Court File and Parties
COURT FILE NO.: CV-16-549230\C16-0009 (Toronto) DATE: 20160826 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
XIN ZHAO also known as SUKI ZHAO Plaintiff – and – WIKWEMIKONG NURSING HOME LIMITED Defendant
Counsel: Ellen A. S. Low, for the Plaintiff. Michel R. Carre, for the Defendant.
HEARD: In Chambers
R. D. GORDON, R. S. J.
Overview
[1] The Plaintiff began this action in Toronto. The Defendant, Wikwemikong Nursing Home (“WNH”), seeks to have the matter transferred to Gore Bay in the Northeast region.
Background
[2] This action arises out of an alleged wrongful dismissal.
[3] The Defendant is a corporation that operates a nursing home on Manitoulin Island. The Plaintiff is a registered nurse who was hired to be the Defendant’s Director of Care by contract dated April 18, 2015. She began work on July 6, 2015.
[4] The Plaintiff’s employment contract with the Defendant was terminated on December 16, 2015.
[5] WNH states that the termination was for just cause. The Plaintiff says she was wrongfully dismissed and alleges, among other things, that her pregnancy and anticipated maternity leave may have led to the termination.
[6] Following her dismissal the Plaintiff moved to the Toronto area and some months later started this action.
The Law
[7] A file may be transferred to a different county where the court is satisfied it is in the interests of justice. In making this determination, the court must have regard to the factors enumerated in r. 13.1.02(2)(b) of the Rules of Civil Procedure. The factors are:
(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.
[8] The plaintiff has a prima facie right to select the venue for a proceeding; the burden is on the moving party to establish that a transfer is in the interests of justice (See Nutech Brands Inc. v. Air Canada (2007), 88 O.R. (3d) 768 (Sup. Ct) at para 22; Siemens Canada Ltd. v. Ottawa (City) (2008), 93 O.R. (3d) 220 (Sup. Ct.) at para. 26).
[9] The plaintiff must choose a venue that is reasonable (See Siemens, at para. 25). Where the defendant can establish that the venue has no rational connection to the cause of action or parties the court must order a change of venue, as is required by the interests of justice (See Siemens, at para. 27).
[10] If there is a rational connection, “the court will defer to the plaintiff’s choice of venue unless it can be shown that the venue proposed by the defendant is substantially better when the factors enumerated in r. 13.1.02(2)(b) are weighed.” (See Siemens, at para. 27 and Concept Plastics Ltd. v. Plasponics Inc., 2016 ONSC 2493, at para. 30) The alternate location cannot be “merely competing or similarly reasonable” (See Concept Plastics, at para. 30).
Analysis
[11] WNH concedes that the Plaintiff has a prima facie right to choose Toronto as a venue for this proceeding and that it bears the burden of establishing that it is in the interests of justice to transfer the file to Gore Bay.
[12] Both parties concede that the court is to consider the enumerated factors holistically and that no one factor is more important than the others. (See Gould v. BMO Nesbitt Burns Inc. (2006), 81 O.R. (3d) 695 (Sup. Ct.) and Telus Communications Company v. Canada (Minister of Public Works and Government Services), 2015 ONSC 1345).
[13] My consideration of each of the enumerated factors is as follows.
(i) Where a substantial part of the events or omissions that gave rise to the claim occurred
[14] The Plaintiff’s claim includes an allegation of wrongful dismissal and discrimination on the basis of sex. The majority of her duties and responsibilities were performed at WNH on Manitoulin Island. The performance review alleged by the Defendant and the termination took place in Wikwemikong.
[15] The Plaintiff concedes that this factor favours transfer to Gore Bay.
(ii) Where a substantial part of the damages were sustained
[16] The Plaintiff moved to Toronto following her dismissal and has continued to reside there since. It follows that the damages alleged have been sustained in Toronto.
[17] The Defendant concedes that this factor favours the matter remaining in Toronto.
(iii) Where the subject-matter of the proceeding is or was located
[18] The subject matter of the claim relating to the Plaintiff’s employment at WNH and alleged wrongful dismissal was in Wikwemikong on Manitoulin Island.
[19] The subject matter of the claim relating to mitigation efforts and damages is located in Toronto.
[20] Although the Plaintiff regards this factor as neutral given that the subject matter of the claim is located in two centres, it is clear to me that the most significant issues in this litigation are the termination of the Plaintiff, the reasons for her termination and the manner in which she was terminated. This all transpired in Wikwemikong and clearly favours the matter being transferred to Gore Bay.
