COURT FILE NO.: CV-17-584569

DATE: 2018-06-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN FREDERICK SALMON

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

Harvey Strosberg, Q.C. and David Robins, for the Plaintiff

Jeremy Glick and Walter Ojok, for the Defendant

HEARD: Matter heard in writing.

REASONS ON TRANSFER MOTION

thomas, r.s.j.:

[1] The defendant, Her Majesty the Queen in Right of Ontario (Ontario) brings this motion seeking an order transferring this proceeding from the City of Toronto (Toronto) to the City of Woodstock (Woodstock) pursuant to Rule 13.1.02(2) of the Rules of Civil Procedure. I have heard this matter on the basis of the written submissions filed consistent with the Consolidated Provincial Practice Direction, Part III B.

[2] The plaintiff’s action arises from his wrongful manslaughter conviction for causing the death of his spouse, Maxine Ditchfield (Maxine), who died on September 22, 1970.

Background

[3] In September, 1970 the plaintiff and Maxine resided in Woodstock with her three children, ages four, six and eight. On September 21, 1970 the plaintiff found Maxine unconscious in her bed. The plaintiff was charged with assault causing bodily harm.

[4] On September 22, 1970 Maxine died and the plaintiff was charged with non-capital murder.

[5] An autopsy was performed by Dr. Michael Dietrich (Dr. Dietrich) who held himself out as a forensic pathologist.

[6] The trial of the plaintiff, by judge and jury, took place in Woodstock. Dr. Dietrich testified that Maxine suffered from a series of traumatic assaults and that she ultimately died from the result of a blow to the head likely delivered by a shoe or fist.

[7] On March 5, 1971 the plaintiff was convicted of manslaughter. He was sentenced to 10 years in the penitentiary. During the course of the investigation, the plaintiff provided an alternate version of events leading to the cause of Maxine’s injuries consistent with intoxication. The intoxication was followed by numerous falls which lead to her injuries and ultimately the loss of consciousness. At all times the plaintiff professed his innocence.

[8] On November 10, 1972 his appeal to the Court of Appeal was dismissed. The plaintiff was imprisoned for three years and four months before parole. He had spent six months in pre-trial custody.

[9] In 2000 the plaintiff retained counsel for assistance in overturning his conviction. Two forensic pathologists retained by counsel concluded Maxine’s death was not a homicide, but resulted from natural causes or a series of falls. Upon receiving this new evidence, the Crown retained its own expert who agreed that Maxine had likely suffered a stroke which caused her to fall repeatedly, ultimately leading to her death.

[10] On October 25, 2012 the Supreme Court of Canada granted an extension of time for leave to appeal based on fresh evidence and remitted the matter to the Court of Appeal to consider the fresh evidence.

[11] On June 22, 2015 the Court of Appeal heard the plaintiff’s appeal with all counsel requesting that the conviction be overturned. In written Reasons released on June 23, 2015 the Court expressed “…the Court’s great regret that as a result of the comprehensive and unanimous medical evidence now before us it is clear that Mr. Salmon was wrongly convicted and spent more than three years in a penitentiary.” (R. v. Salmon, 2015 ONCA 469).

[12] Dr. Dietrich died in 2004. The Crown who prosecuted the plaintiff is in his eighties and the best evidence available to me indicates he resides in London, Ontario.

[13] The plaintiff is 78 years of age and has resided for some time in Coldwater, Ontario. He has not returned to Woodstock since his wrongful conviction over 45 years ago.

[14] The plaintiff commenced this action in Toronto on October 16, 2017. He claims $7,000,000.00 in damages arising as a result of his wrongful conviction and the alleged negligence of Dr. Dietrich. The plaintiff contends Ontario is in law responsible for that negligence.

[15] Ontario has defended and now seeks to transfer the proceeding to Woodstock. Pleadings have been exchanged but it appears no other steps in the action have as yet been taken.

[16] Rule 13.1.02(2)(a) and (b) (i) – (ix) states:

(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 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.

[17] The Court is to take a holistic view of the factors enumerated above (Gould v. Nesbitt Burns Inc., [2006] OJ No. 2707 (SCJ)). The plaintiff has a “presumptive entitlement” to commence the action where the plaintiff sees fit (Paul’s Hauling Ltd. v. Ontario, 2011 ONSC 3970 at para. 13) (Paul’s Hauling).

[18] The plaintiff’s choice must be reasonable and have a rational connection to the parties or cause of action (Siemens Canada Ltd. v. Ottawa (2008), 2008 CanLII 48152 (ON SC), 93 O.R. (3d) 220 (S.C.J.)).

[19] In assessing a transfer motion, the Court must weigh the factors in Rule 13.1.02 keeping in mind that the plaintiff has a right to commence the action where he chooses unless the court concludes that a transfer is desirable in the “interest of justice”. (Skidmore v. Carleton University, 2009 79 C.P.C. (6th) 306 (S.C.J.)); Renwick v. Durham Regional Police, 2012 ONSC 5046 at paras 21-24).

[20] In the circumstances of this proceeding, the Court need only assess the factors considered by Rule 13.1.02(2)(b).

(i) Where a substantial part of the events or omissions that gave rise to the claim occurred

[21] Ontario maintains the crime, investigation, autopsy and trial were conducted in Woodstock and so Woodstock is favoured.

