CITATION: Quinte v. Eastwood Mall Inc., 2015 ONSC 1619

COURT FILE NOS.: CV-12-458218-00CP;

25956/12; 25957/12, 3316-14, CV-14-506766

DATE: 20150318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELAINE QUINTE, JOHN QUINTE and 1358896 ONTARIO INC. (CARRYING ON BUSINESS AS HUNGRY JACK’S)

Plaintiffs

– and –

EASTWOOD MALL INC., ROBERT NAZARIAN, THE CORPORATION OF THE CITY OF ELLIOT LAKE, M.R. WRIGHT & ASSOCIATES CO. LTD., R.G.H. WOOD, G.J. SAUNDERS, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALGOMA CENTRAL PROPERTIES INC., CORESLAB STRUCTURES (ONT) INC., JOHN KADLEC, JAMES KEYWAN, NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC. (CARRYING ON BUSINESS AS RETIREMENT LIVING) and 1425164 ONTARIO LTD. INC. (CARRYING ON BUSINESS AS NORDEV)

Defendants

BETWEEN:

TERESA PERIZZOLO, PERSONALLY AND AS THE ESTATE TRUSTEE OF THE ESTATE OF DOLORIS PERIZZOLO, and CINDY LEE ALLAN

Plaintiffs

• and –

1425164 ONTARIO LTD. o/a NORDEV GROUP, ALGOMA CENTRAL PROPERTIES INC., HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as Represented by the MINISTER OF LABOUR, THE CORPORATION OF THE CITY OF ELLIOT LAKE, M.R. WRIGHT AND ASSOCIATES CO. LTD., NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC., ROBERT NAZARIAN, RICHARDS HAMILTON, GEORGE FARKOUH, and EASTWOOD MALL INC. o/a ALGO CENTRE MALL

Defendants

BETWEEN:

REJEAN AYLWIN, PERSONALLY AND AS THE ESTATE TRUSTEE OF THE ESTATE OF LUCIE AYLWIN, RACHELLE AYLWIN, and STEPHANE AYLWIN

Plaintiffs

• and –

1425164 ONTARIO LTD. o/a NORDEV GROUP, ALGOMA CENTRAL PROPERTIES INC., HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as Represented by the MINISTER OF LABOUR, THE CORPORATION OF THE CITY OF ELLIOT LAKE, M.R. WRIGHT AND ASSOCIATES CO. LTD., NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC., ROBERT NAZARIAN, RICHARDS HAMILTON, GEORGE FARKOUH, and EASTWOOD MALL INC. o/a ALGO CENTRE MALL

Defendants

BETWEEN:

749416 ONTARIO INC. o/a ELLIOT LAKE FOODLAND, Pierre Vaillancourt and PAULINE VAILLANCOURT

Plaintiffs

– and –

EASTWOOD MALL INC., carrying on business under the firm name and style of ALGO CENTRE MALL, 1080932 ONTARIO INC., ROBERT NAZARIAN, THE CORPORATION OF THE CITY OF ELLIOT LAKE, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF LABOUR, NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC., 1425164 ONTARIO LIMITED, carrying on business under the firm name and style of NORDEV GROUP, M.R. WRIGHT & ASSOCIATES CO. LTD., ROBERT G.H. WOOD, GREGORY J. SAUNDERS, ALGOMA PROPERTIES INC., JAMES KEYWAN, BETA ENGINEERING GROUP LTD., CORESLAB STRUCTURES (ONT) INC.

Defendants

BETWEEN:

749416 ONTARIO INC., o/a ELLIOT LAKE FOODLAND and SOBEYS CAPITAL INCORPORATED

Plaintiffs

– and –

EASTWOOD MALL INC., o/a ALGO CENTRE MALL, ROBERT NAZARIAN, ALGOMA CENTRAL PROPERTIES INC., CORESLAB STRUCTURES (ONT) INC., JAMES KEYWAN, JOHN KADLEC, NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC. o/a RETIREMENT LIVING, 1425164 ONTARIO LTD. INC. o/a NORDEV, M.R. WRIGHT & ASSOCIATES CO. LTD., ROBERT G.H. WOOD, GREGORY J. SAUNDERS, THE CORPORATION OF THE CITY OF ELLIOT LAKE, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF LABOUR

Defendants

HIMEL J.

Peter R. Roy, David F. O’Connor, J. Adam Dewar, Jeffrey D. Broadbent, and Roland Aube, for the Plaintiff Class

Don Rogers, Q.C., and Sarah Pottle, for the Defendants Bob Nazarian and Eastwood Mall; Brian R. Wagner, for the Defendant the City of Elliot Lake; James A. LeBer, for the Defendants M.R. Wright, R.G.H. Wood, and G.J. Saunders; Darrell Kloeze, Judie Im, and Kristen Smith, for the Defendant Her Majesty the Queen in Right of Ontario; Paul Tushinski, for the Defendant Algoma Central Properties; Francis Desantis for the Defendant Coreslab Structures; John Brunner and Eric Baum for the Defendant James Keywan; David G. Boghosian and Maura M. Day for the Defendant Non-Profit Retirement Residences of Elliot Lake Inc.; David S. Young, for the Defendant Nordev

