SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 55394/14
DATE: 2014-12-23
RE: Karen Midwinter Plaintiff
AND:
Sandy Matheson a.k.a. Sandy Joseph Matheson; and IIROC a.k.a. Investment Industry Regulatory Organization of Canada; and John Henry Blackburn; and, Dundee Wealth Management Inc.; and, Integral Wealth Securities Ltd. Defendants
BEFORE: Turnbull J.
COUNSEL:
Shelley Babin, Counsel for the defendant Intergral Wealth Securities Ltd.
Brendan Jones, Counsel for the defendant, Sandy Matheson
Kalen L. Brady, Counsel for the defendant, John Henry Blackburn
Matthew Furrow, Counsel for the defendant, Dundee Wealth Management Inc.
HEARD: December 22, 2014 (by telephone conference call)
ENDORSEMENT
[1] The plaintiff brought a motion to set aside the registrar’s automatic dismissal of this action and to have the place of trial of this action transferred from Toronto to St. Catharines.
[2] The action was started when the plaintiff retained counsel in Toronto. She is now self-represented. She lives in St. Catharines. Her affidavit asserts that she has serious health issues and limited financial means, both of which limit her ability to travel to and from Toronto for a trial. Three of the defendants are located in Toronto and a forth in Kitchener.
[3] In this case, the plaintiff alleges that her former investment advisor, Sandy Matheson misappropriated funds belonging to her which were to be invested for her benefit. At varying times, it is alleged the defendant Matheson was employed by the defendants, Dundee Wealth and Integral Wealth Securities Ltd. They both have their offices and counsel located in Toronto. Mr. Matheson lives in Kitchener but his counsel works in Toronto.
[4] The registrar’s notice of dismissal of the action is set aside on the consent of the parties. I would have set it aside in any event because the plaintiff brought this motion in September 2014 before the order dismissing it was issued. The defendant, Integral served it’s responding party record in October 2014 so there clearly was action being taken by the plaintiff on the file before this dismissal.
[5] In considering whether or not the actions should be transferred to St. Catharines, the court is bound to consider Rule 13.1.02(2)(b). That subsection lists a series of factors to consider in determining whether or not it is in the interest of justice to have the transfer occur. I have taken into account the convenience of the parties in particular the fact that three of the defendants are located in Toronto. I have no doubt that with respect to obtaining an expeditious trial the city of St. Catharines has shorter trial lists then that of Toronto. I am also satisfied that judges in court facilities are available in St. Catharines probably more readily than in Toronto. However, I consider the health of the plaintiff a significant factor and her financial ability to get to Toronto as paramount in the circumstances of this case. Bearing those factors in mind, together with the other matters, listed under Subsection 13.1.2(2)(b) I find it is desirable in the interest of justice to have the action transferred to St. Catharines.
[6] It is therefore ordered that this matter shall be transferred to the City of St. Catharines in the judicial district of Central South and the trial shall take place in that city.
[7] It is ordered that examinations for discovery of the parties shall take place on or before February 28th, 2015. It is ordered that any motions with respect to refusals or undertakings which arise from the examinations for discovery shall be brought and argued by the end of June 2015.
[8] It is ordered that this action shall be set down for trial on or before September 30th, 2015.
[9] In the circumstances there will be no costs of this motion because in my view, counsel for the defendants have taken the reasonable position with respect to the arguing of this motion and the necessity for the motion to be brought was as a direct result of the plaintiff retaining counsel in Toronto.
Turnbull, R.S J.
Date: December 23, 2014