Court File and Parties

Court File No.: 89922/14 Date: 20180920 Superior Court of Justice - Ontario

Re: Nermin Khalil and Sherif Youssef, Plaintiffs And: Ushar Mulchand, Defendant

Before: Mr. Justice Stephen E. Firestone

Counsel: Daniel J. Balena, for the Plaintiffs Mannaneh Duval, for the Defendant

Heard: In Writing

Endorsement

[1] The defendant Ushar Mulchand (“defendant”) brings this motion for an order transferring this action from the Durham Region (Oshawa) 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 plaintiffs Nerman Khalil and Sherif Youssef (“plaintiffs”) oppose the motion to transfer.

Factual Background

[2] This action arises from a motor vehicle collision which occurred on November 4, 2013 at the intersection of McCowan Road and Alton Towers Circle in the District of Scarborough, in the City of Toronto.

Applicable Legal Principles

[3] 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 13.1.02 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 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 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.”

[4] 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.

[5] 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.

[6] No one of the enumerated factors is more important than the other. Rather, the court is to look at all the factors together and balance them in determining whether a transfer is “desirable in the interest of justice”. Of significance is the fact that the moving party is required to establish 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.

Analysis

[7] The defendant resides in the City of Markham. The plaintiffs at the time of the collision and presently reside at Alton Tower Circle, which is located just west of the Regional Municipality of Durham boundary.

[8] The plaintiff Nermin Khalil (“Khalil”) in her affidavit filed in response to the defendant’s motion deposes that her residence is less than a 5 minute drive from the Pickering border. Given Khalil’s proximity to Oshawa, the current legal proceeding was commenced in the city of Oshawa. Khalil further deposes that Oshawa is less than a 30 minute drive from her current location. The Toronto Courthouse is at least and likely with traffic more than a 60 minute drive from her current residence. The defendant did not cross examination Khalil prior to the determination of this motion.

[9] As a result of the injuries sustained in the subject collision, Khalil deposes that her mobility is extremely limited. She is only able to drive for short periods of time; as a result, she would be unable to drive to the Toronto Courthouse and arrangements will have to be made to have someone drive her. As a result, Oshawa is the more convenient location for the plaintiffs.

[10] The plaintiffs have retained 8 experts. One of the experts resides in Oshawa. There is no evidence in the record to suggest that the other experts to be called by the plaintiff’s object or have any difficulty with travelling to Oshawa for the trial of this action, should it not be settled.

[11] Examinations for discovery have been completed and mediation held. The pre-trial conference is scheduled to proceed on September 24, 2018. At no time prior to mediation did the defendant advise that it was their intention to request a transfer of this action from Oshawa to Toronto.

[12] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix of this case. The moving party has not satisfied me that it would be “significantly better” that the trial of this Action take place in Toronto, as opposed to Oshawa, especially in light of the hardship that this would cause the plaintiff Khalil. The moving party’s motion is dismissed.

[13] I encourage the parties to agree on the issue of costs. If they cannot agree, the plaintiffs are to deliver written cost submissions of no more than two pages by September 27, 2018. The defendant is to deliver their written cost submissions of the same length by October 4, 2018. Any reply by the plaintiff’s is to be delivered by October 9, 2018.

Firestone J. Date: September 20, 2018