ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-1371 DATE: 2018 09 13
BETWEEN:
BASIL MKALAF Plaintiff
- and -
PETER GOBRAIL and HARDSCAPES INTERLOCK DESIGN and NORTHBRIDGE PERSONAL INSURANCE CORPORATION Defendants
COUNSEL: P. Denton, Counsel for the Plaintiff S. McGarry, Counsel for the Defendants Peter Gobrail and Hardscapes Interlock Design
HEARD: In Writing
REASONS FOR DECISION
LEMAY J.
[1] This is a motion to transfer this action (Court File No. 15-1371) from Barrie, in the Central East Region, to either Milton or Brampton in the Central West region. I have been designated by Daley R.S.J. to hear all transfer motions for the Central West Region.
[2] The Defendants, Peter Gobrail (“Gobrail”) and Hardscapes Interlock Design (“Hardscapes”), are the moving parties. The Defendant Northbridge Personal Insurance Corporation consents to this motion, but has not filed any materials. The Plaintiff, Basil Mkalaf (“Mkalaf”) opposes the motion to transfer.
[3] For the reasons that follow, the motion to transfer this action to Brampton is granted on terms.
Background
a) The Parties and The Incident
[4] This claim arises out of a Motor Vehicle Accident that took place on August 13th, 2014 in Oakville, Ontario. Oakville is in Halton Region, where the Milton Courthouse is located.
[5] The Plaintiff, Mr. Mkalaf, lives in Mississauga, as does the Defendant Gobrail. Mississauga is in Peel Region, and where the Brampton Courthouse is located. The Defendant Hardscapes is headquartered in North York. Its principal, a Mr. Ahmed Harb, lives in Mississauga.
[6] Mr. Mkalaf appears to have required treatment as a result of the MVA. All of the documents from his treating medical professionals show addresses in Mississauga.
[7] This action was commenced by Mr. Mkalaf, and named Gobrail and Hardscapes as the original Defendants. Gobrial and Hardscapes do not have insurance coverage and, as a result, the Plaintiff’s insurer, Northbridge, was added as a Defendant to this action. Northbridge has a cross-claim against the other Defendants.
b) The Course of the Litigation
[8] There have been considerable delays in litigating this case. The claim was originally commenced in 2015, and it is clear from reading the Plaintiff’s materials, that the discoveries in this matter took some considerable time to schedule. Similarly, it took time to obtain a pre-trial date. I do not need to resolve any disputes about who caused the delay, however, as that is not a question before me. The only question before me at this point is whether, given the action’s current status, it would be delayed by moving it from Barrie. I now turn to that question.
[9] Ultimately, the action was set down for trial on March 16th, 2018, and a pre-trial has been scheduled for March 8th, 2019. There is no trial date scheduled in Barrie. However, the trial coordinator advised Plaintiff’s counsel that, subject to the discretion of the pre-trial judge, the matter could be heard either in the May, 2019 or the November, 2019 sittings. In my experience as a pre-trial judge, it is far more likely that it will be listed for the November, 2019 sittings given the proximity of the pre-trial date to the May sittings.
[10] If the action were transferred to Milton, the trial sittings would be in November of 2019 and, like the Barrie list, there is no cap on the number of matters that will be placed on the list.
[11] If the action were transferred to Brampton, I have obtained a pre-trial date from the Trial Office for November 1st, 2018 at 3:15 pm. The trial sittings would be in May of 2019 and January of 2020. It is likely that the matter would be placed on the January 2020 trial list. As a result, there would be minimal delay in this matter being heard if it were transferred to Brampton.
The Applicable Test
[12] Rule 13.1.02(1) and (2) of the Rules of Civil Procedure govern transfer motions. Those rules state as follows:
- 1.02 (1) If subrule 13.1.01(1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced.
(2) If subrule (1) does not apply, the 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 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) 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,
(vii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
[13] There are a number of cases that have been decided on the issue of transfer motions. The leading case is Chatterson et al. v. M&M Meat Shops Ltd., 2014 ONSC 1897. This decision considers both Siemens Canada Ltd. v. Ottawa (City), 2008 ONSC 48152, 93 O.R. (3d) 220 and Hallman Estate v. Cameron, 2009 ONSC 51192, 80 C.P.C. (6th) 139.
[14] The Chatterson case, together with the other decisions, outline three principles that emerge, as follows:
a) If the Plaintiff’s choice of venue is reasonable, then there will be a comparison of venues.
b) In comparing the venues, the Defendant’s proposed venue must be substantially better than the Plaintiff’s chosen venue.
c) The court will consider the factors under the Rule on a holistic basis.
Applying the Test
[15] I begin by considering the factors outlined in Rule 13.1.02. First, of the two proposed venues, Brampton or Milton, Brampton is the more logical venue. It is in Peel Region, where the accident took place, and where most of the witnesses live. This action has substantially more connection to Brampton than it does to Milton, and I will only consider Brampton in my analysis.
[16] Plaintiff’s counsel argues that the only factor that I should consider is the delay that would be caused if this matter were transferred from Barrie to Brampton. In particular, counsel notes that a pre-trial date has been booked in Barrie already, and that a trial will likely take place in 2019. There are two problems with this argument.
[17] First, the case-law makes it clear that the provisions of the Rule must be considered holistically. In my view, the remainder of the factors support transferring this action to Brampton, and I reject the Plaintiff’s submission that I should give these factors no weight.
