COURT FILE NO.: 18-75934
DATE: 2018/11/16
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN
Westboro Management Ltd. as general partner of Westboro Mortgage Investment LLP
Plaintiff/Responding Party
and
The Co-Operators General Insurance Company
Defendant/Moving Party
Counsel: Karin M. Pagé and Trenton C. McBain, Counsel for the Plaintiff/Responding Party Mitchell K. Kitagawa, Counsel for the Defendant/Moving Party
HEARD: October 30th, 2018 in Ottawa, ON
RULING ON MOTION FOR SUMMARY JUDGMENT
LALIBERTE, J.
Introduction
[1] On March 21st, 2018, the Plaintiff/Responding Party (hereinafter referred to as Westboro) commenced an action in the Ottawa jurisdiction against the Defendant/Moving Party (hereinafter referred to as Co-Operators) claiming damages in the amount of $288,388.24. The claim is based on alleged negligent distribution of insurance money which is said to have detrimentally affected its secured interest in property destroyed by fire on November 29th, 2016.
[2] Co-Operators has brought a Motion for summary judgment and alternatively, a transfer of the proceeding to the Kingston jurisdiction.
[3] Both reliefs claimed are opposed by Westboro.
[4] Properly articulated, the issues for the Court are whether Co-Operators is entitled to a summary judgment dismissing the action and, if not, whether the proceeding should be transferred to the Kingston jurisdiction.
The Facts
[5] For the most part, the facts relevant to the issues raised in this Motion are not disputed.
[6] Co-Operators is relying on the affidavits of claim representative Philip Rogers dated June 19th, 2018 and October 25th, 2018.
[7] Westboro has filed the sworn affidavits of its president Ross McHardy sworn on October 15th, 2018 and October 24th, 2018.
[8] The undisputed facts can be summarized as follows:
2138658 Ontario Ltd. operated a residential seniors’ care centre located in Seeley’s Bay, Ontario; its president was Ronald Rudd;
this property was insured with Co-Operators under policy 003492314;
the policy included the following Standard Mortgage Clause:
Breach of Conditions by Mortgagor, Owner or Occupant
- This insurance and every documented renewal thereof – as to the interest of the Mortgagee only therein – is and shall be in force notwithstanding any act, neglect, omission or misrepresentation attributable to the Mortgagor, owner or occupant of the property insured, including transfer of interest, any vacancy or non-occupancy, or the occupation of the property for purposes more hazardous than specified in the description of the risk.
Westboro was the first mortgagee on the property for an amount of $650,000.00; it also had an Assignment of Rents registered on title; a General Security Agreement had been registered under the Personal Property Security Act, R.S.O. 1990, c. P.10 in its favour;
2138658 Ontario Ltd. was struggling financially at the relevant time; in April 2016, it stopped making mortgage payments to Westboro; this resulted in the issuance of Notices of sale under the Mortgages Act, R.S.O. 1990, c. M.40, by Westboro on June 8th, 2016 and on December 7th, 2016;
on November 29th, 2016, there was a fire in the building on the property resulting in the residents being removed from the home and staying in an hotel and another seniors’ residence;
on December 1st, 2016, Westboro contacted Co-Operators to confirm that it was listed as a loss payee;
on December 5th, 2016, Co-Operators contacted Westboro with a view of getting its direction that proceed monies could be paid directly to the contractor Paul Davis who was concerned that he would not be paid by reason of the mortgages on the property; Philip Rogers’ notes of December 5th, 2016 indicate that “…Westboro Mortgage Investment Corp. has directed payments to be made solely to PDS but wants copy of work performed sent to them…”;
on March 22nd, 2017, Westboro requested and obtained from Co-Operators a spreadsheet listing the insurance monies it had paid; it is on that date that Westboro first discovered that payments had been made to persons other than the contractor Paul Davis, including the president of 2138658, Ronald Rudd; the list of payments sent by Co-Operators is found at Tab H of Ross McHardy’s affidavit;
Westboro’s action against Co-Operators is predicated on these payments; the claim is that Co-Operators was negligent in having paid out the insurance proceeds, of an amount of at least $288,388.24, to persons other than the contractor Paul Davis;
following an investigation by the Retirement Home Regulatory Authority into allegations of financial abuse and mismanagement, Ronald Rudd had his license to operate a retirement home revoked effective April 21st, 2017; Westboro took control and hired a professional manager to assume the operation of the retirement home as mortgage in possession from April 21st, 2017 until the property was sold on February 1st, 2018;
on February 1st, 2018, Westboro sold the property for $900,000.00, with a seller take backs mortgage in the amount of $845,000.00.
