CITATION: Crooks Hollow Farm Corporation v. Bruce Eco Landbank Inc., 2017 ONSC 6473

COURT FILE NO.: 66/17/ 12-36710

DATE: 2017 10 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CROOKS HOLLOW FARM CORPORATION

David Thompson, Brent Marshall, Counsel for the Plaintiff

Plaintiff

• and -

BRUCE ECO LANDBANK INC., BRUCE ECO INDUSTRIAL PARK CORPORATION and TERRA CORPORATION

Raymond Leach, Counsel for the Defendants

Defandants

HEARD: September 29, 2017

REASONS FOR DECISION- TRANSFER MOTION

LEMAY J

1This motion was heard before me on September 29^th, 2017. The moving party seeks to have the action in Court File No. 12-36710 transferred from Hamilton to Walkerton, and to have it consolidated with Court File No. 37/17, which is a Walkerton action.

2This matter has a complex procedural history that should be set out in some detail before considering whether a transfer is appropriate. As a result, I will set out the background, the legal questions and my ruling in the sections that follow.

Background

a) The Parties and the Property

3The Plaintiff, Crooks Hollow, and the Defendant Bruce Eco Landbank Inc. (“Landbank”) are both corporations. Mr. Charles Juravinski is the sole officer and director of both companies.

4Mr. Juravinski is a wealthy man who is actively involved in the Hamilton community, and has given tens of millions of dollars to various causes and charities in Hamilton. He owned Flamborough Downs, a race track in Hamilton.

5The Defendants, Bruce Eco Industrial Park Corporation (“Industrial Park”) and Terra Corporation are related companies. Mr. Helmut Sieber is the President of both of these companies.

6The basic dispute between the parties is over a series of commercial lots around Kinkardine, Ontario, and a mortgage registered against those properties. The mortgage was registered by Landbank in favour of Crooks Hollow. It dates back to an agreement that the parties entered into back in 2006.

7There have been a number of proceedings in this matter, which I will now review.

b) The Proceedings

8The most recent action is the Walkerton Action, which has been brought by Industrial Park and Terra against Landbank and Crooks Hollow seeking various forms of relief, including relief under the oppression remedy provisions of the Ontario Business Corporations Act. This action is at the preliminary stages.

9The action that Industrial Park and Terra are seeking to transfer is Court File No. 12-36710. This action has a long history in the Hamilton Courts. It was an action that was brought by the Plaintiff Crooks Hollow against Landbank, Industrial Park and Terra seeking various relief.

10The action was discontinued against Industrial Park and Terra. Landbank was noted in default, and Crooks Hollow obtained a judgment against Landbank foreclosing the equity of redemption of the Defendants, and directing that Landbank pay Crooks Hollow approximately $34 million.

11Industrial Park and Terra have brought a motion in Hamilton to set aside the default judgment. They are also asking that this action be transferred to Walkeron, or somewhere else in the Central West Region as the property in question is in the Central West Region.

12In addition, however, there have been at least two other actions in this matter. First, there was Court File 12-36711, which was an action brought by Landbank and others against Industrial Park. Industrial Park had registered a notice pursuant to s. 71 of the Land Titles Act against the properties owned by Landbank. This action proceeded in Hamilton.

13The section 71 notice was removed as a result of a judgment delivered orally by Taylor J. on February 10^th, 2015. This judgment was appealed to the Ontario Court of Appeal, and the appeal was dismissed (see 2016 ONCA 35). This action was heard in Hamilton.

14In addition, there was another action that the parties participated in earlier this year. It was originally commenced in Walkerton, but was transferred to London. A trial was held before Leitch J., and completed on May 31^st, 2017. The decision is under reserve.

Issues

15Industrial Park and Terra seek a transfer of File No. 12-36710 from Hamilton to Walkerton for two reasons:

a) That a fair hearing cannot be held in Hamilton, given Mr. Juravinski’s profile in the community.

b) That such a transfer is desirable in the interests of justice, and supported by the factors set out in Rule 13.1.02(2)(b).

16I will address each of those issues in turn.

Can a Fair Hearing Be Held?

17Industrial Park and Terra argue that, because of Mr. Juravinski’s profile in the Hamilton community, a fair trial cannot be held in Central South. In support of this position, they point to the fact that Mr. Juravinski has made tens of millions of dollars of donations to various charities and causes in Hamilton.

18They also note that at least one judge, Carpenter-Gunn J., has recused herself from hearing matters relating to Mr. Juravinski as her father was playing golf with Mr. Juravinski.

19In support of this position, Industrial Park and Terra point to the decisions in Leveille v. Sudbury Regional Police Services Board (2000 CarswellOnt 2375) and Oliver v. Gothard ((1992) 1992 CanLII 7643 (ON SC), 10 O.R. (3d) 309).

20I reject the arguments made by Industrial Park and Terra for three reasons.

21First, the cases are clearly distinguishable. The leading authority on the issue is Oliver, supra. In that case, Feldman J. (as she then was) was considering a motion to transfer an action from Toronto to Kitchener. The action was brought by Mr. Oliver against his former solicitors, and the solicitors brought the transfer motion.

