SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-113458
DATE: December 20, 2013

RE: Unimac-United Management Corp. (plaintiff) v. Cobra Power Inc. (defendant), and

Cobra Power Inc. (plaintiff by counterclaim) v. Unimac-United Management Corp., Leon Hui, Charles Daley, Ronald Chan, Keith Ly and Wing Kin Tsui (defendants by counterclaim);

BEFORE: MASTER C. WIEBE

COUNSEL: O’Brien, S. and Levine J., for Cobra Power Inc. (The moving party); Baichoo, J. P., for Unimac-United Management Corp. and Wing Kin Tsui (The responding parties).

HEARD: November 18, 2013 at Toronto, Ontario.

REASONS FOR DECISION

[1] This is a motion by Cobra Power Inc. (“Cobra”) for an order transferring this Newmarket action (“the Cobra Action”) to Toronto, and “assigning” the Cobra Action to me for trial and to have this action tried concurrently with, or immediately after, certain other actions that have been referred to me concerning the Willowbrook Rail Maintenance Facility Systems Rehabilitation located in Toronto, hereinafter called the “Willowbrook Project” or “the Project.” The owner of the Project is Metrolinx; Unimac-United Management Corp. (“Unimac”) was a contractor on the Project; Cobra was the subcontractor to Unimac for certain electrical work on the Project. The Cobra motion will be called the “Cobra Motion.” The actions that have been, or will be, referred to me concerning the Unimac portion of the Project will be called the “Toronto Proceedings.”

[2] Unimac opposes this motion, firstly, on the grounds that I lack jurisdiction to make the requested order and, secondly, if I do have jurisdiction, that this action does not meet the requirements of Rule 13.1.02(2)(b).

[3] The Cobra Motion Record was served on Unimac on November 7, 2013 for a return date of November 18, 2013, the date of the hearing of the motion, which service was late. Attempted services took place concerning the defendants by counterclaim other than Wing Kin Tsui, all of which were unsuccessful. Unimac, the plaintiff, served its Responding Motion Record on November 13, 2013, which was also late although excusable because of the late service by Cobra. At the hearing of the motion, Mr. Baichoo filed with the court a supplementary responding motion record containing an affidavit of on Stephanie Arias, which was apparently served on Cobra counsel on November 15, 2013.

[4] Concerning the substantive issues pertaining to the claimed change in venue, Ms. O’Brien sought an adjournment of the motion to allow Cobra to cross-examine on the two affidavits filed by the Responding Parties, the affidavit of Wing Kin Tsui sworn November 13, 2013 and the affidavit of Stephanie Arias sworn November 15, 2013. I heard argument on the requested adjournment and to some degree on the substantive issues of venue change, but I focused my attention on the submissions concerning jurisdiction, as the remainder of the motion will be rendered moot if I do not have jurisdiction.

[5] It should be noted that another motion was brought before me on November 18, 2013 in another Newmarket action (“the Hatch Action”) wherein Unimac is suing Metrolinx and Hatch Mott MacDonald Ltd. (“Hatch”) concerning the same Willowbrook Project that is the subject matter of the Cobra Action. This other motion was by Metrolinx to just change the venue of the Hatch Action to Toronto, and will be called the “Metrolinx Motion.” Interestingly, this motion was on consent of Unimac and Hatch. The person who appeared on this motion for Metrolinx was a student-at-law named I. Valitsky. However, because of the jurisdiction issue raised by Unimac in the Cobra Motion, I decided to defer the granting of the consent order in the Metrolinx Motion pending my decision in the Cobra Motion concerning my jurisdiction. Parties cannot confer jurisdiction by consent.

[6] After the argument of the motion on November 18, 2013, I received letters dated November 19 and 20, 2013 from counsel for Metrolinx, Jonathan Goode, concerning the Metrolinx Motion. He provided me with case authority to consider in support of my jurisdiction to order a change in venue. He also made written submissions on the jurisdiction issue in one of his covering letters. In two letters dated November 20, 2013, Mr. Baichoo submitted that I not accept these submissions by Metrolinx as this authority had not been presented at the time of the argument of the motions.

