Court File and Parties
Court File No.: CV-18-7 Date: 2018-10-23 Ontario Superior Court of Justice
Between: BRUCE POWER L.P. AND BRUCE POWER INC., Plaintiffs – and – BNT CANADA, L.P., BNT CANADA GP, INC. AND BECHTEL POWER CORPORATION, Defendants
Counsel: William D. Black, Julie K. Parla and Claire Seaborn for the Plaintiffs (Responding Parties) Jonathan C. Lisus, Hilary Book and Breanna Needham for the Defendants (Moving Parties)
Heard: In Writing
Reasons for Decision
Firestone J.
[1] The defendants BNT Canada, L.P., BNT Canada GP, Inc., and Bechtel Power Corporation (collectively referred to as “Bechtel”) bring this motion for an order transferring this action from Walkerton (Central West Region) to the Toronto Region. This motion is brought pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and the Consolidated Provincial Practice Direction, Part III: “Motions to Transfer a Civil Proceeding in the Central East, Central West, Central South and Toronto Regions under Rule 13.1.02 of the Rules of Civil Procedure” [1] (“Practice Direction”). The plaintiffs Bruce Power L.P. and Bruce Power Inc. (collectively referred to as “Bruce Power”) oppose this motion.
[2] In accordance with para. 51 of the Practice Direction, I am to determine this motion in my capacity as the Regional Senior Judge’s designate.
[3] For the reasons that follow Bechtel’s motion to transfer is granted.
Factual Background
[4] Bruce Power carries on business as a private-sector nuclear power generator. It operates the Bruce Nuclear Power Generating station located near Tiverton, Ontario. Bruce Power has offices in Tiverton and Toronto.
[5] The defendant Bechtel Power Corporation (“BPC”) is part of a global group of engineering and construction project management companies (collectively referred to as the “Bechtel group of companies”). BPC’s head office is located in Reston, Virginia.
[6] The defendants BNT Canada, L.P. and BNT Canada GP, Inc. is part of the Bechtel group of companies and have registered offices in Vancouver and Toronto.
[7] On March 30, 2016, Bruce Power issued a request for proposal (“RFP”) to replace steam generators at the Bruce Nuclear Power Generating Station (the “SGR program”). The purpose of the RFP was to select two design contractors to enter into commercial negotiations with it in order to award Engineering Procurement and Construction contracts (“EPC Contracts”).
[8] There was a very limited field of potential proponents because of the highly specialized nature of the work involved in replacing the generators. The RFP created an obligation to negotiate in good faith. Bruce Power and Bechtel entered into a Letter Agreement to proceed (the “Agreement to Proceed”) on March 15, 2017.
[9] In this litigation Bruce Power argues that Bechtel insisted on significant one-sided revisions to the EPC contracts two days before the EPC Contracts’ required execution date. Bruce Power argues that Bechtel resiled from fundamental terms and eliminated the possibility of successfully concluding the contract. Bruce Power’s claims are grounded in breach of contract, breach of duty of good faith, negligent misrepresentation, inducing breach of contract, and conspiracy.
[10] Bechtel denies Bruce Power’s allegations and states that after the Agreement to Proceed was entered into, it began to perform required work for which it was not paid. It argues further that the deadline Bruce Power set for the completion of negotiations was arbitrary. Bechtel counter-claims for damages for breach of contract, quantum meruit, and unjust enrichment.
[11] On December 8, 2017, Bruce Power issued a Statement of Claim at Toronto (“Toronto action”) naming the same party defendants named in this action. On January 29, 2018, Bruce Power issued the within action at Walkerton (Central West Region) and on January 30, 2018, delivered a Notice of Discontinuance in the Toronto action.
Applicable Legal Principles
[12] Rule 46.01 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 direct how a change of venue motion should proceed. Subsection (2) of Rule 13.1.02 provides:
…[t]he court may, on any party’s motion, make an order transferring 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 give 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 or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and 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.
[13] Paragraphs 47-51 of the Practice Direction provide as follows:
Paragraphs 48-51 of this Practice Direction govern motions to transfer under rule 13.1.02 in the Central East, Central West, Central South and Toronto Regions.