(iv) Any local community’s interest in the subject-matter of the proceeding
[21] This factor ensures that local justice, including both public interest and access to justice, is considered by the court (Siemens, at paras. 16-20).
[22] The materials filed on this motion allege that the Defendant (an aboriginal organization located in an aboriginal community) is a dysfunctional institution badly lacking in effective administration. I would think that the community would be very interested in the determination of such issues, particularly when they involve an organization charged with the care of their elderly and infirm. This factor strongly favours the matter being transferred to Manitoulin.
(v) The convenience of the parties, the witnesses and the court
[23] The Plaintiff plans to attend the entire trial. She lives in Scarborough with her spouse, two young children, and elderly parents. Her husband is self-employed and works full time. The Plaintiff does not use daycare. She is breastfeeding her daughter (b. April 13, 2016) and “plans to do so until she is at least 12 months old or until approximately late April 2017.” She has primary care for her elderly parents, one of whom has glaucoma, the other diabetic with cataracts. Moving the file to Gore Bay would require her to find accommodation for herself, her children and her parents for the duration of the trial. Although it is not entirely clear from the materials, with the exception of the birth of her daughter, these same factors seem not to have prevented the Plaintiff from accepting employment on Manitoulin and residing there during the time of her employment. Given that this matter has not yet been set down for trial I would not expect the trial to proceed in either jurisdiction during the period in which the Plaintiff expects to be nursing her newborn.
[24] The Plaintiff has provided an extensive costs analysis with respect to the expense of her counsel attending trial in the two proposed venues. However, those same costs would have to be incurred by the Defendant in the event the trial was to proceed in Toronto.
[25] It is clear that more potential witnesses reside in the Wikwemikong area than reside in Toronto and that some of the witnesses for the Defendant are unpaid/volunteer members of the Board of Directors. I accept that attending court in Toronto may pose a significant hardship for many of the witnesses.
[26] This factor favours the transfer of the case to Gore Bay.
(vi) Whether there are counterclaims, crossclaims, or third or subsequent party claims
[27] There are no 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
[28] The Plaintiff submits that Toronto offers a number of procedural advantages including 9:30 am chambers meetings, mandatory mediation and case management to expeditiously and less expensively determine the issues relating to this action.
[29] The Defendant submits that mandatory mediation should not be considered by the court given the great distance (some 575 km) between Toronto and Gore Bay. It further submits that using mandatory mediation as a tool to justify the initiation of a civil proceeding in Toronto Region will serve nothing more than to encourage litigants to file the claims in Toronto Region despite there being no material or rational connection to such region.
[30] Each of the advantages alleged to exist in Toronto also exist in Gore Bay. That is, although mediation is not mandatory, judicial mediation and case management are both available on request in the Northeast Region for cases that would benefit from same. Similarly, the Judges of the Northeast regularly accommodate requests for chambers meetings outside of normal court sitting hours and often conduct these meetings by teleconference.
[31] This factor is neutral.
(viii) Whether judges and court facilities are available at the other county
[32] I am satisfied that there are court facilities and judges available in both proposed centres that would enable this matter to be tried within a reasonable time. This factor is neutral.
(ix) Any other relevant matter
[33] Ontario Regulation 79/10 made under the Long-Term Care Homes Act, 2007 requires that the Administrator of a long-term care home work regularly in the position on site for at least 16 hours per week, and further requires that the Director of Care work regularly in the position on site for at least 24 hours per week. As both the Administrator and the Director of Care, along with other staff, are expected to be witnesses in this case, holding the trial in Toronto would not only be a significant hardship for the staff, but may make it quite difficult for the Defendant to meet the minimum staffing needs and requirements prescribed by law.
Conclusion
[34] When I consider all of these factors together it is my view that the interests of justice require the transfer of this case to Gore Bay on Manitoulin Island. That the action has a greater connection to Manitoulin, has a large majority of witnesses from Manitoulin and is likely to have significant community interest surpasses by far any inconvenience to the Plaintiff in having to conduct the trial there. However, cost and inconvenience to the parties should not and cannot be ignored. In that regard, I note that counsel for the Defendant has his office in Sudbury and that video-conferencing is available in both Sudbury and Toronto and could readily be used to conduct motions and pre-trials. There are, of course, teleconference facilities in both Gore Bay and Sudbury that could be used for those same purposes.
[35] The Defendant’s motion is granted. In the event the parties are unable to agree on costs they may make written submissions to me within 45 days, not to exceed three pages plus attachments each.