ONTARIO

SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: CV-10-2058

DATE: 20140806

BETWEEN:

Sheila Guenette

Plaintiff

– and –

Roy Furness

Defendant

Robert M. Durante, for the Plaintiff

Grant R. Dow, for the Defendant

HEARD: Motion in Writing

REASONS FOR DECISION

eDWARDS J.:

The Issue

[1] This is a motion brought by the defendant seeking a change in venue from Barrie to Sudbury. The action itself arises out of injuries suffered by the plaintiff when it is alleged the defendant swerved his motorcycle to avoid a bear that was crossing the road. This allegation is disputed by the plaintiff. The plaintiff resides in Sudbury. The defendant now resides in London, Ontario. The plaintiff resists the transfer of the action to Sudbury on a number of grounds, including: the suggestion that a transfer to Sudbury would cause undue delay; the experts retained by the plaintiff and defendant reside in Toronto; and counsel for the plaintiff is located in Barrie. As such, it is suggested by the plaintiff that Barrie is the more appropriate venue for trial.

The Facts

[2] As previously noted, this action arises out of a motorcycle accident which took place on August 27, 2009. While it was initially suggested in the statement of claim that the accident was caused when the defendant swerved his motorcycle to avoid a bear, it is now suggested by the plaintiff that the accident was caused when the defendant accelerated at a sufficient rate of speed to cause the front wheel of his motorcycle to pop off the ground. Both the plaintiff and the defendant were thrown from the motorcycle.

[3] The statement of claim was issued October 1, 2010, with a defence delivered on February 17, 2011. In the statement of claim the plaintiff provided for Barrie as the place of trial, which was disputed by the defendant in his statement of defence.

[4] There is a dispute between the parties as to whether or not the defendant consented to setting this matter down for trial. A trial record was served and filed with the Barrie court on January 6, 2014. The matter came before the trial scheduling court in Barrie on April 9, 2014, at which time the plaintiff requested that the matter be placed on the November 2014 trial sittings list at Barrie. At the request of the defendant the trial scheduling court was adjourned to allow for the present transfer motion to be placed before the court. With the conflicting evidence before me on the issue of whether the defendant consented to placing the matter on the trial list, I am satisfied that the application of Rule 48.04(1) has been triggered requiring the defendant to obtain leave to bring this motion. Under the circumstances leave is granted.

[5] If this matter came before the trial scheduling court in Barrie in a timely fashion there is a realistic possibility now that the matter would come to trial during the November sittings in Barrie. If that were to occur, there is equally a risk that the trial would have to be adjourned as defendant’s counsel apparently has two other matters scheduled for trial in other jurisdictions. If counsel for the defendant was involved in another trial, it is highly unlikely that the court would require new counsel to appear on behalf of the defendant to deal with the trial of this matter at the November 2014 sittings.

[6] The trial of this action will involve liability witnesses, as well as witnesses called to establish the plaintiff’s claims for general damages, past and future wage loss, and past and future care costs. The defence asserts that there will be at least 14 witnesses who reside in the general area of the City of Greater Sudbury, including emergency personnel and health professionals, as well as lay witnesses. It is worth repeating that the plaintiff herself resides in Sudbury. Counsel for the plaintiff asserts that the most important witnesses in this case will be the damages experts retained by both the defendant and the plaintiff, most, if not all, of whom reside in Toronto.

[7] Counsel for the plaintiff is a well-known and highly experienced lawyer who maintains offices in a number of jurisdictions. Counsel for the plaintiff maintains his primary office in Barrie. As well, it is noted that counsel for the plaintiff maintains an office in Sudbury. Counsel for the defendant lives in Toronto, with his office also located in Toronto. The defendant himself resides in London. It is fair therefore to suggest that the only rational connection with Barrie is the fact that counsel for the plaintiff has his primary office and lives in the Barrie area.

The Recent Practice Direction

[8] Motions to transfer a civil proceeding in the Central East, Central West, Central South and Toronto Regions are now governed by a Practice Direction dated March 5, 2014. The Practice Direction, amongst other things, provides that while the transfer may be appropriate in the circumstances of the case, the onus rests with the moving party to satisfy the court that a transfer is desirable in the interests of justice having regard to the factors listed in Rule 13.1.02(2)(b) of the Rules of Civil Procedure. As such, it is beyond dispute that the onus in this case to establish that it is in the interests of justice to move the trial from Barrie to Sudbury rests on the defendant.

