SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO: CV-11-4870
DATE: 2013-12-11
RE: GUO v. JI
BEFORE: JUSTICE VAN MELLE
COUNSEL:
B. Kalsi, for the Plaintiff
T. McCarthy, for the Defendant
J. Galan for Plaintiff in Toronto action CV-13-484447
ENDORSEMENT
[1] The defendant brings this motion before me by special appointment. He seeks:
- An order upon the initiative of the Regional Senior Justice, pursuant to Rule 13.1.02(4), (5) and (6) of the rules of Civil Procedure to transfer the Brampton matter of CV-11-4870-00 to Toronto so that the Brampton matter may be more appropriately heard with two companion actions arising out the same accident (Toronto #’s: CV-13-484447 and CV-13-489387).
[2] Rule 13.1.02(4) and following allow the Regional Senior Judge in whose region the proceeding was commenced to make an order to transfer the proceeding to another county in the same region. Toronto is not in the Central West Region. I therefore have no jurisdiction to make an order under this section of the Rule.
[3] The defendant argues that I can also transfer this action to Toronto pursuant to Rule 13.1.02(2) despite the fact that this part of the Rule is not referenced in his motion. Rule 13.1.02(2) permits a proceeding to be transferred on motion 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,
ix) any other relevant matter.
[4] This proceeding arises from a motor vehicle accident that occurred on August 18, 2011 on Hwy 400 near Aurora, Ontario. The plaintiff was a passenger in a vehicle driven by the defendant. The plaintiff’s action was commenced December 13, 2011. Subsequently four other passengers in the vehicle commenced Toronto action CV-13-48447, issued July 9, 2013 and one more passenger commenced Toronto action # CV-13-489387 on September 24, 2013.
[5] The only connection that the proceeding has with Brampton is that the Plaintiff’s lawyer is located in Brampton. Neither the Plaintiff nor the Defendant is resident in the Central West Region. However the proceeding was instituted in Brampton and the Rules of Civil Procedure permit an action to be commenced in any county unless a statute or rule requires it to be commenced in a particular county.
[6] The defendant argues that this proceeding should be transferred to Toronto to be heard with the two Toronto actions (which were consolidated in November 2013 by order of Master McAfee). He argues that there is no connection to Brampton or to the Central West Region at all; that all the witnesses and Plaintiffs are located in Toronto. He argues that there should not be a multiplicity of proceedings; that there is a danger of inconsistent decisions if different judges are involved.
[7] This matter was pretried in Brampton on August 19, 2013. At the pretrial the defendant asked that the action not be placed on the trial list. He advised Justice Snowie that he anticipated that there would be other actions arising from the same accident commenced against him in Toronto. Despite this request, Justice Snowie felt that this matter was ready for trial, denied the defendant’s request and placed this matter on the Brampton January 2014 sittings. Justice Snowie held:
This matter CV-11-4870 is ready for trial- The Plaintiff is a visitor from China, a Chinese citizen, who through no fault of her own (she was a passenger) finds herself “stuck” in Canada. She had a ticket to return to China for Sept/11. The accident took place in August 11. She has no money and has had to borrow from her family. She has been forced to be away from her husband and their business in China for 2 years now. She wishes to return to her life in China asap. Consolidating this matter with other claims that have not even been served yet would be highly prejudicial to the Plaintiff and money cannot compensate for such prejudice.
[8] On November 28, 2013 the defendant argued a motion before Master McAfee in Toronto. She dismissed the motion to traverse the Toronto actions to the Brampton Court. (I had not been consulted about this request as mandated by the protocol.) At paragraph 11 of her reasons Master McAfee stated that the dismissal was without prejudice. She went on to say:
Although unlikely given the order of Justice Snowie, if the trial in the Brampton action does not proceed in January 2014 as ordered, the motion for transfer of the Toronto actions to Brampton and for trial together of the Toronto actions with the Brampton action may be brought again.
[9] In connection with the motion before me today, it appears that the office of the RSJ in Toronto was in fact consulted. Justice Then’s assistant advised that a trial of 10 days could be accommodated within 16 to 20 weeks but a trial of 20 days or so could not be heard until 2015. If the actions were consolidated, the trial would involve 6 plaintiffs. Realistically the trial would take 20 days or so. The plaintiff in this matter would be highly prejudiced if she had to wait an additional year for trial.
[10] This is an unusual situation in that the plaintiff is a citizen of another country and not in a position to travel home and return here for trial. Normally the interests of justice would dictate that all the matters involving the same accident and the same defendant should be heard together. However, in this case, for the reasons enumerated by Justice Snowie, this action must proceed to trial as soon as possible.
[11] As well, it was incumbent upon the defendant to bring a motion for transfer of this action as soon as he was aware there would be other actions. He knew about one of the Toronto actions as early as June 2013 yet did nothing to move this action, or the other actions, until November 2013.
[12] I see no reason to interfere with the order of Justice Snowie and the subsequent order of Master McAfee. The motion is dismissed with costs to the responding plaintiffs.
[13] The plaintiff Guo has presented a Bill of Costs for $11,825.00 inclusive of fees and disbursements. I have reviewed the Bill of Costs and find it to be entirely reasonable in the circumstances. An order will issue that the defendant pay to the plaintiff her costs of $11,825.00 all inclusive.
[14] Counsel for the plaintiff in the related action appeared today to argue against the traversal of this trial to Toronto. He was concerned that if the Toronto actions were to be tried together with this one, his clients would be forced to go to trial before they were really ready for trial. He asks for costs of $1,000.00. An order will issue that the defendant pay to the plaintiffs in the Toronto actions costs of $1,000.00 all inclusive.
Van Melle RSJ
DATE: December 11, 2013
COURT FILE NO: CV-11-4870
DATE: 2013-12-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GUO v. JI
BEFORE: JUSTICE VAN MELLE
COUNSEL: B. Kalsi, for the Plaintiff
T. McCarthy, for the Defendant
J. Galan for Plaintiff in Toronto action CV-13-484447
ENDORSEMENT
JUSTICE VAN MELLE
DATE: December 11, 2013