Court File and Parties
COURT FILE NO.: CV-15-125070-00
DATE: 2019-04-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KENNETH WHITE, JACQUELINE CHEPURNYJ, and BRENDA INNES, Plaintiffs
AND:
6975429 ONTARIO INC. carrying on business as ENGREEN INC. and ANTHONY GUIDO, Defendants
BEFORE: Mr. Justice Stephen E. Firestone
COUNSEL: Michael B. McWilliams, for the Plaintiffs
Chris Horkins, for the Defendants
HEARD: In writing
ENDORSEMENT
[1] The plaintiffs bring this motion for an order transferring this action (“Newmarket Action”) from the Central East Region (Newmarket) to the Toronto Region pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (the “Rules”).The defendants take no position on 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. 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] 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.
[4] 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. (6th) 139 (Ont. S.C.J.) at para 28.
[5] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix of this case. I am satisfied that the plaintiff has met the requisite onus and has demonstrated that the interest of justice require that this action be transferred from Newmarket to Toronto.
[6] There are issues in common issues between this action and a related Toronto action and third party claim. Motions for summary judgment in the Newmarket action and the two related Toronto proceedings were previously ordered to be heard together in Toronto. A hearing date July 12, 2019 has been assigned.
[7] I order that this action be transferred from Newmarket to Toronto. I make no order as to costs.
Firestone J.
Date: April 16, 2019