Cross Country Enterprises Inc., cob as Canadiana Spas
2016 ONSC 6799
COURT FILE NO.: CV-16-104 (Cornwall)
CV-16-555913 (Toronto)
DATE: 2016/11/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Four Winds Holdings Company, LLC
Plaintiff
– and –
Cross Country Enterprises Inc., cob as Canadiana Spas
Defendant
Robert G. Tanner, Counsel for the Plaintiff
Christopher M. Giggey, Counsel for the Defendant
HEARD: October 21, 2016
Leroy, J.
REASONS on motion
Issue and governing principles
[1] The defendant moves to change venue from Toronto to Cornwall. Rule 13.1.02(2) (b) applies. The issue is whether a transfer is desirable in the interests of justice having regard to:
- Where a substantial part of the events or omissions that gave rise to the claim occurred;
- Where a substantial part of the damages were sustained;
- Any local community’s interest in the subject matter of the proceedings;
- The convenience of the parties, witnesses and the court;
- Whether there are counterclaims, crossclaims or third or subsequent party claims;
- 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;
- Whether judges and court facilities are available at the other county; and
- Any other relevant matter.
[2] The rule does not state that the initiating party must justify the choice of venue as a reasonable one. If the party opposite thinks the choice an unreasonable one for whatever reason, it may bring a motion to change venue. The court is required to engage in a “holistic exercise” considering the enumerated factors to determine whether the moving party has demonstrated that “a transfer is desirable in the interest of justice – Hallman v. Pure Spousal Trust (Trustee of) 2009 CarswellOnt 5795 para. 28, Chatterson v. M & M Meat Shops Ltd. 2014 ONSC 1897 para. 35.
[3] None of the enumerated factors is more important than the others and all must be balanced to ensure that a proceeding is transferred from the county where it was commenced only if such transfer is desirable in the interest of justice - – Hallman para 29.
[4] Practically speaking, if the plaintiff’s place of trial is not reasonable and the defendant moves for a change of venue to a reasonable location, then a change of venue will likely be in order. If the plaintiff’s place of trial is reasonable and the defendant moves for a change of venue, then a comparison of the two venues is required. In this situation, the defendant’s choice has to be significantly better in order to prevail. This is because the Rules permit the plaintiff to choose the venue at the commencement of the claim – Chatterson paras. 28, 29.
The facts and circumstances
[5] This is a claim for the cost of goods sold. The plaintiff is a corporation that carries on business and is based in the Town of Smyma, Tennessee, U.S.A. It supplied hot tubs and spas to the defendant. The defendant is an Ontario corporation carrying on business in the City of Cornwall, in the United Counties of Stormont, Dundas and Glengarry, Ontario. It is a dealer in hot tubs and spas, including products manufactured and sold by the plaintiff.
[6] The Statement of Claim was issued on June 30, 2016 in Toronto. The plaintiff’s lawyer practices in Toronto. The defendant’s lawyer practices in Cornwall.
[7] The defendant denies the accuracy of the account balance claimed and asserts breach of a verbal non-compete agreement in relation to a former customer of the defendant.
[8] The plaintiff assumed that the defendant is insolvent and would not defend the claim.
Factors considered
Where a substantial part of the events or omissions that gave rise to the action occurred.
[9] The events or omissions that give rise to this dispute are unconnected to Toronto. Communications, contract formation, orders and disagreements originated in Smyma and Cornwall.
Where a substantial part of the damages were sustained.
[10] No damages were sustained in Toronto. The plaintiff incurred its losses in Smyma. The defendant suffered its losses in Cornwall. The allegedly stolen client carries on business in Peterborough.
Where the subject matter of the proceeding is or was located.
[11] Product was shipped from Smyma to Cornwall. The defendant sold to other dealers from Cornwall. The defendant performed warranty service on plaintiff’s product in Cornwall and vicinity.
Any local community’s interest in the subject matter of the proceeding
[12] This is not a factor in this proceeding.
The convenience of the parties, the witnesses and the court
[13] The plaintiff’s position is that Toronto is more convenient to the parties and witnesses. Toronto is centrally located within reasonable traveling distance for each of the parties. Nashville and Toronto are connected by daily direct commercial flights of about two hours at a cost of about $500.00 return. Toronto and Cornwall are connected by rail service of about four hours at a cost of about $212.00 return. Plaintiff’s counsel practices in Toronto.
[14] The defendant’s position is that Cornwall is more convenient to the parties and witnesses. The defendant’s head office is in Cornwall. Travel is not an issue. The defendant’s witnesses would not have to travel. The plaintiff’s witnesses could fly between Nashville and Messina, New York for the same return expense as return to Toronto, though connecting flights would be required. The train connection between Toronto and Cornwall is the same. Defendant’s counsel practices in Cornwall.
