Court File and Parties
COURT FILE NO.: CV-18-134412-00 DATE: 20181204 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SMARTCENTRES MANAGEMENT INC. and NORTH PARK SHOPPING CENTRES LIMITED, Plaintiffs AND: CHUBB INSURANCE COMPANY OF CANADA, Defendant
BEFORE: Mr. Justice Stephen E. Firestone
COUNSEL: Sheila Block and Irfan Kara, for the Plaintiffs Paul Tushinski and Eric J. Adams, for the Defendant
HEARD: In Writing
Endorsement
[1] The defendant Chubb Insurance Company of Canada (“Chubb”) brings this motion for an order transferring this action (“North Park action”) from the Central East Region (Newmarket) 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”). 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” effective July 1, 2014, is applicable.
[2] The plaintiffs Smartcentres Management Inc. and North Park Shopping Centres Limited (“Smartcentres”) oppose the motion to transfer.
[3] 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.
[4] In this action, Smartcentres seeks reimbursement of remediation costs regarding the North Park Property located in the City of Toronto pursuant to an environmental site liability policy issued by Chubb.
[5] Chubb has advised that if this Newmarket action is transferred to Toronto it intends to seek an order for trial together or one after the other with Toronto action CV-15-527390 (“Leaside action”) currently fixed for a ten-day trial commencing January 28, 2019. Smartcentres has advised that it will oppose such motion, in part, on the basis that such order would, given the stage of the North Park action, necessitate a last-minute adjournment of the fixed trial date in the Leaside action.
[6] The only motion before the court is Chubb’s motion to transfer. For the reasons that follow, the motion is granted.
Applicable legal principles
[7] 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 13.1.02 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.
[8] 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 in 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 of 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 the 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.
[9] Subsection (2)(a) has no application to the determination to be made on this motion given that there is no evidence that a fair hearing cannot be held in Newmarket.
[10] 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 plaintiff’s right to choose the venue is a right which should not be abrogated lightly. 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, 68 C.P.C. (7th) 135 (Div. Ct.), at para. 22; Hallman v. Pure Spousal Trust (Trustee of) (2009), 52 E.T.R. (3d) 29 (Ont. S.C.), at para. 28. Gravelle v. CTV Television Inc., 2012 ONSC 2512, at para. 13; Joseph v. Lefaivre Investments (Ottawa) Ltd., at para. 10.
[11] 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 (S.C.), at para. 18.
Analysis
[12] I have applied the factors set out in Rule 13.1.02(2)(b) to the factual matrix of this case. I am satisfied that Chubb has met the requisite onus and has demonstrated that the interests of justice require this action be transferred to Toronto from Newmarket.
[13] The events and subject matter of the proceeding took place and are located in Toronto. The contamination and any resulting damages were sustained in Toronto. The subject policy was issued in Toronto. Counsel are located in Toronto. This is a private dispute for which there is no demonstrated community interest. There is insufficient information in the record to determine the location of the witnesses to be called at trial.
[14] After balancing and applying the Rule 13.1.02(2)(b) factors holistically, I find that the moving party has met the onus of demonstrating that Toronto is “significantly better” and that it is in the interests of justice to transfer this proceeding from Newmarket to Toronto.
[15] I order that this action be transferred from the Central East Region (Newmarket) to the Toronto Region. The costs of this motion are reserved to the trial judge.
[16] Counsel in actions CV-18-134412 and CV-15-527390 are directed to arrange a case conference (chambers appointment) before me during the week of December 17, 2018.
[17] I wish to thank counsel for the written submissions, which were of great assistance to the court.
Firestone J. Date: December 4, 2018