ONTARIO SUPERIOR COURT OF JUSTICE
TORONTO COURT FILE NO.: CV-14-505313 DATE: 2016-09-12
B E T W E E N:
LOUIE ROSIN Plaintiff/Responding Party
- and -
JUSTIN DUBUC, JAMES ANTHONY GLENA, SHAWN WHIPPLE, IAN WEST, DON ORAM, LORI WRIGHT, THE THUNDER BAY POLICE SERVICE BOARD, AND THE ATTORNEY GENERAL OF CANADA Defendants/Moving Parties
BEFORE: Madam Justice H.M. Pierce
COUNSEL: Ms. H. Epstein, for the Plaintiff, Responding Party Mr. S. Wojciechowski, for the Defendants, Thunder Bay Police Services Board and named officers, Moving Parties Ms. F. Debnath, for Attorney General of Canada, for the Defendant
HEARD: September 6, 2016, at Thunder Bay, Ontario
Reasons on Motion for Change of Venue
Introduction
[1] The defendants, Thunder Bay Police Services Board and the named officers move, pursuant to rule 13.01.02 of the Rules of Civil Procedure, for an order transferring this action from Toronto to Thunder Bay. The plaintiff opposes such an order. The defendant, Attorney General of Canada, takes no position on the motion.
[2] The case involves claims against certain Thunder Bay police and the Attorney General for Canada for damages for negligent investigation, malicious prosecution and wrongful detention as a result of criminal charges laid against the plaintiff. The Attorney General has been sued in relation to the actions of an officer with the R.C.M.P. who was seconded to the Thunder Bay force and involved in the investigation.
The Law
[3] The plaintiff has a prima facie right to select a venue for an action. He does not have to justify his choice as being reasonable. If the opposing party believes the venue is unreasonable, he or she may bring a motion to change the venue: Telus Communications Co. v. Canada (Minister of Public Works and Government Services), 2015 CarswellOnt 3086, para. 13; 2015 ONSC 1345.
[4] It is common ground that in considering the factors set out in the rule, the court must take a holistic approach: I.C. Group Inc. v. Yorkville Printing Inc., 2010 ONSC 4557 (Master), paras. 20 – 21. No one factor is more important than another. However, in exercising their discretion over venue motions, the courts have emphasized the importance of actions having a connection to the place where they are heard. See: SMTCL Canada Inc. v. Jerry Bas Holdings Ltd., [2014] O.J. No. 5397 (Master), paras. 19 and 57. In particular, when weighing the factors, the courts have held that litigation that engages a community interest should be heard in that community: Chippewas of Sarnia Band v. Canada (Attorney General), [1996] O.J. No. 627 (Ont. Gen. Div.), para. 14.
[5] The relevant portion of the rule governing transfer of proceedings is rule 13.01.02(2) which states:
(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.
[6] The onus is on the moving party to satisfy the court that a transfer of proceedings should be ordered.
The Facts
[7] Based on an investigation, the police obtained a search warrant for a residence owned by the plaintiff. When the search was conducted, the police arrested the plaintiff and Christine Lannon who were present at the residence. In early 2009, both were charged with 45 criminal offences involving stolen property, drugs, and weapons.
[8] In total, three residences were searched as part of the investigation. A large number of items were seized, including inventory from some 36 Thunder Bay businesses.
[9] The plaintiff’s residence was searched without notice, whereas the family of his co-accused, Ms. Lannon, was given notice that the police intended to execute a search warrant at her residence.
[10] Ms. Lannon was released on her own recognizance. The plaintiff believes she received preferential treatment because she was from a prominent local family. Mr. Rosin’s experience was different.
[11] The plaintiff had difficulty retaining counsel in Thunder Bay because several lawyers had conflicts of interest; some lawyers indicated the conflicts arose from their connections to the Lannon family. Ultimately, the plaintiff retained Toronto counsel to handle his criminal charges.
[12] The plaintiff applied for bail but was detained despite having a minor and unrelated criminal record. He believes he was detained because of the testimony of Constable Miller of the R.C.M.P., who characterized him as a “Fagan” character who recruited vulnerable people to steal for him in return for drugs. The plaintiff claims that Miller inflated the value of merchandise seized at his home, suggesting it was worth more than $150,000.
[13] The plaintiff also believes that he was denied bail because Constable Miller misled the court, by falsely testifying that he was involved in ongoing criminal activity and that the police found knives throughout the plaintiff’s home.
