CITATION: Arvan Rehab Group Inc. v. Roderick Graham Christian Millea, Millea Physiotherapy Professional Corporation, Nicole Tweedie and Rachel Erauw, 2015 ONSC 2991

COURT FILE NO.: CV-14-502626OT (SIM)

DATE: 2015-05-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Arvan Rehab Group Inc., Plaintiff

AND:

Roderick Graham Christian Millea, Millea Physiotherapy Professional Corporation, Nicole Tweedie and Rachel Erauw, Defendants

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: T. Nicholson, Counsel for moving parties/Defendants

P. Capone, Counsel for responding party/Plaintiff

HEARD: April 23, 2015

ENDORSEMENT

[1] In their motion, the defendants seek an order transferring this proceeding from Toronto to Simcoe.

BACKGROUND

[2] The statement of claim was issued on April 23, 2014 in Toronto (Court file CV-14-502676). The plaintiff claims damages, and other relief, regarding an alleged breach of a professional services contract and for breach of fiduciary duty. The statement of defence is dated July 14, 2014. The action was discontinued as against Nicole Tweedie and Rachel Erauw on August 28, 2014.

[3] Counsel advise that the examinations for discovery of all parties occurred in January 2015. There are possible motions to amend the statement of claim and for third party records.

[4] Mr. Nicholson advises the defendants intend on calling three to five witnesses, all of whom reside in Norfolk County. Mr. Capone indicates six witnesses will be called by the plaintiff, all being resident or connected to Toronto. The head office of the plaintiff corporation is in Toronto while the head office of the defendant corporation is in Simcoe. The dispute between the parties is said to involve, in part, the delivery of physiotherapy services to Norview Lodge, a long term care facility owned and operated by Norfolk County in Simcoe.

DISCUSSION

[5] Pursuant to Rule 13.1.01(2), this proceeding may be commenced at any court house in any county named in the statement of claim as no statute says otherwise. The plaintiff chose Toronto.

[6] Rule 13.1.02(2) allows the court to make an order transferring the proceeding to a different county. The factors relevant to this motion are set out in sub-paragraph (b) as follows:

(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.

[7] Under the current rule, the plaintiff has a “presumptive entitlement” to commence the action where it sees fit. A transfer will only result if it is desirable in the interest of justice having regard to the above-noted factors. The consideration of a transfer request is “fact-specific”. The burden is on the moving party to demonstrate “on cogent and persuasive evidence” that another county is “more desirable” in that it would better secure “the just, most expeditious and least expensive determination of the proceeding on its merits”. See: Wilcox v. Flintstone Glass & Mirror Ltd., 2009 CanLII 73279 (S.C.J.); Patry v. Sudbury Regional Hospital, [2009] O.J. No. 1060 (S.C.J.); Paul’s Hauling Ltd. v. Ontario, 2011 ONSC 3970; and Rahemtulla v. Bell, 2012 ONSC 2181.

ANALYSIS

(i) Where The Events Occurred

[8] The delivery of physiotherapy services took place in Norfolk. The issues in the case, as I understand it, pertain to the contract or contracts, including interpretation.

Advantage: Neutral to somewhat in favour of Simcoe.

(ii) Where A Substantial Part Of Damages Sustained

[9] Any damages sustained by the plaintiff would occur at its head office.

Advantage: Toronto.

(iii) Subject Matter Of Proceedings

[10] As stated in (i) above.

Advantage: Neutral to somewhat in favour of Simcoe.

(iv) Local Community Interest

[11] This is essentially a contract case. Mr. Capone reports the injunction claim regarding the non-solicitation clause in the agreement is not being pursued as the one year period has expired. Interruption of services delivered to Norview Lodge, as Mr. Nicholson raises, is not a concern.

Advantage: Neutral.

(v) Convenience Of The Parties, Witnesses And The Court

[12] Although both counsel challenge the need of the other to call all stated witnesses, it appears there will be several witnesses, at least, for each side. The plaintiff witnesses and counsel are in Toronto. The defendant witnesses and counsel are in Simcoe. One group will travel, regardless of the site for trial. The court has no preference.

Advantage: Neutral.

(vi) Counterclaims, Crossclaims Or Third Party Claims

[13] There are no such claims. This factor does not apply to this case.

(vii) Any Advantages Or Disadvantages Of A Particular Site

[14] The action, being in Toronto is subject to mediation, a process that is of some assistance to the parties in most cases. Mr. Capone reports that a fixed date trial will be set within six to eight weeks of the pre-trial. Simcoe does not have mediation. Cases are placed on a trial list, with some delay occurring recently due to the number of trials scheduled for limited sittings weeks.

Advantage: Neutral to somewhat in favour of Toronto.

(viii) Availability Of Judges And Court Facilities

[15] Judges and court facilities are available in Toronto and in Simcoe. This factor does not apply to this case.

[16] This proceeding could have been commenced in either Toronto or Simcoe. The plaintiff chose Toronto where its head office and counsel are located. Regardless of the place of trial, one group will have to travel. The defendant has not established that a transfer to Simcoe is desirable in the interest of justice. In result, the plaintiff’s presumptive entitlement to name Toronto has not been displaced.

[17] Accordingly the motion is dismissed.

[18] If the parties are unable to resolve the issue of costs, counsel shall deliver brief written submissions, along with supporting documents, to my chambers in Cayuga within 30 days.

Gordon, J.

Date: May 12, 2015