[9] Westboro relies on the following facts:
as a result of Co-Operators actions, it lost control of how the insurance money was being applied and was unable to protect its secured interest in the property and the retirement home;
it took numerous steps to establish and maintain its comprehensive security interests in the property which was essential given the claims of other competing creditors;
on October 16th, 2015, the Canada Revenue Agency registered tax liens on the property in the amount of $145,668.98 with respect to 2138658 Ontario Ltd.’s indebtness to the Minister of National Revenue for income tax and other amounts owing.
[10] Co-Operators notes that it did pay monies to persons other than the contractor Paul Davis:
other cheques were issued to pay for repairs to the building directly to the contractors;
2138658 Ontario Ltd. was paid for two items related to the building namely, $12,708.78 for the actual cash value of the flooring that was lost and $1,486.59 to help facilitate the return of the seniors to their home by installing shelving in the stock room;
$135,127.45 to hotels and another seniors’ residence to where the seniors were relocated;
Cheques were made payable to the insured for its business (not the building) under a Commercial Advantage Endorsement part of the policy; this includes loss of rental income;
The remaining cheques paid on the file were for costs involved in investigating the loss.
Position of the Parties
Co-Operators
[11] Co-Operators is seeking a summary judgment dismissing this action on the basis that Westboro has missed the one (1) year limitation period for commencing an action and/or because it has suffered no damages. In the alternative, it argues that the proceeding be transferred to the jurisdiction in Kingston.
[12] The argument in regards to the one (1) year limitation period can be summarized as follows:
as mortgagee, Westboro has a contract of insurance with Co-Operators and thus, their relationship is contractual in nature, the action is framed in negligence in an effort to avoid the limitation period in the contract;
Westboro is bound by the terms of the policy which provides action or proceeding against the insurer for the recovery of any claim shall be commenced within one year after the loss or damage occurs;
Since the fire occurred on November 29th, 2016, and the action was commenced by way of Notice of action on March 21st, 2018, the one (1) year limitation had expired and therefore, the action should be dismissed summarily.
[13] It also maintains that Westboro has suffered no damage:
the money claimed by Westboro was used to repair the property it later seized and sold; as such, it did not suffer any damages;
as part of the foreclosure and seizure of the property, Westboro took possession of the repairs that were performed in the same property;
because the building did not require repairs, it was sold by Westboro at a higher price than it would have obtained if the repairs were not completed; thus, it suffered no damages as it received the benefit of the repairs paid by Co-Operators.
[14] Finally, it argues that the following considerations favour a transfer to the jurisdiction in Kingston:
the property is located closer to Kingston;
the witnesses are located in the Kingston area;
the alleges damages were sustained in the Kingston area;
the Kingston jurisdiction has better access to Judges and Court facilities which will lead to more expeditious and cost-effective determination of the proceeding on its merits.
Westboro
[15] Westboro’s position is that there are several triable issues that make this matter inappropriate for summary disposition. Furthermore, the factual record before the Court is insufficient. The following points are raised in support of its position:
Co-Operators has failed to produce an authentic copy of the insurance policy; it has provided no more than excerpts of the Standard Mortgage Clause and Statutory Declarations in support of its arguments; it has therefore failed to put its best foot forward by not providing a complete evidentiary record to the Court; it should not be entitled to rely on a limitation period contained in an insurance policy that has not been put into evidence;
Westboro commenced the action within one year of discovering its loss; its loss occurred on the date it discovered payments of insurance proceeds were made to parties other than Paul Davis, which was March 22nd, 2017 and not the date of the fire; it had no factual knowledge of these payments until March 22nd, 2017;
the date of the fire is not relevant in this action since the loss arose when Co-Operators failed to satisfy its legal obligation under the policy;
the record does not enable a summary judgment motion judge to make the required factual findings;
if the Court finds that the one (1) year limitation applies, Westboro should be entitled to rely on the principle of promissory estoppel; it was Co-Operators’ action that delayed the discovery of Westboro’s loss and thus, it should not be able to assert a limitation defence;
Westboro’s insurable interest is in dispute and cannot be summarily accounted for as proposed by Co-Operators; its interest in the property extends beyond the physical building by reason of the registered General Security Agreement and Registered Assignment of Rents;
a trial is required to determine whether Co-Operators knew or ought to have known about the extent of its insurable interest.
