Superior Court of Justice - Ontario

Citation: Christopher McDougall v. Donna McDougall-Hunt, 2017 ONSC 4772

Court File No.: 17-0586

Date: 2017-08-09

Re: Christopher McDougall, Plaintiff/Responding Party

And: Donna McDougall-Hunt and Toomas Hunt, Defendants/Moving Parties

Before: Justice Stephen Firestone

Counsel: Christopher D. Salazar for the Plaintiff/Responding Party Neil G. Wilson for the Defendants/Moving Parties

Heard: In Writing

ENDORSEMENT

[1] The defendants Donna McDougall-Hunt and Toomas Hunt bring this motion for an order that this action be transferred from the Central East Region (Barrie) to the Toronto Region pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff Christopher McDougall opposes the motion to transfer.

[2] Paragraphs 47-51 of the Consolidated Provincial Practice Direction at Part III (B) effective July 1, 2014 (“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 should 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 civil team leader in the Toronto Region.

Factual Background

[3] This action was commenced by way of statement of claim issued on April 12, 2017. The plaintiff seeks a declaration that he is the owner of a 35% interest in the property located at 36 Fermanagh Avenue, Toronto, Ontario (the “property”) as well as other alternative relief which includes a declaration that the defendants hold the property in constructive trust for the plaintiff, an order for the sale the property, and damages for breach of contract, unjust enrichment, and/or breach of fiduciary duty.

[4] The plaintiff asserts that he is entitled to an interest in the property, or damages for renovations made by him to the subject property. The defendants dispute the plaintiff’s claim and argue that the plaintiff has been adequately compensated for all work performed.

[5] The property which is the subject matter of this litigation is located in Toronto. The defendants reside in Toronto. Defence counsel are located in Toronto. The plaintiff resides in Wingham, County of Huron, Ontario which is located approximately 163 kilometers from the Barrie Courthouse and approximately 189 kilometers from the courthouse located at 393 University Avenue, Toronto, Ontario. Plaintiff’s counsel is located in Barrie, Ontario. The record confirms that all potential witnesses for the defendants reside in either Toronto or the County of Huron.

[6] On July 11, 2017 on the consent of the parties, the plaintiff was granted leave by McCarthy J. to issue and register a certificate of pending litigation on an interim and without prejudice basis in respect to the subject property. At the hearing of the motion the court ordered that the motion be adjourned to December 15, 2017 “subject to any order as to jurisdiction.” [Emphasis added].

Analysis

[7] 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 Practice Direction outline how a change of venue motion should proceed. Subsection (2) of Rule 13.1.02 states:

“…[t]he 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 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 at 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] A plaintiff has a prima facie right to select a venue for an action. 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: see Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897 (Div. Ct.) at para. 22; Hallman v. Pure Spousal Trust (Trustee of), 2009 CanLII 51192 (ON SC), 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para. 28.

[9] The analysis of Rule 13.1.02 is fact-specific and must include a balancing of all factors to ensure that any transfer granted is desirable in the interests of justice: see Gould v. BMO Nesbitt Burns Inc. (2006), 2006 CanLII 63726 (ON SC), 81 O.R. (3d) 695 (Ont. S.C.J.) at para 18.

[10] I have applied the factors set out in Rule 13.1.02(2) to the factual matrix of the case before me. I am satisfied that the defendants have met the requisite onus and have demonstrated that the interests of justice require that this action be transferred to Toronto from Barrie. Such order is to issue.

[11] It is clear from the record before me that most, if not all, of the events that give rise to this action occurred in Toronto and that the subject matter of the proceeding, namely the property, in which the plaintiff seeks a 35% interest is located in Toronto. Regarding the convenience to the parties the plaintiff is a similar distance from both Barrie and Toronto and the defendants reside in Toronto.

[12] I encourage the parties to agree on the issue of costs. If they cannot, I direct the parties to provide me their proposed timetable for delivery of cost submissions within the next 15 days.

Firestone J.

Date: August 9, 2017