SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-14-511187
Court File No.: 511187/14 OT

DATE: 2015/09/10

RE: Michael Lafrance and Crystal Lafrance (Plaintiffs)

AND:

Monarch Corporation, Sifton Properties Inc., Utopia Custom Homes Inc., Marco Jose Souza Demelo, Royal LePage Landco Realty Brokerage, ENG Plus Ltd., Shane McLaughlin, Archibald, Gray & McKay Engineering Ltd., Stephen P. Brown and The Corporation of the City of London
(Defendants)

BEFORE: Justice A. K. Mitchell

COUNSEL:
D. Popadic, for The Corporation of the City of London, the defendant/moving party
D. Evans, for the plaintiffs/responding parties

HEARD: September 9, 2015

ENDORSEMENT

Overview

[1] The defendant, The Corporation of the City of London, seeks an order transferring this action from the Toronto Superior Court of Justice to the London Superior Court of Justice. The City argues that the action has no rational connection to Toronto.

[2] The balance of the defendants all consent to the transfer of the action to London.

[3] The plaintiffs oppose the transfer asserting their presumptive right to choose the venue for these proceedings and arguing that a transfer will impede their access to justice.

[4] The plaintiffs reside in and own a house located on property municipally described as 185 Richmeadow Road in the City of London.

[5] The plaintiffs commenced this action by way of statement of claim issued out of the Toronto Superior Court of Justice and they propose to have this action tried in the City of Toronto. In this action, the plaintiffs seek damages arising from the defendants’ alleged negligent development and construction of their house.

[6] The issue is whether a transfer of this action to London is desirable in the interests of justice having regard to the factors set forth in Rule 13.1.02(2)(b) of the Rules of Civil Procedure. These factors are:

(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 was sustained;

(iii) where the subject matter of the proceeding is or was located;

(iv) any community’s interest in the subject matter of the proceeding;

(v) the convenience of the parties, the witnesses and the courts;

(vi) whether there are counterclaims cross-claims or third-party 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] Recent case law endorses a “holistic” approach to a consideration of the enumerated factors and a determination of the issue.[^1]

[8] Rule 13.1.01(2) does not require the plaintiff to establish a rational connection to the county it selects in which to commence its action. A rational connection between the action and the county is not a precondition to issuing an originating process.

[9] Absent court intervention taken on its own initiative, or a motion such as this one, the action, including all interlocutory steps and the trial itself, will proceed in the selected Ontario venue, despite no connection between the action and the chosen venue. However, once a motion to transfer an action is brought, the plaintiff faces a significant challenge to resist the transfer where no rational connection between the selected venue and the action exists: Chatterson at paras. 28 and 30.

[10] As part of the court’s assessment of the two venues under consideration, the connection of the action to the plaintiffs’ selected venue must be considered. The enumerated factors cannot be considered in a vacuum.

[11] This action is one of four separate actions commenced by various home owners of property located on Richmeadow Road.[^2] Monarch and the City are defendants in all four actions. Sifton is named as a defendant in three of the four actions. The extent and nature of the damage claims in each of the four actions are identical. Among the common defendants, the allegations of negligence are identical in each of the actions.

[12] In all four actions, the plaintiffs are represented by the same counsel. All four actions were commenced in the City of Toronto. Despite the common issues and common parties, no steps have been taken to consolidate the four actions or deal with procedural issues in the actions on a collective and cohesive basis.

[13] The City brought this identical motion in the Larose action in March, 2015. The motion was argued before me and Mr. Larose similarly resisted the transfer of his action to the City of London.

[14] Pursuant to my endorsement of April 10, 2015[^3], I dismissed the City’s motion on the narrow ground that the City had failed to put before the court evidence of the Southwest Region’s available judicial resources. This evidence was required in order to satisfy me that the transfer of the action would be desirable in the interests of justice: See Chatterson at para. 19.

[15] In dismissing the motion, I indicated that it was without prejudice to the City to seek a transfer of the action from Toronto to London by way of further motion supported by evidence of the judicial resources available in London to accommodate the action.

[16] Presumably motivated by my decision in the Larose action, on this motion the City has filed evidence establishing that London and the Southwest Region, generally, can accommodate the transfer of this action.

Where did a substantial part of the events or omissions that gave rise to the claim occur?

[17] The plaintiffs allege that their house suffered significant structural damage because of the negligence of one or more of the defendants. Additionally, the plaintiffs claim that they have suffered emotional distress, incurred costs to relocate their family, incurred increased heating costs and have suffered loss of improvements made to the house.

[18] The construction of the plaintiffs’ house and the alleged structural failure and damages to the house occurred in London. All other alleged losses occurred in London. This factor favours London.

Where was a substantial part of the damages sustained?

[19] The damages claimed relate, directly or indirectly, to property damage caused to the house and to work undertaken on the house. This factor favours London.

Where is the subject matter of the proceeding located?

[20] The house is located in London. This factor favours London.

Is there any community interest in the issues in this action?

[21] Mr. Larose was interviewed by a local newspaper, the London Free Press, which subsequently published an article about him and his house. The same issues raised by Mr. Larose and reported on by the London Free Press are issues facing the plaintiffs in this action. Some of the defendants were named in that article. Sifton is a well-known London property developer and the City of London is a named defendant. As I indicated in my endorsement in the Larose action, the local community has an interest in any claim in which its municipal tax dollars are being used to defend such claim. This factor favours London.

Which venue is more convenient to the parties, the witnesses and the court?

[22] Most of the parties are located in London. In particular, the plaintiffs reside in London. The City of London is a defendant in the action and its employees will be called as witnesses at trial. Many of the defendants have retained London-based counsel. Only plaintiffs’ counsel is located in Toronto.