A high volume of requests to transfer civil proceedings to another county, often in another Region, are being received in the Central East, Central West, Central South and Toronto Regions. Counsel frequently seek to transfer a case, on consent. While the transfer may be appropriate in the circumstances of the case, the onus rests with the moving party to satisfy the court that a transfer is desirable the interest of justice, having regard to the factors listed in rule 13.1.02(2)(b). It is not sufficient to bring a transfer motion orally, on consent, or to file a consent for an order to transfer a case to another county under rule 12.1.02.
A motion to transfer a proceeding should be brought at the court location to which the moving party seeks to have the proceeding transferred. The moving party must file a Notice of Motion with a supporting affidavit, as required under rule 13.1.02(2). The moving party’s affidavit must address the factors listed rule 13.1.02(2) (b) and, as part of the relevant matters, must identify the current stage of the proceeding (i.e., whether further motions are anticipated in the proceeding, whether a pre-trial has occurred or is scheduled, and whether mediation has been held) and why the proceeding was originally commenced in the originating county. The affidavit should also address the estimated length is trial, whether it is a jury trial, and the number of parties and counsel.
Counsel are not required to provide affidavit evidence about the availability of judges and court facilities in the other county to satisfy factor (viii) under rule 13.1.02(2). This factor shall be addressed by the Regional Senior Judge in the Region where the motion brought, after consulting with the local administrative Judge or Regional Senior Judge for the other county.
The Regional Senior Judge, or his or her designate, will hear all motions to transfer. To allow Regional Senior Judge to promptly determine all such motions, they shall be brought in writing. Responding parties are strongly encouraged to file and rely exclusively on written submissions to allow the motion to be heard and fully determined in writing. If an oral hearing becomes necessary, the motion shall be heard by teleconference arranged through the Office of the Regional Senior Judge in the Region where the motion is brought. In addition to filing motion material pursuant to the Rules, all parties on a motion to transfer are encouraged to submit an electronic, scanned version of their motion materials, saved as a PDF file and submitted on a USB stick appropriately tagged or marked indicating the court file number. This will facilitate the ability of the Regional Senior Judge to efficiently dispose of these motions, without the delay inherent in physical file transfers.
[14] Subsection (2)(a) does not apply as there is no evidence that a fair hearing cannot be held in Walkerton. The parties agree that the factors set forth in Rule 13.1.02(2)(b) are to be applied holistically and no one of the enumerated factors is more important than the other. These factors are to be examined together and balanced in order to determine whether a transfer is desirable in the interests of justice. [2] The plaintiff has the prima facie right to select the location of trial. [3] The onus rests with the moving party to satisfy the court that the transfer is desirable in the interest of justice, having regard to the Rule 13.1.02(2)(b) factors. [4]
[15] The Rule 13.1.02(2)(b) factors are to be applied equally to the claims made in the main action and counterclaim. [5]
[16] In applying a “holistic approach” it is important to recognize that the balancing of the Rule 13.1.02(2)(b) factors is not a purely numerical or mathematical exercise. This principle is illustrated in the Darteh and Siemens decisions. In each of those cases the court denied the motion to transfer notwithstanding that there were more factors favouring transfer than those favouring the originating jurisdiction.
[17] Furthermore in cases where a transfer was granted, like the result reached on this motion, the number of Rule 13.1.02(2)(b) factors favouring transfer was greater than those favouring the originating jurisdiction. [6]
Analysis — Application of the Rule 13.1.02(2)(b) Factors:
(i) where a substantial part of the events or omissions that gave rise to the claim occurred
[18] Bechtel argues that the key events that make up the factual matrix and upon which the claims are based occurred in Toronto or the US. Bechtel’s internal decision making process took place entirely in the US. There were two negotiation sessions in person in Bruce County, and four in Toronto. Additionally, the Agreement to Proceed was performed in Mississauga. Bechtel submits that this factor favours Toronto.
[19] Bruce Power argues that the events at issue are the RFP and EPC Contracts negotiations, which took place by telephone, videoconference, email, and in-person meetings with one or both parties located in Bruce County, with the exception of a few days of meetings held in Toronto. During the electronic negotiations, Bruce Power’s team was located in Bruce County, while Bechtel’s team was based in the US. Further, there were six days of in-person meetings where all parties were in Bruce County. Bruce Power submits that this factor favours Walkerton.
