CITATION: Chatterton v. M&M Meat Shops Ltd., 2013 ONSC 8037

COURT FILE NO.: DC13-473 ML

DATE: 20130624

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RANDALL CHATTERTON, BRENDA CHATTERTON a.k.a. BRENDA HACKER, and 1291008 ONTARIO LTD., Plaintiffs

AND:

M&M MEAT SHOPS LTD, Defendant

BEFORE: The Honourable Mr. Justice R.B. Reid

COUNSEL: G. Limberis, Counsel, for the Plaintiffs

E. Thomas, Counsel, for the Defendant

HEARD: May 30, 2013

ENDORSEMENT

[1] The defendant brought a motion to transfer this action from Hamilton to Kitchener.

[2] The motion was dismissed by Justice D. A. Broad by order dated April 4, 2013.

[3] The defendant now seeks leave to appeal the interlocutory order of Justice Broad to the Divisional Court, pursuant to section 19(1)(b) of the Courts of Justice Act[^1].

[4] The Rules of Civil Procedure[^2] are presumptive against granting leave. They provide in rule 62.02(4) that leave to appeal shall not be granted unless:

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[5] This leave application has been argued before me primarily on the basis of rule 62.02(4)(a).

Background facts:

[6] The action was commenced in Hamilton and involves a dispute between the plaintiffs as franchisees and the defendant who is their franchisor. The plaintiffs and their franchise store are located in Toronto. The defendants have offices located in Kitchener. The potential witnesses reside for the most part in the Kitchener-Waterloo or Toronto areas. The only connection between this case and Hamilton is that Hamilton is the location of the plaintiffs’ lawyers’ offices.

Reasoning of the motions judge:

[7] Justice Broad reviewed rule 13.1.02(2)(b) as to the factors to be considered by the court in a transfer motion. He concluded that since Hamilton is geographically the approximate midpoint between Toronto in Kitchener, it was a rational and reasonable place for the action to be commenced. In his opinion, Hamilton has the advantage of levelling the playing field as between the parties in relation to the attendance of their witnesses. He concluded that the defendant had not satisfied its onus to demonstrate that a change of venue to Kitchener was desirable in the interest of justice and therefore dismissed the motion.

[8] Based on a review of Justice Broad’s analysis, and the case law to which he referred, I do not have good reason to doubt the correctness of the order. Despite my conclusion on that point, it is necessary to examine whether there is a conflicting decision or decisions in Ontario or elsewhere about the need for the venue named by the plaintiff to have a rational connection to the action.

Are there conflicting decisions in Ontario or elsewhere?

[9] In paragraph 9 of his decision, Justice Broad observed that: “D.M. Brown, J. in Hallman v. Pure Spousal Trust (Trustee of) 2009 51192 (ON SC), 2009 80 CPC (6th) 139 (S.C.J.) had identified two slightly different approaches to the interpretation of rule 13.1, having to do with whether, as a preliminary step, it must be shown that the Plaintiff’s choice of venue has a rational connection to the cause of action or the parties, as suggested by Corbett J. in Siemens[^3].” He further noted at paragraph 10 that that Justice Brown declined to follow the two-step Siemens approach, in favor of a “holistic” exercise involving consideration of the factors enumerated in the rule to determine whether the moving party has demonstrated that: “a transfer is desirable in the interest of justice”.[^4]

[10] That is the crux of the defendant’s argument in this leave motion: that there are two conflicting lines of cases exemplified by Siemens and Hallman.

[11] The case references to Siemens often refer to paragraph 24 as setting out the applicable principle:

In the first instance, the court must be satisfied that the place of trial selected by the plaintiff is a reasonable place for trial. If it is not, then a change is in order, to the place suggested by the defendant, or to some other place if the defendant’s suggestion is not a reasonable place for the trial. If the plaintiff’s choice is reasonable, then some element of comparison is required to assess the relative merits of the place suggested by the plaintiff and the place suggested by the defendant. This comparison should not be a minute assessment designed to determine which is the “better” or the “best” choice. If there is something to be said for both of these suggestions, then the plaintiff’s suggestion should prevail. However, if the defendant’s suggestion is significantly better than the plaintiff’s, then the change should be made.