[16] Westboro maintains that the proceeding should remain in Ottawa:
its witnesses reside in Ottawa;
the lawyers for both parties are situated in Ottawa; a transfer would entail travel costs of the parties’ counsel;
a party has a fundamental right under the Rules to commence a proceeding in any venue so long as a statute or rule does not specify a place of commencement;
Westboro’s choice of Ottawa as the venue is reasonable and Kingston has not been shown by Co-Operators to be significantly better.
The Law
[17] In deciding the issues in this Motion, the Court is guided by the following relevant principles:
Summary Judgment
The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
- Rule 1.04(1)
In applying these rules, the Court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
- Rule 1.04(1.1)
A Defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
- Rule 20.01(3)
The Court shall grant summary judgment if:
(a) The Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
- Rule 20.04(1)
In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers, unless it is in the interest of justice for such powers to be exercised at a trial:
Weighing the evidence;
Evaluating the credibility of a deponent:
Drawing any reasonable inference from the evidence;
Rule 20.04(2.1).
A judge may, for the purposes of exercising any of the powers, order that oral evidence be presented by one or more parties;
- Rule 20.04(2.2)
Where the Court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the Court may order a trial of that issue or grant judgment with a reference to determine the amount;
- Rule 20.04(3)
Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant judgment accordingly.
- Rule 20.04(4)
As stated by the Supreme Court of Canada in Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87:
- There is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system;
− para. 2
- Summary judgment rules must be interpreted broadly, favouring proportionately and fair access to the affordable, timely and just adjudication of claims;
− para. 5
- There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a Motion for Summary Judgment; this will be the case when the process:
(1)Allows the judge to make the necessary findings of fact;
(2)Allows the judge to apply the law to the facts, and
(3) Is a proportionate, more expeditious and less expensive means to achieve a just result.
− para. 49
- A process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute;
− para. 50
- the “interest of justice” inquiry goes further, and also considers the consequences of the Motion in the content of the litigation as a whole; for example: if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant Summary Judgment against a single defendant; such partial Summary Judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.
− para. 60.
Transfer to Another County
− Rule 13.1.02(2) of the Rules of Civil Procedure provides that the 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 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.
− The plaintiff has a presumptive entitlement to commence the action where the plaintiff sees fit; a party has a fundamental right under the Rules to commence a proceeding in any court office, in any county, so long as a statute or rule does not specify a place of commencement.
− Siemans Canada Ltd. v. Ottawa (City) 2008 48152 (ON SC), [2008] O.J. no. 3740
− Paul’s Hauling Ltd. v. Ontario (Minister of Transportation) [2011] O.J. no. 3447
− Guenette v. Furness 2014 ONSC 4593, [2014] O.J. no. 3809
− Chatterson v. M&M Meat Shops Ltd. [2014] O.J. no. 1436
− The party seeking a transfer bears the onus of convincing the Court that the transfer sought is desirable in the interest of justice, having regard to the enumerated factors; it must be established that the proposed place of trial is not only better but it is “significantly better” than the plaintiff’s choice of trial location.
− Siemans Canada Ltd. v. Ottawa (City) op. cit.
− Guenette v. Furness [2014] op. cit.
− The party bringing such a motion should file evidence addressing all factors.
− Foster v. Johnston [2009] O.J. no. 3243
− The Court is to take a holistic view of the factors; the analysis is fact specific and must include a balancing of all factors; none of the enumerated factors are more important than the other; all of those factors and any other factors relevant to the location of the action must be balanced to ensure that a proceeding is transferred from the county where it was commenced only if such transfer is desirable in the interest of justice
− Gould v. BMO Nesbitt Burns Inc. [2006] O.J. no. 2707
− Chatterson v. M&M Meat Shops Ltd. [2014] op. cit.
− Royal Bank of Canada v. Multimedia Lighting and Electric Ltd. [2018] O.J. no. 5612
Discussion
One Year Limitation Period
[18] Having considered all of the circumstances and the relevant principles, the Court finds this action cannot be summarily dismissed by reason of the one (1) year limitation period set out in the policy. Fundamental to the Court’s finding is the notion that the standard mortgage clause therein serves to create a distinct contract between the insurer and the mortgagee from which liability may arise, over and above the proceeds payable under the policy, based on the dealings and actions of the insurer.
