Citation: Cass v. WesternOne, 2015 ONSC 7313

COURT FILE NO.: CV-14-00021629-00CP

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Fredrick Cass and Edward Allan McCaffrey

Plaintiffs

– and –

WesternOne Inc., Peter Blake, Carlos K. H. Yam, Robert W. King, Geoffrey G. Shorten, Douglas R. Scott, Michael L. Ridley, Canaccord Genuity Corp., National Bank Financial Inc., and Raymond James Ltd.

Defendants

COUNSEL:

Myron Shulgan counsel for the Plaintiff

Mark Gelowitz and Teresa Tomchak counsel for the defendants WesternOne Inc., Peter Blake, Carlos K. H. Yam, Robert W. King, Geoffrey G. Shorten, Douglas R. Scott, Michael L. Ridley,

Michael Rosenberg counsel for the defendants Canaccord Genuity Corp., National Bank Financial Inc., and Raymond James Ltd.

Heard: November 12, 2015

REASONS FOR JUDGMENT

BONDY J.

A. INTRODUCTION

[1] This is a motion by the defendants for a change of venue brought pursuant to rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 made under the Courts of Justice Act, R.S.O. 1990, c. C.43. The underlying action, which was commenced in Windsor, is a class-action lawsuit. The defendants seek to move the action to Toronto.

[2] The case involves the sale of securities in WesternOne Inc. ("WesternOne") to finance a 2,000 room workforce accommodation complex for a proposed generating station in northern Manitoba known as Keeyask. The total value of the project was $207,000,000.

[3] The statement of claim alleges that the defendants filed a prospectus dated September 12, 2014, which resulted in the defendant WesternOne raising $38,000,000 from prospective class members. The claim further alleges that the defendants failed to disclose it in a timely fashion, which delayed the completion of the Keeyask project, which ultimately resulted in a decline in WesternOne’s earnings before interest, taxes, depreciation and amortization. The plaintiffs maintain that as a result the value of shares declined. The plaintiffs seek a declaration that the defendants breached section 130 of the Securities Act, R.S.O. 1990, c S.5, and the analogous provisions in the equivalent provincial Securities Acts; and further a declaration that each of the defendants was negligent.

[4] There are two classes of plaintiffs. They can be summarized as follows. The first are prospectus class members, who are persons other than "excluded persons", who acquired securities of WesternOne pursuant to the prospectus and held some or all of those shares at the close of trading on the TSX on November 12, 2014. The second are the secondary market class members, who are persons other than "excluded persons", who acquired securities of WesternOne on the secondary market during the "class period" and held some or all of those securities at the close of trading on the TSX on November 12, 2014.

[5] A statement of defense has not yet been filed by any of the defendants. The leave and certification motions are scheduled to be heard in Windsor on June 28, 29 and 30, 2016.

B. ANALYSIS

[6] The plaintiffs have the prima facie right to select the venue: see Skidmore v. Carleton University (2009), 79 C.P.C. (6th) 301, [2009] O.J. No. 2010, at para 3; Siemens Canada Ltd. v. Ottawa (City), 2008 CanLII 48152 (ON SC), 93 O.R. (3d) 220, [2008] O.J. No. 3740, at para 26. The onus is on the moving defendants to establish that the transfer is in the interest of justice: see Skidmore, at para 3; and Siemens, at para 26.

[7] Considerable time was spent by counsel arguing whether there is a requirement that the plaintiffs’ place of trial be reasonable, and if so whether it is a threshold issue, or the first stage of a two stage test.

[8] Plaintiffs’ counsel placed significant weight on the comment of Brown J. at paragraph 28 of his decision in Hallman Estate v. Cameron (2009), 2009 CanLII 51192 (ON SC), 80 C.P.C. (6th) 139, [2009] O.J. No. 4001. There, Brown J. expresses difficulty with a "threshold" which requires an examination of the reasonableness of the plaintiff's choice of venue prior to embarking upon a review of the factors in rule 13.1.01(2). In reaching that conclusion he observes that there is no requirement in the rule that the plaintiff's choice be a "reasonable" one.

[9] I agree with the conclusion reached by Brown J. but not for the reasons expressed by plaintiffs’ counsel. The following are my reasons.