COURT FILE NO.: 25956/12

Roger G. Oatley and Shenthuran Subramaniam for the Plaintiffs

Don Rogers, Q.C., and Sarah Pottle, for the Defendants Asadoor Bob Nazarian and Eastwood Mall; Brian R. Wagner, for the Defendant the City of Elliot Lake; James A. LeBer, for the Defendants M.R. Wright; Darrell Kloeze, Judie Im, and Kristen Smith, for the Defendant Her Majesty the Queen in Right of Ontario; Paul Tushinski, for the Defendant Algoma Central Properties; Francis A. DeSantis for the Defendant Coreslab Structures; David G. Boghosian and Maura M. Day for the Defendant Non-Profit Retirement Residences of Elliot Lake Inc.; David S. Young, for the Defendant Nordev; J. Paul R. Cassan, for the Defendants Richard Hamilton and George Farkouh

COURT FILE NO.: 25957/12

Roger Oatley and Shenthuran Subramaniam, for the Plaintiffs

Don Rogers, Q.C., and Sarah Pottle, for the Defendants Asadoor Bob Nazarian and Eastwood Mall; Brian R. Wagner, for the Defendant the City of Elliot Lake; James A. LeBer, for the Defendants M.R. Wright; Darrell Kloeze, Judie Im, and Kristen Smith, for the Defendant Her Majesty the Queen in Right of Ontario; Paul Tushinski, for the Defendant Algoma Central Properties; Francis A. DeSantis for the Defendant Coreslab Structures; David G. Boghosian and Maura M. Day for the Defendant Non-Profit Retirement Residences of Elliot Lake Inc.; David S. Young, for the Defendant Nordev; J. Paul R. Cassan, for the Defendants Richard Hamilton and George Farkouh

COURT FILE NO.: 3316-14

James C. Simmons, Q.C., for the Plaintiffs

Don Rogers, Q.C., and Sarah Pottle, for the Defendants Bob Nazarian and Eastwood Mall; Brian R. Wagner, for the Defendant the City of Elliot Lake; Darrell Kloeze, Judie Im, and Kristen Smith, for the Defendant Her Majesty the Queen in Right of Ontario; David G. Boghosian and Maura M. Day for the Defendant Non-Profit Retirement Residences of Elliot Lake Inc.; David S. Young, for the Defendant Nordev; James A. LeBer, for the Defendants M.R. Wright, R.G.H. Wood, and G.J. Saunders; Paul Tushinski, for the Defendant Algoma Central Properties; John Brunner and Eric Baum for the Defendant James Keywan; Francis A. DeSantis for the Defendant Coreslab Structures

COURT FILE NO.: CV-14-506766

David A. Tompkins, for the Plaintiffs

Don Rogers, Q.C., and Sarah Pottle, for the Defendants Bob Nazarian and Eastwood Mall; Paul Tushinski, for the Defendant Algoma Central Properties; Francis A. DeSantis for the Defendant Coreslab Structures; John Brunner and Eric Baum for the Defendant James Keywan; David G. Boghosian and Maura M. Day for the Defendant Non-Profit Retirement Residences of Elliot Lake Inc.; David S. Young, for the Defendant Nordev; James A. LeBer, for the Defendants M.R. Wright, R.G.H. Wood, and G.J. Saunders; Brian R. Wagner, for the Defendant the City of Elliot Lake;Darrell Kloeze, Judie Im, and Kristen Smith, for the Defendant Her Majesty the Queen in Right of Ontario

REASONS FOR DECISION

[1] These motions were brought to the Regional Senior Justice of Toronto Region concerning multiple actions relating to a tragic incident at the Algo Centre Mall in Elliot Lake, Ontario on June 23, 2012.

[2] I have been designated by the Regional Senior Justice to determine whether, pursuant to rule 37.15, all motions in these proceedings, detailed below, should be heard by one judge, and to consider the competing motions brought by the parties with respect to the place of trial and whether the actions should be heard together. Under the Consolidated Practice Direction effective July 1, 2014, motions to transfer under rule 13.1.02 are to be brought to the Regional Senior Judge or his designate in writing. The Regional Senior Judge has delegated the responsibility for deciding these motions to me as Civil Team Leader. I requested that the moving parties serve their motion and supporting materials and all responding parties provide their position on the issues in writing. I have now received and considered those materials filed.

[3] For the reasons that follow, I decline to grant any of the relief sought.

Background:

[4] On June 23, 2012, the rooftop parking deck of the Algo Centre Mall (also called the Eastwood Mall) in Elliot Lake, Ontario, collapsed into the mall below, causing injury, death, and property damage. The mall and all the businesses in it were forced to close. A number of actions arose from that incident, five of which are at issue here.

[5] Quinte et al. v. Eastwood Mall et al., CV-12-458218-00 CP (“the Class Action”), is a certified class action proceeding in Toronto. It was commenced on July 6, 2012, and certified on February 13, 2014, by Justice Belobaba. The class consists of tenants and occupants of the mall at the time of the collapse, those tenants and occupants’ families, and those who were employed at the mall at the time of the collapse. The class is represented by Representative Plaintiffs Elaine Quinte, John Quinte, and 1358896 Ontario Inc., carrying on business as “Hungry Jack’s.” Elaine Quinte is the manager of Hungry Jack’s, a restaurant that formerly operated out of the food court of the mall, and John Quinte is her husband. The action names 13 defendants, which include the mall owner, its developer, and those involved in the design and construction, as well as the City of Elliot Lake and the Province of Ontario. The plaintiffs claim damages for personal injury, mental distress, interruption of business, property loss, and loss of income, as well as punitive and aggravated damages. Currently, the opt-out period for the Class Action has closed, and the parties have exchanged affidavits of documents. The action is scheduled to be set down for trial no later than October 2015.

