Bienstock v. Adenyo Inc., et al. 2015 ONSC 578

HAMILTON COURT FILE NO.: 13-42492

DATE: 2015/01/26

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: TERRY S. BIENSTOCK

Plaintiffs

and

ADENYO INC., 7539088 cANADA INC., ADENYO ACQUISITION SUB INC., ADENYO USA INC., MICHAEL O’CONNOR, TYLER NELSON, DAVID WILSON, DENNIS KAVELMAN, MICHAEL ORR and paul heney

Defendants

BEFORE: Turnbull, RSJ.

COUNSEL: Jon David Giacomelli for Cambridge LLP, Counsel for the Plaintiff

Alan W. D’Silva and Aaron L. Kreaden for Stikeman Elliot LLP, Counsel for the defendants

HEARD: January 26, 2015

ENDORSEMENT

[1] The defendants have a brought a motion to transfer this proceeding from Hamilton to Toronto. For the reasons which follow that motion is dismissed as in my view it is not in the interests of justice as outlined by Rule 13.1.02 of the Rules of Civil Procedure.

[2] After review of the material, it is clear that the parties are located all over the world. Only one individual, the defendant is located in Toronto as well the defendant’s counsel. No party is located in the City of Hamilton nor is any counsel situate in the City of Hamilton.

[3] Rule 13.1.01(2) allows a plaintiff to commence a proceeding at any court office at any county named in the original process. The plaintiff chose Hamilton. However Rule 13.1.02(2) permits a party to bring a motion to transfer a proceeding to a county other than the one where it was commenced provided the court is satisfied under Subsection 2(b) that it’s transfer is desirable in the interests of justice for a series of reasons listed thereunder.

[4] The factors set forth in Rule 13.1.02(2)(b) “are to be considered in their entirety” and “all of them are to be given equal importance” Miller v Aman 2014 ONSC 6113, [2014] O.J. No. 4927 at paragraph 10. The moving party must establish from a review of the evidence, and the relevant factors that “the proposed new venue is “significantly better” then the plaintiff’s chosen venue” in order for a transfer to be in the interests of justice (Miller v Aman, supra).

[5] In considering this matter the court must not only consider the balance of convenience but also the availability of court resources, the relative backlog of civil cases and the effect on other litigants in allowing the case to remain at the venue named by the plaintiff.

[6] The moving party has not provided the court significant evidence that the convenience of the parties or the witnesses will be adversely affected by having the matter heard in Hamilton as opposed to Toronto.

[7] The trial lists in Hamilton are significantly shorter than those in Toronto. I have considered the fact that judges and court facilities are available in Hamilton and there will be little or no problem in having an early trial of this action.

[8] The plaintiff has recovered summary judgment against one of the defendants. Seven motions have already been argued in Hamilton with respect to this case. The time to have civil motions heard in Toronto is approximately 3 months which exceeds that in Hamilton by a considerable time. It is clearly in the interests of justice that the trial be heard as expeditiously as possible with the minimal amount of inconvenience and cost to the parties. I am not satisfied from the information before the court that the transfer of the file in any way will significantly increase the inconvenience or expenses to the defendants in having the matter heard on its merits. I am satisfied that the matter will be heard more expeditiously in Hamilton than in Toronto bearing in mind the limited court facilities and judicial time available in the City of Toronto. In my role as Regional Senior Justice I am regularly provided with time out statistics relative to the entire province and I am satisfied my information in that respect is accurate.

[10] The moving party must satisfy the court that the transfer is desirable in the interests of justice in order to justify an order changing the place of trial. On the record before this court, I do not find on balance that the defendants have met the test to justify denying the plaintiff its right to name the place of trial. In Siemens Canada Ltd. v Ottawa (City) 2008CarswellONT5650(Ont.S.C.J.) the court noted that if the intention of recent rule changes was to require the plaintiff to bring an action where the cause of action arose or where one or more of the parties resided, such a provision would have been included in the amendments.

[11] In my view, the test is not met on the totality of the record, particularly when the courts must simply decide between two locations where transportation and communication do not create a significant burden when considered with the other factors enumerated under Rule 13.1.02(2)(b). As I indicated, the distance between Hamilton and Toronto does not in my view create such a significant burden and I am reinforced in that respect by the long standing decision of this court in Hoan v Hoan 1955CarswellOnt(Ont.H.C.J) at paragraph 7.

[12] The application is dismissed and costs are granted to the plaintiff fixed in the sum of $2000.00 plus GST plus appropriate disbursements. If there is any issue with respect to calculation of the final costs, counsel may contact my office.

Turnbull, J.

Date: January 26, 2015