CITATION: Lan Ng et al v. Doe et al, 2015 ONSC 106
COURT FILE NO.: CV-11-427375
DATE: 20150105
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: YUET LAN NG and VICTOR TAM, Plaintiff
AND:
JOHN DOE, STATE FARM MUTUAL INSURANCE COMPANY and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, Defendants
BEFORE: Himel J.
COUNSEL:
Sandi J. Smith, for the Defendant, State Farm Mutual Automobile
Insurance Company
Terrence E. Munn, for the Plaintiffs
DATE: January 5, 2015
ENDORSEMENT
[1] The defendant State Farm Mutual Automobile Insurance Company brings a motion for an order pursuant to Rule 13.01.02 transferring action bearing Court File Number CV-11-427375 from Toronto to Oshawa. The defendant also brings a motion for an order that the action be restored to the trial list.
[2] The plaintiffs consent to the order restoring the action to the trial list. They also consent to an order that the action be transferred to Oshawa but are also content that the action be restored to the list in Toronto and tried in Toronto.
Factual Background
[3] The plaintiffs commenced an action for damages arising from a motor vehicle accident that occurred on January 12, 2011 on Highway 401 near Courtice Road exit in the Municipality of Clarington, Ontario which is located approximately 30 kilometres east of Oshawa. The claim was issued in Toronto on May 26, 2011. At the time of the collision, the plaintiffs lived in Newtonville, Ontario which is approximately 34 kilometres east of Oshawa. They continue to reside there. The plaintiffs’ experts practice in Toronto and the defendant’s experts practice in Toronto with the exception of Kodsi Engineering which has an office located in Mississauga, Ontario. The majority of witnesses would seem to be based in Toronto. Counsel for the plaintiffs has his office in Milton, Ontario which is west of Toronto and counsel for the defendant has an office in Toronto.
[4] Rule 13.1.02(2) of the Rules of Civil Procedure and the Practice Direction for the Superior Court of Justice outline how a change of venue application should proceed. The onus is on the moving party to show that it is in the interests of justice to transfer the actions. The court is to consider a “holistic” application of the factors outlined in the rule: see Chatterson v. M & M Meat Shops Ltd. 2014 Carswell Ont 3840, 2014 ONSC 1897, 238 A.C.W.S. (3d) 856 at para. 20. The moving party must show that the proposed place of trial is not only better, but is significantly better, than the plaintiff’s choice of trial.
Decision
[5] Applying the factors outlined in rule 13.1.02(2)(b) to the circumstances of this case, I conclude as follows:
The events which give rise to the claim arise in the area closer to Oshawa.
The local interest in this proceeding would be in the Oshawa area.
The witnesses reside or work in the Toronto area. The defendant’s lawyer practises in Toronto but the plaintiffs’ lawyer practises in Milton. There would be costs savings and efficiencies in having the action tried in Toronto having regard to the location of the counsel and the witnesses.
Both parties consent to the transfer motion.
[6] In conclusion, on consent of the parties, this action will be restored to the trial list. With respect to the transfer motion, I find that it is in the interests of justice that the action not be transferred to Oshawa, Ontario. Applying a “holistic” approach to the factors I am to consider, I find that the Toronto location would provide costs savings. It would not be significantly better for the trial to take place in Oshawa.
Himel J.
Date: January 5, 2015