Court File and Parties

Court File No.: CV-13-0000389700OT Date: 20180918 Superior Court of Justice - Ontario

Re: Magdalene Coppin, Plaintiff And: Toronto Transit Commission and John Doe, Defendants

Before:

Counsel: Alim Ramji and Yousef Jabbour, for the Plaintiff Andrew Davidson, for the Defendant

Heard: In Writing

Endorsement

[1] The defendant Toronto Transit Commission (“TTC”) brings this motion for an order transferring this action from the Central West Region (Brampton) to the Toronto Region pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (the “Rules”). The plaintiff Magdalene Coppin (”Coppin”) opposes the motion to transfer.

[2] The Consolidated Provincial Practice Direction at part III (B) effective July 1, 2014 (“Practice Direction”) deals with the transfer of a civil proceeding in the Central East, Central West, Central South and Toronto Regions under Rule 13.1.02. Pursuant to the Practice Direction, motions to transfer should be brought in writing at the court location to which the moving party seeks to have the proceeding transferred. These motions are to be heard by the Regional Senior Judge, or his or her designate. The Regional Senior Judge has delegated the responsibility for deciding this motion to me in my capacity as civil team leader in the Toronto Region.

Factual Background

[3] This action arises out of the incident which occurred on September 13, 2011 on a bus bay at Scarborough Town Centre station located in the city of Toronto. At that time, Coppin was boarding a bus when she tripped on the bus step.

[4] The statement of claim was issued on September 6, 2013 at the Brampton Superior Court of Justice. The TTC was noted in default. The TTC was successful in their motion to set aside the noting in default. The TTC subsequently delivered (served and filed) their statement of defence on or about December 22, 2014. Examinations for discovery were completed on November 10, 2015.

[5] In April 13, 2018 Coppin delivered (served and filed) the trial record. The TTC did not consent to the action being placed in the trial list.

Analysis

[6] Rule 46.01 of the Rules provides that the trial of an action shall be held in the county where the proceeding was commenced or to which it has been transferred under Rule 13.01.02 unless the court orders otherwise. Rule 13.1.02 and the Practice Direction outline how a change of venue motion should proceed. Subsection (2) of Rule 13.0.02 states:

“…[t]he 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 incurred,

(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 subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious at 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.

[7] A plaintiff has a prima facie right to select a venue for an action. 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: 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.J.) at para 28.

[8] The analysis of Rule 13.1.02 is fact-specific and must include a balancing of all factors to ensure that any transfer granted is desirable in the interests of justice: see Gould v. BMO Nesbitt Burns Inc. (2006), 81 O.R. (3d) 695 (Ont. S.C.J.) at para 18.

[9] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix of this case. I am satisfied that the TTC has met the requisite onus and has demonstrated that the interests of justice require this action be transferred to Toronto from Brampton.

[10] This action arises out of an incident which occurred in the City of Toronto. At the time of the incident, Coppin resided in the city of Toronto. All of the plaintiff’s damages were sustained in the City of Toronto. The plaintiff received all of her treatment in the City Toronto. Examinations for discovery took place in the city of Toronto. The plaintiff and defendant have no connection to Brampton. The only connection to Brampton is the location of plaintiff’s counsel.

[11] I order that this action be transferred from Brampton to Toronto. Either counsel may if they wish arrange a case conference (chambers appointment) before me pursuant to Rule 50.13 to address any procedural issues arising from the transfer of this action from Brampton to Toronto.

[12] The costs of this motion are reserved to the trial judge.

Firestone J. Date: September 18, 2018