[20] Both parties frame the events that gave rise to the claim as the negotiation surrounding the RFP, EPC Contracts negotiations, and the Agreement to Proceed. The record confirms that in-person meetings took place in Bruce County on October 26, 2016; January 11 and 12, 2017; and March 7, 8, and 9, 2017. There is a dispute regarding whether or not a meeting of February 15, 2017 was by way of phone or in person.
[21] Meetings in Toronto took place on February 6 and 7, 2017; April 26 and 27, 2017; May 2 and 3, 2017; and June 21, 2017. The remainder of the negotiations took place by telephone, videoconference, and email. There were a similar number of days of negotiations carried out in both Walkerton and Toronto. This factor favours either Walkerton or Toronto and is neutral.
(ii) where a substantial part of the damages were sustained
[22] Bechtel argues that there is no evidence that Bruce Power suffered damages in Bruce County. It submits that where damages consist of loss of money rather than property or physical damage, location tends to be a neutral factor. [7] Bechtel argues further that it also suffered damages for unpaid invoices, and because it has no presence in Bruce County, its damages were sustained elsewhere.
[23] Bruce Power argues that a substantial part, if not all, of the damages were sustained in Bruce County. It submits that its action is for damages arising from Bechtel’s breach of contract and wrongful conduct. Bruce Power’s business is based primarily in Bruce County, and its senior management generally meet and make decisions in Bruce County.
[24] The analysis in Diagnostic Imaging confirms that where the location of damages is not easily ascertainable, such as a loss of money, the damages are presumed to take place where the aggravated party is located. It is acknowledged by Bechtel that Bruce Power is based in Bruce County. BNT Canada, L.P., part of Bechtel, has a registered office in Toronto. Bechtel Power Corporation’s affiant states that he and in-house counsel, based in Reston, Virginia, were primarily responsible for preparing the response to the RFP. Furthermore, Bechtel notes that its approval process for the response to the RFP and the EPC Contracts took place entirely in the US. Given that Bechtel claims damages where it is based, in the US, and Bruce Power claims damages in Bruce County, I find that this factor favours Walkerton.
(iii) where the subject-matter of the proceeding is or was located
[25] Bechtel characterizes the subject matter of the proceeding as the RFP and Agreement to Proceed.
[26] Bruce Power submits that the subject matter of the proceeding is focused on the RFP and EPC Contracts negotiations, for work in respect of the reactor in the SGR Program at the Bruce Site. The Agreement to Proceed involved Bechtel agreeing to carry out certain preliminary works for the Bruce Site.
[27] The RFP, the EPC Contracts negotiations, and the Agreement to Proceed all dealt with the replacement of the steam generators at the Bruce Nuclear Power Generating System. I find that this factor favours Walkerton.
(iv) any local community’s interest in the subject matter of the proceeding
[28] Bechtel argues that the dispute between the parties is purely private and that there is no local interest.
[29] Bruce Power argues that it is one of the largest employers in the region, and local media, municipalities, and residents have an interest in the action and would benefit from it being heard in Walkerton.
[30] This case is about commercial contract negotiations for which there is no demonstrated community interest. This factor favours either Walkerton or Toronto and is neutral.
(v) the convenience of the parties, the witnesses, and the court
[31] Bechtel argues that Toronto is a more convenient location for the parties. It highlights that it has no presence in Bruce County. Bechtel argues that Bruce Power has an office in Toronto and that all of Bruce Power’s partners are based in Toronto or Calgary. It notes that Bruce Power carries on business in Bruce County and Toronto and that its head office is in Bruce County.
[32] Bechtel notes further that all of its fact witnesses are located in the US, with the exception of Hatch engineers based in Mississauga. It speculates that its damages experts will be based in Toronto. It argues that if the action is heard in Walkerton, its witnesses would have to fly to Toronto and then drive several hours to Walkerton, while Bruce Power’s witnesses would have minimal travel time. As a result, they submit that this factor favours Toronto.
