McDonald v. Welch , 2015 ONSC 555

Court File and Parties

COURT FILE NO.: CV 12 444300 (Windsor) & 2614/14 (London)

DATE: 2015/01/27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Derek McDonald (Plaintiff)

- and -

Shana Welch, Matthew Shephard, John Orchard, Benjamin Pike, Lori Boyko, John Doe 1, John Doe 2 and London Police Services Board (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL: James Morton, for the plaintiff

Tara Pollitt, for the defendants

HEARD: January 23, 2015

ENDORSEMENT

Introduction

[1] This is a motion by the defendants seeking an order to transfer this proceeding from the City of Toronto where it was commenced, to the City of London pursuant to Rule 13.1.02 of the Rules of Civil Procedure. In support of the motion, the moving parties have filed the affidavit of Ms. Handler sworn January 24, 2014 and a supplemental affidavit dated January 21, 2015.

[2] In response, an affidavit from the plaintiff sworn September 23, 2014 was filed. A very brief supplementary affidavit sworn January 24, 2015 was also filed in answer to the defendants’ January 21, 2015 affidavit.

The Facts

[3] The plaintiff has issued a statement of claim against the London Police Services Board and several London police officers seeking damages for wrongful arrest, unlawful detention, breach of Charter rights, negligent investigation, malicious prosecution, mental and/or emotional distress and assault and battery. He seeks general damages of $1 million, special damages of $1 million and punitive, exemplary or aggravated damages of $1 million. He seeks a declaration that his constitutional rights have been breached and, in particular, sections 7, 9, 10 and 11 of the Charter. The allegations arise from the plaintiff’s three arrests by London police, which occurred on September 12, 2006, March 12, 2009 and November 19, 2010.

[4] The statement of claim was issued on January 18, 2012 in Toronto proposing that the trial of the action be held in Toronto. The plaintiff’s solicitor of record was a lawyer practising in the City of Toronto. The plaintiff has since retained Mr. Morton who also practises there.

[5] The statement of defence was filed on March 23, 2012 and the defendants specifically pleaded that the proper place for trial is London.

[6] In his statement of claim, the plaintiff stated that he was living in the City of London. He pleaded that he has a child with Janet Geddis. As deposed in the supplementary affidavit, he now lives in Toronto. The plaintiff and Ms. Geddis apparently have been involved in acrimonious family law proceedings for many years, involving custody and access to their son.

[7] The first interaction between the plaintiff and the police occurred on September 12, 2006 when Ms. Geddis alleged that the plaintiff had assaulted her. He was charged with mischief and assault and ultimately pleaded guilty to mischief. The assault charge was withdrawn.

[8] The second charges were laid on March 12, 2009 in relation to an allegation that the plaintiff altered police photographs of Ms. Geddis’ injuries and swore a false affidavit in the family law proceedings. These charges were ultimately withdrawn.

[9] Finally, a third charge of uttering a death threat was laid on November 19, 2010, after police received information from a London resident that the plaintiff was planning to kill or hire someone to kill Ms. Geddis and to take his son to the United States. This charge was withdrawn because there was no reasonable prospect of conviction due to the informant’s mental health condition.

[10] It is those charges and certain interactions that the plaintiff alleges that he had with the London police officers that form the basis for his claim. The plaintiff alleges that police misconduct continues and that he has been the victim of vandalism when he is in the city.

[11] The defendants submit that there is no meaningful connection between the action and Toronto and that London is the appropriate location for trial.

[12] The plaintiff responds that he has medical issues that make a trial in London problematic for him. Because the matter involves serious allegations against members of the justice system in London, the plaintiff submits that it might be appropriate to have the matter tried at a convenient location other than London. He submits that Toronto is such a location, given its reasonably close proximity to London. In addition, he says that his medical professionals are in Toronto, three of whom have provided letters suggesting that he suffers from anxiety and other related issues that would be exacerbated if the trial were conducted in London.

The Law

[13] Rule 13.1.02 (2) provides as follows:

(2) If subrule (1) does not apply, 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,

(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. O. Reg. 14/04, s. 10

[14] A plaintiff has a prima facie right to select the place of trial: Skidmore v. Carleton University (2009), 79 C.P.C. (6th) 306 (Ont. Master).

[15] Change of venue motions are fact specific: Whan v. Hicks, [2013] O.J. No. 4474 (S.C.J.). The court is required to analyse and balance the various factors in Rule 13.1.02 to determine whether a transfer of venue is desirable in the interests of justice. The court should engage in a holistic exercise in considering the various factors, including “any other relevant matter” in determining whether a transfer is desirable in the interests of justice. See Re Hallman Estate (2009), 2009 51192 (ON SC), 80 C.P.C. (6th) 139 (S.C.J.).

[16] The burden of proof is on the moving parties to demonstrate that London is the more desirable venue. See, for example, Siemens Canada Limited v. The Corporation of the City of Ottawa,(2008), 2008 48152 (ON SC), 93 O.R. (3d) 220 and Bhatt et al v. Chan et al, 2012 ONSC 5220, both decisions of the Superior Court of Justice.

