Court File and Parties
COURT FILE NO.: CV-18-593203 DATE: 20180925 ONTARIO SUPERIOR COURT OF JUSTICE
RE: 2183753 Ontario Inc. operating as “New Tecumseth Civics”, Plaintiff AND: Ryan Wood, Defendant AND: Ryan Wood, Plaintiff by Counterclaim AND: 2183753 Ontario Inc. operating as “New Tecumseth Civics” and Igor Vasiliev and Nikita Vasiliev and Dennis Martindale, Defendants by Counterclaim
BEFORE: Regional Senior Justice Fuerst
COUNSEL: Ashley L. Pledger, for the Defendant/Plaintiff by Counterclaim Ryan Wood Arkadi Bouchelev, for the Plaintiff/Defendants by Counterclaim 2183753 Ontario Inc., Igor Vasiliev, Nikita Vasiliev and Dennis Martindale
HEARD: In Writing
Endorsement
[1] The defendant/plaintiff by counterclaim [“Wood”] seeks to transfer this action from Toronto to Barrie pursuant to Rule 13.1.02 of the Rules of Civil Procedure. The plaintiff/defendants by counterclaim [“the plaintiff”] oppose the motion to transfer. 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.
[2] This Simplified Procedure action arises from Wood’s role as the general manager of a junior hockey team based in Alliston in Simcoe County. The plaintiff numbered company operated as the hockey team. The individuals named as defendants to Wood’s counterclaim were directors of the numbered company (the Vasilievs) and a coach of the hockey team.
[3] The plaintiff claims damages as against Wood for, among other things, breach of contract and fraud. Wood counterclaims damages as against the plaintiff and defendants for, among other things, breach of contract and fraud.
[4] The plaintiff/defendants by counterclaim commenced the action in Toronto, where their counsel is located. Wood seeks to transfer the action to Barrie because, he asserts, it is connected to Simcoe County, he lives in Barrie in Simcoe County, and it would be costly to him if the proceeding remains in Toronto.
[5] The plaintiff/defendants by counterclaim respond that they would prefer to have the matter litigated in Toronto. If the action is to be transferred, it should be to Newmarket rather than Barrie.
[6] 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), 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), 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para 29.
[7] Applying the factors set out in Rule 13.1.02(2)(b) to the circumstances of this case, I note the following:
- The action arises from events alleged to have occurred in Simcoe County.
- All parties to the action are located or maintain residences in Barrie in Simcoe County. Although Wood works in Kirkland Lake, he resides in Barrie.
- While the affidavit materials refer generically to witnesses who may be called, they are not identified by name or location. There is no suggestion that witnesses would be inconvenienced if the action is tried in Barrie.
- The action has no factual or evidentiary connection to Toronto.
- Any local community interest in the proceeding is in Simcoe County, not Toronto.
- Counsel for the plaintiff/defendants by counterclaim is located in Toronto. Counsel for Wood is located in Simcoe County.
- Barrie is the location of the Superior Court of Justice in Simcoe County.
- This is a Simplified Procedure action, and should be tried expeditiously.
[8] Balancing the factors outlined in Rule 13.1.02(2)(b) and applying a holistic approach, I conclude that Wood has demonstrated that it is desirable in the interest of justice that the action be transferred to Barrie.
[9] The motion is granted. The action is ordered transferred from Toronto to Barrie.
[10] If the parties are unable to agree on the issue of costs, they may file brief written submissions according to the following timetable: Wood by October 8, 2018, and the plaintiff/defendants by counterclaim by October 22, 2018.
Madam Justice Michelle K. Fuerst Regional Senior Judge Released: September 25, 2018