[10] The first is that the law is well-established that there is no onus on the plaintiff to establish the choice of venue is a reasonable one: see Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, 238 A.C.W.S. (3d) 856, 2014 CarswellOnt 3840 at para 31 (Div. Ct.); Hallman Estate, at para 28; Miller v. Aman, 2014 ONSC 6113, [2014] O.J. No. 4927, at para 21; and Guenette v. Furness, 2014 ONSC 4593, [2014] O.J. No. 3809. Where a plaintiff chooses an unreasonable venue, that choice will most likely stand absent a challenge from the defendant: see Chatterson, at para 30. Nor is there any obligation for the plaintiff to establish a "rational connection": see Wilcox v. Flintstone Glass & Mirror Ltd. (2009), 2009 CanLII 73279 (ON SC), 79 C.C.E.L. (3d) 80, [2009] O.J. No. 5613, 79, at para 18; Chatterson at paragraph 31; and Siemens.

[11] The second is that any review of the reasonableness of the plaintiffs’ choice must take place within the context of rule 13.1.01(2), and not before the enumerated factors in that rule are considered. In other words, in a motion for change of venue, the issue of the reasonableness of the plaintiffs’ choice is to be considered within the context of those factors. Any doubt in that regard was put to rest in the decision in Chatterson where, at paragraph 35, Morocco A.C.J.S.C. states, "Whether the plaintiff’s choice of venue is reasonable or not, if the defendant brings a motion to change venue the court is required by subrule 13.1.02(2) to engage in the ‘holistic exercise’ described in the Hallman Estate case in order to decide if a change in venue is appropriate.” [emphasis mine]

[12] As a result, I conclude that in cases where the plaintiff's place of trial is not reasonable and the defendant has moved for a change of venue to a reasonable location, a change of venue will likely be in order. This is a matter of common sense: see Chatterson, at para 28. Where they are both reasonable and the defendant moves for a change of venue, then a comparison of the two venues is required: see Chatterson, at paras 28-29. When a comparison is conducted, the defendant must demonstrate that the proposed place of trial is not only better, but "significantly better" than the plaintiff's choice of trial: see Chatterson, at para 20; and Ng v. John Doe, 2015 ONSC 101, [2015] O.J. No. 77, at para 4; and Guenette, at para 24.

[13] As observed by Morocco A.C.J.S.C. the approach is a "holistic exercise". Each of those considerations or factors is to be considered by the court in reaching a decision: see Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. (2005), 2005 CanLII 19797 (ON SC), 76 O.R. (3d) 390, [2005] O.J. No. 2285, at para 19. That said, none of the enumerated considerations is more important than the other. All of the enumerated factors and any other factor relevant to the location of the action must be balanced to ensure that the proceeding is transferred only where it is “desirable in the interests of justice”: see Gould v. Nesbitt Burns Inc. (2006), 2006 CanLII 63726 (ON SC), 81 O.R. (3d) 695 para 18.

[14] In analyzing the facts of this case against those principals, I concluded at the first stage that the plaintiffs’ choice of venue was reasonable.

[15] In this case, Robert Krten ("Mr. Krten") one of the two original representative plaintiffs, resided in Windsor. Arguably, Mr. Krten chose to exercise his right to counsel of choice in choosing a law firm in the city in which he resides with extensive experience in class actions. Litigation no longer takes place within a paradigm where litigation lawyers can be treated as interchangeable generalists: see Hallman Estate, at para 62. Further, Windsor is recognized as a center for class actions: see Hallman Estate, at para 62. So in this context, I have no difficulty concluding that Mr. Krten’s choice of venue was reasonable at the time it was made. It, however, seems to me that the appropriate point in time to assess reasonableness is the point in time at which the motion is heard. In other words, venue choices reasonable at one point in time may not be at another. Importantly, in this case, the representative plaintiffs at the time the motion was heard were not part of the original decision-making process. It follows that Windsor was not the choice of the current representative plaintiffs. At best it was adopted by them upon being named as representative plaintiffs. Neither current representative plaintiff lives in Windsor. As a result, this argument loses its attraction.

[16] For reasons more fully considered below, I find that I am left with the only connection to Windsor being plaintiffs’ counsel.

