Leclair v. Draycott, 2015 ONSC 1220

BARRIE COURT FILE NO.: CV-14-0831

DATE: 20150224

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHARLOTTE LECLAIR, STEPHEN LECLAIR and LYNN MCDONALD

Plaintiffs

– and –

LINDA DRAYCOTT

Defendant

Mr. J. Hofman, student-at-law, for the Plaintiffs

Mr. J. Hirsh, student –at-law, for the Defendant

HEARD: February 17, 2015

VALLEE, J.

[1] This motion, brought by the defendant, requests an order transferring this action from Barrie to Lindsay. The action concerns a motor vehicle/pedestrian accident which occurred on November 26, 2013 on William Street South in Lindsay. The plaintiffs’ claim was issued in Barrie on July 23, 2014.

[2] Rule 13.1.02(2) provides that the court may make an order to transfer the proceeding to a county other than the one where it was commenced if the court is satisfied,

a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

b) 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,

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, and

ix) any other relevant matter.

[3] The Divisional Court recently considered this issue in Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, 2014 CarswellOnt 3840. In paras. 27, 28 and 29, the court commented as follows:

27. This abbreviated set of facts helps put in perspective comments made at para. 24 of the Siemens decision:

In the first instance, the court must be satisfied that the place of the trial selected by the plaintiff is a reasonable place for trial. If it is not, then a change is in order, to the place suggested by the defendant, or to some other place if the defendant’s suggestion is not a reasonable place for trial. If the plaintiff’s choice is reasonable, then some element of comparison is required to assess the relative merits of the place suggested by the plaintiff and the place suggested by the defendant…if there is something to be said for both of the suggestions, then the plaintiff’s suggestion should prevail. However if the defendant’s suggestion is significantly better than the plaintiff’s, then the change should be made.

28. 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 in venue to a reasonable location, then a change of venue will likely be in order. This is a matter of common sense.

29. 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. (emphasis added)

Should this Action be Transferred from Barrie to Lindsay?

The Defendant’s Position

[4] The defendant argues that:

• A substantial part of the events that gave rise to the claim occurred in Lindsay. The motor vehicle accident took place there, the plaintiff sustained damages there and the subject matter for the proceedings was located there.

• Lindsay favours the convenience of the parties and the witnesses.

• All of the parties reside in Lindsay or in neighbouring communities of Fenelon Falls and Blackstock. The defendant would have a 25 minute drive to attend trial in Lindsay whereas she would have a 1 hour and 20 minute drive to attend trial in Barrie.

• The plaintiffs would also have a longer drive to Barrie in contrast to Lindsay.

• Any witnesses called at trial are likely to reside in or near Lindsay so Lindsay will be a more convenient location for them.

• Counsel for defendant is located in Toronto. Counsel for the plaintiffs is located in Barrie. Counsel for the defendant would have a somewhat longer drive to Lindsay in contrast to his drive to Barrie. The defendant relies on Bath Fitter v. 975989 Ontario Inc., 2014 ONSC 2445 and states that the convenience of counsel should not be considered a factor except as it relates to legal costs.

• The defendant has filed a Jury Notice. It would be appropriate for a jury from the Lindsay area to decide the facts in this matter.

• The defendant states that when advantages or disadvantages of Lindsay and Barrie are considered with respect to securing the just, most expeditious and least expensive determination of the proceedings on the merits, this factor is neutral.

Analysis

[5] There is no evidence that a fair hearing cannot be held in Barrie where the proceeding was commenced. This is not asserted by the moving party.

[6] While it is true that the events giving rise to the claim, the damages and the subject matter of the proceeding was located in Lindsay, Lindsay does not necessarily favour the convenience of the parties, the witnesses and the court. The plaintiffs live near Lindsay; however, they retained Barrie counsel to act for them. In their claim, they have requested Barrie as the place of trial. Given this, the fact that the plaintiffs would have a longer drive to Barrie is not relevant.

[7] Lindsay would be a more convenient location for the defendant. Any liability witnesses may come from the Lindsay area; however, they would likely only be required to attend one day of trial. While there is no evidence before the court with respect to the location of the expert witnesses, specialist doctors and rehabilitation experts are often located in Toronto. Lindsay would likely be a less convenient location for them.

[8] The plaintiffs state that a trial in Lindsay will be disadvantageous to the plaintiff. Specifically, plaintiffs’ counsel will be required to travel from Barrie to Lindsay every day for the trial. Accordingly, this will result in increased legal fees for the plaintiff. Rule 13.01.02(2)(7) indicates that the court must consider the location that is most expeditious and least expensive regarding a determination of the proceeding on its merits. For the reasons stated by plaintiffs’ counsel, Barrie would the least expensive location for the trial.

[9] There may be some local community interest in the subject matter of the proceedings; however, it should be noted that the defendant was charged under the Highway Traffic Act, R.S.O. 1990 c.H.8. The Highway Traffic Act proceeding in Lindsay would have met any local interest generated by this matter. (see Miller v. Aman, 2014 ONSC 6113, para. 16.) The plaintiff states that there is nothing unique about the accident that would warrant any significant community interest in Lindsay.

[10] As noted above, in Chatterson, at para. 29, “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 defendant’s choice has to be significantly better in order to prevail.”

[11] Based on the record before me, I am not satisfied that Lindsay is a significantly better location for this trial in contrast to Barrie. While the defendant and some liability witnesses would have a shorter drive to Lindsay in comparison to Barrie, Barrie has the advantage of being the location where the action can be determined in the least expensive manner. Furthermore, absent a significant and compelling reason to the contrary, the plaintiffs’ right to select the venue for the trial ought to be respected.

Conclusion

[12] For the reasons stated above, the defendant’s motion is dismissed. With respect to costs, counsel for the plaintiff indicated that if successful, the plaintiff would expect to be paid costs of $1,200. Counsel for the defendant indicated that if the defendant was unsuccessful on the motion she would expect to pay less than $1,900. Accordingly, the defendant shall pay to the plaintiffs costs in the amount of $1,200.

VALLEE J.

Released: February 24, 2015