Whether there are counterclaims, cross claims or third or subsequent party claims
[15] The defendant’s counter claim involves two evidentiary aspects – the first is whether the plaintiff committed to a non-solicitation agreement with the defendant in respect to the defendant’s clients. That issue does not extend the evidentiary ambit beyond the same band of witnesses central to the plaintiff’s claim. The second aspect is whether the plaintiff did solicit Hot Tub People in Peterborough and whether Hot tub People changed their inventory acquisition practices as the result. That issue will require evidence from the targeted client(s), if any.
[16] That Toronto is more accessible than Cornwall for the resident of Peterborough tends to diminish the weight this factor might bring to this evaluation.
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
[17] Mediation in this type of case in Toronto and Ottawa is mandatory. The plaintiff offered and the defendant declined an attempt at a mediated resolution. The defendant cited the additional costs associated with this step in the proceeding.
[18] The costs of civil litigation are beyond the means of most. Mediation is an opportunity to ameliorate the devastating costs as well as offering the litigants the opportunity of crafting their just and expeditious resolution. That aspect favours Toronto.
[19] It would be wrong to place too much emphasis on the requirement for mediation in Toronto. Civil cases are resolved in jurisdictions in Ontario where mediation is not mandatory. Case management is available in both jurisdictions. The rules provide for conferences that achieve the same purpose without the added cost of mediator services. Unsuccessful mediation adds to the costs. The success of mediation will often vary with a party’s state of mind. If a party is not ready to engage on the real issues, for whatever reason, the process is unlikely to resolve the dispute.
[20] The plaintiff’s position is that to disregard the location of counsel and the associated legal expenses in considering which venue would secure the least expensive determination of the proceeding would be naïve and unrealistic. There is no issue that the plaintiff’s choice to retain Toronto counsel was reasonable. Non-resident commercial litigants will naturally gravitate to the venue with the densest concentration of commercial litigators in the province.
[21] On the other hand, it is natural for the resident defendant to retain counsel in his community. It too seeks the least expensive determination of these proceedings.
[22] Counsel venue is a consideration. Although it is reasonable for a non-resident commercial plaintiff to retain Toronto counsel, that does not translate into a bias in favour of centralizing non-resident plaintiff trials in Toronto.
Whether judges and court facilities are available at the other county
[23] Judges and court facilities are available in both locations.
Any other relevant matter
[24] The plaintiff’s contends that the defendant is impecunious. The rules of civil procedure are designed to secure the most expeditious and least expensive determination of every civil proceeding on its merits. If the defendant is impecunious the add-on costs involved in Toronto litigation may well deny the defendant access to justice. The plaintiff made the business decision to chase down a bad debt notwithstanding the expectation that a judgment will not likely bear fruit.
[25] The material suggests the plaintiff anticipated the defendant would not defend and the plaintiff would secure a default judgment. In that context, it was reasonable to bring the action in plaintiff counsel venue. That expedient loses significance now that the defendant has made this a contentious proceeding.
[26] In summary, the only connection this action has to Toronto is that plaintiff’s counsel practices there. The factors listed in Rule 13.1.02(2)(b)(i)(ii)(iii) favour trial in Cornwall.
[27] While the plaintiff’s choice for place of trial was reasonable in the circumstances presented to counsel, the comparison of the two venues having regard to the factors directed by the Rules suggests the defendant’s choice to be significantly better. The only non-generic factor favouring Toronto as the trial venue is that is where Plaintiff’s counsel practices.
[28] In terms of convenience to the parties and witnesses, Toronto is inconvenient to everyone but Plaintiff’s counsel as everyone has to travel. Cornwall is equally accessible by way of air and train. If the defendant is impecunious or on the margin, the costs of mediation and travel could deny access to justice. In Cornwall, the pre-trial settlement meeting achieves judicial mediation without the expense of the roster mediator.
Conclusion
[29] For those reasons, I conclude it is in the interests of justice to grant the defendant’s motion. An order transferring the proceeding from Toronto to Cornwall is to issue.
[30] If the parties are unable to agree on costs, they are to deliver written submissions within 30 days.
The Honourable Mr. Justice Rick Leroy
Released: November 8, 2016
Cross Country Enterprises Inc., cob as Canadiana Spas
2016 ONSC 6799
COURT FILE NO.: CV-16-104(Cornwall)
CV-16-555913(Toronto)
DATE: 2016/11/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Four Winds Holdings Company, LLC
Plaintiff
– and –
Cross Country Enterprises Inc., cob as Canadiana Spas
Defendant
REASONS on motion
The Honourable Mr. Justice Rick Leroy
Released: November 8, 2016