[17] It seems to me reasonableness is a matter of degrees. It also seems to me that the applicable threshold is at the low end of the spectrum when deciding whether or not the plaintiff choice is reasonable. That is because, as said above, the plaintiff has the prima facie right to select the venue.

[18] In this case, plaintiffs’ counsel is experienced in class action litigation and, as said above, judicial notice has been taken that Windsor is recognized as a center for class actions. I find those two factors demonstrate that the plaintiffs’ choice of venue is, in the circumstances of this case, reasonable. To say that another way, I find that there is something to be said for both venues: see Siemens, at para 25; and Hallman Estate, at para 65. As a result, a comparison of the two proposed venues is required.

[19] At the second stage, I find that defendants’ counsel met the onus upon them to demonstrate that the defendants’ choice of venue is significantly better than the plaintiffs’ and that the requested transfer is desirable in the interests of justice.

[20] The following are my reasons.

1. Where a substantial part of the events or omissions that gave rise to the claim occurred,

[21] The prospectus and other disclosures relating to the alleged misrepresentations were prepared by individuals employed by WesternOne in Vancouver, and by individuals employed by the underwriters who reside in Vancouver and Toronto: see Gould, at para 27.

[22] There was nothing to suggest that any part of the subject matter is based in Windsor

[23] Accordingly, I find this factor favours Toronto.

2. Where a substantial part of the damages were sustained,

[24] In an action such as this, damages are occasioned where the class members reside: see Gould, at para 28.

[25] Leonard Saure ("Mr. Saure") is Vice-President, Equity Capital Markets, in the “Toronto New Issues Service Department” of the defendant Canaccord Genuity Corp. ("Canaccord"). In his affidavit, sworn August 10, 2015, Mr. Saure deposes that the total offering was 5,031,250 shares.

[26] A total of 450 subscribers purchased shares through Canaccord. Of those, 144 of those Toronto resident subscribers purchased 3,227,530 shares representing approximately 64 percent of the total shares purchased in the offering. No shares subscribed through Canaccord were purchased by a resident of Windsor

[27] National Bank and Raymond James placed a further 26.4 percent of the offering. More of the shares placed by National Bank were subscribed by residents of Toronto than any other city. A total of 27 of the 59 Ontario residents who purchased shares from Raymond James were located in Toronto. None were located in Windsor.

[28] Plaintiffs’ counsel argues that there is no way of knowing if any of the 3,227,530 shares issued to residents of Toronto after September 12, 2014 continued to be held by any Toronto residents two months later on the close of business of the TSX on November 12, 2014. While I agree there may be a remote possibility that all of the 144 Toronto residents who subscribed to those 3,227,530 shares may have disposed of them prior to the close of business of the TSX on November 12, 2014, I make the following two observations. The first is that I find that possibility overly remote in the circumstances. The second is that even if they had all been disposed of, it seems to me likely that the distribution on resale would have some resemblance to the original distribution given the size of and concentration of money in Toronto. For these reasons, I conclude that a very significant number of shareholders likely resided in Toronto at the close of business of the TSX on November 12, 2014.

[29] Mr. Weiner deposes that he was informed by Jay Strosberg of two individuals who reside in the Windsor suburb of Tecumseh who have contacted their firm and self-described as class members. I did not find that evidence compelling for several reasons.

[30] The first is that the evidence is double hearsay. In order to come within the hearsay exception in Rule 39.01(4), a deponent may only make statements based upon information and belief if the source of the information and the fact of the belief are specified in the affidavit: see R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97, [1993] S.C.J. No. 115, at para 16. In this case, there were no specifics as to the identity of the original source of that information. Further, double hearsay does not comply with the exception of that rule: see Airst v. Airst, [1999] O.J. No. 5866, 1999 CarswellOnt 362, at para 6.

[31] The second is that there was no evidence to support the conclusion that these shares had been purchased from one of the defendant underwriters, nor was there evidence from which I could conclude they were purchased in the secondary market. The defendant underwriters in this case were not the only underwriters involved.

[32] The third is that even if it were admissible and I presumed the evidence to be correct, the relative proportion of potential class members residing in Windsor is an exceedingly small fraction of those residing in Toronto.

[33] Based upon the foregoing evidence I conclude that a substantial part of the damages were sustained in Toronto. As a result, this factor favours Toronto.