[9] The Practice Direction goes on to provide that the issue of the availability of judges and court facilities in the county to which the transfer is sought does not need to be addressed by counsel in their material, but rather this factor is to be addressed by the Regional Senior Judge in the region where the motion is brought after consulting with the Local Administrative Judge or Regional Senior Judge for the other county.

[10] As to who is to hear a motion to transfer, the Practice Direction provides that the Regional Senior Judge, or his or her designate, will hear all motions to transfer. I have been designated by Regional Senior Justice Fuerst to hear this matter. As such, I contacted Regional Senior Justice Gordon with respect to the availability of judges and court facilities in Sudbury to hear this matter. Regional Senior Justice Gordon has advised me that a two to three week jury trial would likely be reached by February 2015, unless other scheduled trials do not proceed which, of course, is quite common as trial dates approach and settlements are reached. Given the potential non-availability of defendant’s counsel for the trial of this matter in Barrie during the November sittings, the potential issue of the delay of the trial in this matter to February 2015 in Sudbury in my view is a neutral factor in the overall consideration of whether a transfer is appropriate.

[11] If the evidence had been that a transfer to Sudbury would have resulted in a material delay of the trial of this action, I would have been of the view that a transfer would have been inappropriate given that the statement of claim in this matter was issued in October 2010, and counsel for the defendant had disputed Barrie as the appropriate place for trial in the statement of defence, served on February 17, 2011. If counsel for the defendant had wished to move the venue from Barrie to Sudbury such a motion, in my view, should have been brought in a timely fashion, and not in trial scheduling court. As the trial of this matter is not likely going to be materially delayed whether the action is tried in Barrie or Sudbury, I do not consider the timing of this motion as something that should favour one side or the other.

Rule 13.1.02(2)(b)

[12] The practice direction makes clear that the defendant in this case has the onus of satisfying the court that a transfer is desirable in the interests of justice, applying the factors set forth in Rule 13.1.02(2)(b). I propose to review each of the individual factors as they apply as set forth in this Rule.

Where Did a Substantial Part of the Events or Omissions That Gave Rise to the Claim Occur?

[13] As previously noted, this matter arises out of motorcycle accident that occurred in Sudbury. The plaintiff resides in Sudbury. Most of the lay witnesses that will testify with respect to liability issues are from the Sudbury area. The defendant, however, resides in London. This factor favours Sudbury as the venue for trial.

Where Were a Substantial Part of the Damages Sustained?

[14] With the plaintiff continuing to reside in Sudbury, the damages have been sustained in the Sudbury area. Witnesses with respect to those damages will include emergency personnel and, presumably, treating doctors and other medical personnel. Medical/legal witnesses who have been retained by both the plaintiff and the defendant however, reside in Toronto. This factor weighs more in favour of Sudbury than Barrie but not sufficiently that it is determinative.

Where is the Subject Matter of the Proceeding Located?

[15] This is a relatively straight forward motor vehicle accident claim which occurred in Sudbury. This factor weighs in favour of Sudbury.

Is There Any Local Community Interest in the Subject Matter of the Proceeding?

[16] There is nothing unique about this motorcycle/motor vehicle accident claim that would, in my view, warrant either Barrie or Sudbury having any significant local community interest in this matter.

Is There Any Particular Convenience to the Parties, the Witnesses or the Court?

[17] As to the parties themselves, the plaintiff resides in Sudbury and the defendant resides in London. There is a stronger probability that the plaintiff will be attending the trial throughout, while the defendant will likely only attend at the commencement of the trial and when he is called to give his liability evidence. As to the witnesses, there is a strong probability that most of the lay witnesses in this matter will come from the Sudbury area, while the expert witnesses will come from the Toronto area. Counsel for the plaintiff resides in the Barrie area, while counsel for the defendant resides in the Toronto area. As far as the convenience of the court is concerned the ability to try this matter either in Barrie or Sudbury is not an issue as there are more than adequate facilities in both jurisdictions, and from a timeliness perspective either Barrie or Sudbury can provide both parties with a trial in a timely fashion.

Are There Any Counterclaims, Crossclaims or Third or Subsequent Party Claims?

[18] There are no such counterclaims, et cetera that would have any impact on whether this matter should be transferred from one jurisdiction to another.