[6] Perizzolo v. Algo Centre Mall, CV-25956/12 (“the Perizzolo Action”) and Aylwin v. Algo Centre Mall, CV-25957/12 (“the Aylwin Action”) were both commenced in Sault Ste. Marie on October 1, 2012, by plaintiffs who had opted out of the Class Action. Amended statements of claim were filed on January 20, 2014. In these actions, family members of Lucie Aylwin and Doloris Perizzolo, the two people killed when the mall roof collapsed, claim for the loss of care, guidance, and companionship of Lucie Aylwin and Doloris Perizzolo, and seek punitive and aggravated damages. The Perizzolo and Aylwin actions are identical, and both sets of plaintiffs are represented by the same counsel.

[7] Eight of the defendants in the Perizzolo and Aylwin actions (Eastwood Mall, Asadoor Bob Nazarian, the City of Elliot Lake, the Province of Ontario, M.R. Wright and Associates, Algoma Central Properties, Retirement Living, and Nordev) are also defendants in the Class Action. The remaining five Class Action defendants who are not named in the Perizzolo and Aylwin actions are R.G.H. Wood (President of the engineering firm M.R. Wright), G.J. Saunders (Manager of Engineering at M.R. Wright), Coreslab (the concrete supplier for the mall’s construction), John Kadlec (the architect hired by Algoma Central Properties), and James Keywan (the structural consultant retained by Keywan). The Perizzolo and Aylwin actions name two additional defendants not named in the Class Action: Richard Hamilton, Mayor of Elliot Lake from 1989 to 2006, and George Farkouh, City Councillor in Elliot Lake from 1999 to 2006.

[8] Elliot Lake Foodland v. Algo Centre Mall et al, CV-14-506766 (“the Toronto Foodland action”) was commenced in Toronto by statement of claim dated June 19, 2014. Sobeys, which is the franchiser of the Elliot Lake Foodland, and the Foodland, a tenant of the mall, claim general damages against the same 13 defendants named in the Class Action.

[9] A second Foodland action, Elliot Lake Foodland, Pierre Vaillancourt and Pauline Vaillancourt v. Algo Centre Mall et al., CV-3316-14, was commenced in Sudbury by statement of claim dated June 16, 2014 (“the Sudbury Foodland action”). Pierre Vaillancourt was the president and an employee of the Elliot Lake Foodland, and his wife Pauline was also an employee. The same 13 defendants are named. I was advised by counsel for Asadoor Bob Nazarian and Eastwood Mall that the two Foodland actions may be consolidated. Counsel for the plaintiffs in the Toronto Foodland action supports trial together and case management together and takes no position as to the venue for trial.

[10] Asadoor Bob Nazarian (mistakenly referred to as “Robert Nazarian”) in the statements of claim) and Eastwood Mall, defendants in all five actions, seek, by letter dated November 6, 2014, a direction under rule 37.15 that all motions in these actions, arising out of the same events, be heard together by one judge. These defendants also move for an order, pursuant to s. 107(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) that the Class Action and the Perizzolo and Aylwin actions be tried together or heard one after the other, in a jurisdiction to be determined by the court. Finally, they seek common case management in Toronto by Justice Belobaba, the Class Action case management judge, common examinations for discovery, common documentary production, and common pre-trial conferences (“the trial together motion”).

[11] The Aylwin and Perizzolo plaintiffs move under rule 13.1.02(2)(b) for an order that the Class Action be transferred to the City of Sault Ste. Marie and for an order that the Class Action and the Perizollo and Aylwin actions be tried together or one after another in Sault Ste. Marie (“the transfer motion”).

Issues:

[12] There are four main issues to be decided:

1. Should the Class Action be transferred to Sault Ste. Marie and tried together with the Perizzolo and Aylwin actions, or one after the other?

2. Should an order be made under s. 107(1) of the CJA that the Perizzolo and Aylwin actions and the Toronto Class Action be tried together, or one after another; case managed together; and subject to common examinations for discovery, documentary production, mediation, and pre-trial conferences?

3. Should a rule 37.15 judge be appointed to hear all motions in these actions arising from the collapse of the Eastwood Mall?

4. Can the court decide either the rule 37.15 issue or the trial together motion without determining trial venue, or does a decision on either issue 2 or 3 have the effect of determining trial location?

Positions of the Parties:

1. The transfer motion

[13] The transfer motion, brought by the Perizzolo and Aylwin plaintiffs, is supported by the Perizzolo and Aylwin defendants Hamilton and Farkoh, who are the only two defendants not named in the other actions at issue here. None of the parties to the Class Action support this transfer motion. The Class Action plaintiffs are opposed, and the other defendants take no position.

[14] In support of their motion, the Perizzolo and Aylwin plaintiffs submit that all the actions arise from the same incident and have common issues of fact and law with regard to liability. Rule 13.1.02(2)(b) states that the court may transfer the proceeding to another county if the court is satisfied that “the transfer is desirable in the interest of justice,” having regard to specific factors enumerated therein. Most of those factors, in these plaintiffs’ submission, favour the transfer:

• Most or all damages were sustained in Elliot Lake, which is in the district of Algoma (the same judicial district as Sault Ste. Marie);

• The subject matter of the proceeding (the collapse of the mall) took place closer to Sault Ste. Marie;

• Many of the witnesses and members of the class are situated in Elliot Lake;

• The local community has been deeply affected by the mall collapse and should be able to view the court proceedings;

• A transfer to Sault Ste. Marie would result in the most expeditious trial of the proceedings; Toronto has a backlog of civil trials and motions that will result in undue delay, while in Sault Ste. Marie, a trial is available within 60 days of the action being set down.