[14] The plaintiff alleges that his two subsequent applications for bail review were also unsuccessful, because of Constable Miller’s false testimony.
[15] In the Ontario Court, two judges indicated they had conflicts in hearing the matter because of a connection with the Lannon family. The preliminary inquiry was conducted by a judge resident in Dryden, which is also in the Northwest region.
[16] Before and after the preliminary inquiry, the Crown withdrew many charges against the plaintiff. He was committed to trial on 17 counts. Ultimately, Mr. Rosin served 21 months in jail. He was released when he pleaded guilty to two charges and was sentenced to a global sentence of six months in custody, which he had already served.
[17] All of the parties reside in Thunder Bay where all of the charges against the plaintiff and Ms. Lannon were laid. Thunder Bay is the location of the police investigation and the entire factual background giving rise to this action. In addition, the plaintiff’s family physician, pain management physician and treating psychologist reside in Thunder Bay.
[18] Of the witnesses the plaintiff proposes to call at trial, only a psychiatrist and an expert in negligent police investigation are or may be located in Toronto. The plaintiff’s civil and criminal lawyers are also located in Toronto. Counsel for the Thunder Bay Police Services Board and its officers is located in Thunder Bay. Counsel for the Attorney General of Canada is located in Toronto.
The Plaintiff’s Position
[19] The plaintiff objects to the action being transferred to Thunder Bay because:
(1) he believes he will not be able to have a fair trial in Thunder Bay because of the prominence of the Lannon family in the city and the publicity his case received at the time, such that the jury panel is tainted; (2) he believes the judiciary have conflicts associated with the Lannon family, and (3) a trial in Thunder Bay will cause him significant financial hardship because his income is limited to disability benefits and he cannot afford the costs to have his counsel and expert witnesses travel to Thunder Bay for the trial and the litigation associated with the case.
[20] He submits that the interests of justice require that the case be tried in Toronto.
Discussion
[21] With respect to the factors in Rule 13.1.02(2), the plaintiff concedes that the first three factors favour a trial in Thunder Bay. It is where a substantial part of the events giving rise to the claim occurred; where a substantial part of the damages were sustained; and where the subject-matter of the proceeding was located. This weighing is in keeping with the court’s conclusion in SMTCL Canada Inc.: that actions should be heard in a place to which they are connected.
[22] The fourth factor is whether the local community has an interest in the subject-matter of the proceeding. Because the claim alleges negligence by police officers in Thunder Bay, there is an obvious community interest in the subject-matter of the claim. The court reached the same conclusion in McDonald v. Welch, [2015] O.J. No. 479 (Ont. Sup. Ct.). In that case, an action was started in Toronto against the London police for negligent investigation, and other related torts. The case was transferred to London where the community was interested in allegations of police misconduct by its own force.
[23] In this case, Toronto has no interest in allegations of police wrong-doing in Thunder Bay. In Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. , 76 O.R. (3d) 390 (Ont. Sup. Ct.), at para. 14, the court observed:
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.
[24] At para. 14 of Chippewas, the court recognized that “litigation that directly involves a community should be heard in the court that serves the community.” In my view, access to justice is enhanced when local people are able to observe local courts dealing with local issues. For that reason, the fourth factor favours Thunder Bay.
[25] The fifth factor deals the convenience of the parties, the witnesses and the court. Eight of nine parties are located in Thunder Bay. The Attorney General is the only non-resident party. In addition, counsel advises that Officer Miller, whom the Attorney General represents, lives in Thunder Bay.
[26] The Thunder Bay Police Services Board also points to three shoplifters resident in Thunder Bay who may be called to establish the evidence the police used to obtain a search warrant. Some 36 Thunder Bay businesses were the subject of shop-lifting that led to the charges.
[27] Three of the plaintiff’s physicians reside in Thunder Bay. The plaintiff suggests that he will simply file their medical records at trial without the necessity of calling them to testify in Toronto. Given that the plaintiff alleges he suffered emotional and psychological trauma and distress as a result of the defendants’ conduct, it seems unlikely that the defendants would not want to cross-examine the plaintiff’s physicians at trial. Convenience favours a trial in Thunder Bay for these witnesses as well.
[28] It appears that the only witnesses presently identified who are resident in Toronto are a psychiatrist the plaintiff intends to call and his criminal counsel. As yet, no expert on police investigations has been identified by the plaintiff. Otherwise, the witnesses and the parties are all resident in Thunder Bay. For the vast majority of parties and witnesses, there would be substantial inconvenience and expense to travel to Toronto for trial.