Are There Any Advantages or Disadvantages of Barrie versus Sudbury with Respect to Securing the Just, Most Expeditious and Least Expensive Determination of the Proceeding on its Merits?

[19] If this matter were transferred to Sudbury there would unquestionably be an increase in the costs of the proceedings given the strong probability that both counsel would likely have to remain in the Sudbury area during the course of the trial, as opposed to reside in their respective homes. There would be additional travel costs as well for both the lawyers and expert witnesses. The flip side to those additional costs may be somewhat ameliorated given the fact that most of the lay witnesses who would be called to give evidence reside in Sudbury, and therefore would not be incurring the costs of travelling to Barrie. I see this factor as somewhat favouring retaining this matter for trial in Barrie, although it is not overly weighted in this regard. I also keep in mind the fact that counsel for the plaintiff does maintain an office in Sudbury, which further moves a consideration of this aspect of the Rule to a more neutral factor as opposed to a factor weighing in favour of maintaining Barrie as the place of trial.

Are Judges and Court Facilities Available in Sudbury?

[20] The answer to this question, as I have already indicated, based on my consultation with Regional Senior Justice Gordon is that a trial of this matter, whether it is heard in Sudbury or Barrie, can be accommodated in a timely fashion.

Are There Any Other Relevant Matters That This Court Should Consider in Determining Whether or Not to Move the Action from Barrie to Sudbury?

[21] The consideration of whether a change of venue in this case is appropriate should take into account that a party has a fundamental right under our Rules 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. There is no obligation in Rule 13.1.01(2) which obliges the plaintiff to establish that the choice for the venue of trial is a reasonable one. Counsel for the plaintiff in this case may very well have strategic reasons as to why he commenced the action in Barrie, which reasons may have nothing to do with the convenience of where counsel himself actually resides.

[22] The experience of counsel in determining the venue for trial is something which the court should not second guess. It may be, for instance, that counsel has had experience in trying cases in one jurisdiction versus another and determined that a jury trial in one jurisdiction versus a jury trial in another jurisdiction might favour his or her client. As such, while the court must adopt a holistic approach to the application of the factors set forth in Rule 13.1.02(2), an important factor to keep in mind is the fundamental right of the plaintiff to name the place of trial, a right that should not be lightly interfered with. In that regard, the comments of the Divisional Court in Chatterson v. M&M Meat Shops Ltd., 2014 ONSC 1897, are worth repeating.

As can be seen from this paragraph, the Siemens decision establishes that if the plaintiff’s place of trial is not reasonable and the defendant has moved for a change of venue to a reasonable location, then a change of venue will likely be in order. This is matter of common sense.

The same paragraph establishes that if the plaintiff’s choice of venue is reasonable and the defendant moves for a change of venue, then a comparison of the two venues is required. The court also stated that in this situation the defendant’s choice has to be significantly better in order to prevail. This is because the Rules permit the plaintiff to choose the venue at the commencement of the claim.

Ruling

[23] After applying the holistic approach to the analysis required by both the new Practice Direction and Rule 13.1.02(2) I am satisfied that both Barrie and Sudbury can provide timely trials to the parties. There is nothing in the nature of this action that favours the interest in the local community, whether it is Sudbury or Barrie, in having this matter tried in one jurisdiction versus the other. As to the convenience of the parties, there is no question that most of the lay witnesses are likely going to come from the Sudbury area, while the expert witnesses will come from Toronto. While a transfer to Sudbury may result in additional expense for those experts, and for the lawyers themselves, I do not see the issue of convenience from the experts’ perspective favouring Barrie versus Sudbury. Experts know that when they are retained by one side or the other that they may have to travel in order to provide their evidence to the court, and that while they may lead busy professional lives, in accepting a retainer as an expert some inconvenience to those professional lives is anticipated and expected.

[24] In ultimately rejecting the defendant’s motion seeking a transfer from Barrie to Sudbury I have been guided by the principle that the plaintiff has the right under the Rules to specify the venue for trial. Under the old Rule governing venue for trial I suspect the defendant’s motion in this case would have been successful. However, given the recent decision of our Divisional Court in Chatterson I do not accept that the defendant has satisfied the onus of showing that Sudbury is “significantly better” than Barrie as the venue for trial. The motion to change the venue is dismissed with costs that I fix in the amount of $1,500.00.

Justice M.L. Edwards

Released: August 6, 2014