Andre Gravelle v. Hamilton Police Services Board et al, 2015 ONSC 753
COURT FILE NO.: 07-CV-330435PD2
DATE: 20150202
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDRE GRAVELLE, Plaintiff
AND:
THE HAMILTON POLICE SERVICES BOARD, KENNETH D. ROBERTSON, BRIAN MULLEN, STEVEN HRAB, DON FORGAN, MARY SULLIVAN, STAN MAREK, BARRY MILLAR, MIKE WEBBER, IAN MATHEWS, RICHARD WILLS, EDWARD HALL, J.M. RIDOS, and JESSICA MARGARET ANNE REES, Defendants
BEFORE: Himel J.
COUNSEL: Daniel F. Bartley for the Defendants, Moving Parties
Peter I. Waldmann for the Plaintiff, Responding Party
HEARD: January 15, 2015
ENDORSEMENT
[1] The defendants bring a motion for an order that this action be transferred from Toronto to Hamilton for trial pursuant to Rule 13.01.02 of the Rules of Civil Procedure. The plaintiff opposes the motion and asks that it be dismissed with costs.
Factual Background
[2] This action stems from criminal charges laid by members of the Hamilton Police Service against the plaintiff. The charges followed a police investigation into the deaths of Fred and Lynn Gilbank on November 16, 1998, in Ancaster, Ontario. The plaintiff was arrested and charged with two counts of first degree murder on March 31, 2005. Ion (Johnny) Croitoru had been arrested and charged with the murders of the Gilbanks in January 2005. Following his arrest, the plaintiff was involved in a lengthy contested bail hearing which began on May 24, 2005, and ended on August 19, 2005, with his release from custody. The plaintiff’s counsel retained a private investigator to investigate certain aspects of the case and presented the Crown with information that resulted in the Crown Attorney withdrawing the charges on June 12, 2006, just before the preliminary hearing, as there was no reasonable prospect of conviction.
[3] The plaintiff commenced an action for damages against members of the Hamilton Police Service and the Crown for malicious prosecution, abuse of power, abuse of statutory power, abuse of process, misfeasance in a public office, false arrest, and breaches of Charter rights under s. 24(2) of the Constitution Act. The plaintiff issued a Notice of Action in Toronto on March 30, 2007. At that time, s. 11 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 prevented the plaintiff from serving a jury notice where the parties named were Crown defendants.
[4] During the course of the litigation, the Crown brought a motion to strike the claim and the plaintiff was ordered to file an amended statement of claim. The police defendants served and filed a statement of defence and the plaintiff brought a motion to amend the timetable, set a Discovery Plan and was about to set the action down for trial. On October 23, 2013, the plaintiff advised that, as a result of a change in the legislation, he was serving a jury notice. The defendants consented to the filing of it on January 10, 2014. While examinations for discovery were to take place in February 2014, they have not yet been conducted. The defendants have not yet served a draft Affidavit of Documents. When this action proceeds to trial, it will likely be longer than two weeks and is considered a long trial. Evidence submitted by the defendants suggested that the trial would take one year longer to be heard in Toronto (some time in 2016) than it would in Hamilton (where it could be heard in 2015), but the information filed was not current. As Civil Team Leader, I am aware that certain spaces for trial have come available and that there are trial dates available still in 2015 in Toronto if the case was ready for trial.
[5] The defendants work in Hamilton and their lawyer is with the City of Hamilton. The plaintiff resides in Hamilton but his witnesses reside in Toronto and the investigator in Washago, Ontario. Plaintiff’s counsel practises in Toronto. The defendants have filed evidence concerning the jury pool for the Hamilton area. The plaintiff submitted evidence of television broadcasts and newspaper articles referring to the plaintiff and his family during the period 2007 through to December 2014.