[7] On November 28, 2013, out of a desire to be fair to all parties and to insure that I have all relevant and helpful authority before me, I advised counsel in writing that, should any party wish to respond to Mr. Goode’s written submissions, they should do so in writing by December 6, 2013, with any reply material to be submitted by December 11, 2013. I also invited the parties to ask for a further attendance before me to further address the issue of venue change if they were of the view that further oral submissions were necessary in that regard. In response, I received a letter from counsel for Cobra dated December 6, 2013, Jeffrey Levine, making submissions as to jurisdiction, venue change and adjournment, and expressly declined a further attendance. On the same day Mr. Baichoo delivered a brief containing written submissions and authority on the issues of counsel correspondence with the court, jurisdiction and venue change. He made no reference to a further attendance. By letter dated December 11, 2013, Mr. Goode responded to the issues raised by Mr. Baichoo in his brief of December 6, 2013 and also did not ask for a further attendance.

[8] Therefore, I did not order a further attendance. I will rule first on the correspondence issue raised by Mr. Baichoo, and then on my jurisdiction. If I rule that I have jurisdiction, I will then rule on the requested adjournment, and if I do not grant the adjournment, finally I will rule on the change of venue and, if necessary, the other relief sought by Cobra.

Counsel correspondence with the court:

[9] As noted above, Mr. Baichoo raised a major complaint about the written submissions Mr. Goode made to the court after the oral argument of the Cobra Motion. He argued that, as there was no prior attempt by Mr. Goode to obtain the consent of other counsel as required by Rule 1.09(a), Mr. Goode’s submissions should be disregarded. Mr. Baichoo presented several cases in support of his position, two of which concerned situations where counsel who participated in the original hearing of a proceeding subsequently corresponded with the judicial official without the consent of other counsel about matters that had been dealt with at the hearing; see Ward v. Ward 2009 92120 (ON SC), [2009] 100 O.R. (3d) 155 (SCJ) and Plackman v. 1399436 Ontario Inc. 2007 CarswellOnt 3997 (Ont. Master). The other two concerned correspondence with the court by counsel without approval of other counsel in the context of case management in which correspondence counsel attacked the conduct of the other counsel; see Land Ark Custom Homes Inc. v. Thompson 2006 CarswellOnt 4110 (Ont. Master) and Persaud v. Telus Corp. 2006 CarswellOnt 3455 (Ont. Master).

[10] All of these situations are, in my view, distinguishable from this case. Firstly, Mr. Goode’s correspondence of November 19, 2013 was not in any way an attack on Mr. Baichoo. He simply brought further legal authority to my attention and made written submissions on my jurisdiction to hear the motions. Secondly, Unimac’s conduct at the hearing of the motions in effect deprived Metrolinx of a proper opportunity to argue the issue of the jurisdiction for its motion, a procedural unfairness that had to be redressed. As was pointed out by Mr. Goode in his written submissions, Unimac’s contradictory behavior lulled Mr. Goode into the understandable belief that the Metrolinx Motion would go on consent without any jurisdictional issue. Unimac had consented to an order to be given by me changing the venue of the Hatch Action. Mr. Goode had therefore no reason to prepare argument on the jurisdiction point. Understandably his student was surprised and unprepared when Mr. Baichoo suddenly argued against my jurisdiction to grant change of venue orders in the Cobra Motion, which had the collateral effect of preventing the issuance of the consent order in the Metrolinx Motion. Mr. Baichoo should have known that jurisdiction cannot be conferred by consent and should have, in light of the Unimac consent, put Mr. Goode on notice of Unimac’s position on jurisdiction. There is not dispute that he did not do so.

[11] While Rule 1.09(a) does prohibit post-hearing correspondence from counsel to the court without consent of other counsel, Rule 1.09(b) also authorizes the court to direct “otherwise.” Furthermore, Rule 2.01(1) specifies in any event that, where there has been a failure to comply with the rules, a court may grant all necessary relief to insure the “just determination” of the real issues in dispute. I have determined that the “just determination” of the real issue in dispute requires that I grant Mr. Goode leave to deliver written submissions with or without consent of other counsel in order to insure that Metrolinx has an opportunity to argue the jurisdictional point (which directly impacts on the success of the Metrolinx moton), an opportunity that Unimac in effect denied by its conduct. It was this sense of fairness that caused me on November 28, 2013 to give the other parties an opportunity to respond to Mr. Goode's written submission in the first place. It is this same sense of fairness that makes me now rule, pursuant to Rule 1.09(b) and 2.01(1), that the post-hearing correspondence of Mr. Goode, and indeed that of the other counsel, will be considered by me in making my ruling.

