CITATION: Hilson v. 1336365 Alberta Ltd., 2017 ONSC 4990

COURT FILE NO.: CV-11-31827

DATE: 20170823

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Janet Louise Hilson, Plaintiff

AND:

1336365 Alberta Ltd.; 1336367 Alberta Ltd.; 1336367 Alberta Ltd.; 1336364 Alberta Ltd.; 1320950 Alberta Ltd.; 1336366 Alberta Ltd.; Ross Charles Lightle and Barbara Lightle, Defendants

BEFORE: Justice Stephen E. Firestone.

COUNSEL: Howard W. Reininger, for the Plaintiff

Jonathan L. Rosenstein, for the Defendants Ross Charles Lightle and Barbara Lightle

HEARD: In Writing

ENDORSEMENT

[1] The defendants Ross Charles Lightle and Barbara Lightle (collectively referred to as "Lightle") reside in British Columbia and bring this motion for an order transferring this action from the Central South Region (Hamilton) 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 Janet Louise Hilson resides in Toronto and opposes the motion.

[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-Toronto Region.

Factual Background

[3] This action was commenced by way of statement of claim on December 1, 2011. In her claim, the plaintiff seeks as against the corporate defendants, amounts owing pursuant to a total of 25 individual charges dated and registered on September 24, 2007 in the amount of $900,750.00 plus interest and costs regarding real property located in the City of Toronto.

[4] The plaintiff claims against the defendants Lightle recovery of the above referenced sum pursuant to various written guarantees whereby the plaintiff alleges the guarantors agreed to be jointly and severally liable to the plaintiff for the indebtedness of the defendant corporations.

[5] The Statements of Defence delivered were subsequently struck out and on July 26, 2012 Justice Lafreniere granted default judgment against all defendants. Following the initiation of enforcement proceedings in British Columbia the defendants brought a motion to set aside the judgement dated July 26, 2012.

[6] On March 10, 2015 Justice Lofchik granted an order setting aside the judgment against the defendants Lightle upon payment to the plaintiff of her costs of the motion and costs thrown away within 30 days. Justice Lofchik dismissed the corporate defendant's motion to set aside the judgement obtained against them.

[7] The plaintiff commenced a companion action in Hamilton against Stewart Title Guarantee Company ("Stewart Title") (action No: 14-48713) alleging that Stewart title had insured the guarantees which are the subject matter of the action before me.

[8] By way of order dated August 13, 2015 Justice Arrell, on the consent of counsel in both actions, ordered that these actions be tried together or one after the other in Hamilton as the trial judge may direct. It was further ordered that the defendant Stewart Title be entitled to receive all evidence in the companion action and that there be a common examination for discovery of the plaintiff in both actions.

[9] Following Justice Arrell's order, joint discoveries took place and both actions were set for trial in Hamilton. The defendants in both actions consented to this action being placed on the trial list for the May 2017 sittings. The trial did not take place at that time.

[10] At no time prior to consent being given for the order for trial together did the moving party defendants bring a motion to transfer the action. No motion to transfer the companion action has been brought.

Analysis

[11] Rule 46.06 of the Rules provides that the trial of 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 was commenced, if the court is satisfied,

(a) that 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 give rise 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, in the court,

(vi) whether there are counter claims, cross-claims, 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.

[12] A Plaintiff has a prima facie right to select a venue. The plaintiff does not have to justify that the choice made is a reasonable one. Rather, if the other party is of the view that the choice is unreasonable, it may bring a motion for a change of venue. 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 consider "a holistic" application of the factors outlined in the rule to the specific facts of the case: 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.) at para 28.

[13] No one of the enumerated factors is more important than the other. Rather, the court is to look at all the factors together and balance them in determining whether a transfer is "desirable in the interest of justice". Of significance is the fact that the moving party is required to establish that the proposed place of trial is not only better, but is "significantly better", than the plaintiff's choice of trial location: see Siemens Canada Ltd. v. Ottawa (City) (2008),2008 CanLII 48152 (ON SC), 93 O.R. (3d) 220 (S.C.) at para 25; Chatterson at para. 29.

[14] At no time prior to the motion for trial did the moving party defendants bring a motion to transfer this proceeding to Toronto. Further, they provided their consent for an order that this action and the companion action be tried together in Hamilton.

[15] The trial did not take place during the May 2017 sittings. A subsequent trial scheduling court appearance took place on June 14, 2017. At that time it was ordered that this action and the companion action be placed into the September 2017 sittings in Hamilton. Counsel for the plaintiff and defendant in the companion action were in attendance. It would appear that counsel for the defendants Lightle did not appear or object to these actions being placed in the September 2017 sittings.

[16] This action was pre-tried before Justice A.J. Goodman on February 27, 2017. At that time it was ordered that "[E]xpert will testify remotely-from Calgary/Edmonton provided that counsel arrange for the appropriate equipment." The defendants Lightle therefore have the option of having their expert testify in person or remotely.

[17] The moving parties submit that they have been unable to make the necessary arrangements for such remote testimony. Specifically they submit that they had been unable to secure the appropriate audio-visual equipment and further that there is an insufficient internet connection at the Hamilton courthouse.

[18] There is insufficient evidence to support the allegation that arrangements for the appropriate equipment cannot be made or that there is no internet connectivity at the Hamilton court house. I therefore conclude that there is no disadvantage to the defendant's having this action tried in Hamilton.

[19] Regarding the witnesses to be called, I note that the plaintiff will not be calling an expert witness. Only the plaintiff will testify. In addition to the evidence of the two individual defendants, their expert, who was given the option of testifying in person or remotely by the pre-trial judge, will testify.

[20] I have applied the factors set out Rule 13.1.02(2) to the factual matrix of this case. The moving party has not satisfied me that it would be "significantly better" that the trial of this action take place in Toronto, as opposed to Hamilton, and that the interest of justice requires that this action be transferred. To effect a transfer at this late date on the eve of trial would unfairly delay the final disposition of this matter on the merits. The moving party's motion is therefore dismissed.

[21] I encourage the parties to agree on the issue of costs. If they cannot agree, the plaintiff is to deliver written cost submissions of no more than two pages by September 8, 2017. The moving party defendants are to deliver their cost submissions of the same length by September 15, 2017. Any reply by the Plaintiff is limited to one page and is to be delivered by September 22, 2017.

Firestone J.

Date: August 23, 2017