Dubois v. Dubois, 2015 ONSC 5734

Court File No. CV-13-5636

Ontario Superior Court of Justice

Endorsement

Plaintiff: Gaetane Dubois Counsel: Wayne Stickland

Defendants: André Dubois and The Corporation of the City of Greater Sudbury Counsel for André Dubois: Lauren Hill Counsel for Plaintiffs in CV-3719-14-OT: Sherilyn J. Pickering

NADEAU J.

[1] The sole remaining Defendant in this action, André Dubois, moves for an order that the proceedings identified as Court File No. CV-13-5636 and Court File No. CV-3719-14-OT be heard together or one immediately after the other, as the trial judge may direct, and for an order that the proceedings identified as Court File No. CV-13-5636 and Court File No. CV-3719-14-OT be transferred to the same jurisdiction.

North Bay Action (“Dubois action”)

[2] This action concerns a motor vehicle collision that occurred on December 1, 2011 in Sudbury, Ontario. Gaetane Dubois was a rear seat belted passenger in a motor vehicle driven by her father, the Defendant André Dubois. This is the same motor vehicle accident that gave rise to the Ringhofer action. The Plaintiff, Gaetane Dubois, alleges that she sustained injuries as a result of the herein accident.

[3] On April 26, 2013, the Plaintiff issued a Statement of Claim in the City of North Bay. On July 25, 2013, a Statement of Defence and Crossclaim was delivered on behalf of the Defendant, The Corporation of the City of Greater Sudbury. On September 18, 2013, a Statement of Defence and Crossclaim and Jury Notice was delivered on behalf of the Defendant. On August 18, 2015, all parties agreed to dismiss the action without costs as against The Corporation of the City of Greater Sudbury.

Sudbury Action – CV-3719-14-OT (“Ringhofer action”)

[4] The Ringhofer action arises out of the same motor vehicle accident that occurred on December 1, 2011 in the City of Sudbury. The Plaintiffs, Dorothy Ringhofer and John Portelance, allege that they sustained injuries and damages as result of the accident.

[5] On September 24, 2012, the Plaintiffs issued a Statement of Claim in the City of Barrie. On April 2, 2013, the Defendant delivered a Statement of Defence and Jury Notice. On July 19, 2013, the Defendant issued a Third Party Claim against The Corporation of the City of Greater Sudbury. On October 30, 2013, a Statement of Defence to the Main Action and a Third Party Defence was delivered on behalf of The Corporation of the City of Greater Sudbury. On September 9, 2014, the action was dismissed without costs as against The Corporation of the City of Greater Sudbury.

[6] On September 16, 2014, the Plaintiffs delivered a Trial Record. On November 26, 2014, the Honourable Madam Justice Fuerst transferred the action from Barrie to Sudbury.

Position of the Litigants

[7] As comprehensively outlined in the Factum of the Moving Party, the Court must use a balance of convenience test to determine if the actions should be tried together or sequentially. It is submitted that a weighing of the balance of convenience in these circumstances presented favours trying the actions together or sequentially. It is further submitted that, in applying the principles to consider in this motion for a change of venue, it is desirable in the interest of justice to try the actions in the same jurisdiction. Since North Bay and Sudbury are both in the Northeast Region, this is not a motion to change the venue from one Judicial Region to another.

[8] The Plaintiff in this action oppose a change of venue from North Bay, submitting that the moving party has not met its onus to show that it is desirable in the interest of justice to transfer this action from North Bay. As well, the Plaintiff has brought an action against her accident benefits carrier and pleadings have only recently closed in this AB action.

[9] The Plaintiffs in the Ringhofer action submit that a weighing of the balance of convenience here favours that these actions ought not to be heard together or sequentially. In the alternative, they submit that the proper venue for the actions to be heard together and sequentially would be in Sudbury.

Analysis

[10] The test used to determine if two actions should be tried together or sequentially is a two step test. The first step requires the Court to consider Rule 6.01 of the Rules of Civil Procedure. The Dubois action and the Ringhofer action arise as a result of the same motor vehicle accident; the first part of the test is met. For the second step, the Court must use a balance of convenience to determine if the actions should be tried together or sequentially. In weighing the balance of convenience, the case law supports the consideration of several factors:

a) whether the parties and the lawyers are the same;

b) the litigation status of each action, including whether one of the actions is at a more advanced stage than the other;

c) the timing of the motion and the possibility of delay;

d) whether, if the actions are combined, certain interlocutory steps not yet taken in some actions may be avoided by relying on transcripts from the more advanced action. Will the order sought create a savings of pre-trial procedures? Specifically will it save in pre-trial conferences;

e) will the order result in a delay of the trial of one of the actions? If so, does any prejudice which a party might suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have;

f) is there a substantial risk that separate trials will result in inconsistent findings of identical issues;

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

h) the extent to which the issues in each action are interwoven;

i) whether the same damages are sought in each action, whether damages overlap and whether a global assessment of damages is required;

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

k) will there be added complexity if the actions are consolidated or heard together;

l) will there be a real reduction in the number of trial days taken up by the trials being heard at the same time;

m) what is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest;

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

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

p) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions. Will there be a real savings in experts’ time and witness fees;

q) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are tried together;

r) will consolidating the actions deprive a party of their right to a jury trial;

s) whether there is a jury notice in one action but not the other; and

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

[11] Although I have considered these several factors here, having regard to my decision on the change of venue aspect of this motion, it is presently unnecessary for me to prematurely pronounce a decision on the trial together or sequentially aspect of this motion. The Ringhofer action is at a much more advanced stage than the Dubois actions, and there is objection by each litigant on several factors.

