Court File and Parties

Court File No.: 01-0614/15 Date: 2018-04-06 Superior Court of Justice – Ontario

Re: In the Matter of the Estate of Byung Sun Im, deceased

Before: Justice Stephen E. Firestone

Counsel: Anthony J.O. O’Brien, for the moving party Hyang Bin Im Brad Wiseman, for the responding party Tae Bin Im also known as Toby Im

Heard: In Writing

Endorsement

[1] The Estate Trustee, Hyang-Bin Im also known as Helen Im (“Helen”) brings this motion for an order transferring action CV-16-258 (Tae-Bin Im also known as Toby Im v. Hyang-Bin Im also known as Helen Im, Sun-Bin Chun also known as Sandra Chun and Sae-Bin Im also known as Sam Im (the “Brantford action”) from Brantford (Central South Region) to Toronto (Toronto Region) pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff in the Brantford action Tae-Bin Im, also known as Toby Im (“Toby”) opposes the motion.

[2] The Consolidated Provincial Practice Direction provides the procedure to be followed when requesting the transfer of a civil proceeding in the Central East, Central West, Central South and Toronto Regions pursuant to Rule 13.1.02. Pursuant to the Practice Direction, motions to transfer are to 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.

[3] Helen submits that the forum conveniens for the resolution of all disputes in regard to the administration of the estate of Byung Sun Im is in Toronto given that: the deceased lived in Toronto until her death in Toronto, the Estate was filed in Toronto and the Certificate of Appointment of Estate Trustee was issued from Toronto. Further three of the four beneficiaries live in Toronto and the two properties that are the main subject matter of the Estate are located in Toronto. The moving party further submits that the only connection with Brantford is that Toby, one of the four beneficiaries, resides at Brantford.

[4] Helen further submits that the majority of the allegations being pursued against her in the Brantford action relate to her conduct and work as Estate Trustee.

[5] Helen does acknowledge that a personal action can be brought against her. She emphasizes however that a majority of the relief sought relates to an attempt to remove her or to criticize or attack her conduct as Estate Trustee. She argues that this is more appropriately dealt with as part of the Estate file in Toronto.

[6] The respondent Toby submits there is no basis to transfer this proceeding to Toronto. Toby’s action was properly commenced at Brantford. Helen has not cited any rule or statute which requires that Toby’s action be commenced in any particular jurisdiction. Helen highlights that there are only two types of Estate proceedings required to be commenced in a particular location - the first being an application for Certificate of Appointment of Estate Trustee made under Rules 74.04 or 74.05 (required to be commenced in the jurisdiction in which the Deceased resided at the time of death); and the second being a Will challenge.

[7] Because Toby’s action does not fall into either of these categories the considerations set forth in Rule 13.1.02(2) apply. Helen does not argue that a fair hearing cannot be held in Brantford. The issue therefore is whether the transfer is “desirable in the interest of justice” having regard the factors enumerated in rule 13.1.02(2)(b).

[8] Toby submits that in applying these factors it is clear that it is neither desirable nor in the interest of justice that this matter be transferred to Toronto. Toby argues that there is no disadvantage to this action remaining in Brantford, other than inconvenience to Helens counsel, who himself chose Brantford as the jurisdiction when Helen commenced the first action relating to the estate.

Analysis

[9] Rule 13.1.02(2) 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 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 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.

[10] The application of rule 13.1.02 is fact specific and must include a balancing of all factors to ensure that any transfer granted is desirable and in the interest of justice: see Gould v. BMO Nesbitt Burns Inc. (2006), 2006 ONSC 63726, 81 O.R. (3d) 695 (Ont. S.C.J.) at para. 18. 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 ONSC 51192, 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para. 28.

[11] As Himel J states in part in Telus Communications Company v. Her Majesty the Queen, 2015 ONSC 1345 at para 13:

A plaintiff has a prima facie right to select a venue for an action. 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 to change the venue. The onus is on the moving party to show that it is “in the interests of justice” to transfer the action having regard to the factors outlined in rule 13.1.02(2)(b).

[12] I have considered the submissions of counsel and applied the factors set forth in rule 13.1.02(2) to the factual matrix of this case. For the reasons that follow this motion to transfer is dismissed.

[13] The events which give rise to the Brantford action predominantly relate to the administration of the Estate which occurred in Toronto and the Estate Trustee’s dealings with the assets, which are or were in Toronto. These facts however cannot be looked at in isolation They must be considered in the context of the complete factual matrix of the proceeding. Significant procedural steps have taken place in the Brantford action.

[14] Justice Nightingale in his Order dated August 4, 2017 has dealt with timetabling issues, examinations, documentary production and accounting issues. Whitten J. by Order dated November 16, 2017 declared that the handwritten notes of Byung-Sun Im do not constitute a valid Codicil. In addition Whitten J made orders regarding the production of appraisals, the transfer of assets to the beneficiaries as well as interim distribution.

[15] The majority of the issues in relation to the properties have for the most part been dealt with. The remaining issues in dispute relate to the division of cash. I agree with Toby’s submission that the location of the subject property at this juncture should be given little weight in the determination of this motion.

[16] Regarding the convenience of the parties the record confirms that Helen and the defendants Sandra Chun (“Sandra”) and Sam Im (“Sam”) reside in Toronto. Toby resides in Brantford. There is however no evidence in the record regarding convenience of the various witnesses to be called in this proceeding. The inconvenience of counsel is not a basis to order the transfer of an action.

[17] Based on the evidentiary record before me I am satisfied that the transfer this proceeding at this juncture would, as a responding party submits, hinder the expedience of the proceeding.

[18] I further note that prior to the subject action Helen commenced the first action relating to the Estate in Brantford. In addition Sam commenced a second action relating to the Estate in Brantford. Both of these proceedings were dealt with in Brantford.

[19] Justice Whitten in his order dated November 16, 2017 at para 26 ordered that this action, including the motion herein shall be recommended to the Regional Senior Justice to be case managed pursuant to rule 77.05 of the Rules of Civil Procedure. Justice Sheard has been appointed as case management judge to hear all motions. The appointment of a case management judge will help ensure that this Brantford action proceeds as expeditiously as possible.

[20] I have applied the factors set out in Rule 13.1.02(2) to the factual matrix of this action. 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 Brantford, and that the interest of justice requires that this action be transferred to Toronto.

[21] I encourage the parties to agree on the issue of costs. If they cannot, Toby is to deliver written cost submissions of no more than two pages by April 16, 2018. Helen is to deliver their responding cost submissions of the same length by April 23, 2018. Any reply by Helen is to be delivered by April 27, 2018.

Firestone J.

Date: April 6, 2018