ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Reynolds Okoh,
Adetayo Akinyemi, for the Plaintiff
Plaintiff
- and -
Thunder Bay Police Services Board, Detective Constable James Wilson #324,
Eugene Prpic, for the Defendants
Defendants
HEARD: August 29, 2016, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Motion
Overview
1This is a motion under Rule 13.1.02 (2) to transfer this simplified rules action from Toronto to the District of Thunder Bay. The plaintiff claims against the defendants "$100,000 general damages for malicious prosecution, negligent investigation, deprivation of liberty, injury to dignity, public humiliation, and mental anguish arising out of the plaintiff's arrest and subsequent prosecution for public mischief."
2While residing in Thunder Bay, the plaintiff was charged by the Thunder Bay Police with public mischief in February, 2012. He was found not guilty of that charge after trial in the Ontario Court of Justice in Thunder Bay in September, 2012.
The Law
3Rule 13.1.02(2) provides:
(2) If subrule (1) does not apply, the 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. O. Reg. 14/04, s. 10.
4I agree with the following statement of law as set out by Rady J. in McDonald v. Welch, 2015 ONSC 555:
[14] A plaintiff has a prima facie right to select the place of trial: Skidmore v. Carleton University (2009), 79 C.P.C. (6th) 306 (Ont. Master).
[15] Change of venue motions are fact specific: Whan v. Hicks, [2013] O.J. No. 4474 (S.C.J.). The court is required to analyse and balance the various factors in Rule 13.1.02 to determine whether a transfer of venue is desirable in the interests of justice. The court should engage in a holistic exercise in considering the various factors, including "any other relevant matter" in determining whether a transfer is desirable in the interests of justice. See Re Hallman Estate (2009), 2009 CanLII 51192 (ON SC), 80 C.P.C. (6th) 139 (S.C.J.).
[16] The burden of proof is on the moving parties to demonstrate that … is the more desirable venue. See, for example, Siemens Canada Limited v. The Corporation of the City of Ottawa,(2008), 2008 CanLII 48152 (ON SC), 93 O.R. (3d) 220 and Bhatt et al v. Chan et al, 2012 ONSC 5220, both decisions of the Superior Court of Justice.
5To that should be added the following statement by Marrocco A.C.J.S.C.J., in Chatterson v. M &M Meat Shops Ltd., 2014 ONSC 1897:
[37] … whether the plaintiff's choice of venue is reasonable or not, the court retains discretion in the matter and as a result can refuse seemingly well-founded venue motions which, if allowed, would result in unfairness.
Analysis
(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
6It is conceded that the first three factors in Rule 13.1.02(2)(b) favour the District of Thunder Bay. The impugned arrest took place in Thunder Bay. The plaintiff resided in Thunder Bay before and until the acquittal. The subject matter of the proceeding -- alleged police misconduct -- took place in Thunder Bay.
iv) any local community's interest in the subject-matter of the proceeding
7The fourth factor is "any local community's interest in the subject matter of the proceeding." McDonald v. Welch also concerned change of venue in an action against the London Police Services Board and several London police officers for damages for, among other things, wrongful arrest, negligent investigation, and malicious prosecution. In dealing with this fourth factor Rady J. observed:
[22] This factor clearly favours London. The citizens of London would, without doubt, be keenly interested if members of their police force acted improperly. This litigation affects the London community and, in the normal course, should be heard here. In Chippewas of Sarnia Band v. Canada (Attorney General), [1996] O.J. No. 627 (Gen. Div.), Borins J. (as he then was) noted that "litigation that directly affects a community should be heard in the court that serves the community".
[23] A similar observation was made in Charette v. Sault Ste. Marie (City) Police Service, [2010] O.J. No. 1860 (S.C.J.). The court quoted from Eveready Industrial Services Corp. v. Jacques Daost Coatings Management Inc., 2005 CanLII 19797 (ON SC), [2005] O.J. No. 2285 (S.C.J.):
Based on common sense, and apart from the authorities, it seems logical that a case should be heard at a place where the cause of action arose or where all or at least some of the parties are located. The public most affected by a case has a right to observe the hearing.
The relevance of an open court is undermined if a hearing occurs in a place completely removed from the community giving rise to the dispute. [Footnotes omitted.]
[24] The court concluded that "[i]nterest of a community in the integrity of local police is obvious." I agree.
8I agree with this analysis and conclude that a consideration of the fourth factor favours Thunder Bay.
(v) the convenience of the parties, the witnesses and the court
9The fifth factor is the "convenience of the parties, the witnesses and the court."