[12] I also note Corbett J.’s conclusion at paragraph 26 where he specifically sets out in part that:

(2) the court will change venue on motion by a defendant if the venue selected by the plaintiff “has no rational connection to the cause of action or the parties.”

[13] In my view, the so-called “Siemens approach” clearly sets out a threshold issue to be determined, that is, whether there is a rational connection between the chosen venue and the cause of action or parties, before the analysis of the rule 13.1.02(2)(b) factors is engaged.

[14] That approach is clearly not followed by Justice Brown in Hallman where he says at paragraph 28:

While I do not quarrel with the second part of the approach in Siemens dealing with the balancing of the various factors enumerated in rule 13.1.02(2), I have difficulty with the suggestion that before weighing the factors a court should first examine whether the place selected by the plaintiff is a reasonable one. To impose such a “threshold” condition in my view places a gloss on rule 13.1.01(2) that does not find support in the language of the rule which permits a party to commence a proceeding in any court office in any county so long as a statute or rule does not specify a place of commencement. The rule does not state that the initiating party must justify the choice as a reasonable one. If one of the parties opposite thinks the choice and unreasonable one for whatever reason, it may bring a motion to change the venue. On that motion the court should engage in the “holistic” exercise described in Eveready[^5]of considering the enumerated factors, including “any other relevant matter”, in order to determine whether the moving party has demonstrated that “a transfer is desirable in the interest of justice.”

[15] The courts in Siemens and Hallman are of coordinate jurisdiction.

[16] The plaintiff suggests that the issue has already been resolved, and that the subsequent case law has followed Hallman. However, I note that the Siemens approach (perhaps without significant analysis identification) has been followed in Skidmore v. Carleton University,[^6] Diagnostic Imaging International Corp. et. al. v. Quinte Magnetic Resonance Imagaing Inc., et al.[^7],and Sauvé v. Tavares[^8].

[17] As observed by Justice Broad, the Hallman “holistic approach” has been followed in several other cases by masters and judges including Wilcox v. Flintstone Glass and Mirror Ltd.[^9], Aherne v. Change[^10], and Rahemtulla v. Bell[^11].

[18] I conclude that there are current, conflicting cases in Ontario on the issue of the proper test to be applied in considering change of venue motions and in applying the factors set out in rule 13.1.02(2)(b). These are demonstrably recurring matters in litigation where the applicable principles should be made definite through the guidance of an appellate court.

[19] As a result, I consider that it is desirable that leave to appeal be granted based on the presence of conflicting decisions in Ontario, and therefore grant leave to the defendant to appeal the order of Justice Broad dated April 4, 2013.

[20] If the parties are unable to resolve the issue of costs consensually, I am prepared to receive written submissions according to the following timetable: the defendant is to provide to the plaintiffs its bill of costs together with brief written submissions within two weeks of this date. The plaintiffs are to deliver their response to the defendant within a further week. The submissions by both parties and any reply submissions by the defendant are then to be filed with the court by no later than July 22, 2013.

Reid J.

Date: June 24, 2013

[^1]: R.S.O. 1990, c. C.43, as amended [^2]: R.R.O. 1990, Reg. 194 [^3]: Siemens Canada Ltd. v. Ottawa (City) 2008 48152 (ON SC), [2008] O.J. No. 3740 (S.C.J.) [^4]: Hallman at para 28. [^5]: Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc., 2005 19797 (ON SC), [2005] O.J. No. 2285 (S.C.J.) [^6]: [2009] O.J. No. 1854 (S.C.J.), at para. 15 [^7]: [2010] O.J. No. 2370 (S.C.J.) at para . 15 [^8]: [2012] O.J. No. 2148 (S.C.J. master) at paras. 5 & 6 [^9]: (2009) 2009 73279 (ON SC), 85 C.P.C. (6th) 394 (Master) [^10]: [2012] O.N.S.C. 2689 (Master) [^11]: [2012] O.N.S.C. 2181 (S.C.J.)