Court File and Parties

COURT FILE NO.: CV-15-00000023-000T DATE: 20160808 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRITESPAN BUILDING SYSTEMS OF ONTARIO INC., Plaintiff AND: GREENVAC INC., Defendant

BEFORE: Firestone J.

COUNSEL: Philip J. Smith, for the Plaintiff, Responding Party Emily J. Pinckard, for the Defendant, Moving Party

HEARD: In Writing

Endorsement

[1] The defendant, Greenvac Inc. (“Greenvac”) brings a motion for an order that this action be transferred from Goderich, Ontario to Toronto, Ontario pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, (the “Rules”). The plaintiff, Britespan Building Systems of Ontario Inc. (“Britespan”) opposes the motion to transfer.

[2] Paragraphs 47-51 of the Consolidated Practice Direction deal with the transfer of a civil proceeding in the Central East, Central West, Central South and Toronto Regions under Rule 13.1.02. Pursuant to the Practice Direction, motions to transfer are to be brought in writing at the court location to which the moving party seeks to have the proceeding transferred. These motions are to be heard by the Regional Senior Judge, or his or her designate. The Regional Senior Judge has delegated the responsibility for deciding this motion to me in my capacity as team leader for motions in the Toronto Region.

Factual Background

[3] This action was issued by Britespan in Goderich on February 13, 2015. The action concerns a contractual dispute between Britespan and Greenvac regarding the amount owing pursuant to the terms of the agreement between the parties for work done by Britespan for the design and construction of a commercial building for Greenvac.

[4] Britespan is a corporation duly incorporated pursuant to the laws of Ontario, and is headquartered in the town of Lucknow, in the County of Huron. Britespan carries on the business of building, design and construction.

[5] Greenvac is a corporation duly incorporated pursuant to laws of Ontario whose head office is located in the city of Toronto. Greenvac carries on business as a soil remediation plant.

[6] The Statement of Claim (“claim”) was issued on February 13, 2015. The Statement of Defence and Counterclaim was filed on or about April 21, 2015. The Defence to Counterclaim was filed on or about May 5, 2015.

[7] On July 21, 2015, a representative of the Greenvac examined for discovery in Toronto. On July 29, 2015, a representative of Britespan was examined for discovery in Goderich Ontario. There is no evidence in the record that either of the parties objected to examinations for discovery taking place in those locations.

Position of the Parties

[8] Greenvac argues that all events that give rise to this action occurred in Toronto. The contract was entered into in Toronto, the construction occurred in Toronto and all on-site meetings occurred in Toronto. All Greenvac witnesses, who are current or former employees, live in Toronto. Greenvac’s lawyers are located in Toronto.

[9] Larry Herman a director of Greenvac deposes in his supporting Affidavit that he lives in Vaughn, 2 km north of Toronto. In or about November 2015, he had a hip replacement. He deposes that travel by car for the trial in Goderich would be extremely difficult for him as he cannot stay seated for longer than an hour.

[10] Britespan argues that it is headquartered in the town of Lucknow, in the County of Huron. The court located in Goderich, Ontario, is the Court of greatest convenience for the plaintiff. Britespan’s lawyers are located in Goderich which is the Court of greatest convenience for plaintiff’s counsel.

[11] Greenvac intends to call at least five witnesses. Those witnesses are specifically listed in the supporting affidavit of plaintiff’s counsel. Ben Hogervorst is the president of Britespan Building Systems Inc; the supplier of the plaintiff corporation. He lives in the town of Lucknow, in the County of Huron. Trevor Metcalfe lives in the town of Formosa, Municipality of South Bruce, in the County of Bruce. He is a building consultant with Britespan. He is the representative with the greatest involvement in the project at issue. He oversaw the day-to-day events of the project. He was the person examined for discovery on behalf of Britespan. The Court located in Goderich is far more convenient for him than the Court in Toronto.

[12] Howard Knight acts as Britespan’s primary labor subcontractor. He was subcontracted to complete the labor for the subject project. He lives in the town of Lucan, in the County of Middlesex. The court located in Goderich is far more convenient than the Court in Toronto. Lacey Logrin is a former employee and project coordinator of Britespan. She lives in the Town of Mitchell, the County of Perth. The Goderich Court is far more convenient for her than the Toronto Courthouse. Rick Jacklin is a project coordinator with Britespan and took over from Lacey Logrin when she left.

[13] Britespan disputes Mr. Herman’s suggestion that it would be difficult for him to travel to Goderich for trial as a result of a hip replacement which took place November, 2015.

Analysis

[14] Rule 46.01 of the Rules 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 13.01.02 unless the court orders otherwise. Rule 13.1.02 and the Consolidated Provincial Practice Direction for the Superior Court of Justice, as amended, outline how a change of venue application should proceed. Subsection (2) states:

“…[t]he court may, on a 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 it is desirable in the interest of justice, having regard to:

(i) where a substantial part of the events or omissions that give 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 any counterclaims, cross-claims, 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 the merits,

(viii) whether judges and court facilities are available at the other county.

(ix) Any other relevant matter.

[15] 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 for a change of 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.

[16] Not one of the enumerated factors is more important than another. Rather, the court is to look at all the factors together and balance them in determining whether a transfer is “desirable in the interest of justice”. Of significance is the fact that the moving party is required to establish 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.

[17] This plaintiff served the trial record in this matter on December 11, 2015. At no time prior to this action being set down for trial did the defendant move for a change of venue. There is no evidence before me that the defendant objected to this matter being set down for trial until such time as this motion to transfer was brought.

[18] Greenvac in their supporting affidavit states that “[A]ll Greenvac witnesses, who are current or former employees, live in Toronto.” The proposed number of witnesses and details regarding their involvement in the matters at issue are not given. Britespan has provided the names of their proposed witnesses as well as their location and details of their involvement in the matters at issue.

[19] I have applied the factors set out in Rule 13.1.02(2). The moving party has not satisfied me that it would be ‘significantly better” for the trial of this action to take place in Toronto as opposed to Goderich and that the interests of justice require that this action be transferred. Greenvac’s motion is dismissed.

[20] I encourage the parties to agree on the issue of costs. If they cannot Britespan is to provide their written cost submissions of no more than 2 pages by August 19, 2016. Greenvac is to provide their cost submissions of the same length by August 30, 2016.

Firestone J. Date: August 8, 2016