3. Where the subject-matter of the proceeding is or was located,

[34] Generally speaking, in a securities action involving the offering of securities through the Toronto Stock Exchange, the subject matter of the proceeding is located throughout Canada, being the area where the securities were marketed to potential investors: see Gould, at para 2.

[35] However, we know that in this case 64 percent of the shares were subscribed for by residents of Toronto and none by residents of Windsor. Further, the conduct complained of did not occur in Windsor: see Gould, at para 29.

[36] As a result, I conclude this factor favours Toronto.

4. Any local community’s interests in the subject-matter of the proceeding,

[37] All counsel agreed this factor is not relevant

5. The convenience of the parties, the witnesses and the court,

a) The Parties and their Counsel

[38] Common sense dictates that the location where at least some of the parties are located is a consideration. The public most affected by a case has a right to observe the hearing: see Eveready Industrial, at para 14.

[39] Whereas in this case, an action is not a localized class proceeding in respect of the discrete class, the location of the representative plaintiffs ought to be taken into account: see Nutech Brands Inc. v. Air Canada (2007), 2007 CanLII 56523 (ON SC), 88 O.R. (3d) 768, [2007] O.J. No. 5031, at para 36.

[40] I reiterate that in this case, Mr. Krten was one of the two original representative plaintiffs. He resided in Windsor.

[41] However, the statement of claim was amended in January and again in May of 2015 replacing the original representative plaintiffs with two new ones, Frederick Cass and Edward Allen McCaffrey. The current representative plaintiff, Frederick Cass, resides in Toronto and the representative plaintiff, Edward Allen McCaffrey, resides in Collingwood. Collingwood is much closer to Toronto, both geographically and in terms of transportation, than it is to Windsor (162 kilometres to Toronto versus 419 kilometers to Windsor by the shortest driving route). The convenience of the representative plaintiffs favours Toronto.

[42] The corporate defendants’ offices are as follows:

i. WesternOne Inc. – Headquarters in Vancouver, BC. Its shares are listed on the Toronto Stock Exchange.

ii. Canaccord Genuity Corp. - An underwriter - registered office is located in Toronto. Its employees involved in this matter are located in Toronto.

iii. National Bank Financial Inc. ("National Bank") - An underwriter - Its employees involved in this matter are located in Toronto.

iv. Raymond James Ltd. ("Raymond James") - An underwriter - Its employees involved in this matter are located in Vancouver.

[43] The individual defendants maintain residences as follows:

i. Peter Blake - Vancouver BC

ii. Carlos K. H. Yam - Vancouver BC

iii. Robert W. King - Vancouver BC

iv. Geoffrey G. Shorten - Calgary Alberta (also maintains a residence in Vancouver BC) - Vancouver BC

v. Douglas R. Scott - Vancouver BC

vi. Michael L. Ridley - Vancouver BC

[44] In summary, there are two defendants with close connections to Toronto, Canaccord Genuity Corp., and the underwriters National Bank. Of interest, they were the "lead" underwriters and accordingly have the greatest interest of the three underwriters involved in the outcome of this action.

[45] Defendants’ counsel argues that the analysis should also consider the stage at which the proceedings are at the time of the motion. Plaintiffs’ counsel maintains the balancing of the factors under R. 13.1.02(2)(b) may well be different for the trial than for steps leading up to trial. I agree with that proposition: see Siemens, at para 57.

[46] The most likely next step will be the leave and certification motions scheduled for June of 2016. Rule 34.03 provides that residents of Ontario be examined in the county in which they reside. Accordingly, plaintiffs’ counsel submits that no attendance will be required by any of the defendants between now and then, and as a result this is automatically a neutral factor at this stage of the proceedings.

[47] I find plaintiffs’ characterization of this factor as an automatic neutral factor over-simplistic. The issue of the convenience of the parties, the witnesses, and the court is fact driven. The parties and witnesses may simply want to observe the proceedings which occur prior to trial. In this case, defendants’ counsel suggested that several of the defendants would likely attend the motion because their "reputations are on the line". I find that argument has some merit.