Jurisdiction (Change of Venue):

[12] The issue of my jurisdiction to grant an order changing the venue of an action in the Ontario Superior Court arises primarily from the decision (released September 25, 2013) of Justice P.H. Howden in the case of Unimac-United Management Corp. v. St. Clare’s-Monaco Place, 2013 ONSC 6018 (SCJ). Up to this point, it appears that there was little issue in this regard. Rule 13.1.02(2) expressly confers upon the “court” the jurisdiction to order the transfer of proceedings from one county to another. Rule 37.02(2) expressly confers upon a master the jurisdiction to hear all motions other than inter alia those expressly to be determined by a judge, which is not the case with Rule 13.1.02(2). Therefore, it appears on the surface that there should be no issue that I have the jurisdiction to change venues.

[13] Indeed, there appears to be a history of decisions by masters changing venue. Mr. Goode provided me with a copy of a February 6, 2013 decision of Master Abrams ordering a change of venue: Cedarland Homes v. Nash 2013 ONSC 1282 (Ont. Master). He provided me with a copy of the decision of Justice Stinson in Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. 2005 19797 (ON SC), [2005] O.J. No. 2285 (SCJ) which was an appeal from a decision of Master Albert that had denied a change of venue under Rule 13.1.02(2), and which did not question, or even raise the issue of, the master’s jurisdiction. However, all of these decisions predate the decision of Justice Howden in St. Clare’s-Monaco Place. Therefore, I must determine what, if any, impact His Honour’s decision has on my jurisdiction to hear this motion. I am hearing this motion as a master, and, therefore, His Honour’s decision may bind me if it applies.

[14] In St. Clare’s-Monaco Place the subject project was a condominium project in Toronto. Several claims for lien were registered in relation to this project, including apparently a lien claim of Unimac. The associated lien actions (all in Toronto as required by the Construction Lien Act) were referred by Justice Stinson to Master Albert pursuant to section 58 of the Construction Lien Act. Unimac was the general contractor on that project and commenced a non-lien action in Newmarket against the owner, St. Clare’s – Monaco Place (“St. Clare’s”) for various relief including breach of trust. As indicated in Justice Howden’s decision, St. Clare’s brought a motion before Master Albert seeking an order staying certain of Unimac’s claims against St. Clare’s in the Newmarket action and in the lien proceedings in Toronto, or an order striking the Unimac claims in the Toronto proceedings, or an order that the claims in contract, tort and equity in the Unimac Newmarket action be pleaded in the Toronto proceedings. There is no reference in the decision to the motion being in any way in relation to a change of venue.

[15] Master Albert found that there were numerous overlapping issues between the Unimac Newmarket action against St. Clare’s and the Toronto lien proceedings. She found that a “solution … is needed to sort out these multiple proceedings,” and ordered a stay of the entire Unimac Newmarket action pending final disposition of the Unimac Toronto lien action. Unimac appealed that ruling to Justice Howden claiming that Master Albert lacked jurisdiction under section 107 of the Courts of Justice Act to make this order and that, in any event, she lacked jurisdiction for giving relief not claimed in the governing motion.

[16] I note with interest that the respondent, St. Clare’s, did not apparently take a position on the jurisdictional points because it relied instead upon the broader jurisdiction conferred on a judge to obtain the relief St. Clare’s sought from Justice Howden. In the end, St. Clare’s obtained from His Honour much of what it sought despite His Honour’s ruling against Master Albert’s jurisdiction. This must be born in mind when considering the weight to be given to this decision on the jurisdictional points.

[17] It is the point about section 107 of the Courts of Justice Act that concerns me. Justice Howden agreed with Master Albert that there were many overlapping issues between the Newmarket and Toronto proceedings. However, His Honour found that the jurisdiction to order a stay of a proceeding on account of the existence of another proceeding with overlapping issues arose from section 107(1) of the Courts of Justice Act and that such a motion, by operation of section 107(4), had to be brought before a judge, thereby excluding the jurisdiction of a master by operation of Rule 37(1).