Analysis

[17] With this framework in mind, I turn to each of the factors enumerated in the rule.

(a) Fair Hearing

[18] There was no suggestion that a fair hearing could not be held in London. The plaintiff does say that given the nature of the allegations against these justice system participants, it may be preferable to hold the trial elsewhere. I will return to this analysis under Rule 13.1.02 (2)(b)(ix).

(b) (i) Where did the claim arise?

[19] The claim clearly arises as a result of the plaintiffs’ interactions with London police and his involvement in London court proceedings. This factor favours London.

(ii) Where were the damages sustained?

[20] The damages were sustained, at least initially, in London although the alleged mental distress and other emotional trauma may be said to continue in Toronto where the plaintiff now lives. This factor is neutral.

(iii) Where is the subject matter of the proceeding located?

[21] This overlaps with the analysis in (i) above and favours London.

(iv) Local Community Interest

[22] This factor clearly favours London. The citizens of London would, without doubt, be keenly interested if members of their police force acted improperly. This litigation affects the London community and, in the normal course, should be heard here. In Chippewas of Sarnia Band v. Canada (Attorney General), [1996] O.J. No. 627 (Gen. Div.), Borins J. (as he then was) noted that “litigation that directly affects a community should be heard in the court that serves the community”.

[23] A similar observation was made in Charette v. Sault Ste. Marie (City) Police Service, [2010] O.J. No. 1860 (S.C.J.). The court quoted from Eveready Industrial Services Corp. v. Jacques Daost Coatings Management Inc., 2005 19797 (ON SC), [2005] O.J. No. 2285 (S.C.J.):

Based on common sense, and apart from the authorities, it seems logical that a case should be heard at a place where the cause of action arose or where all or at least some of the parties are located. The public most affected by a case has a right to observe the hearing.

The relevance of an open court is undermined if a hearing occurs in a place completely removed from the community giving rise to the dispute. [Footnotes omitted.]

[24] The court concluded that “[i]nterest of a community in the integrity of local police is obvious.” I agree.

(v) The convenience of the parties, the witnesses and the court.

[25] The defendants’ material demonstrates that as many as 35 witnesses may be called at trial, including some of the plaintiff’s own health care professionals who are located in the London area. The defendants are based in London. A large number of non-defendant police personnel as well as several lawyers from the London Crown Attorney’s office may be called. This factor substantially favours London.

(vi) Counterclaims, crossclaims and third and subsequence party claims

[26] Not applicable

(vii) Relative advantages and disadvantages of London and Toronto.

[27] London is the more advantageous place for trial in terms of securing the least expensive determination given the obvious expense associated with travel and accommodation for the significant number of potential witnesses.

[28] While there is no question that a trial date can be secured in Toronto, given the state of London’s trial list, I am confident that a more expeditious date, even one in 2015, can be scheduled in London.

[29] I cannot accept Mr. Morton’s submission (and he candidly admitted that he might be mistaken) that a mandatory mediation must occur, notwithstanding a change of venue because the action was commenced in Toronto. As I understand the process, if the file is transferred, a new file number is assigned to it and it becomes for all intents and purposes, a file in the location to where it has been transferred.

(viii) Availability of judges and facilities

[30] This is a neutral factor.

(ix) Any other relevant factor

[31] As noted, the claim raises allegations of London police misconduct. Given the nature of those allegations and the fact that some parties and witnesses may appear in the Superior Court of Justice in London, any concern about appearance or perception can be easily remedied by having an out-of-town judge preside.

[32] In addition, there is authority for the proposition that the absence of police officers from a community has an impact on the safety and welfare of a community: Speedvale v. Pendlebury, [2003] O.J. No. 5664 (S.C.J.). This is a factor that can be considered and here, it favours London.

[33] I am mindful of the plaintiff’s medical condition and have considered the notes from his clinical psychologist, cardiologist and psychiatrist, who report that the plaintiff suffers from chest pain, anxiety and panic attacks. Dr. Kelly reports that Mr. McDonald might be compromised in his ability to effectively participate in a trial. Dr. Moe considers that it would be detrimental to have the trial in London. Dr. Jeffries concludes that it would cause the plaintiff undue and unnecessary stress if he had to appear in a London court.

[34] Clearly, these notes might support Toronto as the appropriate venue. However, I note that the plaintiff appears to exercise access to his son in London bi-weekly and the family law proceedings are ongoing in London. There is no indication that the plaintiff is unable to fully participate in those proceedings. Consequently, I question whether the plaintiff’s reported symptoms are overstated.

Disposition

[35] Having considered the various relevant factors, I am persuaded that the balance tips substantially in favour of London as the proper venue for trial. The file is ordered transferred.

[36] If the parties cannot agree, I will receive brief written submissions on costs first from the defendants by February 6, and the plaintiff by February 17, 2015.

Justice H. A. Rady

Date: January27, 2015