[19] The constitution of this second and separate insurance contract is well established in law and, in fact, not disputed by Co-Operators. The basis for same was articulated as follows by the Supreme Court of Canada in National Bank of Greece (Canada) v. Katsikonouris, 1990 92 (SCC), [1990] 2 S.C.R. 1029, at para. 24:
“24. In summary, when the standard mortgage clause is interpreted in light of the settled principles that govern the construction of insurance contracts, there can be no doubt that the insurer, by virtue of this clause, is representing to the mortgagee that a separate and distinct contract exists between them, and that the validity of this independent contract depends solely on the course of action between the mortgagee and the insurer”.
[20] It is also trite that an insurance contract imposes a duty on the insurer on how it administers claims under a policy. This duty has been expressed as follows:
“25. A contract of insurance between an insurer and its insured is one of utmost good faith. Although the insurer is not a fiduciary, it holds a position of power over an insured; conversely, the insured is in a vulnerable position, entirely dependent on the insurer when a loss occurs. For these reasons, in every insurance contract an insurer has an implied obligation to deal with the claims of its insureds in good faith. That obligation to act in good faith is separate from the insurer’s obligation to compensate its insured for a loss covered by the policy. An action for dealing with an insurance claim in bad faith is different from an action on the policy for damages for the insured loss. In other words, breach of an insurer’s obligation to act in good faith is a separate or independent wrong from the wrong for which compensation is paid”.
- Whiten v. Pilot Insurance 1999 3051 (ON CA), [1999] O.J. no. 237
“33. A breach of the duty of good faith may result in an award of damages which is distinct from the proceeds payable under the policy for the insured loss and which are not restricted by the limits of the policy”.
- 702535 Ontario Inc. v. Lloyd’s London, Non-Marine Underwriters 2000 5684 (ON CA), [2000] O.J. no. 866.
“… an insurer has a duty of good faith and fair dealing throughout its adjudication of claims…”
- Kang v. Sun Life Assurance of Canada 2013 ONCA 118, [2013] O.J. no. 768.
[21] The undisputed facts in this Motion reveal that on December 5th, 2016, Westboro directed payments to be made solely to the contractor Paul Davis for repairs to the building. It was also agreed that Co-Operators would send copy of the work performed to Westboro. Again, the undisputed evidence is that payments were made to individuals other than the contractor Paul Davis as agreed upon without Westboro’s consent and knowledge.
[22] The Court’s view is that, at a minimum, these dealings and actions raise genuine issues requiring a trial on how Co-Operators dealt with Westboro in the adjudication of the claim under the policy. This conduct certainly raises the probability of a distinct cause of action which is not restricted by the limits in the policy, including the one (1) year limitation period.
[23] Section 6 of the Mortgages Act makes it clear that a mortgagee has the right to elect whether it will have the property restored or apply the cost of repairs in reduction of the mortgage debt. It reads as follows:
6 (1) All money payable to a mortgagor on an insurance of the mortgaged property, including effects, whether affixed to the freehold or not, being or forming part thereof, shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.
(2) Without prejudice to any obligation to the contrary imposed by law or by special contract, a mortgagee may require that all money received on an insurance of the mortgaged property be applied in or towards the discharge of the money due under the mortgagee’s mortgage.
[24] As stated by Justice Kershman in Bossio v. Nutok Corp. [2015] no. 933, at para. 177:
“177… The case law is clear that a mortgagee has the right to elect how the proceeds of the insurance policy on the mortgaged premises are to be applied to the extent of their interest…”
[25] The end result is that the evidentiary record in this motion discloses a genuine issue requiring a trial as to whether the insurer by its conduct, has pre-empted the mortgagee’s right to receive and allocate the insurance proceeds in the first place.
[26] This in turn probably raises a cause of action not restricted by the terms of the policy as it stems from the administration of a claim under the policy.
[27] As a separate claim, it is probably not covered by the one (1) year limitation period set out in the policy. It is more likely governed by sec. 4 of the Limitations Act, S.O. 2002, c. 24, Sched. B, and the discoverability rule which was articulated as follows in Smyth v. Waterfall et. al. 2000 16880 (ON CA), [2000] O.J. no. 3494:
“The discoverability rule is a rule of fairness which provides that a limitation period does not begin to run against a plaintiff until he or she knows or ought reasonably to know by the exercise of due diligence, the fact or facts upon which his or her claim is based”.