[12] With respect to the change of venue motion from North Bay, I adopt the following summary of legal principles set out by Himel J. in paragraph 13 of Telus Communications Co. v. Canada (Minister of Public Works and Government Services), [2015] O.J. No. 1093:

“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.”

[13] I am satisfied that North Bay, as selected by the Plaintiff, is a reasonable place for trial. Therefore, I must apply the following factors in Rule 13.1.02(2)(b) of the Rules of Civil Procedure in determining whether to change the venue of this action from North Bay:

(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.

[14] The principles to consider in a motion for change of venue are as set out in Siemens Canada Ltd. v. Ottawa (City), 2008 48152 (ON SC), [2008] 93 O.R. (3d) 220, at paragraph 27:

(1) The new venue provisions establish that “local justice” principles are important and are to be weighed in the balancing of factors relevant to venue;

(2) The court will change venue on motion by a defendant if the venue selected by the plaintiff “has no rational connection to the cause of action or the parties”.

(3) If the venue chosen by the plaintiff does have a rational connection to the cause of action or the parties, then the court will defer to the plaintiff’s choice of venue unless it can be shown that the venue proposed by the defendant is substantially better, when the factors enumerated in R. 13.1.02(2)(b) are weighed.

(4) In weighing these factors, the court will give preponderant weight to any factors that may impact on substantive justice. Thus if a particular venue will impede access to justice for a party, that factor, alone, may be sufficient to determine the choice of venue.

(5) If there is no concern that venue will impact on substantive justice, the relative importance of the factors will vary, depending on the totality of circumstances of the case.

[15] Applying the factors set out in Rule 13.1.02(2)(b) to the circumstances of this case, I note the following:

(i) Where did the Claim Arise?

[16] The collision occurred in Sudbury; approximately 130 kilometers from North Bay. Both Sudbury and North Bay are in the same judicial Northeast Region.

(ii) Where Were the Damages Sustained?

[17] The damages were sustained, at least initially, in Sudbury although the Plaintiff continues to receive much of her treatment in North Bay, where she lives and worked.

(iii) Where is the Subject Matter of Proceeding Located?

[18] The liability issue is centered in Sudbury, while the damages issues are centered in North Bay.

(iv) Local Community Interest.

[19] There is no local or community interest in either action.

(v) The Convenience of the Parties, the Witnesses and the Court.

[20] The Defendant in both actions and the Plaintiff in this action reside in North Bay. The Plaintiffs in the Ringhofer action reside in or around the City of Barrie. Counsel for the Plaintiff in this action practice from North Bay. Counsel for the Plaintiffs in the Ringhofer action and counsel for the Defendant in both actions practice from Toronto. Although the investigating police evidence appears to emanate from Sudbury, there are a number of witnesses from North Bay including lay, healthcare and employment, including the mother of this Plaintiff. All other witnesses appear to be from either Barrie or Toronto in southern Ontario.

(vi) Counterclaims, Crossclaims and Third and Subsequent Party Claims.

[21] Not applicable here.

(vii) Relative Advantages and Disadvantages of North Bay and Sudbury.

[22] Apart from the motor vehicle collision occurring in Sudbury, there is no other meaningful connection to that venue compared to North Bay.

(viii) Availability of Judges and Facilities.

[23] This is a neutral factor.

(ix) Any Other Relevant Factors.

[24] The actions arise from the same motor vehicle collision. The actions have the common Defendant, common liability witnesses and the possibility of common damage expert witnesses. Trying the actions in the same venue would appear to result in saving Court resources; which would be a useful approach for these litigants to consider in the future should evolving circumstances so warrant it.

Conclusion

[25] I have balanced the factors set out in Rule 13.1.02(2)(b) and considered any other relevant matters. Applying a holistic approach, I find that the moving party has not demonstrated that it is desirable in the interest of justice that this action be transferred at this time; conducting this trial in Sudbury is not substantially better than having this trial in North Bay.

[26] I therefore dismiss the motion to change the venue of this action, without prejudice to these motions being renewed when this action is more ready for trial. While at the present time I do not find that transfer, or being heard together or sequentially, is warranted, these issues may be revisited. In essence, nothing in this decision precludes any of the litigants from later seeking similar relief should circumstances change.

[27] If these litigants are unable to agree as to the issue of costs, they may file brief written submissions within 30 days.

November 9, 2015

The Honourable Mr. Justice D.J. Nadeau