[15] The Class Action plaintiffs resist the transfer motion, contending that the moving parties are not parties to the Class Action, and therefore have no standing to bring such a motion. In the alternative, the Class Action plaintiffs submit that even if the moving parties on the transfer motion have standing, they have failed to demonstrate, under the rule 13.1.02(2)(b) factors, that Sault Ste. Marie is a “significantly better” venue: Chatterson et at. v. M&M Meat Shops Ltd., 2014 ONSC 1897 at para. 29. The representative plaintiffs have a prima facie right to select the venue, and they have deliberately chosen Toronto as the jurisdiction in which to bring this action because of the expertise of the Toronto judges in class actions, and the active management of class actions in Toronto. Most counsel are in Toronto, as are six of the defendants, and many of the remaining parties and witnesses are scattered across Ontario. These plaintiffs point out that the residents of Elliot Lake have had the opportunity to observe the public inquiry completed by Justice Bélanger, and submit that, therefore, the “community interest” factor does not strongly support the transfer as some local interest has already been satisfied.

[16] The Class Action plaintiffs also submit that joinder of a class action with individual actions may not always be compatible with the objectives of class proceedings. There exist serious questions as to how and if the cases can be tried together that should be determined by the Class Action case management judge at a future date. Those who opt out of a class proceeding should not be able to fetter the progress of, or generally dictate the pace of, the class proceeding: Abdulrahim v. Air France, 2010 ONSC 5542 at para. 66.

[17] Finally, the Class Action plaintiffs submit that any transfer motion is premature, as the parties have yet to prepare and commit to a final list of witnesses.

2. The trial together motion

[18] Nazarian and Eastwood Mall, who are defendants in all the actions at issue here, bring the trial together motion, and seek common case management by Justice Belobaba in Toronto, but state they take no position as to the venue where the actions should be tried. They submit that the trial together motion need not depend on the outcome of the transfer motion. These defendants had formerly sought, but have now abandoned, a motion seeking to have the Perizzolo and Aylwin actions transferred to Toronto.

[19] As indicated, these parties rely on s. 107(1) of the CJA as authority for this motion. That section provides for the trial together of proceedings before different courts. Where such proceedings have questions of law or fact in common or claim relief arising out of the same occurrence, an order may be made “(d) transferring any of the proceedings to another court and requiring the proceedings to be consolidated, or to be heard at the same time, or one immediately after the other.” If an order is made under s. 107(1), subsection (5) permits the court to “impose such terms and give such directions as are considered just, including dispensing with service of a notice of readiness or listing for trial and abridging the time for placing an action on the trial list.” Nazarian and Eastwood Mall submit that this subsection allows the court to order common case management.

[20] In arguing that the circumstances here favour consolidation, these defendants rely on rule 6.01 jurisprudence. The text of rule 6.01 is virtually identical to that of s.107 of the CJA, except that Rule 6 applies where there are two or more proceedings pending in the same court. Master Dash, in 1014864 Ontario Ltd v. 1721789 Ontario Inc, 2010 ONSC 3306 at para. 17 identified a list of 17 non-exhaustive factors that can be considered on a motion to try actions together or one after another. Nazarian and Eastwood Mall argue these factors favour the trying of these actions together or one after another.

[21] Nazarian and Eastwood Mall also point to the decision of Master Dash in Drautz v. Armstrong, [2001] O.J. No. 2821 (S.C.), in which the Master ordered that an action commenced in a different jurisdiction (Brampton) be case managed together with a related action in Toronto.

[22] The Class Action plaintiffs support the trial together motion, at least to the extent that it allows for common case management, discovery, and pre-trial processes. They submit that there are acute similarities between the Aylwin and Perizzolo actions and the Class Action. The text of the Aylwin and Perizzolo statements of claim mirrors that of the representative plaintiffs. It would therefore, they submit, be more efficient to have a single judge coordinate the discovery process and hear any pre-trial motions. Given the considerable time and resources the parties have invested in working with Justice Belobaba, they submit the Class Action would be prejudiced if Justice Belobaba were removed as the case management judge. Justice Belobaba should therefore be appointed as the judge to case manage all actions.

[23] The trial together motion is also supported by the Class Action and Foodland defendant Coreslab Structures, the only other defendant in the Class Action to make submissions.

[24] The Perizzolo and Aylwin plaintiffs and the Perizzolo and Aylwin defendants Hamilton and Farkoh take no position on the trial together motion, except to contend that the venue motion must be determined before the trial together motion. They submit the appropriate venue is Sault Ste. Marie.

3. The timing issue

[25] Nazarian and Eastwood Mall submit that common case management and discovery will be of benefit no matter the outcome of the transfer motion and should move forward while the motion for transfer is pending. Coreslab supports the position of Nazarian and Eastwood Mall.

[26] This argument appears to support both the appointment of a rule 37.15 judge and/or a trial together motion. Nazarian and Eastwood Mall take the position, as I understand it, that neither of these issues have the effect of ultimately determining trial venue.

