Court File and Parties

COURT FILE NO.: 16-0931

DATE: 20190311

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JHAGROO DOON, Plaintiff

AND:

HARYDATH MAHARAJ, Defendant

BEFORE: Firestone J.

COUNSEL: Matthew Consky, for the Plaintiff

Lisa Armstrong, for the Defendant

HEARD: In Writing

Endorsement

[1] The defendant Harydath Maharaj (“Maharaj) brings this motion for an order transferring this action from Barrie (Central East wrote to the parties Region) to the Toronto Region.

[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. 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] On January 4, 2019, the Regional Senior Judge wrote requesting that he be advised of plaintiff’s position on the motion by January 15, 2019 following which he would determine the motion based on the existing record. No responding record has been received.

[4] This action for damages arises consequent to a motor vehicle collision which took place on July 6, 2014 in the City of Toronto.

[5] At the time of the collision, the plaintiff resided in Toronto and presently resides in the city of Markham in York Region. The defendant resides in the City of Brampton, in Peel Region.

[6] Rule 46.01of the Rules 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.

[7] 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), 2009 CanLII 51192 (ON SC), 80 C.P.C. (6^th) 139 (Ont. S.C.J.) at para 28.

[8] 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), 2006 CanLII 63726 (ON SC), 81 O.R. (3d) 695 (Ont. S.C.J.) at para 18.

[9] 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.

[10] There is no connection between the city of Barrie and the cause of action or any of the parties in this proceeding. The subject motor vehicle collision took place in the City of Toronto. All of the parties are located in around and within close proximity to the City of Toronto. All counsel of record are located in the city of Toronto.

[11] If the action proceeds to trial, the plaintiff’s family doctors, cardiologist, three independent medical assessors, his employer, in a number of tree practitioners would be required to commute from their workplace in Toronto to Barrie

[12] I order that this action be transferred from Barrie to Toronto. Once transferred, counsel are directed to arrange a case conference (chambers appointment) before me in order to address all necessary timetabling and scheduling matters.

[13] The costs of this motion are reserved to the trial judge.

Firestone J.

Date: March 11, 2019