Court File and Parties

COURT FILE NO.: 2516/15 (London) DATE: 20190415 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joshua Laverne Purdy, Kirk Dennis Purdy, Paula Lorraine Purdy, Rachel Bernice Margaret Purdy and Aaron Kirk Purdy, by his Litigation Guardian, Paula Lorraine Purdy, Plaintiffs

AND:

FGC Limited, AG-CO Products Limited, the Corporation of the Municipality of Huron East, N.A. Engineering Associates Incorporated, Anthony Van Bakel and Karen Van Bakel, Defendants

AND:

Dann Robert Clifford Eedy, Stephanie Anna Eedy, 2182409 Ontario Ltd. and 1050071 Ontario Inc.

COURT FILE NO: C-936-14 (Kitchener) SUPERIOR COURT OF JUSTICE- ONTARIO

RE: Dann Robert Clifford Eedy, Stephanie Anna Eedy, Owen Dann Robert Eedy, by his Litigation Guardian, Dann Robert Clifford Eedy, Sandra Eedy, Jennifer Elaine Elva Eedy and 2182409 Ontario Ltd., Plaintiffs

AND:

FGC Limited, AG-CO Products Limited, the Corporation of the Municipality of Huron East, N.A. Engineering Associates Incorporated, Anthony Van Bakel and Karen Van Bakel, Defendants

BEFORE: Justice R. Raikes

COUNSEL: Edward L. D’Agostino Counsel, for the Plaintiffs in the Eedy action Harold S. Ginn, Counsel, for the Defendants, Anthony and Karen Van Bakel

HEARD: January 30, 2019

Endorsement

[1] On September 30, 2012, there was a fire and explosion inside a barn at 43795 Bridge Road, Huron East in Huron County. Dann Eedy and Joshua Purdy were injured. Each has commenced an action for damages in the Superior Court of Justice.

[2] Mr. Eedy commenced his action in Kitchener (hereafter “the Eedy action”) on September 26, 2014. Mr. Purdy commenced his action in London (hereafter “the Purdy action”) on November 19, 2015. FLA claims are asserted in both actions.

[3] The defendants in both actions are the same. There is a third party claim asserted in the Purdy action as against Dann and Stephanie Eedy and two numbered companies, one of which is a plaintiff in the Eedy action.

[4] The defendants, Anthony and Karen Van Bakel, are the previous owners of the property on which the fire and explosion occurred. They have brought motions in each action seeking to transfer each action to Goderich for trial, and for an order that the actions be tried together or one immediately following the other as directed by the trial judge.

[5] I have been designated by Regional Senior Justice Thomas to hear these motions because the transfer of the Eedy action involves the potential transfer of that Court file from the Central West Region to the Southwest Region where Goderich and London are situate.

[6] The parties agree that the two actions should be tried together or one immediately following the other; however, they disagree as to where those trials should take place. It is axiomatic that no order can be made for the two trials to be heard together unless and until they are in the same location. Thus, the change of venue motion must be determined first and depending upon the outcome, the balance of the relief sought may follow.

[7] The plaintiffs in the Purdy action have filed no motion materials in opposition to the transfer from London to Goderich, nor did counsel appear to oppose the motion. Counsel for the moving parties advised that the defendants in the two actions take no position on the motion so long as no costs are sought against them. He further advised that plaintiffs’ counsel in the Purdy action, Mr. Nash, has indicated that he would prefer that the action stay in London but, as indicated, he has taken no steps to oppose the motion.

[8] As mentioned, the principal opposition to the proposed transfer of the two actions to Goderich is by the plaintiffs in the Eedy action. They contend that although the property where the fire and explosion occurred are situate in Huron County, the property is actually closer to the Stratford Courthouse than Goderich. The distance from that property to Kitchener, London and Goderich is nearly the same. Further, they contend that they have retained expert witnesses who are based in the Kitchener – Waterloo area; most of the counsel in the two actions are located east or west of Kitchener -Waterloo; there are treating physicians who will likely be called as witnesses that are based at London hospitals; and, there is no compelling reason to choose Goderich over either Kitchener or London.

[9] Counsel for the moving parties asserts that the incident giving rise to this action took place in Huron County. The municipality in Huron County is a named defendant. The Goderich court house, which is located in Huron County, is convenient to several of the parties and witnesses who still live in or nearby. There was a charge laid against 2182409 Ontario Ltd., the Eedy’s company, under the Occupational Health & Safety Act following the explosion. The trial of that charge took place in Goderich. The liability experts engaged by the Eedys in their action testified as their experts in Goderich during the OHSA trial. The OHSA trial and the incident in question is a matter of significant interest to farmers in the area where some of the defendants constructed other pig barns. The Van Bakels want the actions tried by a jury in Huron County.