[27] The Class Action plaintiffs support the position of Nazarian and Eastwood Mall, and further submit that rule 37.15 and s. 34(3) of the Class Proceedings Act, S.O. 1992, c. 6 both provide that the case management judge shall not be the trial judge. Both provisions therefore, they contend, separate case management from the trial, allowing the venue of the trial to be decided at a future point.

[28] The Perizzolo and Aylwin plaintiffs and the Perizzolo and Aylwin defendants Hamilton and Farkoh argue that the transfer motion must be decided first, for practical reasons in order to avoid a case being managed in a jurisdiction other than the one in which it will be tried. The plaintiffs submit they should not have to have their case managed in Toronto simply because the Class Action was brought there. These plaintiffs rely on the case of Ludwig v. 1099029 Ontario Ltd, [2004] O.J. No. 702, which they submit makes clear that on a rule 37.15 direction, the venue issue needs to be decided first, and the test for determining venue is the balance of convenience.

Law & Analysis:

1. The transfer motion

[29] The Rules of Civil Procedure govern the place of trial and the court’s power to order a transfer. Rule 46.01 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 provides the criteria for a change of venue motion. Subsection (2) states as follows:

…the 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,

(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.

[30] The Perizzolo and Aylwin plaintiffs suggest all s. 13.1.02(2)(b) factors, with the exception of (vi) and (ix), support a transfer to Sault Ste. Marie as “in the interest of justice.” Before the court enters into a determination as to where the interest of justice lies, however, s. 13.1.02(2) specifies a threshold requirement, that a party must bring a motion to transfer: “the court may, on any party’s motion, make an order to transfer the proceeding” if the court is satisfied that such transfer is in the interest of justice.

[31] The phrase “any party” must refer to any party to that proceeding which is the subject of the transfer, not merely a party to some other proceeding as yet unconnected to the one at issue. Such an interpretation accords with the plain meaning of rule 13.1.02 and its goal of ensuring a trial location that is “in the interest of justice” with reference to the parties to that action and those others, such as witnesses and community members, who are affected by that action. This section is not concerned with the interests of parties to potentially related proceedings.

[32] I agree with the submission of the Class Action plaintiffs that the Perizzolo and Aylwin plaintiffs are not “any party” within the meaning of rule 13.1.02 and, therefore, have no standing to bring a motion to transfer the Class Action.

[33] Even if the moving parties did have standing to bring such a motion, it is not in the interest of justice for the Class Action to be transferred to Sault Ste. Marie. The moving parties 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. A plaintiff has a prima facie right to select a venue for an action, and the plaintiffs have chosen Toronto as the location of trial.

[34] Applying the factors outlined in rule 13.1.02(2)(b) to the desired transfer of the Class Action to Sault Ste. Marie, I find as follows:

• Factors (i) through (iii) favour a transfer, but I find they do not favour a transfer as strongly as the moving parties contend. The damages at issue were sustained in Elliot Lake, where the subject matter of the proceeding (the collapse of the mall) took place, and Sault Ste. Marie is in the same judicial district as Elliot Lake. However, Elliot Lake is located approximately halfway between Sudbury and Sault Ste. Marie and is 200 kilometres from Sault Ste. Marie.

• The local community of Elliot Lake has an interest in the Class Action. Nevertheless, many of those community members are members of the class, and the class, as represented by class counsel, chose to bring the action in Toronto. Further, community interest has already been served by the public inquiry into the mall collapse, and, therefore, this factor does not point strongly toward a transfer.

• While some parties are located in Elliot Lake or Sault Ste. Marie, the majority are scattered across southern Ontario, including Toronto. Most counsel are located in Toronto.

• None of the parties to this action have sought a transfer. It is therefore unclear to me how the moving parties can suggest that factor (v) favours a transfer. Their argument is, in effect, that although none of the parties to this motion support a transfer, it is nevertheless more convenient for them to have their action transferred. I do not agree with this submission.

• The class has been certified, and the Class Action is currently being case managed by Justice Belobaba, who has built up considerable expertise with respect to the parties and the issues. Section 34(1) of the Class Proceedings Act, 1992 requires that all motions be heard by the same judge prior to the common issue trial.

• Facilities are available in Toronto, as are judges with class action expertise.

[35] The court in assessing the interest of justice must consider a “holistic” application of the factors to the facts of the case: Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897 (Div. Ct.) at para. 20. Considering the factors outlined above, I find that it is not in the interest of justice to order a transfer away from the location chosen by the plaintiffs and unopposed by the defendants.

[36] Accordingly, I decline to order a transfer of the Class Action from Toronto to Sault Ste. Marie. The moving parties do not have standing to seek such a transfer, and even if they did, a transfer would not be in the interest of justice.

2. The trial together motion

[37] In contrast to rule 13.1.02(2), s. 107(1) of the CJA allows for a party in one action to seek the transfer of a related action, and for consolidation or trial together. Section 107(1) provides for the consolidation of proceedings in different courts. The full text of that section is as follows:

107. (1) Where two or more proceedings are pending in two or more different courts, and the proceedings,

a) have a question of law or fact in common;

b) claim relief arising out of the same transaction or occurrence or series of transactions or occurrences; or

c) for any other reason ought to be the subject of an order under this section,

an order may, on motion, be made,

d) transferring any of the proceedings to another court and requiring the proceedings to be consolidated, or to be heard at the same time, or one immediately after the other; or

e) requiring any of the proceedings to be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them

[38] Subsection (5) then provides that

An order under subsection (1) may impose such terms and give such directions as are considered just, including dispensing with service of a notice of readiness or listing for trial and abridging the time for placing an action on the trial list.