[29] The convenience to the court as between Toronto and Thunder Bay is a neutral factor. Both locations have facilities and judges to accommodate the trial.
[30] The sixth factor deals with whether there are counterclaims, crossclaims or third or subsequent party claims. In this case, there is a crossclaim between defendants, which is a neutral factor.
[31] The seventh factor deals with 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. In responding to this factor, the plaintiff focused on his personal expense. He argues that it will be costly to pay for his counsel and an assistant to travel to Thunder Bay for trial when he could travel by car to Toronto at much less cost and potentially stay with relatives or at a hotel.
[32] The weighing of these factors is not limited to the expense for one party; the court must consider the expense for the trial as a whole. Counsel for the Thunder Bay Police and Board is resident in Thunder Bay. As I have noted, counsel for the Attorney General resides in Toronto.
[33] The plaintiff will still incur costs to transport and house himself and his witnesses if the litigation takes place in Toronto. In addition, he will still incur legal fees, regardless of where the trial takes place. The most expeditious, least expensive place to conduct an action is where the majority of the parties and witnesses can be found, which is Thunder Bay.
[34] The plaintiff submits that the defendant police officers need not attend at trial, thus saving costs. It is inconceivable that the plaintiff would not attend the trial of his case and yet he suggests that the defendant officers should not do so. This suggestion is ill-considered and does not address how counsel for the officers might take instructions in the absence of his clients. Nor does it consider that the officers whose professional reputations have been impugned will take a personal interest in the evidence and the outcome of the proceeding.
[35] The eighth factor deals with whether judges and court facilities are available in Thunder Bay. The facilities are adequate in each jurisdiction and judges are available to hear the case. The parties agree this is a neutral factor.
[36] Finally, the court must consider any other relevant factor. The plaintiff submits that the prominence of the Lannon family in Thunder Bay militates against him having a fair trial in Thunder Bay. This submission is without merit for several reasons.
[37] The focus of this case will be on the conduct of the police officers in relation to Mr. Rosin, not Ms. Lannon.
[38] As proof that he cannot get a fair trial in Thunder Bay, Mr. Rosin cites his difficulty in locating criminal counsel because his co-accused was Ms. Lannon. There is no evidence about his attempts to retain counsel in Thunder Bay for his civil claim. Mr. Rosin has counsel in this proceeding; therefore conflicts involving counsel are not an issue.
[39] Mr. Rosin submits that the judges are also connected to the Lannon family, making a fair trial impossible. In his materials, the plaintiff points to two judges in the Ontario Court who acknowledged conflicts. His preliminary inquiry was conducted by Justice McKay of the Ontario Court. Justice McKay was resident in Dryden, also in the Northwest region, and had no conflict in hearing the matter.
[40] No judges on the Superior Court where this case will be heard have been identified as having conflicts. In fact, two bail reviews were conducted in the Superior Court by two of my colleagues. No objection was made to my hearing this motion. Even if a conflict was identified by a particular judge, as sometimes occurs, the case can be assigned to another judge.
[41] The plaintiff also submits that the publicity given to his case will militate against a fair hearing by a jury. Mr. Rosin was charged with these offences in early 2009, some 7 ½ years ago. He was sentenced in June, 2012, some four years ago. The case is in the early stages of litigation and may not be ready for trial for two years or more. It is speculative to suppose that, even if members of the jury pool heard publicity about the charges, they will remember it, given the lapse of time.
[42] There is no evidence a prospective jury pool will be tainted. Before jury selection, it is customary for the trial judge to ask members of the jury panel to indicate whether they are familiar with counsel, the parties or witnesses so they may be excused for partiality. Counsel are also entitled to use their challenges to eliminate prospective jurors they deem unsuitable.
[43] Having considered the factors as a whole, I conclude that the interests of justice require that this action be transferred from Toronto to Thunder Bay. An order will issue accordingly.
[44] If the parties cannot agree on costs of this motion, either may apply to the trial coordinator within thirty days of the release of these reasons for an appointment to argue costs, failing which, costs will be deemed to be settled. Costs submissions are not to exceed five pages. Counsel is granted leave to appear by teleconference to argue costs, if so advised.
“Original signed by”____ The Hon. Madam Justice H.M. Pierce