[18] Second, and in any event, as I have set out above, the trial is unlikely to take place until November of 2019 at the earliest, even if the action is left in Barrie. I have provided the parties with a potential pre-trial date that would put them in a position where they could go to trial in May of 2019 in Brampton. Accepting this date would result in there being no delay in the trial date whatsoever. However, even if the parties are required to book a pre-trial date in late 2019, they will still be ready for trial in May of 2020, which is only a six month delay.
[19] This brings me to the Plaintiff’s concern that their expert report will be stale by the time that they get to trial. I do not see this as being a significant concern. This expert report is already two years old. I would be surprised if the Plaintiff did not seek to update that report in advance of trial, given that it would be more than three years old by next November.
[20] I now turn to consider the rest of the factors under subsection (b) of the Rule.
[21] First, there is the issue of factors (i), (ii) and (iii), being where the events took place and the damages were sustained. The accident took place in Peel Region. The Plaintiff, the Personal Defendant and the principal of the Corporate Defendant Hardscapes all live in Peel Region. The Plaintiff’s treating physicians are, for the most part in Peel Region. These factors clearly favour the action proceeding in Peel Region.
[22] Second, there is the local community’s interest in the subject-matter of the proceeding. Although this factor favours the case remaining in Peel Region, I agree with Plaintiff’s counsel that this is not a significant factor in this case, as this is a purely private dispute that is unlikely to attract much public attention.
[23] Then, there is the convenience of the parties, the witnesses and the Court. As I have noted above, the parties are all located in, or have substantial connection to, Peel Region. There is no connection to Barrie.
[24] In terms of the convenience of witnesses, the Plaintiff argues that it will have no problems in getting the witnesses to Barrie for the trial. With respect, that is not the test. The question is whether it is more convenient for the witnesses to attend trial in Brampton or Milton rather than having to travel to Barrie. Given that all of the treating physicians work in Mississauga, and that the expert, Dr. Ogilvie-Harris, works in Toronto, Brampton is clearly more convenient for these witnesses. They will have to spend considerably less time travelling.
[25] Then there are factors (vii) and (viii), which speak to the advantages and disadvantages of each location, and the availability of court facilities. The only issue that would favour Barrie over Brampton is the existence of an earlier pre-trial date and, therefore, an earlier trial date. Although I am offering the Plaintiff and the Defendant Northridge a pre-trial date this year, it is possible (if that date does not work for the parties) that the pre-trial date will end up being in the second half of next year. This could result in a trial in May of 2020, which is a six month delay on the current anticipated schedule.
[26] It is clear, when these factors are considered, that Brampton is the more suitable jurisdiction for this action to be heard. That is not, however, the end of the inquiry. The case-law under the Rule makes it clear that the proposed venue for the trial must be “significantly better” than Barrie.
[27] I am of the view that Brampton is a “significantly” better venue for this trial. This action has no connection whatsoever to Barrie. The logistical issues involved in getting all of the witnesses to Barrie make it a significant inconvenience to have the action in Barrie, and risk increasing the costs to the parties. The countervailing concern about delay is not significant enough to outweigh these significant problems.
[28] When considered holistically, Brampton is a significantly better venue for this trial, and I order the matter transferred to Brampton.
[29] However, I am also alive to the concerns of the Plaintiff in terms of delay. I also share the Plaintiff’s view that the Defendants should have brought this motion to transfer sooner. As I have indicated, the Trial Office in Brampton has provided me with a pre-trial date of November 1st, 2018 for this matter. If the Plaintiff and the Defendant Northridge are available for a pre-trial on this date, then the date is peremptory to the other Defendants.
Conclusion
[30] For the foregoing reasons, the Defendants’ motion to move this matter from Barrie to Brampton is granted on the following terms:
a) If Plaintiff’s counsel and counsel for Northridge are available for November 1st, 2018 at 3:15 pm for a pre-trial, then this date is peremptory to the other Defendants, and the date will be scheduled.
b) If Plaintiff’s counsel is not available for a pre-trial for November 1st, 2018, then the parties are to contact the trial office for the next available pre-trial date. The Trial Coordinator has been advised to provide cancellation dates as they arise.
[31] The Defendant Northridge is to advise by way of letter within seven (7) calendar days whether it is seeking costs of this motion and, if so, on what basis. Similarly, the other parties are to advise within seven (7) calendar days as to whether they are seeking costs against Northridge.
[32] Presuming that Northridge is neither seeking costs nor the subject of a costs claim, then the costs submissions of the remaining Defendants are to be served and filed with the Court Office in Brampton within fourteen (14) calendar days of the release of these reasons. Those submissions are not to exceed two (2) single-spaced pages, exclusive of offers to settle and case-law.
[33] The Plaintiff will have fourteen (14) calendar days from the receipt of the Defendants’ submissions to provide their reply submissions. Again, those submissions are not to exceed two (2) single-spaced pages, exclusive of offers to settle and case-law.
[34] I note that, prior to rendering this decision, I directed the parties to provide their bills of costs. I confirm that I have received bills of costs from both the Plaintiff and from the Defendants Gobrail and Hardscapes. Those bills of costs will be considered with the costs submissions.
LEMAY J. Released: September 13, 2018