Court File and Parties

LONDON COURT FILE NO.: 1282/18 TORONTO COURT FILE NO.: CV-180000-1282-00-0T DATE: 20181026

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROYAL BANK OF CANADA, Plaintiff/Defendant by Counterclaim AND: MULTIMEDIA LIGHTING and ELECTRIC LTD., HOMETOWN ELECTRIC PRODUCTS CORPORATION and DOUGLAS HISHON, Defendants/Plaintiffs by Counterclaim

BEFORE: Justice Stephen Firestone

COUNSEL: Timothy C. Hogan, for the Plaintiff/Defendant by Counterclaim Multimedia Lighting and Electric Ltd., Self-Represented Hometown Electric Products Corporation, Self-Represented Douglas Hishon, Self-Represented

HEARD: In Writing

Endorsement

[1] The defendants bring this motion for an order transferring this action from London (Southwest Region) to the Toronto Region. The plaintiff opposes the motion.

[2] Paragraphs 47-51 of the Consolidated Provincial Practice Direction at Part III (B) effective July 1, 2014 (“Practice Direction”) deal with the transfer of 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. 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.

[3] This action is for repayment of sums the plaintiffs allege are owing in relation to a credit line and guarantee.

[4] The plaintiff has brought a summary judgment motion returnable October 30, 2018. This motion has been adjourned twice.

[5] Rule 46.01 of the Rules of Civil Procedure 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 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, cross-claims, or third or 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.

[6] 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.

[7] 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.

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

[9] The plaintiff is a chartered bank operating from branches through Canada. Defendant’s counsel is located at London.

[10] The defendant’s Multimedia Lighting and Electric Ltd. and Hometown Electric Products Corporation are located and carry on business in Toronto. The defendant Douglas Hishon resides in Toronto.

[11] In light of the pending summary judgment motion, which has been adjourned twice, I order that this action remain in London for the hearing of the summary judgment motion returnable October 30, 2018 only. Following the disposition of that motion, this action is to be transferred to Toronto for determination of any remaining issues for trial.

[12] Costs of this motion are reserved to the summary judgment motion judge.

Firestone J. Date: October 26, 2018