[18] The argument had been made before Master Albert that section 107 did not apply because it was limited to cases at difference court levels, not to cases in different locations in the same court as was the case with the motion in that case where all of the relevant proceedings were in the Ontario Superior Court. The argument was that the jurisdiction to order a stay of an action at the same court level on account of another action with overlapping issues arose from Rule 6 which conferred that jurisdiction on the “court,” and therefore on masters. This, incidentally, was what the authors of Ontario Civil Practice, 2014 stated to be distinction between section 107 of the Courts of Justice Act and Rule 6. This is what they say at page 353: “For Rule 6 to operate, all the proceedings have to be in one court. However, s. 107 of the Courts of Justice Act permits the exercise of consolidation and related powers where the proceedings are in different courts.” Justice Howden stated in his decision that Master Albert made a “suggestion” to that effect in her ruling.

[19] Justice Howden disagreed. He stated in paragraph 7 that section 107 “is not limited, as the Master suggested, to cases of actions in different court levels; it has been used to transfer actions to a different region within the Superior Court of Justice or to consolidate actions in different regions within the court. ‘Court’ is used in used in its ordinary meaning in a generic and locational sense.” Interestingly, His Honour did not comment on the different references to courts in section 107 and Rule 6. Section 107 refers to the situation where “two or more proceedings are pending in two or more different courts” while Rule 6 refers to the situation where “two or more proceedings are pending in the court.” I would have thought that this distinction was significant; but either His Honour was not directed to this distinction or he did not think that the distinction was significant, as he did not discuss it.

[20] Justice Howden referred to two cases in which judges referred to section 107 in transferring actions between judicial districts. I note that in both cases the change of venue was ordered in conjunction with a consolidation order. In Terzopoulos v. Terzopoulos [2002] CarswellOnt 2367 (SCJ), Justice Quinn ordered that a Windsor divorce proceeding be transferred to Ottawa to be consolidated there with a support application. There was a reference in the decision to section 107 without any substantive discussion of the jurisdiction issue. In Schneider v. Design Recovery Inc. [2002] CarswellOnt 3172 (SCJ) Justice Morin stayed an application and ordered that it be brought as a counterclaim in an earlier pending action dealing with the same issue. His Honour referred to both section 107 and Rule 6 in granting the order.

[21] In reviewing Justice Howden’s decision in St. Clare’s-Monaco Place I have reached the conclusion that it does not have the effect of denying me the jurisdiction to change venues under Rule 13.1.02 per se. Firstly, the issue of a change of venue was not before His Honour. What was before him were issues of staying actions or striking pleadings. Rule 13.1 was not mentioned. Therefore, any reference His Honour may have made to the jurisdiction granted by section 107 to change venues was therefore not necessary to his ruling, was obiter dicta, and is therefore not authoritative or binding on me.

[22] Secondly, there is nothing in the wording of section 107 or His Honour’s interpretation of the word “court” in section 107 to cause me to conclude that section 107 applies to the change of venue jurisdiction granted to a master in Rule 13.1.02. The jurisdiction granted to a judge in section 107 to transfer proceedings from one court to another cannot be viewed in isolation. It must be viewed as being given in conjunction with the jurisdiction granted to a judge in the same section to consolidate the proceedings, stay them, have them heard together or have them asserted in different ways. I note that none of the authorities referred to by Justice Howden show section 107 being used as a strictly change of venue jurisdiction. Furthermore, reading section 107 as applying to pure change of venue motions would render meaningless the granting of the authority in Rule 13.1.02 to masters to make such change of venue orders. Statutory provisions must be interpreted as being consistent with each other as much as possible. Finally, this is a view of section 107 that was reflected in the ruling of Justice Pitt in Capano v. Rahm 2010 ONSC 3241, [2010] O.J. 2866 (SCJ), another case provided by Mr. Goode. In this ruling, Justice Pitt stated in paragraph 5 that what conferred exclusive jurisdiction onto judges in section 107(4) of the Courts of Justice Act was the jurisdiction to consolidate existing actions, order them heard together or order them heard one after the other. Justice Pitt concluded in paragraph 5 of his decision as follows: “By implication, requests to transfer simpliciter can be dealt with by either a judge or a master.” I note that the Capano decision was not apparently put before Justice Howden, as he makes no reference to it in his ruling.

[23] Mr. Levine suggested in his written submissions that I am in fact bound by the decision of Justice Pitt in Capano in those aspects of the motions before me that concerned a transfer of venue simpliciter. In reviewing that decision, I do not agree, as the issue before Justice Pitt was a transfer between court levels, not a transfer of venue. Therefore, his comments on the master’s jurisdiction to grant venue changes were obiter dicta. Nevertheless, I find His Honour’s comments in this regard persuasive and I give them weight.