[33] Bruce Power argues that the key individuals on Bruce Power’s team involved in issuing the RFP and conducting the EPC Contract negotiations are almost all based in Bruce County, and these individuals are anticipated to be witnesses. Bruce Power argues that its witnesses will be inconvenienced in traveling to Toronto. To the extent that these individuals have had to collect documents, those efforts generally took place in Bruce Power’s office in Bruce County. Bruce Power submits that the location of Bruce Power’s partners are irrelevant and that Bechtel incorrectly categorizes Bruce Power’s team as being based in Toronto when in fact they are based in Bruce County.
[34] Bruce Power further argues that even if both Walkerton and Toronto are convenient for the parties, Bruce Power’s choice of Walkerton should be preferred, and that the test is not which venue is the “better” or “best” choice. [8] Additionally, counsel’s convenience is not a significant factor to consider. [9] As a result, this factor favours Walkerton.
[35] Regarding convenience of the parties and witnesses, both Bechtel and Bruce Power base their arguments in inconvenience resulting from increased travel time. Bechtel does not argue that counsel’s convenience should be considered under this branch of the test.
[36] Most of Bechtel’s witnesses are based in the Washington, DC area. Bruce Power’s witnesses will be less inconvenienced by driving from Bruce County to Toronto than Bechtel’s witnesses will be if they have to fly from DC to Toronto and then drive to Walkerton. This approach is consistent with that taken by the motion judge in Chatterson where “The motion judge was of the view that Hamilton was approximately halfway between Toronto and Kitchener and that this had the effect of balancing the convenience of the parties and the witnesses or, perhaps more precisely, balancing the inconvenience to them.” [10] I find that this factor favours Toronto.
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims
[37] Bechtel has counter-claimed against Bruce Power. Bechtel does not make any submissions on these grounds. Bruce Power highlights that Bechtel’s counterclaim is primarily focused on the Agreement to Proceed and does not refer to events or subject matter involving any locations other than Bruce County. The existence of a counterclaim does not influence the analysis to any appreciable extent. This factor is neutral. [11]
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits
[38] Bechtel argues that 9:30 appointments and case management, either on the Toronto Civil List or Commercial List, will help keep the case on track. Furthermore, Toronto, unlike Walkerton, has case management masters who can deal with motions effectively. Legal fees and disbursements are key considerations in the expense of any proceedings, and counsel’s location should not be disregarded. [12] If the action remains in Walkerton, fees and expenses will be higher, as short attendances would turn into all-day affairs with travel time. Bruce Power argues that the Walkerton Court has ample availability for booking civil motions and trials throughout the remainder of 2018 and into 2019.
[39] As demonstrated in Concept Plastics, the analysis between subclauses (vii) and (viii) “whether judges and court facilities are available at the other county” overlap “in that one of the primary underlying concern [sic] here is how quickly this matter can be brought on for trial, which in turn, involves consideration of the extent to which judicial resources are available to secure the most expeditious determination of the proceedings.” [13] The factors in subclauses (vii) and (viii) are therefore intertwined.
[40] Bechtel further argues that all counsel are located in Toronto, and the legal costs would be significantly higher if the action were heard in Walkerton. Bechtel has also indicated that the experts it intends to call are located in Toronto.
[41] The jurisprudence supports the proposition that legal costs are a relevant consideration under this branch. [14] Increase in litigation costs resulting from increased travel time should be and is a consideration.
[42] I find that the availability of case management judges and masters is a relevant consideration. Further, while the matter is not guaranteed to be placed on the Commercial List, its potential availability is a relevant consideration. This factor favours Toronto.
(viii) whether judges and court facilities are available at the other county
[43] Paragraph 50 of the Practice Direction provides that counsel are not required to provide affidavit evidence about the availability of judges and court facilities in the other county to satisfy factor (viii) under Rule 13.1.02(2)(b). This factor shall be addressed by the Regional Senior Judge in the Region where the motion is brought, after consulting with the local administrative judge or Regional Senior Judge for the other county.