[48] Plaintiffs’ counsel also suggests that the location of the registered offices and various branches of National Bank and Raymond James are relevant factors. As an example both have branches in Windsor. Further, plaintiffs’ counsel served Raymond James at their Windsor office. On the evidence before me I am unable to agree that the location of branch offices in Windsor is relevant in this fact situation. Both are very large organizations. It was both the Toronto and/or Vancouver offices which were involved in the transactions relevant to these proceedings. There was no evidence to suggest that anyone from the Windsor branches of either corporation would be a witness, or have any relevant information, or otherwise be involved in these proceedings.

[49] For these reasons I find the convenience of the defendants favours Toronto.

[50] The convenience of counsel is also a factor. The considerations are however not identical for plaintiffs’ and defendants’ respective counsel in the circumstances of this case.

[51] Generally speaking, reducing the number of lawyers who have to move files on a piecemeal basis from the place in which there home office is located in the place in which the proceedings are held is an appropriate consideration: see Leblanc v. Canada (Minister of Health) (2007), 156 A.C.W.S. (3d) 1052, [2007] O.J. No. 1433, at para 18; and Nutech, at para 18. It however is not a deciding factor: see Gould, at para 19 and Chippewas of Sarnia Band v. Canada (Attorney General) (1996), 45 C.P.C. (3d) 216, [1996] O.J. No. 627.

[52] As suggested by plaintiffs’ counsel, the cost of hotel rooms in Windsor is likely less than the cost of comparable hotel rooms in Toronto. Notwithstanding, the cost and inconvenience of having the two law firms who practice primarily in Toronto attend Windsor is greater than the cost and inconvenience of having plaintiffs’ counsel attend in Toronto. Similarly, the cost and expense of bringing lawyers from Vancouver to Windsor outstrips the costs of bringing those lawyers to Toronto.

[53] As an example, appearing in Windsor will require the vast majority of counsel to work from hotel rooms which offer less than optimal workspaces. Plaintiffs’ counsel maintains an office in Toronto, albeit without staff. It follows that in Toronto all counsel will be working from more appropriate workspace.

[54] As another example, Carlos Yam deposed that there are no direct flights from Vancouver to Windsor while there are over 20 direct flights from Vancouver to Toronto each day. There is train service from Toronto's Pearson Airport to downtown Toronto which departs every 15 minutes and takes 25 minutes to complete the trip.

[55] In addition, while some conferences can and should be held by teleconference, others will require personal appearances by counsel. Counsel traveling between Toronto in Windsor will be required to set aside a full day. The fewer counsel required to set aside a full day, the greater the probability of finding a convenient conference date early on: see, for example, Leblanc, at paras 20-21.

[56] In his affidavit, Mr. Wiener states that there are direct flights from Vancouver to Detroit and that Detroit Metropolitan Airport is only a 38 kilometer drive from the Superior Court in Windsor. Carlos Yam deposed that he undertook a search of airline service between Vancouver and Detroit and that there are no direct flights. On the untested conflicting evidence before me I am unable to determine whether there are indeed nonstop flights from Vancouver to Detroit.

[57] Notwithstanding, even if there are direct flights between Vancouver and Detroit, I do not find that route a direct comparison to the direct flights between Vancouver and Toronto. I say that because travelers flying into Detroit from Vancouver are required to cross an international border twice to reach Windsor and twice again to return home. In doing so they expose whatever they have with them to the scrutiny of customs officials. That includes, without limitation, potentially confidential files. To that I would add that there may be witnesses who lack the appropriate traveling documents, or for whatever reason either prefer not to, or are unable to travel through the United States.

[58] As to plaintiffs’ counsel I make the following observations.

[59] The first is that a party who chooses to retain counsel who practices in a judicial area that has no connection with the events in dispute should not be permitted to point to the expense involved in having counsel attend at a trial at a venue closer to the location at which the events occurred as a justification for resisting that transfer: see Eveready Industrial, at para 31; and Patry v. Sudbury Regional Hospital (2009), 69 C.P.C. (6th) 385, [2009] O.J. No. 1060, at para 28.

[60] The second is that Sutts Strosberg maintains an office in Toronto, albeit not staffed. Defense counsel suggested that Sutts Strosberg also maintains a residential condominium in Toronto for use when working in Toronto. There was no suggestion from plaintiffs’ counsel that this assertion was incorrect.