It is this subsection which Nazarian and Eastwood Mall argue provides authority for an order for common case management, common examinations for discovery, common documentary production, and common pre-trial conferences, as “such terms … as are considered just.”

[39] As defendants to all the actions arising from the mall collapse, Nazarian and Eastwood Mall seek the efficiency and cost savings they submit that trial together would provide. Nevertheless, these defendants are clear that they take no position as to the appropriate venue for the common case management. The Class Action plaintiffs, in contrast, submit that the appropriate venue is Toronto.

[40] The purposes underlying section s. 107(1) are to avoid multiplicity of proceedings, to prevent inconsistent dispositions, to protect scarce judicial resources, and to save expenses for the parties: Hanif v. Ontario College of Pharmacists, 2014 ONSC 2598 (Div. Ct.) at para. 23.

[41] On the information before me, the threshold criteria in subsections (a) and (b) are satisfied. All the actions before me have defendants in common. The Foodland actions and the Class Action share the same 13 defendants. The Perizzolo and Aylwin actions name eight of those same defendants, and include the remaining five Class Action and Foodland defendants as third parties, in addition to naming Hamilton and Farkouh. The cause of and liability for the mall collapse is at issue in all the actions. Issues of duty of care, breach, and causation overlap in all the actions.

[42] The threshold requirements under s. 107(1) having been met, Nazarian and Eastwood Mall argue that this court should exercise its discretion to order a transfer and trial together under subsection (d). In doing so, they rely on case law under rule 6.01, which applies to proceedings in the same court, but which has otherwise almost identical wording:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

a) they have a question of law or fact in common;

b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

c) for any other reason an order ought to be made under this rule,

the court may order that,

d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

[43] In 1014864 Ontario Ltd v. 1721789 Ontario Inc., 2010 ONSC 3306, Master Dash at para. 17 identified a list of 17 non-exhaustive factors the court can consider in determining whether to grant trial together:

a. the extent to which the issues in each action are interwoven;

b. whether the same damages are sought in both actions, in whole or in part;

c. whether damages overlap and whether a global assessment of damages is required;

d. whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

e. whether the parties the same;

f. whether the lawyers are the same;

g. whether there is a risk of inconsistent findings or judgment if the actions are not joined;

h. whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

i. whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

j. the litigation status of each action;

k. whether there is a jury notice in one or more but not all of the actions;

l. whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

m. the timing of the motion and the possibility of delay;

n. whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

o. any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

p. whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

q. whether the motion is brought on consent or over the objection of one or more parties.

[44] Nazarian and Eastwood Mall submit these factors favour trial together: the defendants in the Class Action are all named as either defendants or third parties in the Perizzolo and Aylwin actions; the cause of and liability for the collapse is at issue in all actions; the issues are interwoven; there is an overlap of evidence, witnesses, and parties; there is a risk of inconsistent findings if they are not heard together; the actions are at similar stages in the litigation; and many of the parties will realize costs savings by a trial together.

[45] The submissions of Nazarian and Eastwood Mall with respect to the rule 6.01 factors ignore one key difference between s. 107(1) of the CJA and rule 6.01, which is that under s. 107(1), the court must order a transfer before trial together is possible, while under rule 6.01 the reasons for or against a transfer are inapplicable, as the actions already have a common venue. Contrary to the submissions of Nazarian and Eastwood Mall, s. 107(1) of the CJA contemplates that only once a transfer of proceedings and either consolidation or trial together has been ordered, can the court under subsection (5) “impose such terms and give such directions as are considered just,” which in Nazarian and Eastwood Mall’s submission can include common case management.

[46] Most cases under s. 107(1) concern transfers of proceedings from different divisions of court, for example from Small Claims Court to Superior Court, rather than from one jurisdiction to another. In the circumstances at issue here, common case management in Toronto can only occur if all files are transferred to Toronto. Nazarian and Eastwood Mall contend that this does not ultimately determine the location of trial. They submit that the place of trial for these actions, and whether or not they should be tried together, can be determined by the case management judge at a later point. They rely on Drautz v. Armstrong, supra, in which Master Dash ordered a Brampton file be transferred to Toronto and case managed with a Toronto action, but left the issue of trial venue to be decided subsequently (at para. 17).

[47] I agree that, in principle, an order transferring proceedings is not a bar to a subsequent transfer, provided a motion is brought on proper grounds and the court is satisfied at that time that a transfer is in the interest of justice, having regard to the rule 13.1.02(2)(b) factors. I do not find that it would be an efficient use of resources or fair to the parties to order actions transferred from Sault Ste. Marie to Toronto on the grounds that they could later be transferred back, thereby potentially mitigating some of the negative effects of the first transfer.

[48] The distance between Sault Ste. Marie and Toronto is approximately 690 kilometres. This cannot be compared to a transfer from Brampton to Toronto for case management, as occurred in in Drautz v. Armstrong. A transfer will have a huge effect on the parties and their counsel, requiring them to alter their litigation plans and incur substantial additional cost.

