McLoughlin v Mladenovski, 2016 ONSC 2222

Court File and Parties

COURT FILE NO.: 15-0677 DATE: 20160418 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LESLEY ANN McLOUGHLIN and JOHN DAVID McLOUGHLIN, Plaintiffs AND: NICHOLAS M. MLADENOVSKI, Defendant

BEFORE: Mr. Justice T. McEwen

COUNSEL: James L. Vigmond and Brian M. Cameron, for the Plaintiffs Arnold Recht and Peter Danson, for the Defendant

HEARD: In writing

Endorsement

Overview

1The defendant brings this motion, in writing, for an order transferring the action from Barrie to Toronto. The plaintiffs oppose.

2The defendant submits that the action ought to be moved to Toronto by virtue of the fact that the plaintiffs and defendant reside in Toronto; the motor vehicle accident occurred in Toronto; and the plaintiff Lesley Ann McLoughlin has had the vast majority of her medical treatment in Toronto. Lastly, there is no connection to Barrie; other than the fact that plaintiffs’ counsel practice there.

3The plaintiffs submit that the matter ought to remain in Barrie since it will take much longer to schedule motions, a pre-trial and a trial in Toronto which will result in significant delay; it would be cheaper and more convenient to have the matter in Barrie, and there is no public interest in this case in Toronto.

4I agree with the defendant that the action should be transferred to Toronto.

5Rule 13.1.02(2)(b) of the Rules of Civil Procedure provides that the Court may make an order transferring a proceeding to another county if it is satisfied that a transfer is desirable in the interests 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.

6In addition to considering the aforementioned factors set out in Rule 13.1.02(2)(b) I have also had regard to the very useful comments of Himel J. in Samuel v. Kearley, 2015 ONSC 4784 in which she stated:

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 interest 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), 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 [sic] 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), 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para. 29.

Analysis

7In taking a holistic approach it is my view that the transfer is, in the interests of justice, desirable and that Toronto is a significantly better venue than Barrie.

8First, there is no doubt in my mind that if the action remains in Barrie and proceeds to trial, there will be much greater expense to the parties in having the parties, liability and fact witnesses, expert witnesses and defence counsel travel to Barrie.

9Second, all of the events, resulting damages and subject matter of the proceeding are connected to Toronto. Barrie has absolutely no interest in this proceeding. While the plaintiffs argue that there is also very little interest in Toronto the fact remains that this is a jury trial. If it proceeds to trial, it is my view, that it will be unfair to require six citizens of Barrie to sit on a jury to determine the issues that have nothing to do with their community. This places an unfair and unnecessary hardship upon them. Six citizens of the City of Toronto, however, have much more of an interest in an action that involves its citizens and an accident that occurred in their city.

10Third, I am not prepared to accept the anecdotal evidence provided by plaintiffs’ counsel that there will be “significant delay” if the matter is transferred to Toronto. Nor do I accept that Toronto is a “backlogged venue”. Master’s motions, currently, can be heard within 30 - 45 days. Judge’s motions are routinely heard within 30 to 60 days and earlier if necessary. Chambers appointments, case conferences and case management are all available. Furthermore, it is speculative to suggest that the open trial list system in Barrie will result in an earlier trial date. This is particularly so when the action, according to the filed record, has not advanced past the affidavit of documents stage. On occasion actions are not reached their first time up in the sittings in Central East. While a trial may be scheduled in Barrie on a somewhat earlier basis there is reasonable flexibility with the Toronto trial list. If the parties are genuinely concerned about the time to trial this can be resolved at a case conference or in Long Trial Scheduling Court.

11I accept that the plaintiffs are entitled to retain a specialist law firm outside the City of Toronto, in this case Barrie. I do not accept, however, that this decision should play a major factor when determining venue. This is particularly so when, as I have noted above, it will increase the costs of the trial itself.

12In this regard, I should note that this case is different than the case law relied upon by the plaintiffs at the motion, in particular the decision of Justice Edwards in Miller v. Aman, 2014 ONSC 5799. In that case the accident occurred in Ottawa where the defendants resided. The plaintiffs commenced the action in Barrie where their lawyers practiced. Edwards J. refused to transfer the action to Ottawa at the request of the defendants. In that case, however, the plaintiffs resided in Stratford and would have had difficulty travelling to Ottawa. That important factor is not present in this case. Justice Edwards also addressed the fact of timeliness stating that the trial date is not the only factor that the Court should consider.

13In all of the circumstances of this case I accept that the defendant has established that Toronto is significantly better than Barrie. The anecdotal evidence of the plaintiffs’ solicitors is not persuasive and at times (particularly with respect to scheduling motions) erroneous.

Disposition

14An order shall therefore go transferring the action from Barrie to Toronto. The defendant seeks costs. In my view, costs payable to the defendant in the cause is appropriate.