[24] I therefore rule that I have the jurisdiction under Rule 13.1.02(2) to order that both the Cobra Action and the Hatch Action be transferred to Toronto.

[25] Jurisdiction was the only remaining issue in the Metrolinx Motion, as Unimac consented to the venue change in that action, a consent that Mr. Baichoo reaffirmed in his written submissions. Therefore, I herewith grant the requested venue change in the Hatch Action. However, I will withhold endorsing the motion record and signing the form of consent order that was filed by Mr. Goode’s student, as there may now be issues of costs to be addressed.

Jurisdiction (Trying together and references):

[26] The Cobra Motion, however, presents other issues concerning jurisdiction. Firstly, in its Notice of Motion Cobra stated that it was moving for an order that, once transferred to Toronto, the Cobra Action be tried concurrently with or immediately after the other lien actions already referred to me for hearing. Mr. Levine indicated in his written submissions that this part of the Cobra Motion be adjourned to be heard by a judge. For the reasons given by Justice Howden in St. Clare’s-Monaco Place (and indeed by Justice Pitt in Capano), I conclude that I do not have jurisdiction to give such an order and I adjourn this aspect of the motion to be heard by a judge. If the case is eventually referred to me by a judge, my jurisdiction would expand to that of a judge and I could make such an order.

[27] Secondly, Cobra moves for an order “assigning” the case to me for trial. Ms. O’Brien confirmed in argument that this was in essence a motion for an order referring the action to me for trial to be heard with the Toronto Proceedings. Put simply, under section 58(1) of the Construction Lien Act and Rule 54.02(1) of the Rules of Civil Procedure, only judges can make such reference orders. Again, Mr. Levine indicated in his written submission that this aspect of the Cobra Motion also be adjourned to be heard by a judge. Because I have no jurisdiction to give such an order, I herewith also adjourn this aspect of the motion to be heard by a judge.

Requested adjournment:

[28] That leads to the substantive part of the Cobra change of venue motion, and the first issue in that regard, namely whether there should be an adjournment of the motion.

[29] Ms. O’Brien sought an adjournment of the motion primarily to cross-examine on the affidavits submitted by Unimac in this motion. She advised that the primary purpose of these cross-examinations would be to obtain information about the other named defendants, who, I understand, have not been served with the pleadings. Cobra wants to obtain information in order to serve these other defendants. Furthermore, Ms. O’Brien stated that she tried to contact Mr. Baichoo for several weeks prior to the date of service of the motion record in order to settle the motion, but that Mr. Baichoo was away from the office. Mr. Baichoo opposed the requested adjournment, stating that the motion record had in fact been served late and that the stated reasons for the adjournment bore no relevance to the issues in the motion.

[30] I do not view the reasons given for the requested adjournment to be sufficient to justify such an order. The motion record was served late, and now Cobra wants to adjourn the motion to allow it to cross-examine on the affidavits submitted by Unimac for a purpose outside the scope of this motion, namely to facilitate the service of the Statement of Claim. I also note that the affidavit of Stephanie Arias concerns primarily correspondence between counsel which should be largely without contention.

[31] Therefore, I deny the requested adjournment.

Change of venue:

[32] This brings me to the issue of the change of venue of the Cobra Action. The governing rule is Rule 13.1.02(2). Mr. Baichoo is correct in his submission that the basic policy is that a plaintiff should be free to choose the judicial district in which to start the action. That policy is enshrined in Rule 13.1.01(2). Mr. Baichoo is also correct that the proper approach to such a motion therefore is to impose an onus on the moving party to show that the “interest of justice” is served by the requested change of venue having regard to the factors identified in Rule 13.1.02(2)(b).

[33] Justice Corbett gave some guidance as to how to apply these factors in Siemens Canada Ltd. v. Ottawa 2008 CarswellOnt 5650 (Ont.S.C.J.), paragraph 27. He stated that factors impacting “access to justice” were to be given preponderant weight, that the factors enhancing “local justice” needed to be applied, that the plaintiff’s choice of venue was to be deferred to if it had “a rational connection to the cause of action or the parties,” and that, if there was no concern about substantive justice, the importance of the factors depended on the totality of the circumstances of the case. These comments were cited with approval by Justice Strathy in Skidmore v. Carleton University 2009 CarswellOnt 2448 (SCJ).