[49] With regard to conservation of court resources, I have noted that these actions have common defendants and overlapping issues of duty of care, breach, and causation. At the same time, the Perizzolo and Aylwin actions are wrongful death actions. Lucie Aylwin and Doloris Perizzolo were the only two people killed when the mall roof collapsed, and therefore the nature of the claims and the damages are distinct. It is no doubt for these reasons that these plaintiffs chose to opt out of the Class Action. I do not find that there would be sufficient saving of court resources to justify the additional costs the parties would incur should I order a transfer of the Perizzolo and Aylwin actions to Toronto for trial together and common case management here.

[50] Similarly, the transfer of the Class Action to Sault Ste. Marie would not serve the purposes of s. 107(1). The Class Action is already being case managed by Justice Belobaba, a class actions judge with considerable expertise who has now become familiar with the facts and issues. It would be a waste of resources to now transfer this action to Sault Ste. Marie. It would also be contrary to s. 34(1) of the Class Proceedings Act, 1992, which requires that all motions be heard by the same judge prior to the common issue trial.

[51] I therefore decline to order the consolidation of the actions under s. 107(1) of the CJA.

3. Appointment of rule 37.15 judge

[52] The final issue I must consider is whether a rule 37.15 judge should be appointed, and what effect such an appointment would have on trial venue.

[53] Rule 37.15 provides as follows:

(1) Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, a regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (place of hearing of motions) does not apply to those motions.

(1.1) A judge who is directed to hear all motions under subrule (1) may refer to a master any motion within the jurisdiction of a master under subrule 37.02 (2) unless the judge who made the direction under subrule (1) directs otherwise.

(1.2) A judge who is directed to hear all motions under subrule (1) and a master to whom a motion is referred under subrule (1.1) may give such directions and make such procedural orders as are necessary to promote the most expeditious and least expensive determination of the proceeding.

(2) A judge who hears motions pursuant to a direction under subrule (1) shall not preside at the trial of the actions or the hearing of the applications except with the written consent of all parties.

[54] Rule 37.15 flows from the Chief Justice’s duties of assignment under s. 14(1) of the Courts of Justice Act, which provides that the Chief shall direct and supervise the sittings of the Superior Court of Justice and the assignment of its judicial duties (see also Vitapharm Canada v. F. Hoffman-LaRoche Ltd. (2000), 2000 29027 (ON SC), 48 O.R. (3rd) 21 (S.C.), at para. 65).

[55] The underlying principles of a rule 37.15 motion have been well established in the case law: to avoid multiplicity and duplicity of proceedings; to avoid inconsistency in the application of legal principles, both new and settled; to encourage realistic overall settlement opportunities; to encourage economic use of judicial and other litigation resources; and to encourage expeditious scheduling: see Segnitz v. Royal & Sunalliance, [2002] O.J. No. 2137 (S.C.) at para. 20; Dumoulin v. Ontario, [2004] O.J. No. 2778 (S.C.), at para. 4.

[56] In Vitapharm, Campbell J. indicated that appointment of a judge to hear all motions under rule 37.15 has the practical effect of moving venue to the home base of that case management judge. Accordingly, in Vitapharm and cases following Vitapharm, such as Ludwig, rule 37.15 was applied in light of the test that governed venue, which was at that time the balance of convenience: see Vitapharm at para. 37; Ludwig at para. 9.

[57] In 2004, the venue rule in Ontario was revised, and the test on a motion to transfer under rule 13.1.02(2)(b) is now “the interest of justice,” having regard to the enumerated factors. I note that while these 13.1.02(2)(b) factors pertain to a determination on the rule 37.15 issue, they are not determinative, as rule 37.15 is “essentially driven, not only by convenience to the parties, but fundamentally by the need to conserve court resources and manage them efficiently”: see Vivace Tavern Inc. v. Ontario (2005), 2005 19773 (ON SC), 77 O.R. (3d) 371 (S.C.) at para. 14.

[58] I have already considered the rule 13.1.02(2)(b) factors pertaining to a transfer of the Class Action to Sault Ste. Marie and concluded that such a transfer is not in the interest of justice. In considering how those factors would apply to a transfer of the Perizzolo and Aylwin actions to Toronto, were a rule 37.15 judge to be appointed in Toronto, I note that the Perizzolo and Aylwin plaintiffs reside in Elliot Lake and chose to opt out of the class and to bring their actions in Sault Ste. Marie. Oatley Vigmond represents both plaintiffs and provides an address in Barrie as their contact address. While no witness list has been finalized, the evidence that will be called in these actions with respect to damages will be specific to these individual actions. Further, as noted above, factors (i) through (iii) all favour, to some extent, Sault Ste. Marie over Toronto. It is therefore not in the interest of justice to transfer the Perizzolo and Aylwin actions to Toronto from the plaintiffs’ choice of venue, Sault Ste. Marie.

[59] I have also already considered, as part of the s. 107(1) issue, the potential conservation of court resources that could be realized through common case management, and found that such conservation would not be sufficient to justify the additional costs to the parties.

[60] For these reasons, I decline to appoint a rule 37.15 judge to hear all motions in the actions arising from the Algo Centre Mall. However, it would be for the Regional Senior Judge of the Northeast Region to decide whether to appoint a judge pursuant to rule 37.15 to consider all motions in the two cases which were commenced in that region.

DECISION:

[61] In conclusion, I decline to order the transfer of the Class Action from Toronto to Sault Ste. Marie because I find that the moving parties lack standing under rule 13.1.02(2)(b) to request such a transfer. Such a transfer would also not be “in the interest of justice,” as specified by that rule.

[62] I also decline to make an order at this time pursuant to s. 107(1) of the CJA that the Perizzolo and Aylwin actions, commenced in Sault Ste. Marie, be tried together with the Class Action and case managed in Toronto.

