Telus Communications Company v. Her Majesty the Queen, 2015 ONSC 1345
COURT FILE NO.: CV-11-425595
DATE: 20150305
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Telus Communications Company, Plaintiff/defendant by counterclaim
AND:
Her Majesty the Queen in right of Canada as represented by the Minister of Public Works and Government Services Canada, Defendant/moving party
BEFORE: Himel J.
COUNSEL: Louise Moher for the Plaintiff/defendant by counterclaim
Elizabeth Richards and Leah Garvin for the Defendant/moving party
ENDORSEMENT
[1] The defendant brings a motion for an order that this action be transferred from Toronto to Ottawa for trial pursuant to Rule 13.1.02 of the Rules of Civil Procedure. The plaintiff opposes the motion and asks that it be dismissed with costs. In accordance with the Consolidated Practice Direction effective July 1, 2014, motions to transfer under Rule 13.1.02 brought in the Toronto Region are to be brought to the Regional Senior Judge or his designate in writing. The Regional Senior Judge has delegated the responsibility for deciding the motion in this case to me as Civil Team Leader in the Toronto Region.
Factual Background
[2] This action was brought by Telus Communications Company (“Telus”) against Her Majesty the Queen in Right of Canada (“the Queen”). Telus is seeking rectification of a contract for the provision of wireless telecommunication services to the Government of Canada. The plaintiff is a national telecommunications company with its head office in Burnaby, British Columbia and offices located across Canada. In 2007, the parties entered into a contract for the provision of wireless services to the Government of Canada. The contract expired on February 26, 2011.
[3] In 2010, Public Works and Government Services Canada (“PWGSC”) issued a Request for Proposal (“RFP’) for a new government cellular services (“GCs”) contract to commence in February 2011. The RFP made provision for transition of the existing contract held by the plaintiff in the event it was not the successful bidder. The plaintiff was not the primary winner so the parties began discussions regarding a transition contract. PWGSC prepared a draft contract and forwarded it to the plaintiff’s Public Sector Team which was based in Ottawa and was responsible for securing and managing the contracts with the federal government. The plaintiff executed the contract and returned it by email on January 31, 2011.
[4] The plaintiff discovered what it alleges was a mistake in the pricing in the contract early in March 2011. There were discussions about the pricing issue but no resolution was reached. The plaintiff issued invoices at the higher amount than the amount stipulated in the contract.
[5] On May 3, 2011, the plaintiff sued PWGSC for rectification of the contract. The dispute involves the price under the transition contract for combined voice and data services charged to federal government wireless phone subscribers. Telus alleges that the price should be $40 and that the amount of $30 listed in the contract is a mistake which Public Works knew about but Telus did not notice before the contract was executed. The Crown counterclaimed for the overcharged amounts. The parties have agreed on the quantum of damages but they dispute the liability issue.
[6] The plaintiff commenced the action in Toronto.
[7] The defendant proposed the action be tried in Ottawa in its statement of defence and counterclaim served on June 6, 2011.
[8] The plaintiff has offices throughout Canada and the Public Sector Team responsible for Government of Canada contracts is located in Ottawa. Two Telus employees will likely be the only witnesses of the plaintiff at trial and both work and reside in the Ottawa area. The PWGCS’s Telecommunications Services Division and Information Technology Services Branch are located in Gatineau, Quebec and the public servants involved are located in the Ottawa area. The defendant’s witnesses will be various managers involved at the negotiation and approval stages of the transition contract and are located in Ottawa or the National Capital Region. The defendant says that all the material events giving rise to this action involved employees of the plaintiff in Ottawa and that the events occurred in Ottawa or the National Capital Region. Plaintiff’s counsel is based in Toronto; the defendant’s counsel is based in Ottawa.
[9] Steps taken in the action have occurred in both Toronto and Ottawa. For example, examinations for discovery took place in Ottawa because two representatives of the defendant were located there while the mediation was held in Toronto. Counsel for the plaintiff set the action down for trial in Toronto by filing the trial record. No pre-trial date has been set. No further motions are anticipated.
Positions of the parties
[10] The defendant argues that it has demonstrated that the factors in Rule 13.1.02 are met and that it would be in the interests of justice that the action be transferred to Ottawa. This is because the material events arise from the Ottawa area, the defendant’s witnesses are primarily from Ottawa, and there is local community interest in the action.
[11] The plaintiff takes the position that its right to choose the venue for this action is “sacred” and in order to displace this right, the defendant “bears a heavy burden of showing that Ottawa has an overwhelming preponderance of convenience over Toronto or is a significantly better venue.” It argues that the circumstances of this case do not meet the test under Rule 13.1.02 and, that the defendant is bringing the motion to transfer three years later when the action is ready for trial.
