SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 14-60399
DATE: 20140710
RE: UNIVERSITY OF GUELPH CENTRAL STUDENT ASSOCIATION, CANADIAN FEDERATION OF STUDENTS and CANADIAN FEDERATION OF STUDENTS - ONTARIO and UNIVERSITY OF GUELPH
BEFORE: JUSTICE VAN MELLE
COUNSEL:
Benoit Duchesne, for the Applicants/Responding parties
Krista Chaytor, for the Respondent/Moving party
MOTION HEARD: June 27, 2014
ENDORSEMENT
[1] The respondent, the University of Guelph, brings this motion to transfer the Application, originally commenced and issued at the Superior Court in Ottawa, to the Superior Court located in Guelph in the Central West Region.
[2] On March 21, 2014, the applicants, the University of Guelph Central Student Association (the CSA), Canadian Federation of Students (the CFS) and Canadian Federation of Students – Ontario (the CFS-O) commenced this Application in Ottawa, Ontario. The CFS is a not-for-profit corporation created to provide students attending post-secondary education institutions in Canada with a voice located in Ottawa.
[3] The CSA is a not-for-profit corporation commonly referred to as the student government or student union representing the interests of the under-graduate students enrolled at the University of Guelph.
[4] The CFS-O is a not-for-profit corporation representing the interests of post-secondary students in the Province of Ontario to the provincial and federal governments.
[5] This Application relates to the University’s decision to refuse to continue to collect membership fees from CFS and CFS-O individual members at the University of Guelph.
[6] The 2010, 2011 and 2012 membership fees were collected by the University but held back pending the litigation or resolution of a proceeding between the CFS, CFS-O and the CSA (the 2010 Application). The 2010 Application was argued in Guelph.
[7] On March 23, 2010 Justice O’Connor heard the 2010 Application in Guelph. Justice O’Connor ordered that a referendum be held on the question of CSA’s continued membership in CFS and CFS-O. The referendum took place on April 7, 8 and 9, 2010. Over 40 percent of under-graduate students voted. The students voted in favour of discontinuing membership in CFS and CFS-O.
[8] The CFS and CFS-O appealed Justice O’Connor’s decision to the Ontario Court of Appeal. In May, 2011 the Ontario Court of Appeal remitted Justice O’Connor’s decision back to the Superior Court of Justice for a re-hearing on the basis that Justice O’Connor did not provide any reasons and in those circumstances the appellate review was impossible. The re-hearing of the 2010 Application did not take place. In July 2012 the University decided not to collect or remit fees on behalf of individual members of the CSA to the CFS. In February, 2013 the CSA requested that the University resume collection of the fees.
[9] On or about February 28, 2013 CSA settled the 2010 Application with CFS and CFS-O. That settlement contemplates that a motion will be brought in the existing 2010 Application in Guelph to dismiss the Application on consent. The consent dismissal motion will be heard in Guelph on September 2014.
[10] The test for transfer of an Application is set out in Rule 13.1.02(2)(b) of the Rules of Civil Procedure. The Court may, on any party’s motion, make an Order to transfer the proceedings to a county other than the one where it was commenced, if the court is satisfied 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 counter-claims, cross-claims 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 in court facilities are available at the other county, and
(ix) any other relevant matters.
[11] The moving party bears the burden to demonstrate that to transfer the proceedings is desirable in the interests of justice. The applicants take the position and I agree, that where the applicants’ choice of venue is reasonable, the respondent must demonstrate that its choice of venue is significantly better if it is to prevail.
[12] Associate Chief Justice Marrocco, writing for a panel of the Divisional Court confirmed that the court should apply the factors in subrule 13.1.02(2) in a holistic manner, weighing each factor equally (Chatterson et al. v. M&M Meat Shops Ltd. 2014 ONSC 1897 (Div. Crt) para. 22).
[13] A case should usually be heard where the events occurred. However, it is questionable as to whether or not the events occurred in Guelph or in Ottawa. As well the CFS sustained the damages in Ottawa and the remaining damages were arguably sustained in Toronto and not in Guelph.
[14] The subject matter of the dispute relates to:
- the interpretation of corporate decision making powers under corporate
statutes and internal corporate by-laws and
interpretation of policies and
interpretation of the CFS by-laws.
[15] Although the location of an applicant is not sufficient reason alone to determine where a proceeding should be heard, it is certainly a factor.
[16] The University takes the position that most if not all the major events that gave rise to this Application occurred in Guelph. However, all the events it cites in its materials appear to relate to the 2010 Application. Although certainly some of the events giving rise to this Application did take place in Guelph, not all of the events took place there.
[17] Although the local community in Guelph has an interest in the subject matter, so does the greater University community in Ontario.
[18] Although the convenience of the parties, the witnesses and the court are certainly an issue, this is an Application and as such most of the evidence will be heard by way of affidavit. Cross-examinations on the affidavits will have to be conducted in the county in which the deposing party resides in any event.
[19] The CFS is located in Ottawa. The CSA has selected Ottawa as a convenient forum. The CFS-O’s head office is located in Toronto. It is certainly arguable that the convenience of the parties, witnesses and the court favours Ottawa.
[20] The Rules of Civil Procedure allow an applicant to commence an Application anywhere in Ontario. The applicants in this matter have chosen to commence this Application in Ottawa. I am not persuaded that a change of venue should be granted for the hearing of this Application.
[21] I heard this motion by way of telephone conference. I was provided with a Bill of Costs from each side.
[22] In taking into consideration the fact that this matter was argued by way of telephone conference, costs in the amount of $5,500 inclusive of HST and disbursements are awarded to the applicants.
Van Melle J.
DATE: July 10, 2014
COURT FILE NO.: 14-60399
DATE: 20140710
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: UNIVERSITY OF GUELPH CENTRAL STUDENT ASSOCIATION, CANADIAN FEDERATION OF STUDENTS and CANADIAN FEDERATION OF STUDENTS - ONTARIO and UNIVERSITY OF GUELPH
BEFORE: JUSTICE VAN MELLE
COUNSEL: Benoit Duchesne, for the Applicants/Responding parties
Krista Chaytor, for the Respondent/Moving party
ENDORSEMENT
Van Melle J.
DATE: July 10 2014