Court File and Parties
COURT FILE NO.: 17-63408 DATE: 20180925 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Kaveh Shahbaz and Negar Kiaee AND Alon Mizrahi and Royal Lepage Your Community Realty Inc.
BEFORE: Regional Senior Justice Fuerst
COUNSEL: James C. Morton, for the Plaintiffs, Kaveh Shahbaz and Negar Kiaee Christopher Tucker, for the Defendants, Alon Mizrahi and Royal Lepage Your Community Realty Inc.
HEARD: In Writing
Endorsement
Background
[1] The defendants move for an order transferring this action from Hamilton to Newmarket, under Rule 13.1.02 of the Rules of Civil Procedure. The defendant, Alon Mizrahi [“Mizrahi”], also moves for an order transferring his Application CV-17-587926 from Toronto to Newmarket, an order converting the Application to an action, and an order that the two actions be consolidated, or alternatively heard together or one after the other.
[2] In accordance with the Consolidated Provincial Practice Direction effective July 1, 2014, motions to transfer under Rule 13.1.02 brought in the Central East Region are to be brought to the Regional Senior Judge (or her designate) in writing.
[3] The action arises from the signing of an Agreement of Purchase and Sale to sell a residential property in Vaughan owned by the defendant Mizrahi to the plaintiffs, and events that followed which the plaintiffs contend resulted in the purchase not being completed, to their detriment. The plaintiffs seek a declaration that they have an equitable interest in the property, or alternatively damages for, among other things, unjust enrichment.
[4] The plaintiffs issued their Statement of Claim in Hamilton, on November 3, 2017.
[5] Before the Statement of Claim was served on the defendants, Mizrahi brought an Application in Toronto seeking a declaration that the plaintiffs breached the Agreement of Purchase and Sale and that their deposit was forfeited to him, and damages because of diminution of the value of the residential property. The Notice of Application was issued on December 6, 2017. The Application remains outstanding in Toronto.
[6] The defendants assert that the action and the Application arise from the same events in York Region, that Newmarket is the proper venue for the proceedings, and that there are common questions of fact and law.
[7] The plaintiffs contend that the choice of Hamilton as the venue for the action was reasonable and that the action should remain in Hamilton. The plaintiffs oppose the conversion of the Application to an action and assert that the Application should be dealt with in Toronto.
The Transfer of the Action
[8] Rule 13.1.02 and the Consolidated Provincial Practice Direction apply to motions to transfer actions from one Region to another. Rule 13.1.02(2)(b) sets out factors to be considered where it is contended that a transfer is desirable in the interest of justice. The Practice Direction provides that motions to transfer will be heard by the Regional Senior Judge in writing. Although counsel for the plaintiffs indicated that he wished an oral hearing, this is not a matter of such complexity that an oral hearing is required.
[9] I adopt the following summary of the governing legal principles, as expressed by Himel J. in Samuel v. Kearley, 2015 ONSC 4784, at paragraph 11:
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 interest of justice” to transfer the action having regard to the factors outlined in rule 13.1.02(2)(b). The court is to consider a “holistic” application of the factors outlined in the rule to the specific facts of the case: 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.) at para 28. No one factor is more important than another. Rather, the court is to look at all the factors and balance them in order to decide whether a transfer is “desirable in the interests [sic] of justice”. The moving party must show that the proposed place of trial is not only better, but is significantly better, than the plaintiff’s choice of trial location: see Siemens Canada Ltd. v. Ottawa (City) (2008), 2008 ONSC 48152, 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para 29.
[10] Applying the factors set out in Rule 13.1.02(2)(b) to the circumstances of this case, I note the following:
- The events that give rise to the action occurred in Vaughan. There is no factual connection to Hamilton.
- The residential property at the centre of the litigation is located in York Region.
- The parties all reside or are located in York Region, as do other individuals who are likely to be witnesses at trial.
- Any damages sustained were sustained in York Region.
- The apparent reason for the commencement of the action in Hamilton is that counsel for the plaintiffs is located in there. The convenience of counsel, standing alone, should not dictate the venue of trial.
[11] I have balanced the factors set out in Rule 13.1.02(2)(b) and considered any other relevant matters. Applying a holistic approach, I find that the defendants have demonstrated that it is desirable in the interest of justice that the action be transferred from Hamilton to Newmarket.
The Application
[12] The motion is premature with respect to the request to transfer the Application. The defendant Mizrahi must first move in Toronto to convert the Application to an action. If the Application is converted to an action, he may bring a motion in writing before me to transfer the action to Newmarket and marry it up in some fashion with the plaintiffs’ action. If it is not converted to an action, there is no need to transfer the Application to Newmarket.
Conclusion
[13] The motion to transfer the action from Hamilton to Newmarket is granted.
[14] The balance of the motion is dismissed.
[15] If the parties are unable to agree on the issue of costs, they may file brief written submissions according to the following timetable: the defendants by October 8, 2018 and the plaintiffs by October 22, 2018.
Madam Justice Michelle K. Fuerst Regional Senior Judge