COURT FILE NO.: CV-11-483

DATE: 20131001

CORRIGENDA: 20131002

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: W. IAN WHAN and WENDY WHAN, Plaintiffs

AND:

BRIAN HICKS and SANDRA COOPER, Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: R. Murray, for the Plaintiffs

S. Merredew, for the Defendants

HEARD: September 24, 2013

The text of the original decision has been corrected with text of corrigendum (released October 2, 2013) appended.

ENDORSEMENT

Nature of the Motion

[1] The defendants move for an order changing the venue of the trial of this action from Barrie to Toronto pursuant to rule 13.1.02(2) of the Rules of Civil Procedure.

Test

[2] The test applicable to this motion is as set out in rule 13.1.02(2)(b), which permits the court to transfer a proceeding to another county where the court is satisfied that the transfer is desirable in the interest of justice, having regard to the criteria set out in that subsection. Those criteria are:

(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.

[3] All of the factors must be considered, with none being paramount to another: Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. 2005 19797 (ON SC), [2005] O.J. No. 2285 (S.C.J.); Gould v. BMO Nesbit Burns Inc., [2006] O.J. No. 2707 (S.C.J.); Klotz v. Kitchener (City), [2008] O.J. No. 1757; Nutech Brands Inc. v. Air Canada, 2007 56523 (ON SC), [2007] O.J. No. 5031 (S.C.J.); Wilcox v. Flintstone Glass & Mirror Ltd., 2009 73279 (ON SC), [2009] O.J. No. 5613 (S.C.J.); Hallman Estate v. Cameron, 2009 51192 (ON SC), [2009] O.J. No. 4001 (S.C.J.); I.C. Group Inc. v. Yorkville Printing Inc. (c.o.b. Yorkville Group), [2010] O.J. No. 4808 (S.C.J.).

[4] Plaintiffs have a prima facie entitlement to commence their proceeding in any county by virtue of rule 13.1.01(2). There does not need to be a rational connection between the county and the action: Wilcox v. Flintstone Glass & Mirror Ltd., supra, at para. 18.

[5] The moving party bears the onus of establishing that a transfer is desirable in the interest of justice.

Facts

[6] There are several uncontroverted facts presented on this motion.

[7] The action arises out of an incident that occurred in Toronto. The plaintiff was injured when a tree branch struck him in the head as he was cutting down a tree in the defendant Cooper’s backyard, with the help of Hicks. The action was commenced on May 19, 2011. All three of these parties live in Toronto, as does the co-plaintiff, Wendy Whan, who is Ian Whan’s wife.

[8] The vast majority, if not all, of the witnesses expected to testify for both sides are located in Toronto, from ambulance attendants to treating physicians to lay witnesses. All of the expert witnesses have offices in Toronto. Both counsel have offices in Toronto, although the plaintiffs’ lawyers’ primary office is in Barrie.

[9] There is also uncontroverted evidence that a transfer to Toronto will delay the trial at least to the fall of 2016, as confirmed by the Long Trial Coordinator in the Toronto region.

Position of the Plaintiffs

[10] Discoveries have been completed. Some of the plaintiffs’ undertakings remain outstanding, but the plaintiffs anticipate being able to set the action down for trial in six months. If the action remains in Barrie, they are targeting a trial date of November 2014.

[11] If transferred, there will be delays in reaching trial scheduling court to place the matter on a trial list in Toronto. Further, Toronto requires that a mandatory mediation be held before the case would be placed on the trial scheduling court list. A trial date in 2017 is more likely because of these further delays.

[12] It the plaintiffs’ position that Ian Whan suffered a traumatic brain injury and continues to suffer physical and cognitive impairments. His claim alleges a loss of income and competitive advantage, along with general and special damages.

[13] The evidence presented on this motion is that, while the plaintiff remains employed, he is under-performing at his long-term place of employment. He now works part-time following the incident, and his employer has reduced his hourly pay rate. He is funding his own incident-related medical treatment at a cost in excess of $1,000 per month. These medical costs are coming at a time when he has reduced income, allegedly as a result of the injuries sustained.

[14] The plaintiffs’ counsel argues that a delay of a further three years to reach trial will exacerbate Ian Whan’s existing psychological problems, financial strain, marital dysfunction and uncertainty regarding his future. They argue that litigation costs will increase due the requirement for updated medical reports prior to any trial held several years from now.

