Court File and Parties

COURT FILE NO.: CV-17-13234700OT DATE: 20181004 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Antonio Giancola and Angelina Giancola, Plaintiffs AND: Alexandre Dobrydnev, Defendant

BEFORE: Mr. Justice Stephen E. Firestone

COUNSEL: R. Christopher M. Belsito, for the Plaintiff Alexandre Dobrydnev, Unrepresented

HEARD: In Writing

Endorsement

[1] The defendant, Alexandre Dobrydnev (“defendant”), who is self-represented, brings this motion for an order transferring this action from the Central East Region (Newmarket) to the Toronto Region, pursuant to Rule 12.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (the “rules”). The plaintiffs Antonio Giancola and Angelina Giancola (“plaintiffs”) oppose the motion to transfer.

Factual Background

[2] This action arises as a result of an aborted real estate transaction regarding the purchase and sale of the plaintiff’s property located at the City of Vaughan, York Region (“Vaughan”).

[3] The statement of claim (“claim”) was issued on August 24, 2017 in the Central East Region (Newmarket). The statement of defence (“defence”) was delivered on or about September 30, 2017.

Applicable Legal Principles

[4] 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 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.

[5] 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). 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.

[6] 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.

[7] 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

[8] The events that give rise to the claim occurred in Vaughan, the property which is the subject matter of this action is located in Vaughan.

[9] The defendant’s residence is located on Weston Road in the City of Toronto. Counsel for the Plaintiffs are located at Richmond Hill Ontario.

[10] The plaintiffs have scheduled a motion for Summary Judgment returnable December 21, 2018 at the Superior Court of Justice, Newmarket Ontario. On August 23, 2018, Justice P. Sutherland, by way of Court order, fixed a timetable for the summary judgment motion returnable December 21, 2018.

[11] The defendant submits that this action should be transferred from Newmarket to Toronto because he does not have reliable transportation to attend the Newmarket Courthouse and does not have the financial means to arrange alternate transportation. No further particulars are given.

[12] The plaintiffs submit that they are elderly and that it will not be convenient for them to be required by order to travel to Toronto for the trial. The transferring of this action, they submit, would be prejudicial to them.

[13] The plaintiffs highlight that defendant’s defence, dated September 30, 2017, pleads that the defendant intends to bring a motion to transfer this action from Newmarket to Toronto. The motion was not served until August 17, 2018, just prior to the hearing of the motion before Justice Sutherland on August 23, 2018 at which a timetable for the summary judgment motion returnable December 21, 2018 was fixed.

[14] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix of this case based on the record before me. The defendant has not established that it would be “significantly better” that the trial of this action take place in the Toronto Region rather than the Central East Region (Newmarket). The defendant’s motion is dismissed.

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

Firestone J. Date: October 4, 2018