[34] How then to apply this approach to the Cobra Motion? Ms. O’Brien submitted no factum, although her successor, Mr. Levine, did later make written submissions concerning the venue change, as was discussed above. The Cobra Motion Record contains the essence of its position. This motion record contains the affidavit of Glenn Grenier, a lawyer at McMillan LLP which represents both Cobra and another subcontractor of Unimac on the Willowbrook Project, Trenchline Construction Inc. (“Trenchline”). Trenchline registered a claim for lien in relation to the Willowbrook Project and, in fact, was the one who obtained the Judgment of Reference referring the lien claims in the Toronto Proceedings to me. As Mr. Grenier pointed out, there are also several claims on labour and material payment bonds and breach of trust claims in the Toronto Proceedings, all of which have been referred to me for management and hearing.

[35] Mr. Grenier deposed that the major reason for changing the venue of the Cobra Action to Toronto was to facilitate the reference of that action to me to be heard by me with the other actions in the Toronto Proceedings, given the major issues that are common to both the Cobra Action and the Toronto proceedings. In this way, he stated, the administration of justice would be served by avoiding inconsistent findings of fact and by promoting overall economy and efficiency. By way of illustration, he reviewed the statement of claim in the Trenchline lien action and the Cobra counterclaim in the Cobra Action, and pointed to the significant issues of delay concerning the Unimac management of and eventual removal from the Project that are common to both. I take judicial note of the fact that the parties in the Toronto Proceedings have at previous trial management conferences identified delay of the Unimac contract work as the major issue that pertains to all of those actions. It does not surprise me, therefore, that the issue of Unimac’s delay and the liability for it would also form a major part of the Cobra Action.

[36] This would appear to engage the factors described in Rule 13.1.02(2)(b)(viii), namely “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.” Having one court under a reference determine common issues of delay would promote economy and efficiency, and promote justice by avoiding inconsistent findings of fact.

[37] Mr. Baichoo argued that the issue of an eventual reference of the Cobra Action to me for hearing is not something I can consider under Rule 13.1.02. I disagree, as I see specifically Rule 13.1.02(2)(b)(viii) as attracting just such a consideration for the reasons stated above. He also argued that, as the Cobra Action is neither a lien nor bond action and does not name Metrolinx as a party, it would not be a proper action to be eventually ordered heard together with the other Toronto proceedings. I disagree. The issue on any motion to have actions be heard together is as much whether the issues raised in those actions are common to all as it is whether the specific relief claimed or the parties sued are the same; see Rule 6.01 and section 107(1) of the Courts of Justice Act. Mr. Baichoo also argued that having the Cobra Action eventually referred to me for hearing with the other Toronto proceedings would increase the costs of the Cobra Action by expanding the scope of documentary and verbal discovery, the number of parties and the evidence at trial. Again, I do not agree. The parties would remain the same and, if anything, issues in common with the other actions could be canvassed by other parties leading to efficiencies. Any delay associated with becoming a part of the large reference before me could be off-set by these other factors.

[38] In his written submissions, Mr. Levine canvassed the other factors to be considered under Rule 13.1.02(2)(b) in a change of venue motion, and argued that all favour Toronto as the venue. The first were the group of factors that enhance what Justice Corbett called “local justice,” namely where a substantial part of the events that gave rise to the claim occurred, where a substantial part of the damages were sustained, where the subject-matter of the proceeding was located, and any local community interest in the subject matter of the proceeding. I agree that all of these factors favour Toronto. Particularly, concerning the latter point, as the Cobra Action is a construction related proceeding, the community interest in having the litigation determined in the district where the construction is located seems obvious. That is the underlying policy of the Construction Lien Act with its requirement to have a construction lien action commenced in the jurisdiction where the subject project is situated.

[39] Mr. Baichoo did raise an issue in this regard that needs further attention. He pointed out that in its set-off and counterclaim Cobra raised claims of amounts alleged to be owed in relation to two projects that were not the Willowbrook Project. One was a project entitled the “Eglinton GO Station” which is located in Scarborough in the east end of Toronto. The other is the “Milton Train Layover Facility” which is located in Milton, Ontario. After consideration, I have concluded that this does not change my view on this issue. Firstly, the amounts claimed by Cobra concerning these two projects total $79,161.68, namely only about 17% of the entire Cobra $467,959.11 set-off and counterclaim. The largest part of the Cobra Action concerns the Willowbrook Project. Secondly, both of these other projects, while unrelated to the Willowbrook Project, are certainly much more closely connected to Toronto as a venue than they are to Newmarket. One is actually in Toronto. Therefore, the “local justice” factors would have these smaller claims more properly dealt with by a Toronto court than by a Newmarket one in any event.