[44] In accordance with the Practice Direction I am advised by the Regional Senior Judge in the Central West Region that there is no judge chambered in Walkerton. All of the judges in Grey/Bruce Counties are chambered in Owen Sound. There is currently one judge chambered in Owen Sound. There is a rotating judge sitting in Walkerton/Owen Sound every week, however the same judge could not be assigned to provide hands-on case management to a particular action. The Walkerton courthouse has two courtrooms. If the action remains in Walkerton the RSJ would likely direct that the trial be conducted in Owen Sound given the facilities available there. I therefore find that this factor favours Toronto.
(ix) any other relevant factor
[45] Bruce Power argues that the fact that it initially commenced the action in Toronto should not affect the analysis. It also notes that case law supports the plaintiff’s right to commence an action at or to transfer an action to the court of its choice. Bechtel argues that because Bruce Power selected Toronto as its venue for the action at first instance, both parties have recognized that Toronto is the most appropriate venue. This issuance of a prior proceeding as it relates to the determination to be made on this motion is neutral.
Conclusion
[46] The three factors that favour Toronto are: (v) – the convenience of the parties, the witnesses, and the court, (vii) – any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits, and (viii) – whether judges and court facilities are available at the other county. The two factors that favour Walkerton are (ii) – where a substantial part of the damages were sustained and (iii) – where the subject-matter of the proceeding is or was located. The neutral factors are (i) – where a substantial part of the events or omissions that gave rise to the claim occurred, (iv) – any local community’s interest in the subject matter of the proceeding, (vi) – whether there are counterclaims, crossclaims, or third or subsequent party claims, and (ix) – any other relevant factor.
[47] There is a presumption that the plaintiff has the right to select the location of trial. After balancing and applying the Rule 13.1.02(2)(b) factors holistically, I find that Bechtel has met the onus of demonstrating that Toronto is “significantly better” and that it is in the interest of justice to transfer this proceeding from Walkerton to Toronto. I order that this action be transferred from Walkerton (Central West Region) to the Toronto Region.
[48] The parties are at liberty to request that this action be transferred to the Commercial List in accordance with Consolidated Practice Direction Concerning the Commercial List.
[49] I wish to thank counsel for their written submissions, which were of great assistance to the court. I encourage the parties to agree on the costs of this motion. If they cannot then Bechtel is to deliver their written cost submissions of no more than two pages by October 31, 2018. Bruce Power is to deliver their responding submissions of the same length by November 7, 2018. Any reply is to be delivered by November 11, 2018.
Released: October 23, 2018 Firestone J.
Footnotes
[1] Effective July 1, 2014.
[2] Darteh v. Gross, 2017 ONSC 2479, at paras. 8-9; Hilson v. 1336365 Alberta Ltd, 2017 ONSC 4990, at paras. 12-13; Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Div. Ct.), at paras. 22 and 29; Siemens Canada v. Ottawa (City) (2008), 93 O.R. (3d) 220 (S.C.), at para. 25.
[3] Cass v. WesternOne Inc., 2015 ONSC 7313, at para. 6; Chatterson, at para. 29; Concept Plastics Ltd. v. Plasponics Inc., 2016 ONSC 2493, at para. 5; Darteh, at para. 8; Diagnostic Imaging International Corp. v. Quinte Magnetic Resonance Imaging Inc., 2010 ONSC 1420, 69 B.L.R. (4th) 230, at para. 47; Dubois v. Dubois, 2015 ONSC 5734, at para. 12; Hallman v. Pure Spousal Trust (2009), 52 E.T.R. (3d) 29 (Ont. S.C.), at para. 23.
[4] Practice Direction, at 48.
[5] Diagnostic Imaging, at para. 49; Siemens, at para. 40; Concept Plastics, at paras. 37-39.
[6] Cass; Diagnostic Imaging; Durham Area Citizens for Endangered Species v. Ontario (Attorney General), 2014 ONSC 7167, 330 O.A.C. 61 (Div. Ct.); Lafrance v. Monarch Corp., 2015 ONSC 5624, 64 C.L.R. (4th) 169.
[7] Diagnostic Imaging, at para. 60.
[8] Hallman, at para. 27, citing Siemens, at para. 21.
[9] Durham, at para. 60.
[10] Chatterson, at para. 17.
[11] Concept Plastics, at para. 51.
[12] Hallman, at paras. 61-62.
[13] Concept Plastics, at para. 62.
[14] Hallman, at para. 64.