[28] While there may be an issue, as argued by Co-Operators, as to whether Westboro acted diligently in not taking steps to find out how the insurance proceeds were being managed, this does not detract from the facts that the December 5th, 2016 agreement provided for payments to be made solely to Paul Davis and for an accounting to be sent. The undisputed fact is that this accounting was disclosed to Westboro on March 22nd, 2017 after the distribution to others, including the mortgagor. At a minimum, there is a genuine issue as to whether the limitation period was triggered on March 22nd, 2017. If that is the case, then the March 21st, 2018 action was commenced within the prescribed period of two (2) years.
Whether Westboro has suffered damages
[29] In regards to the issue of whether Westboro suffered any damages, the Court finds that it is unable to reach a fair and just determination on the merits through this motion. It is not confident that the evidentiary record reveals the necessary facts allowing for the application of the relevant legal principles so as to resolve the dispute. There is a genuine issue requiring a trial. A trial cannot be avoided on the issue of damages, if any, through the Court’s powers to weigh the evidence, evaluate the credibility of deponents and draw reasonable inferences from the evidence.
[30] This conclusion is based on the cumulative effect of the following considerations:
While it can be argued that Westboro was not deprived of its sec. 6 of the Mortgages Act election through its limited consent of December 5th, 2016, it was ultimately deprived of the ability to decide how the insurance proceeds were to be distributed. As such, there is a genuine issue as to whether or not the losses sustained by Westboro are connected to its inability to maintain control over the insurance proceeds.
The affidavit evidence of Ross McHardy confirms that Westboro held a General Security Agreement over the Retirement Home’s inventory, equipment, accounts and other forms of collateral. It also held an Assignment of Rents which was registered on title.
The Court’s view is that Westboro’s claim that these provide an interest in the insurance proceeds beyond the physical building is not without factual and legal merit. A decision on this issue requires a fuller evidentiary record and more comprehensive submissions.
In his June 19th, 2018 affidavit, Philip Rogers states that cheques were made payable to the insured for its business (not the building under the Commercial Advantage Endorsement part of the policy). These included payments for “loss of rental value” and “loss of rental income”.
Ross McHardy’s evidence is that the insured/mortgagor stopped making payments on the mortgage in April 2016 which resulted in the issuance of Notices of Sale under the Mortgage on June 28th, 2016 and December 7th, 2016.
Westboro’s position finds support in the following Ontario Court of Appeal decisions:
- Bank of Montreal v. Lumbermens Mutual Casualty Co. [1982] O.J. no. 135
− the plaintiff bank held a floating charge on all of the property assets and undertaking of the insured; there was a fire and the bank claimed under the policy relying on the Standard Mortgage Clause;
− the insurer argued that the bank was not a “mortgagee”;
− the Ontario Court of Appeal held as follows at para. 6:
“6. In this Court it was contended that the respondent was not a mortgagee and so was not entitled to claim under the policy. It was said that the issue was novel as there were no reported cases which dealt directly with it. In our opinion, the Bank was a mortgagee within the meaning of the insurance policy. The holder of a floating charge is an equitable mortgagee…a floating charge is a floating mortgage applying to every item comprised in a security…”
- Zurich Insurance Co. and Troy Woodworking Ltd. [1984] O.J. no. 3113
− there was a fire; the bank’s claim for insurance proceeds was based on a demand debenture on all of the insured’s present and future assets, a general assignment of book debts and a security agreement by which it granted to the bank a security interest in described collateral, including present and future choses in action;
− the appeal was concerned with the part of the insurance money that was payable for business interruption, as to which the bank and the Department of National Revenue each claimed priority;
− the Ontario Court of Appeal ruled in favor of the bank and stated the following:
“4. The effect of these several security instruments was therefore to create a present equitable charge on existing assets, and on future assets as soon as they come into being. That equitable charge remained dormant so long as the security remained floating, but became a specific or fixed charge on all existing assets as soon as the floating charge crystalized.