[15] Keeping the trial in Barrie, it is argued, best serves the interest of justice because access to justice includes ensuring that the plaintiff receives the most expeditious, just and least expensive determination of the claim. The plaintiffs argue that the motion is brought for reasons of tactical delay.

The Defendants’ Position

[16] The defendants argue that Ian Whan has made a miraculous recovery and has resumed many of his pre-accident activities, including employment. This position will obviously be challenged by the plaintiffs at trial. Nonetheless, the defendants argue that the plaintiff shows no pressing need to have his trial heard prior to 2016 or 2017. With regard to his financial circumstances, they argue that he is not suffering, but has substantial assets including a home in Toronto and a sailboat.

[17] The defendants argue that the uncontroverted evidence referred to earlier supports the transfer, having regard to the factors set out in rule 13.1.02(2).

[18] They also argue, the case involving the application of Toronto municipal by-laws, that a jury in Toronto will have a better understanding of those by-laws and may have more interest in the proceeding.

[19] The disadvantage of having the case heard in Barrie, the defendants’ lawyer argues, is that the parties and witnesses will be inconvenienced by distance. Also, Toronto has the resources and facilities available to accommodate a trial of this length and complexity. They further argue that litigants waiting for their case to be heard in Barrie, whose proceedings have the necessary connection to Barrie, should not be prejudiced and delayed by the existence of a “non-Barrie” case being on the Barrie trial list.

Analysis

[20] Both counsel referred the court to the recent case of Ewing (Litigation Guardian of) v. Conte, [2013] O.J. No. 3442 (S.C.J.) (“Ewing”), in which a similar motion was dismissed. The court refused to move a trial from Barrie to Toronto because, even though on the face of it, Vallee J. thought that it was a matter that should be transferred to Toronto, she declined to do so because of the three year delay in getting to trial. At paras. 4 and 5 of that decision, Vallee J. wrote:

4. Counsel for the moving party referred me to the case of Rushnell v. Belleville, [2007] O.J. No. 4246. In that case, the court stated that, “the delay in obtaining a trial date should not, by itself, unless the delay is substantial, outweigh the overwhelming predominance of convenience and other factors in rule 13.1.02(2).

5. In this matter, I find that the delay is more than substantial. A delay of 3 years in getting to trial would ensue if the action was transferred. A plaintiff should not have to wait for 8 years from the date of an accident to have a tort claim adjudicated. Such a delay would be shameful, especially if it could be avoided. There will be some travel costs to the parties and the witnesses to come to Barrie; however, it can safely be assumed that if the matter goes on for another 3 years, the legal fees will also increase. The inconvenience associated with travelling to Barrie for a four week trial is more than outweighed by the fact that a transfer to Toronto will not result in the just, most expeditious and least expensive determination of the proceedings. The result would be the opposite.

[21] Counsel for the defendant states that Ewing is arguably wrongly decided, as the case law requires that each factor is to be given equal importance in determining whether a transfer is desirable in the interest of justice, whereas Vallee J. seemed to focus only on the issue of delay. While a delay in obtaining a trial date can carry substantial weight in the balancing exercise, all factors must still be balanced: Sauve v. Tavares, [2012] O.J. No. 2148 (S.C.J.).

[22] As stated in Gould v. BMO Nesbit Burns, supra, at para. 18:

The law is well established that change of venue motions are fact specific. The current rule makes is clear that none of the enumerated factors are more important than the other and all of those factors and any other factors relevant to the location of the action must be balanced to ensure that a proceeding is transferred from the county where it was commenced only if such transfer is “desirable in the interest of justice”.

[23] This does not mean that every factor will have or should be given the same significance in every case, but merely that, in the balancing act to be undertaken to determine whether a transfer of venue is desirable in the interest of justice, none of the factors are to be disregarded. Because each case is fact driven, some cases will necessarily emphasize the significance of one factor over the other.

[24] This was the approach taken in both Ewing and Rushnell v. Belleville (City), [2007] O.J. No. 4246 (S.C.J.) (“Rushnell”), referred to in Ewing at para. 4. Because of what Vallee J. termed the “more than substantial delay” – eight years from the date of accident for the plaintiff to have his tort claim adjudicated – she determined that the proceeding should not be transferred to Toronto. In the present case, a trial in 2017 would mean that Mr. Whan would be waiting potentially seven years from the day he sustained his injuries, or longer. This is substantial delay, which should be taken into consideration.