[61] For all of these reasons I find this factor weighs in favour of Toronto.

b) The Witnesses

[62] "The usual ground on which a change of venue is sought has to do with the anticipated witnesses -- in respect to their convenience, and the cost to the parties of bringing a witness to court": see Halabi v. Becker Milk Co. (1998), 50 O.T.C. 77, [1998] O.J. No. 198, at para 11; Laurin v. Favot (1996), 1996 CanLII 7964 (ON SC), 28 O.R. (3d) 114, [1996] O.J. No. 628 (Gen. Div.) at paras 119-120; and Elliot v. Brown, [2004] O.T.C. 1032, [2004] O.J. No. 4733, at para 18. That is particularly true when most of the witnesses reside in a particular county: see, for example, Elliott, at para 7.

[63] As asserted by plaintiffs’ counsel, the defense ought to file affidavit evidence as to the names of the witnesses, and the purpose and relevance of the testimony of each witness: see Diening v. Ashley Motors Toronto (1977), 4 C.P.C. 23, [1977] O.J. No. 1433, at para 9. In this case that was not done.

[64] Defendants’ counsel did however file evidence that all of the potential witnesses on behalf of WesternOne have residences in Vancouver. The witnesses from the underwriters are located either in Toronto or Vancouver. The moving defendants were unable to determine whether expert witnesses will be necessary, but postulate that if they are, the expert witnesses will be located in Toronto and/or New York and not Windsor.

[65] The plaintiffs’ expert witnesses live in Boston, Massachusetts and Westmount, Québec.

[66] There was no suggestion that any of the witnesses reside in Windsor.

[67] The cost and expense of bringing witnesses who reside in Toronto to Windsor, probably requiring overnight stays and air expense, swings the pendulum of convenience in favor of Toronto: see Diening, at para 13. Similarly, the cost and inconvenience of witnesses traveling from Vancouver and Calgary to Windsor outstrips the costs and inconvenience of bringing those witnesses to Toronto. I reiterate, for example, the difference in flight schedules between Vancouver and Toronto on the one hand and Vancouver and Windsor on the other.

[68] To that I would add that Toronto is generally convenient in that it has a public transit system which serves over 3,000,000 people and extends past the borders of the G. T. A. It is a major transportation hub for people who live throughout the province and the country: see Leblanc, at para 16.

[69] For all of these reasons I find this factor weighs in favour of Toronto.

c) The Court

[70] Although not mentioned by counsel, Toronto is fortunate to have what is commonly referred to as an electronic courtroom that would facilitate proceedings involving a large number of counsel and many documents which might be most efficiently filed and considered electronically: see Gould, at para 24. This will no doubt be a document intensive matter in which an electronic courtroom would enhance convenience while saving costs. This factor favours Toronto.

[71] In his affidavit Mr. Wiener states, "I do not have any direct knowledge of the Toronto court's ability to adhere to the timetable, but I have information that indicates that Toronto has far less availability for civil actions generally and class proceedings specifically than the court in Windsor." The latter statement is based upon statistical data amassed in support of that proposition. In summary, Mr. Wiener makes the following conclusions.

[72] Mr. Weiner deposes that based upon an analysis of the annual reports of the Superior Court of Justice for 2013 and 2014 he concludes that statistically the Southwest Region has proportionately a lower number of civil proceedings filed in 2014 compared to its population than Toronto. I find that approach overly simplistic. There are several reasons why. The first is that it does not take into account the nature of the various proceedings in each location. Simply put, some matters take longer than others. There was no evidence before me to assist in ascertaining the average time required to complete a proceeding in each location. The second is that Windsor is now, and has for some time, experiencing scheduling stress.

[73] Mr. Weiner also deposes that there are the same number of class-action judges available in both Toronto and Windsor, that being two. He argues that because 10 percent of class proceedings filed province wide are filed in Windsor, while 72 percent are filed in Toronto, Windsor must have greater judicial availability. Again, I find that approach overly simplistic. Judges in Toronto tend to specialize while judges in Windsor are generalists.

[74] To the contrary, defendants’ counsel offered hard statistics as to the availability of Perell J. and Belobaba J. That evidence left me with no doubt that Toronto can accommodate this matter.

[75] In summary, I find Mr. Weiner's theoretical approach to judicial availability insufficient to displace the defendants’ evidence as to actual judicial availability. Accordingly, I conclude that both locations can accommodate this matter. On the evidence before me, I am unable to determine which of the two is best equipped. As a result, I find this to be a neutral factor.

