COURT FILE NO.: CV-16-129006-00
DATE: 20180411
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOULLA NEOPHYTOU
Plaintiff
– and –
VIRGINIA FRASER and the Estate of JAMES WYLLIE FRASER by its Estate Trustee VIRGINIA FRASER
Defendants
Kevin D. Sherkin and Ryan Wozniak, for the Plaintiff
Andrew C. Lusk, for the Defendants
HEARD: In Writing
V.R. CHIAPPETTA J.
REASONS FOR DECISION
[1] Virginia Fraser (Virginia) seeks an order that this action be transferred from Newmarket to Toronto to be heard immediately after the action commenced by Louella Neophytou (the plaintiff) in Toronto on July 25, 2013 (the Toronto action). In the Toronto action the plaintiff claims against Leslie Ann Fraser (Leslie) for damages that include failure to repay a loan she received from the plaintiff in 2005. Leslie is the widow of the plaintiff’s deceased son and the daughter of Virginia. In this action, the plaintiff claims as against Virginia and the estate of her late husband for matters relating to the sale of Leslie’s former home in Florida.
[2] Under Rule 13.1.02 of the Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990 Regulation 194, the court may transfer a proceeding if it is desirable in the interests of justice and to secure the just, most expeditious and least expensive determination of the proceedings on the merits. While I agree that the proceedings have common issues of fact and law, I do not agree that the interests of justice would be well served if this action is transferred to Toronto.
[3] The Toronto action was set down for trial in December 2017 and the court is in the process of scheduling a pre-trial date. This action has not advanced beyond the pleadings stage. The plaintiff is currently 80 years old. She is suing in Toronto on the basis of a loan advanced in 2005. The plaintiff’s income consists of government pension and financial support from her other son. She has been paying for legal fees for the Toronto action since 2013. The plaintiff served the statement of claim in this action in December 2016. Virginia’s motion is dated February 2018. The evidence before the court therefore reflects that a consolidation order would not result in the most expeditious and least expensive determination of the proceeding on its merits. Rather its effect would be to delay the Toronto action at a time when it is ready to proceed to trial, after the plaintiff has financed its litigation for 5 years. Further, the record fails to evidence a risk of inconsistent findings or that Toronto is a more reasonable venue in which to try the Newmarket action.
[4] The plaintiff has elected to proceed in Newmarket. Her decision is entitled to deference. There is no competing evidence. The motion is therefore dismissed.
V.R. Chiappetta J.
Released: April 11, 2018
COURT FILE NO.: CV-16-129006-00
DATE: 20180411
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOULLA NEOPHYTOU
Plaintiff
– and –
VIRGINIA FRASER and the Estate of JAMES WYLLIE FRASER by its Estate Trustee VIRGINIA FRASER
Defendants
REASONS FOR DECISION
V.R. Chiappetta J.