[10] I note that at this point, the municipality remains a defendant in both actions. Jury trials are not permitted against municipalities. If the municipality is no longer a party to the litigation by the time the trial takes place, a jury trial is possible; however, at this point, there is no evidence before me to indicate that the municipality’s removal from the action is likely or imminent.

[11] The court may, on any party’s motion, make an order to transfer a proceeding to a county other than the one where it was commenced if the court is satisfied that: (a) 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: Rule 13.1.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motions before me are brought under subsection (b) - it is desirable in the interest of justice to transfer.

[12] Rule 13.1.02 (2)(b) requires the court to have regard to the following factors:

i. where a substantial part of the events or omissions they gave 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, cross-claims 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.

[13] All of the factors listed are equally important. A holistic assessment of them is required: Spero v. Dean, 2016 ONSC 6996 at para. 10 citing Chatterson v. M & M Meat Shops Ltd. (2014), 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Ont. Div. Ct.) at para. 22.

[14] In Concept Plastics Ltd. v. Plasponics Inc., 2016 ONSC 2493, Howard J. provides a very helpful review of the case law applicable to the test on a motion to transfer under Rule 13.1.02(2)(b). He concludes at para. 30:

That is, given that the Rules of Civil Procedure permit the plaintiff (absent requirements under rule 13.1 .01(1)) the prima facie right to select a venue for its action, it is not enough for the defendant to propose a merely competing or similarly reasonable alternative place of venue for trial; the defendant should be required to demonstrate that its proposed venue is better in some significant aspect(s) than that selected by the plaintiff. Whether the defendant has satisfied that onus should be determined by using the holistic approach embraced by the Hallman estate and Eveready Industrial Services Corp. line of decisions.

[15] I turn now to the factors in Rule 13.1.02(2)(b).

i. Where events occurred

[16] The explosion and fire took place in a pig barn. That barn was constructed on the farm then owned by the Van Bakels. The farm was sold by the Van Bakels to 2182409 Ontario Limited which still owns it. The farm is situate in the eastern part of Huron County.

[17] The Eedy’s, Dann and Stephanie and their son, Owen, resided in the home on the farm when the statement of claim in the Eedy action was issued (see paras 2 and 3). There is no evidence that they have moved since the action was commenced.

[18] According to the statements of claim in the two actions, Dan Eedy and Joshua Purdy were transported by air ambulance to the London Health Sciences Centre for emergency treatment and care immediately after the explosion. Both are alleged to have suffered significant injuries. The treating doctors for both men are potential witnesses.

[19] The statements of claim allege negligence in the design, construction, inspection and maintenance of the pig barn. Methane gas accumulated which caused the explosion and fire.

[20] The defendants, FGC, AG-CO and N.A. Engineering are all alleged to be based in nearby Perth County. Each is alleged to have had a role in the design and/or construction of the barn. The Municipality of Huron East is alleged to have approved the building plans and conducted the inspections of the pig barn.

[21] Thus, the construction of the barn, the approval of the building plans, the inspections and approvals of the barn as constructed, the use and operation of the barn, and the explosion and fire all occurred in Huron County on or in the vicinity of the farm. Treatment of the plaintiffs’ injuries took place in London.

[22] The events giving rise to the actions are not rationally connected to Kitchener.

ii. Where a substantial part of the damages were sustained

[23] The physical injuries suffered by both men were sustained in Huron County on the subject farm.

[24] The Eedys allege that because of his injuries, Dann Eedy has not been able to do the work he previously did on the farm. That has increased operational costs for the plaintiff, 2182409 Ontario Limited, and reduced the profitability of the farm operation. He has suffered a loss of income and/or loss of competitive advantage. He is also unable to help with household upkeep and has suffered significant reduction is his enjoyment of life. The vast majority of the damages claimed are centered on where Mr. Eedy lives and works – the farm.

[25] Mr. Purdy is alleged to reside with his parents at R.R. #1, Dublin, Ontario. He was working at the pig barn as a farm assistant. Like Mr. Eedy, Mr. Purdy has suffered a loss of present and future income and/or competitive advantage. His enjoyment of life is significantly reduced. The damages sustained by Mr. Purdy occurred in Huron County.

iii. Where the proceeding is/was located

[26] As indicated, the two actions were commenced in Kitchener and London respectively. The charge under the OHSA took place in Goderich.

iv. Local community interest

[27] There is some evidence that the rural community in Huron County took interest in the OHSA proceedings which were reported in a pork producers’ publication. Otherwise, the evidence of community interest in these proceedings is scant.

v. Convenience of parties, witnesses and court

[28] The Van Bakels sold the farm to 2182409 Ontario Limited four years before the incident. They now live in Mitchell, Ontario. The difference in distance from their home to any of the three court houses is modest. As indicated, some of the defendants are based in nearby Perth County. The defendant, Huron East is located in Huron County and its inspector is a likely witness.