[40] Mr. Baichoo also argued that the contracts in question in the Cobra Action were made in Newmarket. However, there was no evidence of that in the motion, and I give that point no weight as a result.

[41] Mr. Levine then also reviewed the other relevant factors to be considered under Rule 13.1.02(2)(b), namely the convenience of the parties, the witnesses and the court, and the judicial facilities available in the proposed venue. These factors pertain more to what Justice Corbett called “access to justice” concerns. Mr. Levine argued persuasively that the only party to be impacted by having its witnesses travel to a different location on account of the proposed venue change would be Cobra (the moving party), as Unimac and its witnesses will have to be give evidence in Toronto in any event in the Toronto Proceedings. As to the point about judicial facilities, Mr. Levine pointed out that, not only does Toronto have court facilities to match those of Newmarket, Toronto has a specialized construction lien court already charged with litigating closely related cases concerning the project that is the main subject matter of the Cobra Action. The education curve for the Toronto court that will likely hear the Cobra Action will therefore probably be substantially reduced as a result. I agree with both of these points.

[42] Unimac’s Responding Motion Record contains the affidavit of Wing Kin Tsui, an employee of Unimac, wherein he states in paragraph 23 that all parties and witnesses reside in Markham, Richmond Hill and Vaughan. He goes on to assert that the Newmarket court is more convenient venue as a result. Mr. Baichoo reiterated this point on many occasions in argument. I note from the Cobra Statement of Defence and Counterclaim that the addresses for the individual defendants to the Cobra counterclaim are in Markham, Richmond Hill and Concord. Mr. Tsui, however, did not identify other persons who will probably be called as witnesses. Furthermore, Mr. Baichoo did not respond to Mr. Levine’s valid point that the Unimac witnesses at a minimum will have to give evidence in any event in the Toronto proceedings, thereby nullifying any alleged greater inconvenience caused by the proposed venue change. I do not change my view that these two factors favour Toronto. I go further and find that there are no “access to justice” issues created by the proposed venue change.

[43] Following Justice Corbett’s guidance, and particularly his comment on the need to give deference to the plaintiff’s choice of venue, I have asked myself whether there is any rational connection between the causes of action and the parties in the Cobra Action and Newmarket. The only connections of any kind that I can decipher from the evidence presented at the motion are the addresses of the individual defendants in the Cobra counterclaim and the office of counsel for Unimac. They all appear to be in York Region, although not in Newmarket itself. These connections are not rational connections. For instance, there is no evidence that these parties and counsel reside or work in Newmarket itself, and therefore they would have to drive to Newmarket to conduct examinations and the trial just as they would have to drive to Toronto to do the same. As to the substance of the Cobra Action and Newmarket, there is no connection, much less a rational one. I conclude that I am not obliged to defer to the plaintiff’s choice of venue in this case.

[44] I, therefore, find that Cobra has met its onus of showing that the change of venue of the Cobra Action from Newmarket to Toronto is in the “interest of just,” and I so order. I do so primarily out of a concern to enhance a just determination of the issues that the Cobra Action has in common with the Toronto Proceedings, and out of, what I find to be, a total lack of connection between this action and Newmarket.

Costs:

[45] I required that both Unimac and Cobra submit Costs Outlines at the argument of the motion, which they did. Unimac’s Cost Outline shows a partial indemnity costs claim of $4,582.92 (inclusive of tax) and a substantial indemnity costs claim of $6,625.98 (inclusive of tax). It is not clear which of these two is being claimed. Cobra submitted a Costs Outline which shows a partial indemnity costs claim of $4,597.95 (inclusive of tax).

[46] Metrolinx did not submit a Costs Outline at the argument of the motions because, as discussed above, it was not prepared for an argument. In his written submission of December 11, 2013, Mr. Goode claimed the amount of $2,000 in costs from Unimac.

[47] In light of what transpired at and subsequent to the argument of the motions, I make the following order. Those parties seeking costs in relation to either the Cobra Motion or the Metrolinx Motion must serve and file a written submission or submissions in that regard on or before January 13, 2014. Any responding submissions must be in writing and must be served and filed on or before January 22, 2014.

MASTER C. WIEBE

DATE: December 20, 2013