Court File and Parties
COURT FILE NO.: CV-18-00001666-0000 DATE: 20190122 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DENISE SPARROW, Estate Trustee of the Estate of Michael Victor Sparrow, Plaintiff AND: SENTINEL PLUMBING INC., FRANK NIGRO, CATHRINE ANN NIGRO, DAVID TONKEN and 1152363 ONTARIO LTD., Defendants
BEFORE: Stephen E. Firestone J.
COUNSEL: Judith L. Turner, for the Plaintiff Raymond Stancer and Ashley Doidge, for the Defendants
HEARD: In writing
Endorsement
[1] The defendants bring this motion for an order transferring this action from Barrie (Central East Region) to the Toronto Region. The plaintiff opposes the motion.
[2] The Consolidated Provincial Practice Direction at part III (B) effective July 1, 2014 (“Practice Direction”) deals 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 grounded in shareholder oppression, re-conveyance of interests in real estate, evaluation and redemption of shares and evaluation and payment of a shareholder loan.
[4] 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 13.0.02 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 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 incurred,
(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 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.
[5] 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.
[6] 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.
[7] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix of this proceeding. I am satisfied that the defendants have met the requisite onus and demonstrated that the interests of justice require that this action be transferred from Barrie to Toronto. I am satisfied that Toronto is a “substantially better” venue.
[8] A substantial part of the events that give rise to this proceeding occurred in Toronto. The properties which are the subject matter of this proceeding are located in Toronto. The plaintiff resides in York region. The Personal defendants reside and work in Toronto. The corporate defendants are located and have their head office in Toronto. The plaintiff is entitled to attend examinations for discovery or be cross-examined on any affidavits in the jurisdiction where she resides.
[9] I order this action be transferred from Barrie to Toronto. Counsel are at liberty to arrange a case conference (chambers appointment) in order to set a litigation timetable for the remaining steps in this proceeding.
[10] The costs of this motion are reserved to the trial judge.