COURT FILE NO.: 1226-13
DATE: 2014-12-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Great-West Life Assurance Company, Plaintiff
AND:
Dr. Jillian Diane Hartman-Grelowski, Jamie Grelowski, Jillian Harman-Grelowski Chiropractic Professional Corporation and Dr. Stephanie Playford, Defendants
BEFORE: Heeney R.S.J.
COUNSEL:
R. David House, for the Defendants Dr. Jillian Diane Hartman-Grelowski, Jamie Grelowski, and Jillian Harman-Grelowski Chiropractic Professional Corporation
Scott McTaggart, on behalf of the Plaintiff
HEARD: In writing pursuant to Rule 37.12.1(4) of the Rules of Civil Procedure
ENDORSEMENT
[1] I have received the submissions of counsel as to costs of the motion. The motion had been brought in writing, pursuant to Rule 37.12.1(4), by the defendants Dr. Jillian Diane Hartman-Grelowski, Jamie Grelowski and Jillian Harman-Grelowski Chiropractic Professional Corporation. It sought an order under Rule 13.1.02(2) transferring this proceeding from the Superior Court of Justice in London to either Welland or St. Catharines, Ontario, both of which are in the Central South Region. The plaintiff did not file responding materials to this motion, as required by Rule 37.12.1(5), and accordingly the motion was dealt with based on the moving parties’ material alone. The motion was granted, with the consent of the Regional Senior Justice from the Central South Region.
[2] In its costs submissions, the plaintiff makes submissions as to the merits of the motion. That is not appropriate, since those materials should have been filed within ten days after service, and to do so now amounts to an attempt to reopen a matter that has already been decided. In his affidavit, Mr. McTaggart stated that he assumed he would have had an opportunity to make oral submissions, because Rule 13.1.02(5) states:
Before making an order under subrule (4) the regional senior judge shall direct the parties to appear before him or her, by personal attendance or under Rule 1.08 (telephone and video conference), to consider whether the order should be made.
[3] However, subrule (5) only applies where the court is considering making an order under subrule (4). Subrule (4) deals with a situation where the regional senior judge, on his or her own initiative, makes an order transferring proceedings to another county in the same region. That is not the case here. This was a motion made in writing by several of the parties under subrule 13.1.02(2) for the transfer of the proceedings to a county other than the one where it was commenced. There is no requirement for a hearing, unless the responding party gives notice under Rule 37.12.1(5)(d) that he or she intends to make oral argument.
[4] The moving parties claim that the motion was unnecessary and should have been consented to. They allege that the action was commenced “in the wrong venue”. They claim costs of $3,000. That is supported by a Costs Outline which shows that 12.9 hours were expended on this motion amounting to fees of $2,480 plus HST. Included in their overall figure is the time spent preparing costs submissions of $666.70 as well as disbursements of $644.66.
[5] My first observation is that there was nothing wrongful in the plaintiff having commenced this action in London. Under Rule 13.1.01(2), a proceeding may be commenced anywhere in Ontario, unless a statute or rule requires it to be commenced in a particular county, which is not the case here.
[6] Whether the venue should later be changed to another place for purposes of trial is something that may be addressed at any stage of the proceedings, under Rule 13.1.02(2). However, implicit in the moving parties’ submissions is the suggestion that substantial costs have been incurred because the plaintiff did not consent to the motion. That is not necessarily the case.
[7] Paragraphs 48 and 49 of the Consolidated Provincial Practice Direction of this court read as follows:
A high volume of requests to transfer civil proceedings to another county, often in another Region, are being received in the Central East, Central West, Central South and Toronto Regions. Counsel frequently seek to transfer a case, on consent. 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 interest of justice, having regard to the factors listed in rule 13.1.02(2)(b). It is not sufficient to bring a transfer motion orally, on consent, or to file a consent for an order to transfer a case to another county under rule 13.1.02.
The moving party must file a Notice of Motion with a supporting affidavit, as required under rule 13.1.02(2). The moving party’s affidavit must address the factors listed in rule 13.1.02(2)(b) and, as part of the relevant matters, must identify the current stage of the proceeding (i.e., whether further motions are anticipated in the proceeding, whether a pre-trial has occurred or is scheduled, and whether mediation has been held) and why the proceeding was originally commenced in the originating county. The affidavit should also address the estimated length of trial, whether it is a jury trial, and the number of parties and counsel.
[8] The result of this is that the moving parties would have had to prepare and file material that supported the merits of a change of venue even if the plaintiff had consented to the motion. Thus, a good argument can be made that it is only to the extent that additional time was spent on the motion due to the lack of a consent that the moving parties are entitled to costs.
[9] In my view, an expenditure of 12.9 hours of counsel’s time on a motion of this simplicity is entirely disproportionate. In fact, it was the very simplicity of the motion that made it an appropriate one to deal with in writing, without the attendance of the parties. Subrule 37.12.1(4) permits a party to propose that a motion be dealt with in writing “[w]here the issues of fact and law are not complex”. I also agree with counsel for the plaintiff that there was no need to engage the services of a process server to personally serve the plaintiff with the motion material. Since counsel was on record, materials could have been served by mail or fax as provided for in the rules. The moving parties did, however, need to engage an agent to file the materials with the court. Thus, that disbursement should be reduced by $84 plus applicable HST.
[10] In view of the above, a substantial reduction in the amount claimed is in order. Costs are assessed at $1,500 all inclusive, payable by the plaintiff within 30 days.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Date: December 8, 2014