SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-5129-00
DATE: 20151028

RE: OMAR FAROOQ KALAIR

Plaintiff

v.

CENTRAL 1 CREDIT UNION and UM FINANCIAL INC.

Defendants

BEFORE: DALEY RSJ.

COUNSEL:
Omar Kalair, in person

Aimee Collier, for the Defendant Central 1 Credit Union

UM Financial Inc., no one appearing

HEARD: October 28, 2015

E N D O R S E M E N T

[1] The defendant Central 1 Credit Union (“Central 1”) moves for an order transferring this action from Brampton to the Commercial List of the Superior Court of Justice at Toronto.

[2] The plaintiff opposes this motion.

[3] The motion is brought pursuant to Rule 13.1.02 (2) (b) for a determination as to whether or not the transfer of this action to Toronto is desirable in the interest of justice.

[4] The moving defendant Central 1 filed substantial material in support of its motion that included details and documentation related to the lengthy and complex history surrounding the receivership of the defendant UM Financial Inc. (“UMF”) of which, at the time of the receivership, the plaintiff was the president and CEO.

[5] The plaintiff filed an affidavit in response raising issues with respect to service of documents upon him, conflict of interest considerations as examined by the Law Society of Upper Canada and additionally considerations that he asserts demonstrated that a transfer of the action to this court at Toronto would result in prejudice to him.

[6] The receivership proceeding in the Commercial List court at Toronto was instituted by an application brought by Central 1 in October 2011. Following the issuance of that application there were numerous motions brought before the Commercial List resulting in several orders relating to the conduct of the receivership. There were approximately 16 orders made regarding the administration of the receivership of UMF. The nature of those orders are outlined in paragraph 22 of the affidavit of Douglas O. Smith sworn July 23, 2015, filed in support of this motion.

[7] It is asserted by the moving defendant that the present action represents an attempt by the plaintiff to re-litigate issues as between the plaintiff, Central 1 and UMF before the Superior Court of Justice in Brampton, that are ancillary to or have already been dealt with extensively by the Commercial List court at Toronto within the receivership proceedings.

[8] As to the prejudice asserted by the plaintiff in having the action moved from Brampton to Toronto, the plaintiff has indicated in his affidavit that he was involved in a motor vehicle accident in 2013, as a result of which he suffered certain injuries and physical limitations. He states in his affidavit that his doctor has advised him not to work or to use public transportation. In support of his position that he has medical limitations and restrictions which would make it unfair for him to have to participate in this action if it were transferred to Toronto he has filed what appear to be excerpts from medical notes or reports. The reports from which these excerpts have been extracted have not been served or produced in the affidavit evidence submitted by the plaintiff.

[9] The excerpts from medical records, apparently in the possession of the plaintiff, do not constitute medical evidence in the form of medical-legal reports as required by the Ontario Evidence Act, R.S.O. 1990, c. E. 23.

[10] The Plaintiff has produced one medical legal report dated October 2, 2015 from Dr. Sanja Paleksic, which outlines the history of his complaints, the observations made on the physical examination of the plaintiff and recommendations. In this report the physician concludes that the plaintiff suffers from chronic pain in his neck and arms as a result of a whiplash injury and that as a result he has myofascial pain. There is no indication in the medical opinion provided that the plaintiff would be incapable of travelling to Toronto on occasion to participate in the prosecution of this action, were it transferred there.

[11] The plaintiff asserts that the events giving rise to the within action all occurred in the Region of Peel and that he and the defendant Central 1 are located in the Region of Peel.

Analysis:

[12] The application of the factors outlined in Rule 13.1.02 is to be done on a holistic basis. No factor is more important than another and all factors are to be considered in determining whether or not the transfer is “desirable in the interest of justice”. The moving defendant acknowledged that the onus is on Central 1 to demonstrate that having the matter proceed before the Commercial List is a “significantly better” venue for the hearing of this action than Brampton: Telus Communications Company v. Her Majesty the Queen, 2015 ONSC 1345 at paras. 12 – 13.

[13] Considering the factors outlined in Rule 13.1.02 (2) I have reached the following conclusions:

(I) Where a Substantial Part of the Events that Gave Rise to the Claim Occurred:

Many aspects of the history giving rise to the claims asserted in the statement of claim relate to UMF’s business while the plaintiff was president and CEO of that company and while the company carried on business at 789 Don Mills Road, Suite 801, in the City of Toronto. The within action alleges oppressive conduct, defamation and copyright infringement by Central 1 as against UMF and the plaintiff, while UMF was still carrying on business and during the receivership proceedings. Given that the plaintiff and UMF carried on business out of the Toronto premises and that the receivership proceedings took place before the Commercial List court in Toronto, this factor favours the transfer of this action to the Commercial List in Toronto;

(II) Where a Substantial Part of the Damages Were Sustained:

In the within action the plaintiff asserts claims that Central 1’s conduct towards UMF resulted in reduction in his compensation and his reputation both before and after the receivership proceedings and that the defendant took control of unique documents without his authorization during the course of the receivership. UMF operated its business from its Toronto premises. There is no evidence that damages flowing from that alleged conduct were sustained in Brampton. As such consideration of this factor favours a transfer of the action to the Commercial List in Toronto;

(III) Where the Subject Matter of the Proceeding Is or Was Located:

Consideration of this factor favours the transfer of this action to Toronto for two reasons, firstly the subject matter of the proceedings relates to the relationship between UMF and Central 1 and the receivership proceedings all of which transpired in Toronto. Secondly, the criminal charges as against the plaintiff are proceeding in Toronto, in relation to the operation of UMF and the receivership proceedings;

(IV) The Local Community’s Interest in the Subject-Matter of the Proceeding:

The Sharia-compliant home financing offered by UMF was located throughout the Greater Toronto Area and not just in Brampton and there is no evidence of any interest specifically connected with the local Brampton community that would make Brampton a more suitable venue than the Commercial List in Toronto. Thus, consideration of this factor favours the transfer of the action to Toronto;

(V) The Convenience of the Parties, Witnesses and the Court:

The plaintiff has participated in litigation and other legal matters before the Commercial List, the Ontario Court of Justice and the Human Rights Tribunal in Toronto. He was the President and CEO of UMF which carried on its business in Toronto. The Receiver who had been involved in the receivership proceedings is located in Toronto. The within action will require the application of the OBCA and/ or the CBCA as well as the BIA all of which makes this an appropriate case for the transfer of this action to the Commercial List in Toronto pursuant to the Practice Direction concerning the Commercial List of the Superior Court of Justice;

(VI) Whether There Are Counterclaims, Cross-Claims or Third Party Claims:

This factor has no application in the present case;

(VII) Any Advantages or Disadvantages with Respect to Securing the Just, Most Expeditious and Least Expensive Determination of the Proceeding on Its Merits:

The judges sitting on the Commercial List have extensive experience in considering the issues that were at stake during the receivership proceedings of UMF and the Commercial List has significant capacity for judicial case management. In accordance with the terms of the Consolidated Provincial Practice Direction, Part III (motions to transfer proceedings in the Central East, Central West, Central South and Toronto Regions in the Procedural Guide and Consolidated Practice Directions) and in accordance with the protocol established pursuant to that practice direction, I have been advised by the Regional Senior Justice for Toronto that this action would be accepted to be placed on the Commercial List. This is in keeping with the Practice Direction that provides that matters involving the CBCA and OBCA may be placed on the Commercial List. Having regard to the best and most economical use of the judicial resources available and in the administration of justice, the transfer of this action from Brampton to Toronto will also meet that goal, which could not be achieved if the action were to proceed in Brampton;

(VIII) Whether Judges and Court Facilities Are Available at the Other County:

As noted the Regional Senior Justice for Toronto on consultation has advised that he will accept the transfer of this action to be placed on the Commercial List. The Commercial List as already noted, has case management capacity and the availability of the 9:30 A.M. Chambers Appointment procedure;

(IX) Any Other Relevant Matter:

The evidence adduced on this motion shows that there is a history of conflict as between the plaintiff and counsel for Central 1, including a complaint by the plaintiff to the Law Society of Upper Canada (“Law Society”) that counsel for Central 1 was acting in a conflict of interest. The Law Society concluded following its consideration of the plaintiff’s complaint that there was no need for any investigation of the defendant’s solicitors conduct. The plaintiff also filed a human rights complaint against Central 1 to the Human Rights Tribunal Ontario, which complaint was dismissed in accordance with the reasons released on October 21, 2015. In these circumstances it is anticipated that this action will require careful case management to ensure that the interests of justice are met. There is no evidence that the plaintiff’s access to justice would in any way be impaired were this action transferred to Toronto.

[14] In the result, I have concluded that on considering all of the factors in Rule 13.01.02, those factors favour the transfer of this action to the Commercial List at Toronto, and as such an order shall issue accordingly.

[15] Counsel for the defendant Central 1 shall file costs submissions of no longer than two pages, along with a costs outline within 15 days from the date of release of these reasons. The plaintiff shall file submissions of a similar length within 15 days thereafter. No reply submissions are to be filed.

DALEY RSJ.

DATE: October 28, 2015

COURT FILE NO.: CV-14-5129-00

DATE: 20151028

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OMAR FAROOQ KALAIR

v.

CENTRAL 1 CREDIT UNION and UM FINANCIAL INC.

BEFORE: DALEY RSJ.

COUNSEL: Omar Kalair, in person

Omar Kalair, in person

Aimee Collier, for the Defendant Central 1 Credit Union

UM Financial Inc., no one appearing

HEARD: October 28, 2015

ENDORSEMENT

DALEY RSJ.

DATE: October 28, 2015