10Although the statement of claim, issued September 11, 2014, alleges that the plaintiff currently resides in Toronto, his evidence on his examination for discovery held November 16, 2015, was that he resides in Ottawa and has since the fall of 2014. His discovery evidence was that he works at a restaurant he owns with his wife and that this was the only type of work that he does. The plaintiff also testified that while in school, between 2010 and 2013, he was involved in a business shipping cars from Canada to Nigeria which concluded when he finished his schooling. An exhibit to the plaintiff's affidavit is a letter from his current counsel indicating that the plaintiff "runs a business in Ottawa but his business head office is in Toronto. Consequently, Mr. Okoh spends significant periods in a year in Toronto." Since there is no sworn evidence which supports this assertion I give this assertion little weight. I doubt very much whether, in setting trial dates, that the court will be concerned with getting the plaintiff a trial date which coincides with other travel to Toronto given that he commenced the action in Toronto.
11The defendant officer, Wilson, resides in Thunder Bay. The defendant Thunder Bay Police Services Board is responsible pursuant to the Police Services Act, R.S.O. 1990, c. P.15 for adequate and effective police services in the municipality. Its membership includes the head of the municipal council, a member of the Council, and another person appointed by counsel.
12Therefore, I conclude, that the convenience of the parties favours Thunder Bay.
13As to the convenience of witnesses, the plaintiff relies upon a lawyer's affidavit which attaches as an exhibit correspondence from plaintiff's counsel indicating that Ronald Ugorgi and Morayo Abimboye are material witnesses. Mr. Ugorgi "spends significant periods of time in Toronto every year" and Mr. Abimboye lives in Toronto.
14However, on his examination for discovery the plaintiff testified that Mr. Ugorgi, who was also charged with public mischief relating to the same incident and therefore an important witness, resides in Thunder Bay. From material filed it is not possible to determine what Mr. Abimboye's testimony will address. When asked at discovery, plaintiff's counsel advised that they did not have a witness list but undertook to provide that list when available. That witness list, if it exists, was not before me.
15Counsel for the plaintiff advises that an expert witness on police/investigation procedure will be called at trial. I agree that such evidence will be necessary. No report is received. The expert has not yet been identified.
16The defendants argue that a number of witnesses residing in Thunder Bay will be called to testify by the defendants. That includes, obviously, the defendant Detective Constable Wilson. Other potential police witnesses include Constable McKay, who took the initial information from the plaintiff and Detective Robertson, Detective Constable Anderson, and Detective Constable Whipple, who were also involved in the investigation. Other potential civilian witnesses include up to five employees of the bar where the incident giving rise to these charges occurred. Once the plaintiff delivers an expert report, then the defendants will no doubt have their own expert respond. Whether all of these witnesses will be required will depend on what the experts have to say and how this case develops at trial. I am satisfied, however, that other witnesses residing in Thunder Bay, in addition to the defendant Detective Constable Wilson, will be called by the defendants.
17I conclude therefore that the convenience of the witnesses favours Thunder Bay. The convenience of the court is not a factor in this case.
(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
18The only factor that arises here is the availability of mandatory mediation in Toronto. As expert reports have not been obtained, mediation is premature and likely of little assistance in this case. Judicial pretrial is available in both Thunder Bay and Toronto. These factors are neutral.
(ix) any other relevant matter
19The plaintiff argues that the costs that he will incur to prosecute this case in Thunder Bay are prohibitive and that, therefore, he will be denied access to justice. He has chosen counsel who practices in Toronto as counsel for this case. The same counsel represented him in the trial in the Ontario Court of Justice. As Marrocco A.C.J.S.C.J., said in Chatterson, "the court retains discretion in the matter and as a result can refuse seemingly well-founded venue motions which, if allowed, would result in unfairness." Is this a factor that would "result in unfairness"? While the choice of counsel is important and not to be fettered without good cause, I conclude that the party who chooses counsel cannot use the location of counsel of choice as a ground to argue unfairness. This is particularly so when there is little connection to Toronto other than the office of counsel for the plaintiff and perhaps one witness whose role has not been clearly defined. I therefore conclude that there is no other relevant matter to consider.
Conclusion
20After reviewing the enumerated factors "holistically" I conclude that it is in the interests of justice to transfer this action from Toronto to Thunder Bay.
21At the commencement of argument I asked whether counsel had agreed on the cost of this motion. After a brief recess to allow counsel to consult, I was informed that counsel had agreed that the successful party should receive $6,000 as partial indemnity costs for the motion. That was premised on this motion lasting three hours. In part, due to the material filed, including facta and the narrow issue in play, actual argument time was one hour plus 15 minutes for counsel to review additional authorities and discuss costs. Therefore, in the circumstances, I conclude that the appropriate partial indemnity costs payable by the plaintiff to the defendants is the sum of $3,500 plus HST.
"Original signed by"____
The Hon. Mr. Justice W.D. Newton
Released: August 31, 2016
CITATION: Okoh v. Thunder Bay Police Services Board, 2016 ONSC 5489
COURT FILE NO.: CV-16-0269
DATE: 2016-08-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Reynolds Okoh,
Plaintiff
- and -
Thunder Bay Police Services Board, Detective Constable James Wilson #324,
Defendants
REASONS ON MOTION
Newton J.
Released: August 31, 2016
/mls