[6] On June 8, 2007, the plaintiff commenced an action for damages for defamation relating to a television broadcast in March 2007 and the publication of statements in the Hamilton Spectator newspaper. In that action, a defendant in the defamation action brought a motion before Master Short to transfer that action to Hamilton. Master Short granted the motion. The plaintiff appealed the Master’s order to the Superior Court and on November 25, 2011, Matlow J. allowed the appeal. In his reasons, Matlow J. held that the Master erred in rejecting the plaintiff’s argument that there was a reasonable apprehension that a Hamilton jury would not be able to render a fair verdict. That decision has not been appealed.
Positions of the parties
[7] The defendants argue that they have demonstrated that the factors in Rule 13.1.02 are met and that it would be in the interests of justice that the action be transferred to Hamilton. This is because there is local community interest in the action, the witnesses and counsel for the defendant work in Hamilton and the plaintiff resides in Hamilton, and the trial may be heard more quickly if it is transferred to the long trial list in Hamilton. The plaintiff’s counsel submits that the onus is on the defendant to demonstrate that it is significantly better that the action be transferred to Hamilton, that the evidence does not meet the test under Rule 13.1.02, and that the plaintiff would not be able to have a fair jury trial in Hamilton. Counsel also takes the position that the decision of Matlow J. in the defamation action is relevant to the analysis of the factors in this action.
Analysis
[8] Rule 46.01 of the Rules of Civil Procedure provides that the trial of an action shall be held in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02 unless the court orders otherwise. Rule 13.1.02 and the Consolidated Provincial Practice Direction for the Superior Court of Justice outline how a change of venue application should proceed. Subsection (2) states:
“…[t]he court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(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.
[9] A plaintiff has a prima facie right to select a venue for an action. 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(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. 20. 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.
[10] Applying the factors outlined in rule 13.1.02(2)(b) to the circumstances of this case, I find as follows:
The events which give rise to the claim arise in the Hamilton area which is approximately 60 miles from Toronto.
The local interest in this proceeding would be in the Hamilton area.
The police defendants work in the City of Hamilton and some of them reside there as well. The defendants’ counsel works for the City of Hamilton. The plaintiff resides in Hamilton. The plaintiff’s witnesses work and live in the Toronto area. The plaintiff’s lawyer practises in Toronto. There would be some costs savings and efficiencies for the defendants in having the action tried in Hamilton having regard to the location of the counsel and the witnesses. However, there would be costs hardship to the plaintiff.
It cannot be said that this is merely a situation of counsel being retained from Toronto and commencing an action in Toronto where there is no rational connection with the events in dispute. Rather, all the plaintiff’s witnesses are based in the Toronto area or reside in an area other than Hamilton.
While local interest in litigation is a relevant factor, this must also be balanced against
pre-trial publicity in a local community that may affect the appearance of fairness: see Oliver v. Gothard (1992), 1992 7643 (ON SC), 10 O.R. (3d) 309 and Lillie et al. v. District School Board Ontario North East et al., unreported endorsement of Pepall J. dated March 31, 2003. I am not in any way concluding that widespread bias exists in the community or that it would have the potential effect of rendering the trial process unfair. There is no evidence to support that conclusion, nor is it necessary to address this question given the evidence and circumstances concerning the factors outlined in the rule.
Decision
[11] I have balanced the factors outlined in rule 13.1.02(b) and I find that it is in the interests of justice that the action not be transferred to Hamilton. Applying a “holistic” approach to the factors I am to consider, I find that Toronto, the place named by the plaintiff for the action to proceed, is a place where the action has some connection, that it would not be significantly better for the trial to take place in Hamilton, and that it is in the interests of justice that the action proceed in Toronto.
[12] In conclusion, the motion to have the action transferred from Toronto to Hamilton is dismissed. Costs are fixed in the amount of $10,000 inclusive of disbursements and HST, an amount agreed by the parties and which I also deem to be fair and reasonable in the circumstances, payable by the defendants to the plaintiff within thirty days.
Himel, J
Date: February 2, 2015