[23] If the trial is conducted in London and it is necessary for the proper adjudication of the issues, it would be possible for the court to “take a view” of the subject property.

[24] The plaintiffs’ experts are located near Toronto. The defendants have not yet retained experts. At this early stage it is near impossible to compile an accurate witness list. However, given the number of defendants and their obvious connection to London it may be inferred that London is the more convenient venue for most of the anticipated witnesses.

[25] The action is in its infancy. Affidavits of Documents have not been exchanged, a discovery plan has not been agreed by counsel and the action is well over a year from being listed for trial whether in the City of London or in the City of Toronto.

[26] Examinations for discovery are conducted in the location of the individual being examined regardless of the venue of the action. The cost and convenience to the parties with respect to examinations is, therefore, a neutral consideration.

[27] On balance, this factor favours London.

Are there are counterclaims, cross-claims, third party or subsequent claims?

[28] Each of the defendants has defended the action and cross-claimed against the other defendants.

[29] There are no counterclaims, third party or subsequent claims. This is a neutral factor.

Are There Any Advantages or Disadvantages of Toronto or London with respect to securing the Just, Most Expeditious and Least Expensive Determination of the Proceeding on its Merits?

[30] Plaintiffs’ counsel submits that the plaintiffs have a prima facie right to select the venue. The plaintiffs argue that I must place most weight on this factor and consider the connection of the plaintiffs’ claims to London as largely irrelevant.

[31] The plaintiffs further submit that maintaining the action in Toronto will ensure that the proceedings will be decided on their merits, and in the most expeditious and cost effective manner. They say that maintaining the action in Toronto will allow the parties to take advantage of mandatory mediation, permit all four actions to be case-managed by an experienced commercial list judge and will reduce and potentially eliminate the plaintiffs’ costs of responding to the defendants’ anticipated frivolous, vexatious and tactical motions.

[32] This factor does not permit me to consider only what is just, convenient and least expensive for the plaintiffs; rather, I must consider what is just, convenient and least expensive for all parties. On balance, it will ultimately prove to be more expensive to all parties to have the witnesses and the defendants’ London-based lawyers travel to Toronto to conduct the trial. Trite to say that parking, meal, accommodation and travel costs in Toronto will eclipse those same expenses in London.

[33] Plaintiffs’ counsel argues that a transfer of the action to London will only encourage the defendants to bring an onslaught of frivolous tactical motions at great expense and delay to the plaintiffs. The plaintiffs argue these additional legal costs will impede their access to justice. As I indicated in my endorsement in the Larose action, I am not persuaded by this argument. This is a civil claim for damages. The plaintiffs have yet to prove their claim. A presumption of liability does not exist. Until judgment is granted, the plaintiffs must fund the cost of its litigation. If the defendants bring ill-founded and frivolous motions, the Rules provide for costs to be awarded against them. Tactical motions are not prohibited so long as they have merit. The plaintiffs have not provided any evidence of financial hardship if the action was to be transferred to London.

[34] The plaintiffs are asking me to accept the general proposition that a plaintiff in an action involving a deep-pocketed defendant need only establish that its lawyer practises in the venue in which the action was commenced, to successfully resist a change of venue motion. Quite frankly, this would defeat the purpose of subrule 13.1.02(1): See Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc.[^4].

[35] Both mediation and case-management are available and may be pursued in London. These opportunities are not unique to Toronto.

[36] Accordingly, this factor favours London.

Are judges and court facilities available in London?

[37] The evidence filed by the City supports a finding that the Southwest Region can accommodate this action if it was ready to be listed for trial, which it is not.

[38] This action is likely years away from trial. I anticipate that the landscape of judicial resources in both Toronto and London will change dramatically by the time this action is ready to be listed for trial. This factor is neutral.

Disposition

[39] This action has no rational connection to Toronto. Subject to the approval of the Regional Senior Justice for the Southwest Region, this action is hereby transferred from Toronto to London.

[40] This situation cries out for case-management. I urge the plaintiffs in the other three actions to consent to the transfer of their actions to London. Once transferred, I recommend that the plaintiffs seek to have all four actions consolidated and, at a minimum, case-managed by a single judge. In doing so, the costs will be significantly reduced for all parties, and most importantly for the plaintiff group. The case management judge will ensure the orderly and timely scheduling of productions and discoveries to avoid further delay.

Costs

[41] The City was successful on this motion and is entitled to its costs. The City seeks its costs of the motion on a partial indemnity basis in the amount of $4,407.00 inclusive of HST. I find this amount to be excessive in circumstances where the costs of the City on this same motion in the Larose action were $3,559.50. Aside from the additional evidence regarding the capacity of the Southwest Region to accommodate a transfer of this action, the evidence and the law on this motion were virtually identical as the law and evidence on the transfer motion in the Larose action. Accordingly, the City shall have its costs of the motion fixed in the amount of $3,560.00 inclusive of HST, payable forthwith.

“Justice A. K. Mitchell”

Justice A. K. Mitchell

Date: September 10, 2015

[^1]: See Chatterson et al. v. M & M Meat Shops Ltd., 2014 ONSC 1897 (Div. Ct.). (“Chatterson”) at paragraph 22; Hallman Estate v. Cameron, 2009 51192 (ONSC) (“Hallman”) at paragraph 29.

[^2]: Larose v. Monarch Corporation et al., Court File No. 14-504478; Leeson v. Monarch Corporation et al., Court File No. 14-518458; Webber v. Monarch Corporation et al., 15-520505; and Lafrance v. Monarch Corporation et al., 14-511187.

[^3]: 2015 ONSC 2345.

[^4]: 2005 19797 (ON SC), [2005] O.J. No. 2285 (SCJ) at paragraph 31.