12… The order below should be varied to provide that all the insurance money, which was paid into court, should be paid out to the Bank of Nova Scotia…”
- The Court is also concerned with the issues arising out of the production of the insurance policy by Co-Operators. The three (3) areas of concern are as follows:
(i) the fact that counsel for Westboro had requested a copy of the policy and that same was produced by Co-Operators on the eve of the hearing of this Motion through Philip Rogers’ affidavit dated October 24th, 2018; the Court is mindful of Philip Rogers’ explanation that he was unaware that it had not produced same;
(ii) the fact that the copy which was produced as Exhibit “A” to the said affidavit suggests that there are 21 pages to the policy and that pages 1 to 15 of 21 were disclosed; the Court is mindful of Mr. Rogers’ explanation that “the policy page numbers is incorrect. There are only 15 pages to this policy’;
(iii) the fact that the “Commercial Advantage Endorsement” referred to by Philip Rogers as the justification for the payments to the mortgager for “loss of rental income”, has not been produced in this Motion; as already discussed, there is, at a minimum, a genuine issue as to whether or not these proceeds should have been paid to Co-Operators in light of its comprehensive secured interests.
This late and partial disclosure of relevant material impacts on the Court’s ability to resolve the disputes in a summary fashion as sought by Co-Operators.
It is also found to impede on Westboro’s ability to “put its best foot forward” as required in such motions.
While the Court in Cole v. Hamilton (City), 1999 14820 (ON SC), [1999] O.J. no. 1783 was dealing with the need for the production of an affidavit of documents prior to the hearing of a motion for summary judgment (which is likely no longer required – see Fehr v. Sun Life Assurance Company of Canada, 2014 ONSC 2183, [2014] O.J. no. 1703), Justice Cumming’s reasoning remains sound:
“3… A party against whom there is a motion for summary judgment must be able to put forward all relevant evidence in defending the motion…
- To preclude the plaintiffs from a production of the defendants’ documents prior to the hearing of the summary motion would,… mean that the plaintiffs could not put their best foot forward in defending the motion for they would be uncertain as to what evidence might have been gained through production…
8…The plaintiffs, as with any other person, have the right to be able to put their best foot forward in defending a motion for summary judgment by ascertaining all relevant evidence in support of their position…”
Transfer to Kingston Jurisdiction
[31] The Court is not convinced that a transfer of this proceeding from Ottawa to Kingston is desirable in the interest of justice. Co-Operators has not met its burden of establishing that the proposed place of trial is not only better but it is significantly better than Westboro’s choice of trial location.
[32] In arriving at this conclusion, the Court has weighed and considered the following:
− Westboro’s presumptive entitlement to commence the action where it saw fit; this is described as a “fundamental right” which will not be interfered with unless there are compelling reasons;
− the following factors are found to favor a transfer to Kingston:
a substantial part of the events or omissions occurred in the Kingston area;
the subject-matter of the proceeding is in Kingston.
− the following factors do not favor a transfer to Kingston:
there is no evidence of a local community interest in this litigation;
the damages claimed are based on financial losses which can be linked to Ottawa where Westboro operates;
− there is no significant advantages or disadvantages linked to Ottawa or Kingston with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits:
witnesses for Co-Operators reside in the Kingston area while the witnesses for Westboro reside in the Ottawa area;
both counsel practice in Ottawa;
there is no evidence to support the notion that this proceeding would be dealt with more justly and/or expeditiously in Kingston.
− Judges and court facilities are available in both jurisdictions; Ottawa and Kingston are part of the East Region.
[33] A holistic view of the relevant factors leads the Court to a finding that the transfer sought by Co-Operators is not desirable in the interest of justice. The Kingston jurisdiction has not been shown to be “significantly better” than the Ottawa jurisdiction, which is where Westboro chose to commence the proceeding.
Conclusion
[34] Co-Operators’ motion for summary judgment and a transfer from Ottawa to Kingston is therefore dismissed for the reasons set out in this ruling.
[35] The parties are asked to try and resolve the question of costs for this motion. If they are unable to do so, they may file written submissions of no more than five (5) pages in addition to bills of costs. These submissions are to be served and filed with the Court on or before December 14th, 2018.
COURT FILE NO.: 18-75934
DATE: 2018/11/16
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN
Westboro Management Ltd. as general partner of Westboro Mortgage Investment LLP
Plaintiff/Responding Party
and
The Co-Operators General Insurance Company
Defendant/Moving Party
RULING ON MOTION FOR SUMMARY JUDGMENT
Justice R. Laliberte
Released: 2018/11/16