[22] The plaintiff suggests that although the trial was in Woodstock, the action raises the issue of the vicarious liability of the Crown for the negligence of Dr. Dietrich and whether Ontario owed a duty of care to the plaintiff in these circumstances. It is argued these issues are far-reaching.

[23] I agree with the defendant. It is hard to dispute that the events giving rise to the claim did not occur at the place of the homicide trial. This factor favours a transfer to Woodstock.

(ii) Where a substantial part of the damages were sustained

[24] The defendant claims the damages to the plaintiff occurred in Woodstock. Here I agree with the plaintiff’s position. While he was wrongfully convicted in Woodstock, surely his damages were personal to him and were ongoing throughout his incarceration in a penitentiary, his loss of enjoyment of life, his emotional distress and the damage to his reputation.

[25] He now lives in Coldwater, closer to Toronto than Woodstock. This factor favours leaving the proceeding where it was commenced.

(iii) Where the subject-matter of the proceeding is or was located

[26] Each of the parties claim this factor for the reasons set out in (i) and (ii) above. In my view, the erroneous expert opinion was provided in Woodstock but the damages were sustained elsewhere. I view this factor as neutral.

(iv) Any local community’s interest in the subject-matter of the proceeding

[27] The defendant Ontario argues that Maxine’s family continues to reside in Woodstock and have indicated a continuing interest in the proceedings. Ontario suggests the local community in Woodstock would have an interest in this civil action related to the plaintiff’s wrongful conviction in 1971.

[28] I agree with the plaintiff’s position here. While the family and the community no doubt had a real interest in the two proceedings before the Ontario Court of Appeal and the leave application to the Supreme Court of Canada, all of which took place elsewhere, I question the level of local interest regarding the Province’s potential duty to supervise and scrutinize its experts.

[29] This issue captures the attention of a broader constituency which is at least provincial in scope.

[30] In my view, this factor favours the proceeding remaining in Toronto.

(v) The convenience of the parties, the witnesses and the court

[31] The plaintiff is 78. He resides 90 kilometres closer to Toronto than to Woodstock. It is unclear what other witnesses may testify. I am offered little in the way of evidence on this factor. Ontario may call the Crown prosecutor who resides in London or they may not.

[32] It is important here to consider the findings of the Court of Appeal from 2015 when the Court set aside the conviction. Its Reasons considered only the fresh evidence of three pathologists, all of whom were unanimous in concluding that Dr. Dietrich’s findings as to the cause of death were simply unsubstantiated and wrong. In the context then of this claim, it is difficult to know what evidence could come from Woodstock.

[33] In addition, Ontario has made it clear that wherever the venue, its next step is to bring Rule 20 and Rule 21 motions to dismiss the action arguing that the Crown cannot be vicariously liable for the acts and omissions of the pathologist Dr. Dietrich.

[34] These motions bear no connection to Woodstock.

[35] In addition, both sets of counsel in this proceeding have offices in Toronto.

[36] I disagree with the defendant Ontario on this factor. It is not neutral. This factor favours leaving the proceeding in Toronto.

(vi) Whether there are counterclaims, crossclaims, or third or subsequent party claims

[37] This factor is not applicable to this proceeding.

(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; and (viii) Whether judges and court facilities are available at the other county

[38] Both parties agree that there is an absence of evidence regarding the court schedule and facilities in both locations. They consider this a neutral factor. I agree. It seems either court location could accommodate this trial to a conclusion on its merits. Both locations have case-management. Toronto has the added feature of mandatory mediation. While Woodstock has set and limited trial sittings, special consideration is regularly provided to fix trial dates to expedite matters that need to be heard.

(ix) Any other relevant matter

[39] The defendant Ontario has not offered any other relevant factor. The plaintiff suggests that to require him to prosecute this action in Woodstock might affect the appearance of fairness considering his wrongful conviction and the negative publicity he received in Woodstock over 45 years ago.

[40] I cannot agree with this submission. The plaintiff would receive a fair trial on his damage claim in Woodstock. I am as well convinced the reasonable resident of Woodstock armed with knowledge of the wrongful conviction and the claims of the plaintiff would conclude that a fair trial was being conducted at that location.

[41] I feel strongly, however, that there is another relevant factor weighing in favour of a trial in Toronto.

[42] Over 45 years ago the plaintiff was wrongfully convicted of killing his spouse. He was arrested, tried and convicted in Woodstock. He has not returned since. He spent years in a penitentiary for a crime he did not commit. He lost his family and his employment.

[43] He was not exonerated until 2015. Surely at this point it is in the interest of justice to allow him to choose his place of trial. In my view, to force him back to Woodstock for the prosecution of this proceeding would be wrong.

Conclusion

[44] I have considered all the factors enumerated in Rule 13.01.02(b). The plaintiff’s presumptive entitlement to proceed with this action in Toronto has not been displaced. The defendant’s motion is dismissed.

[45] If it is necessary for me to determine costs, I will receive written submissions from the parties filed with my judicial assistant in London. All submissions to be received within 30 days of the release of these Reasons. If no submissions are received there will be no order for costs.

Regional Senior Justice B. G. Thomas

Regional Senior Justice B. G. Thomas

Released: June 14, 2018.

COURT FILE NO.: CV-17-584569

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN FREDERICK SALMON

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

REASONS on transfer motion

THOMAS, R.S.J.

Released: June 14, 2018.