22Feldman J. denied the motion to transfer on the basis that there could be a perception that Mr. Oliver could not obtain a fair trial in Kitchener. She reached this conclusion because Mr. Oliver was suing his former solicitors for negligence, breach of contract and breach of fiduciary duties. Many of the solicitors, in turn, were also bringing actions for non-payment of legal fees.

23Part of the problem was that Mr. Oliver’s underlying family law action had been heard in Kitchener. In the course of that action, there was substantial evidence that Mr. Oliver had failed to follow and/or breached Court orders. Further, all of the lawyers practiced in Kitchener.

24In those circumstances, because of the direct connection between Mr. Oliver, the lawyers, and the Kitchener bench, Feldman J. held that there could be an appearance of unfairness if Mr. Oliver’s action proceeded in Kitchener because of his prior experience in the Kitchener courts. Such a direct connection between Mr. Juravinski and the Hamilton courts does not exist.

25The Leveille decision concerned a civil action resulting from a murder. Mr. Leveille was murdered, and his family brought an action against various Sudbury Police officers and other officials on the basis that they were all aware of a conspiracy to murder Mr. Leveille, and did not do anything about it.

26The action had originally been brought in Toronto. The Police Services Board brought a motion to change the venue to Sudbury. The motion was denied on the basis that high ranking public officials and members of the police force would testify before the Court, creating an impression of unfairness.

27I am of the view that Leveille is also distinguishable. It is quite possible that high ranking members of the police force would have testified before the Courts before, which might create the appearance of unfairness in the litigation. It is also quite possible that having public officials testify in Leveille could have created the same impression of unfairness.

28In this case, Mr. Juravinski is a private citizen. He may be a very prominent private citizen, but he does not hold any public office. He does not appear before the Courts regularly. This makes the Leveille decision distinguishable.

29It also brings me to the second reason for rejecting Industrial Park and Terra’s position. Judges are presumed to be fair and impartial. Judges are used to dealing with high profile cases, and high profile people, in a fair, impartial and evenhanded way. It is our duty to society address all matters impartially, and a judge’s impartiality is presumed.

30Merely asserting that all of the judges in a particular region will be biased, and a fair trial cannot be heard is not enough. To succeed on under Rule 13.1.02(2)(a) requires something more than an assertion that there is bias. There must be a reasonable apprehension of bias. As Feldman J. noted in Oliver, supra, (at paragraph 18), courts will not entertain arguments about bias merely on the subjective concerns of a party about the workings of the justice system.

31In this particular case, I see no basis to conclude that a reasonable apprehension of bias exists. There is no evidence that Mr. Juravinski has made significant philanthropic contributions to the legal community, or that he has any significant connections to the judiciary in Hamilton, or elsewhere in the Central South Region. There is no evidence that he is known to the judiciary in Hamilton, or elsewhere in Central South.

32In addition, in the one case where there was a potential conflict, Carpenter-Gunn J. recused herself. This also supports my view that no reasonable person would view the entire bench in Hamilton as having even a potential bias in favour of Mr. Juravinski, much less an actual bias. Transferring this action on the basis that a fair hearing cannot be held in Hamilton would be giving effect to Mr. Sieber’s subjective concerns about the workings of the justice system.

33Finally, I am of the view that, if there had been a potential conflict, it should have been raised in the argument before Taylor J., or when Taylor J.’s decision was appealed to the Court of Appeal. It was not raised in either case, and it is clear that Mr. Sieber was at least generally aware of Mr. Juravinski’s philanthropic activities at the time of both the trial and the appeal.

34As a result, I reject the argument that a fair trial of this matter cannot be obtained in Hamilton. The matter will not be transferred on this basis.

Should Rule 13.1.02(2)(b) Be Applied in This Case?

35In reviewing the facts before the Court, there are a number of factors that would favour a transfer of Court File No. 12-36710 from Hamilton to Walkerton. Key among them are the fact that the property is located in Bruce County, and that a section action relating to the same property has been brought in Walkerton. There are also, however, arguments against a transfer of this file to Walkerton.

36However, I am of the view that I cannot yet decide whether it is appropriate to transfer Court File No. 12-36710 to Walkerton, as we do not yet know whether the motion to set aside the default judgment is going to be granted or denied. If that motion is denied, then there will be no action to transfer. If the motion is granted, then I will need to know to what extent, and what issues remain to be adjudicated.

37I also note that, under paragraph 47.1 of the Central West Region Practice Direction, mortgage actions can be brought in Milton, Orangeville, Brampton or Owen Sound. Walkerton is not a Court where these actions can be brought. As a result, counsel for Industrial Park and Terra will have to advise as to which of these Courts he is seeking to have this matter transferred to.

Conclusion

38For the foregoing reasons, I order as follows:

a) The claims of Industrial Park and Terra that a fair trial cannot be held in Hamilton are rejected.

b) The motion to set aside the default judgment is to proceed in Hamilton.

c) Once the motion to set aside the default judgment is adjudicated, the moving party may bring their motion to transfer Court File No 12-36710 from Hamilton to Walkerton before me.

39I will address costs once the motion to set aside the default judgment is decided. The parties are to provide me with a copy of that judgment, through the Regional Senior Justice’s office, within seven (7) days of it being issued.