6. Whether there are any counterclaims, cross-claims, or third or subsequent party claims,

[76] The pleadings at this time are not complete. As an example, the defendants have yet to file statements of defense. As a result it is impossible at this stage to know whether there are any potential counterclaims, cross-claims, or third or subsequent party claims. Accordingly I conclude that for purposes of this motion this factor is not relevant.

7. 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,

[77] Plaintiffs’ counsel maintains this factor is neutral with respect to expenses, and that it favours Windsor with respect to expeditious determination. That is because plaintiffs’ counsel maintains greater judicial resources are available in Windsor.

[78] As to expenses, I reiterate my reasons above with respect to the convenience of witnesses, parties, and counsel. For those reasons, I find this factor favours Toronto.

[79] As to plaintiffs’ counsels’ assertion regarding the comparative docket sizes, for the reasons above, I disagree with that conclusion. For the reason below I conclude that this factor is neutral.

8. Whether judges and court facilities are available at the other county,

[80] The defendants must put forward evidence concerning the anticipated timing of the trial in the region receiving the claim: see Chatterson, at para 19. Arden Beddoes, a lawyer with Farris Vaughn, deposed that on September 21, 2015, he spoke with an assistant to Perell J. and an assistant to Belobaba J. He was informed that Justice Perell is available for a three day leave/certification hearing in this matter within 17 different time slots between January 4, 2016 and June 30, 2016. I reiterate, June 30, 2016 is the day argument on the leave and certification motions are scheduled to be completed. He was also informed that Belobaba J. is similarly available for a three day leave/certification hearing in this matter within 16 different time slots between January 18, 2016 and July 29, 2016.

[81] That evidence leaves me with no doubt that judges and court facilities are available in Toronto.

[82] This factor favours Toronto.

[83] I would add that because the order sought involves an inter-regional transfer, the ultimate decision as to the availability of court facilities is left to the regional senior judges of the two regions involved. Any order made by me is subject to their approval.

9. Any other relevant matter.

[84] I repeat that in this case Mr. Krten, who was one of the two original representative plaintiffs, resided in Windsor. However, neither of the current representative plaintiffs do. I make the following observations in that regard. The first is that, as said above, the current representative plaintiffs did not choose Windsor as a venue. That had been chosen for them. At best they adopted it. The second is that, as said above, reasonableness of a particular venue is to be determined at the date of the motion.

C. SUMMARY AND CONCLUSION

[85] For all of these reasons, I find that most of the factors favour Toronto. The only meaningful factor weighing in favor of Windsor is the location of plaintiffs’ counsel. Having weighed each of the factors in favour of each venue, both in isolation and in the context of the other factors, I conclude Toronto is a significantly better choice of venue than Windsor.

[86] I also conclude that the applicants have met the onus upon them to establish that the requested transfer is desirable in the interest of justice. Accordingly, order is to go as follows:

1. Defendants’ motion for change in venue is granted subject to approval of the Regional Senior Judges for the Southwest Region and Toronto Region.

2. In the event that the parties are unable to agree on costs within seven (7) days, then costs submissions shall be in writing on the following basis:

a) The defendant’s counsel shall serve costs submissions and a "Cost Outline" as provided for in Rule 57.01(6), using Form 57(b), upon the plaintiffs’ counsel within fourteen (14) days. Such written argument shall be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the defendants shall be deemed to have waived their right to do so.

b) The plaintiffs’ counsel shall have a further ten (10) days to provide a response to counsel for the defendants. Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the plaintiffs shall be deemed to have waived their right to do so.

c) Counsel for the defendants shall have five (5) further days to provide a reply to counsel for the plaintiffs, and provide all the submissions to the court through Trial Co-ordination. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the defendants shall be deemed to have waived their right to do so.

d) Once all of those steps have been completed, counsel for the defendants shall provide all of their submissions to the court through Trial Co-ordination.

e) The costs submissions shall be double-spaced and use a "Times New Roman" font no smaller than 12 pitch. All references to the length of submissions exclude Bills of Costs, dockets, Costs Outlines and any Offers to Settle.

“original signed by C.M. Bondy and released”

Christopher M. Bondy

Justice

Released: November 24, 2015