[63] Finally, I do not find it appropriate to appoint a rule 37.15 judge at this time. The judge case managing the Class Action proceeding is already designated to hear all motions which may arise in that action, and it would be for the Regional Senior Judge of the Northeast Region to appoint a rule 37.15 judge to consider all motions for the Sault Ste. Marie proceedings.

[64] Nothing in this decision precludes any of the parties from later seeking similar relief should circumstances change. I recognize that, as these actions proceed, it is possible that substantial overlap and duplication could occur. While at the present time I do not find transfer, consolidation, or the appointment of a rule 37.15 judge are warranted, these issues may be revisited in the future.

[65] Should any of the parties be seeking an order of costs related to these motions, they may file written submissions with me by April 17.

Himel J.

Released: March 18, 2015

CITATION: Quinte v. Eastwood, Perizzolo v. 1425164, Rejean v. 142164, 2015 ONSC 1619

COURT FILE NO.: CV-12-458218-00CP;

25956/12; 25957/12, 3316-14, CV-14-506766

DATE: 20150318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELAINE QUINTE, JOHN QUINTE and 1358896 ONTARIO INC. (CARRYING ON BUSINESS AS HUNGRY JACK’S)

Plaintiffs

– and –

EASTWOOD MALL INC., ROBERT NAZARIAN, THE CORPORATION OF THE CITY OF ELLIOT LAKE, M.R. WRIGHT & ASSOCIATES CO. LTD., R.G.H. WOOD, G.J. SAUNDERS, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALGOMA CENTRAL PROPERTIES INC., CORESLAB STRUCTURES (ONT) INC., JOHN KADLEC, JAMES KEYWAN, NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE IN.C (CARRYING ON BUSINESS AS RETIREMENT LIVING) and 1425164 ONTARIO LTD. INC. (CARRYING ON BUSINESS AS NORDEV)

Defendants

TERESA PERIZZOLO, PERSONALLY AND AS THE ESTATE TRUSTEE OF THE ESTATE OF DOLORIS PERIZZOLO, and CINDY LEE ALLAN

Plaintiffs

• and –

1425164 ONTARIO LTD. o/a NORDEV GROUP, ALGOMA CENTRAL PROPERTIES INC., HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as Represented by the MINISTER OF LABOUR, THE CORPORATION OF THE CITY OF ELLIOT LAKE, M.R. WRIGHT AND ASSOCIATESW CO. LTD., NON-PROFIT RETIREMENT RESIDENXCES OF ELLIOT LAKE INC., ROBERT NAZARIAN, RICHARD HAMILTON, GEORGE FARKOUH, and EASTWOOD MALL INC. o/a ALGO CENTRE MALL

Defendants

REJEAN AYLWIN, PERSONALLY AND AS THE ESTATE TRUSTEE OF THE ESTATE OF LUCIE AYLWIN, RACHELLE AYLWIN, AND STEPHANE AYLWIN

Plaintiffs

• and –

1425164 ONTARIO LTD. o/a NORDEV GROUP, ALGOMA CENTRAL PROPERTIES INC., HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as Represented by the MINISTER OF LABOUR, THE CORPORATION OF THE CITY OF ELLITO LAKE, M.R. WRIGHT AND ASSOCIATESW CO. LTD., NON-PROFIT RETIREMENT RESIDENXCES OF ELLIOT LAKE INC., ROBERT NAZARIAN, RICHARDS HAMILTON, GEORGE FARKOUH, AND EASTWOOD MALL INC. o/a ALGO CENTRE MALL

Defendants

749416 ONTARIO INC. o/a ELLIOT LAKE FOODLAND, Pierre Vaillancourt and PAULINE VAILLANCOURT

Plaintiffs

– and –

EASTWOOD MALL INC., carrying on business under the firm name and style of ALGO CENTRE MALL, 1080932 ONTARIO INC., ROBERT NAZARIAN, THE CORPORATION OF THE CITY OF ELLIOT LAKE, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF LABOUR, NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC., 1425164 ONTARIO LIMITED, carrying on business under the firm name and style of NORDEV GROUP, M.R. WRIGHT & ASSOCIATES CO. LTD., ROBERT G.H. WOOD, GREGORY J. SAUNDERS, ALGOMA PROPERTIES INC., JAMES KEYWAN, BETA ENGINEERING GROUP LTD., CORESLAB STRUCTURES (ONT) INC.

Defendants

749416 ONTARIO INC., o/a ELLIOT LAKE FOODLAND and SOBEYS CAPITAL INCORPORATED

Plaintiffs

– and –

EASTWOOD MALL INC., o/a ALGO CENTRE MALL, ROBERT NAZARIAN, ALGOMA CENTRAL PROPERTIES INC., CORESLAB STRUCTURES (ONT) INC., JAMES KEYWAN, JOHN KADLEC, NON-PROFIT RETIREMENT RESIDENCES OF ELLIOT LAKE INC. o/a RETIREMENT LIVING, 1425164 ONTARIO LTD. INC. o/a NORDEV, M.R. WRIGHT & ASSOCIATES CO. LTD., ROBERT G.H. WOOD, GREGORY J. SAUNDERS, THE CORPORATION OF THE CITY OF ELLIOT LAKE, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF LABOUR

Defendants

REASONS FOR DECISION

Himel J.

Released: March 18, 2015