[25] Weighing all of the factors in this case, I find that they lead to the conclusion that the trial should remain in Barrie. I include the fact that the travelling time to Barrie for the parties and witnesses will involve one to two hours from downtown Toronto, as opposed to being required to travel to the far reaches of Ontario. The place where the damages were sustained does not factor largely, as there is nothing in particular about the location of the incident that lends itself to benefiting from a trial in one venue over another. I include in this the involvement of the City of Toronto by-laws; any jury, regardless of location, will be equally capable of considering by-laws from any city. Nor is this case one of particular public interest so as to expect that members of the local Toronto community would want to observe the trial. Any increased costs associated with travel time are balanced by the costs of a delayed trial. Further, the delay resulting from moving the case to Toronto would work a particular injustice on a plaintiff whose income is being heavily drawn upon by medical and rehabilitation expenses, and he should not be forced into a situation where his assets must be compromised.

[26] Last is the issue of delay and available judicial resources as considered in Ewing and Rushnell. Having considered the other factors set out under rule 13.1.02(2), the delay in obtaining a trial date in Toronto carries substantial weight, such that I am persuaded that the transfer is not desirable in the interest of justice.

[27] While it is unarguably a regrettable state of affairs that Toronto is now so backlogged as to be booking long trials for the fall of 2016, I will not miss this opportunity to express concern for the unacceptable stressors acting on the civil justice system in Barrie. The plaintiffs’ counsel is correct that there are civil trial sittings twice yearly in Barrie, each three consecutive weeks in length, referred to as the trial “blitz”. It is also true that a trial set down six months from now could be placed on a trial list for November 2014. However, being placed on a trial list is a different matter than having the trial reached and heard in a timely way. Potential barriers to having a lengthy trial heard during a trial blitz in Barrie include:

1. the availability of judges in the Central East Region, the judicial complement available to do civil trials not having increased in decades despite a ballooning population that now reaches close to the size of the greater Toronto area, and a corresponding increase in cases in the Barrie courthouse;

2. an insufficient number of courtrooms, jury rooms and facilities. Lack of space becomes further strained where lengthy criminal trials are in progress in Barrie, or when any type of trial overruns its forecasted duration;

3. lengthy trials running longer than the three week sitting period are, of necessity, adjourned for continuation to the next sittings six months away. In one instance, this was even the case for a civil jury trial. This gross inconvenience to litigants, witnesses, jurors and lawyers threatens to bring the administration of justice into disrepute. These lengthy trials are unable to continue due to the absolute need to free up the courtroom and judge for other matters so that the backlog does not domino to other areas of service, such as family and criminal matters;

4. the only solution presented to date has been an expectation that the existing judges and administration in Central East Region will find their own solution to these problems, which are unsolvable without more resources.

[28] So being placed on a civil list in Barrie provides no guarantee that the trial will be heard during that trial sitting period. While every attempt is made to reach as many trials as possible during the three week blitz, the systemic, political failure to properly address and resolve these pressures is currently resulting in the sacrifice of timely and effective access to justice in civil cases at this site also. Barrie is not yet in the same abysmal state as Toronto for lengthy trial delay, but with an ever expanding population and no real solution in sight for the inadequacy of resources, it is just a matter of time before it is. The Toronto example does not appear to be igniting any political will to avoid duplicating similar delays in other cities. The question being asked on this motion may become moot, as least insofar as a determination of the most “expeditious” venue is concerned.

[29] At this time, however, there remains a greater likelihood that the trial will be heard sooner in Barrie than in Toronto.

[30] For all of the foregoing reasons, I find that transfer to Toronto will not result in the just, most expeditious and least expensive determination of the proceedings, and accordingly the motion is dismissed.

[31] Unless the parties are in agreement that the costs of this motion shall be payable in the cause, they may make brief submissions in writing not to exceed two pages in length, plus a cost outline and any authorities and offers that they wish to rely on, through the office of the judicial assistants in Barrie. The plaintiffs’ are to be received by October 11, the defendants’ by October 18, and any reply by October 23.

HEALEY J.

Date: October 2, 2013

C O R R I G E N D A

1. Page 6, Para. 27(4) now reads: the only solution presented to date has been an expectation that the existing judges and administration in Central East Region will find their own solution to these problems, which are unsolvable without more resources.