Analysis
[12] Rule 46.01 of the Rules of Civil Procedure provides that the trial of an action shall be held in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02 unless the court orders otherwise. Rule 13.1.02 and the Consolidated Provincial Practice Direction for the Superior Court of Justice outline how a change of venue application should proceed. Subsection (2) states:
“…[t]he court may, on any party’s motion, 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,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(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,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
[13] A plaintiff has a prima facie right to select a venue for an action. The plaintiff does not have to justify that the choice made is a reasonable one. Rather, if the other party is of the view that the choice is unreasonable, it may bring a motion to change the venue. The onus is on the moving party to show that it is “in the interests of justice” to transfer the action having regard to the factors outlined in rule 13.1.02(2)(b). The court is to consider a “holistic” application of the factors outlined in the rule to the specific facts of the case: see Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897 (Div. Ct.) at para. 22; Hallman v. Pure Spousal Trust (Trustee of), 2009 51192 (ON SC), 80 C.P.C. (6th) 139 (Ont. S.C.) at para. 28. No one factor is more important than another. Rather, the court is to look at all the factors and balance them in order to decide whether a transfer is “desirable in the interests of justice”. 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 location: see Siemens Canada Ltd. v. Ottawa (City) (2008), 2008 48152 (ON SC), 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para. 29.
[14] Applying the factors outlined in rule 13.1.02(2)(b) to the circumstances of this case, I find as follows:
The events which give rise to the claim arose in Ottawa or the National Capital Region.
Both parties are large entities with a presence across Canada. The local interest issue is neutral as between Ottawa and Toronto.
The plaintiff has sued the defendant for the rectification of the transition contract for the provision of wireless telecommunication services. The contract was negotiated in the National Capital Region by the plaintiff’s Public Sector Team and the defendant’s Telecommunications Services Division. Representatives of the parties met on December 20, 2010 in Gatineau to discuss the formation of the contract. The parties continued their negotiations and a final version of the contract was sent to the plaintiff’s representative in Ottawa on January 21, 2011. In early March, the plaintiff’s representatives in Ottawa contacted the defendant regarding the alleged mistake in the contract. The meetings and discussions that followed were in Ottawa and Gatineau. None of the events occurred in Toronto. The subject matter of the proceedings involves a contract negotiated in the National Capital Region.
It is deemed that a party has suffered damages where it carries on a substantial proportion of its business: see Siemens Canada Ltd. v. Ottawa (City) (2008) 2008 48152 (ON SC), 93 O.R. (3d) 220 (Ont. Sup. Ct.) at para. 40. In this case, the plaintiff’s head office is in British Columbia but it has an Ottawa office responsible for managing the cellular services contracts with the Federal government. Damages may be felt throughout the company but mostly where the head office or Ottawa office is located. Similarly, the head offices of the Federal Government are located in the National Capital Region. Neither party would have suffered damages in Toronto. In any event, the quantum of damages is not in issue.
The defendant’s witnesses are all located in the National Capital Region. The plaintiff’s witnesses who were involved in the negotiation of the contract are also based in the National Capital Region.
Both the Superior Court of Justice in Toronto and in Ottawa can accommodate a two week trial.
The overall cost of the trial would be less in Ottawa. Plaintiff’s counsel will have to travel from Toronto but its witnesses will not need to travel if the trial is in Ottawa.
Decision
[15] I have balanced the factors outlined in rule 13.1.02(2)(b) and I am of the view that it is in the interests of justice that the action be transferred to Ottawa. I conclude that Toronto, the place named by the plaintiff as the venue for the action, is a place which would be more convenient for the plaintiff and where the expense of the trial would be significantly less for counsel for the plaintiff; on the other hand, the expense to the defendant’s witnesses and defendant’s counsel would be significantly more if the trial of the action remained in Toronto.
[16] I do note that the defendant’s counsel waited three years to bring the motion to transfer. However, the defendant gave notice to the plaintiff by stating in its statement of defence and counterclaim filed in 2011 that it proposed the action be tried in Ottawa. The parties seemed to have recognized the issue was on the table and during the course of the litigation, were able to agree on the location for the examinations for discovery and the mediation based upon cost and convenience.
[17] While the plaintiff has the right to choose the place of trial, I must apply a “holistic” approach to the factors I am to consider and, where the defendant is able to demonstrate that a transfer is “desirable in the interest of justice”, I should grant the transfer motion. The defendant has met its onus and demonstrated based upon a holistic application of the factors in Rule 13.1.02(2) that it would be significantly better for the trial to take place in Ottawa. Accordingly, I conclude that it is in the interests of justice that the action be transferred to Ottawa.
[18] The motion to have the action transferred from Toronto to Ottawa is granted subject to the approval of the Regional Senior Justice for the East Region. If the parties are unable to agree on the issue of costs, they may file written submissions according to the following timetable: the defendant by March 20, 2015 and the plaintiff by April 6, 2015.
Himel, J
Date: March 05, 2015
CITATION: Telus Communications Company v. Her Majesty the Queen, 2015 ONSC 1345
COURT FILE NO.: CV-11-425595
DATE: 20150305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TELUS COMMUNICTIONS COMPANY
PLAINTIFF
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA
DEFENDANT
ENDORSEMENT
Himel J.
Released: March 5, 2015