CLEGHORN, Deputy Judge-SCC

Dated at Thunder Bay, Ontario this 17th day of April, 2013.