[29] The Eedy plaintiffs have engaged experts in Kitchener and Cambridge. These same experts testified in the OHSA trial in Goderich. Having to testify in Goderich instead of Kitchener will increase the cost to the plaintiffs but the distance involved is such that the additional cost should be modest.

[30] There are witnesses in London, particularly medical witnesses for whom it will be somewhat inconvenient to testify in Goderich. I note that the travel time from London to Goderich is roughly 1.5 hours one way. Whether they are testifying in London, Kitchener or Goderich, their schedules will be disrupted.

[31] Counsel for the Eedys points to the inconvenience to counsel none of whom are based in Goderich. Counsel are located in London, Kitchener, Hamilton and Toronto. In McLoughlin v. Miadenovski, 2016 ONSC 2222, McEwen J. indicated at para. 11 that the decision by a party to hire counsel from out of town is not a major factor when determining venue. I understand the weight to be accorded that fact is specific to each case.

[32] There is no question that each of the London, Kitchener and Goderich court houses have the requisite facilities to handle a trial of this sort. The London trial list for civil matters has a lengthy wait time, particularly for longer trials. Counsel estimate that the trial in this matter will take approximately four weeks.

[33] Mr. D’Agostini advised that the trial list wait time in Kitchener is not nearly as long as London. It is more on par with the wait time in Goderich.

[34] In Goderich, trial sittings are typically of a two week duration. Trials that are expected to take more than two weeks require special arrangements. These arrangements are usually made through the Regional Trial Coordinator. A sittings may be used entirely for one case or a special sittings may be arranged. In any event, Goderich is no stranger to long trials and the four weeks contemplated here can be accommodated in less time than a case would wait to be reached in London.

vi. Cross-claims and Third Party Claims

[35] There is a third party claim in the Purdy action as against Mr. Eedy et al.. As I have indicated above, the parties agree that the two actions should be tried together. The question they cannot agree on at this point is where. Counsel for the Eedys asks that I allow counsel to work that out between them. They will choose one of Kitchener or London.

[36] In any event, there is nothing about the third party claim that materially affects the venue to be selected here. It involves the same parties, same underlying incident and same issues.

vii. Advantages/Disadvantages of Each Location

[37] Both Goderich and London have a connection to the events giving rise to the claims asserted. Kitchener does not. The events that give rise to these actions happened in Huron County. Goderich is the situs of the Superior Court of Justice in Huron County. Several of the witnesses are in Huron County. Many of the parties reside or operate in or close by Huron County.

[38] The principal plaintiffs were transported to London for medical care. In a case such as this, I would expect some of the treating doctors and other medical professionals will be called to testify.

[39] Whether the trials take place in Kitchener, London or Goderich, they are presently civil non-jury trials. Thus, they will be tried by judge alone. There is no difference in the quality of jurist between the three sites.

[40] Further, the distance between the three locations is not significant. This is not a case where one party proposes to try the case in Kitchener or London and the other seeks to have the trial in Timmins or Ottawa. Nevertheless, in winter, the distance between locations does not adequately measure the peril of road travel. Goderich is closer for many witnesses.

[41] Wherever the trials take place, it will be expensive. They are estimated to take four weeks with numerous experts on all sides. Kitchener and Goderich offer a shorter wait time to trial.

[42] As between Kitchener and Goderich, I find that Goderich has a significantly greater connection to the events, damages and witnesses. As between London and Goderich, the gap in convenience to witnesses is less but still favours Goderich. Further, Goderich offers a much shorter wait time for trial than London.

viii. Other Court Facilities

[43] This factor is neutral. All three locations offer adequate Court facilities for these trials.

Balancing/Weighing

[44] Some of the above factors strike me as neutral or inapplicable. However, it is evident that there are significant advantages to a trial in Goderich (Huron County) which has the greater connection to the events, damages, parties and many of the likely lay witnesses. The Purdy action will get to trial much sooner in Goderich. To be sure, it is less convenient for counsel and some of the experts to have the trial in Goderich; however, I find that as between Goderich and London, and Goderich and Kitchener, Goderich is more desirable in the interests of justice as the venue for trial of each action.

[45] Having regard to the factors assessed above, I am satisfied that the test for a transfer of the action summarized in Concept Plastics above is met. Goderich is closer and more convenient to the parties and witnesses, it offers a shorter trial wait time, it has a genuine connection to the events and damages, and it can readily accommodate the trial.

[46] Therefore, I order that London court files numbered 2516/15 and 2516-A1, and Kitchener court file number C-936-14 be transferred to Goderich for trial.

[47] The two actions arise from the same events, and involve substantially the same parties and issues. Accordingly, I order that the said actions be tried together or one immediately following the other in the discretion of the trial judge.

[48] If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days.

Justice R. Raikes Date: April 15, 2019