Court File and Parties

Court File No.: CV-17-461900 Date: 2018-01-30 Superior Court of Justice - Ontario

Re: Sneha Patel, Applicant And: Square One Physiotherapy Inc. also known as 2258258 Ontario Inc. also known as Square 1 Physiotherapy Inc., Sheila Arambulo and Arti Shah, Respondents

Before: Mr. Justice Firestone

Counsel: Domenic Saverino, for the Applicant Leona Kung, for the Respondents

Heard: In Writing

Endorsement

[1] The respondents bring this motion for an order transferring this application, which was issued in Brampton (“the Brampton Application”), from the Central West Region (Brampton) to the Toronto Region pursuant to 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The Applicant opposes the motion and requests that Application No. CV-17-586900 subsequently issued in Toronto (the “Toronto Application”) be transferred from Toronto to Brampton.

[2] The Consolidated Provincial Practice Direction provides the procedure to be followed when requesting the transfer of a civil proceeding in the Central East, Central West, Central South and Toronto Regions pursuant to Rule 13.1.02. Pursuant to the Practice Direction, motions to transfer are to 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.

Factual Background

[3] The Brampton application was issued on October 24, 2017. The Toronto application was subsequently issued on November 21, 2017. These applications share a common factual matrix and are related to the issues in dispute in Brampton Action No. CV-14-4995-00 issued on or about November 5, 2014 (the Brampton Action”). A pre-trial in the Brampton Action is scheduled for August 24, 2018.

[4] The Brampton application had an original return date of December 22, 2017. Following service of that application counsel for the respondent advised that the hearing of the application would likely take two hours or more. The parties agreed to adjourn that application to July 11, 2018.

[5] The Toronto application has a return date of February 1, 2018. The Brampton and Toronto applications are based on the same factual matrix and seek virtually the same relief.

Analysis

[6] Rule 13.1.02(2) 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 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.

[7] The application of rule 13.1.02 is fact specific and must include a balancing of all factors to ensure that any transfer granted is desirable and in the interest of justice: see Gould v. BMO Nesbitt Burns Inc. (2006), 2006 CanLII 63726 (ON SC), 81 O.R. (3d) 695 (Ont. S.C.J.) at para. 18. 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; 014 ONSC 1897 (Div. Ct.) at para.22; Hallman v. Pure Spousal Trust (Trustee of), 2009 CanLII 51192 (ON SC), 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para.28.

[8] I have considered the submissions of counsel and applied the factors set forth in rule 13.1.02(2).

[9] The Brampton action was commenced in 2014 and is ongoing. Prior to the pre-trial being fixed there was no motion brought to transfer that action from Brampton to Toronto. The Brampton application was issued prior to the Toronto application. Both applications are based on the same factual matrix and seek virtually the same relief. The Brampton action is directly related to the Brampton and Toronto applications.

[10] It is in the interests of justice to have both applications heard at the same time in order to avoid duplicative proceedings and inconsistent findings and to secure the just, most expeditious and least expensive determination of the proceeding on its merits.

[11] The respondent Square One Physiotherapy Inc. carries on business in Mississauga, Ontario. One of the name directors resides in Mississauga. The events giving rise to these proceedings occurred in Peel region. The applicant currently resides at Windsor Ontario. She previously resided in Mississauga. The only connection to Toronto is that respondents’ counsel is located there.

[12] Based on the procedural history and record before me I am not satisfied, after applying the relevant factors, that there is urgency and/or prejudice (which cannot be compensated for by costs) which would justify transferring the Brampton application or action to Toronto. The respondents’ motion is therefore dismissed.

[13] For the reasons set forth at para. 10 above I direct that the application date of February 1, 2018 in this matter be vacated. I further direct that a motion to transfer the Toronto application to Brampton be brought in accordance with the Consolidated Provincial Practice Direction to the Regional Senior or Judge in that jurisdiction.

[14] I encourage the parties to agree on the issue of costs. If they cannot the applicant is to provide their written cost submissions of no more than one page in length by February 6, 2018. The Respondents are to provide their cost submissions of the same length by February 12, 2018. Any reply by the applicant is to be provided by February 14, 2018.

Firestone J.

Date: January 30, 2018