SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-5425-00
DATE: 2014-06-27

RE: 2106148 Ontario Ltd., operating as Discount DVD Depot and
Herbamax v. Diversified Nutrition Lifestyle Canada Ltd.

BEFORE: Van Melle J

COUNSEL:
M. Miculinic, for the Plaintiff
W.J. Blakeney, for the Defendant

HEARD: June 24, 2014

E N D O R S E M E N T

[1] This is a motion by Herbamax to consolidate this action (the Brampton action) with a second action issued in Ottawa, bearing court file number 13-59530 (the Ottawa action). Herbamax seeks an Order as well that the consolidated action be tried in Brampton.

[2] The defendant Diversified Nutrition Lifestyle Canada Ltd. (DNL) acknowledges that the claims arise from the same occurrence. DNL is satisfied that the actions be tried together or one after the other. Although I recognize that this is somewhat different than having the two actions consolidated, in the circumstances I am making an Order that the two matters be tried together or one right after the other subject to the discretion of the trial judge.

[3] Herbamax commenced its action against DNL on December 4, 2013. The Statement of Claim in the Brampton action was served on DNL on December 5, 2013.

[4] DNL initiated the Ottawa action on December 5, 2013. Herbamax’s counsel was served with a copy of DNL’s Statement of Defence in the Brampton action on December 19, 2013. On the same day, counsel for Herbamax was served with an amended Statement of Claim in the Ottawa action.

[5] In both actions it is pleaded that the parties entered into an agreement whereby DNL was to obtain the appropriate licences from Health Canada and to manufacture products ordered.

[6] Herbamax’s action was brought in the Superior Court of Justice in Brampton on the regular track. DNL brought its action to the Superior of Justice in Ottawa under the Simplified Procedure Rule.

[7] Herbamax’s place of business is located in Mississauga. DNL’s place of business is located in Ottawa. Herbamax takes the position that the damages primarily occurred in Mississauga, however, DNL takes the position that the events giving rise to both the Brampton action and the Ottawa action occurred in Ottawa. It says that the subject matter giving rise to both actions was located in Ottawa. The alleged damages were incurred by the plaintiff due to the manufacturing of the natural health products made in Ottawa.

[8] DNL states as well that the added advantage to transferring the Brampton action to Ottawa concerns the availability of mandatory mediation.

[9] In considering the enumerated criteria under Rule 13.1.02(2) it appears that both actions have a connection with either Brampton or Ottawa and that either might be an appropriate venue. Both parties will be put to the expense of advancing or defending a claim and could be required to travel to the other jurisdiction. There will be inconvenience to some of the witnesses.

[10] However when, as Regional Senior Justice, I consider subsections (vii) and (viii) it seems to me that the preferred venue for the two actions is Ottawa.

[11] At the present time, in Brampton, we are waiting for three judges to be appointed. One of the positions has been outstanding since October 1, 2013. It does not appear that any new appointments will be made before the fall of 2014. As well, the availability of mandatory mediation in Ottawa may well assist in an expeditious determination of this proceeding on its merits.

[12] Considering those two factors along with the other enumerated factor, I find that this proceeding should be transferred to Ottawa.

[13] I discussed the issue of costs with counsel at the hearing of the motion. Given the fact that these two proceedings are connected to both jurisdictions, the result was not a forgone conclusion. I therefore suggested to counsel that costs of this motion be left to the discretion of the trial judge. They were agreeable and I so Order.

Van Melle, J

DATE: June 27, 2014

COURT FILE NO.: CV-13-5425-00

DATE: 2014-06-27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: 2106148 Ontario Ltd., operating as

Discount DVD Depot and Herbamax

v. Diversified Nutrition Lifestyle

Canada Ltd.

BEFORE: Van Melle, J.

COUNSEL: M. Miculinic, for the Plaintiff

W.J. Blakeney, for the Defendant

ENDORSEMENT

Van Melle, J.

DATE: June 27, 2014