Court File and Parties
COURT FILE NO.: CV-18-00000047 OT DATE: 20190424 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Butler, Applicant/Responding Party AND: Kia Canada Inc. and James Campbell Services Ltd., Defendants/Moving Parties
BEFORE: Regional Senior Justice M.K. Fuerst
COUNSEL: Michael R. Switzer, for Peter Butler Megan Keenberg and Mark Repath, for Kia Canada Inc. and James Campbell Services Ltd.
HEARD: In Writing
Endorsement
Background
[1] The defendants move for an order transferring this action from Perth to Oshawa. The plaintiff opposes the transfer.
[2] In accordance with the Consolidated Provincial Practice Direction effective July 1, 2014, motions to transfer under Rule 13.1.02 brought in the Central East Region are to be brought to the Regional Senior Judge (or her designate) in writing.
[3] The action arises from the plaintiff’s purchase of a Kia motor vehicle from the defendant James Campbell Services Ltd. (“Campbell”), a Kia dealership located in Oshawa. The plaintiff contends that the vehicle exhibited a litany of defects that the defendants were unable to repair. He alleges that the defendants breached the contract for the purchase and sale of the vehicle. He seeks a refund of the purchase price, replacement of the vehicle with a new one of the same model year, and damages under various heads including frustration and mental anguish.
[4] The plaintiff lived in Whitby at the time of the purchase of the vehicle in 2016. Some two and a half years later, in July 2018, he sold his Whitby home. He began living at his “lake house” in an area north of Kingston, and in Mexico for several months of the year. The plaintiff issued the statement of claim in Perth in May 2018, before he sold his Whitby home.
[5] The contract for the purchase and sale of the vehicle was entered into in Oshawa. The vehicle was serviced at Campbell, and at a second dealership also located in Durham Region. The vehicle apparently was never serviced in Perth or the surrounding area.
[6] The action will be tried by a jury.
The Positions of the Parties
[7] The defendants seek the transfer of the action to Oshawa on the basis that it is a significantly better venue than Perth. They assert that the contract was entered into in Oshawa, the vehicle was brought in to dealerships in Durham Region for service to correct the alleged defects, and a number of witnesses are located in either Durham Region or Mississauga.
[8] The plaintiff opposes the transfer. He asserts through counsel that his witnesses will be himself, his wife, and three children, all of whom live permanently in the East Region. It would be inconvenient for them to have to travel to Oshawa for the trial. To the extent that some defence witnesses will need to travel to Perth for the trial, those expenses can be addressed through costs. Neither counsel for the plaintiff nor counsel for the defendants are located in Oshawa.
[9] Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Consolidated Provincial Practice Direction apply to applications to transfer actions from one Region to another. Rule 13.1.02(2)(b) sets out factors to be considered where it is contended that a transfer is desirable in the interest of justice.
[10] I adopt the following summary of legal principles set out by Himel J. in Samuel v. Kearley, 2015 ONSC 4784, at para. 11:
A plaintiff has a prima facie right to select a venue for an action. The plaintiff does not have to justify that the choice made is a reasonable one. Rather, if the other party is of the view that the choice is unreasonable, it may bring a motion to change the venue. 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 of the case: 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.) at para 28. No one factor is more important than another. Rather, the court is to look at all the factors and balance them in order to decide whether a transfer is “desirable in the interests [sic] of justice”. The moving party must show that the proposed place of trial is not only better, but is significantly better, than the plaintiff’s choice of trial.
[11] Applying the factors set out in Rule 13.1.02(2)(b) to the circumstances of this case, I note the following:
- The contract for the purchase and sale of the vehicle was entered into in Oshawa. All attempts to remedy defects complained of by the plaintiff were made by dealerships located in Durham Region. No service work was done in Perth or the surrounding area. The plaintiff lived in Durham Region during the period he asserts that he was having to make multiple service visits to the dealerships there.
- The plaintiff and his wife no longer live in Durham Region. They have a residence north of Kingston, closer to Perth. However, they live in Mexico for several months of the year. Depending on the scheduling of the trial, they will need to travel back from Mexico, regardless of the venue of the trial.
- The affidavit filed on behalf of the plaintiff states that his additional witnesses will be his children who live outside of Ontario during the school year. It may be more convenient for witnesses located in the East Region to travel to Perth to testify than to Oshawa. However, plaintiff’s counsel identified his witnesses as including “Every person whose name appears in the documents listed in any of the affidavits of documents”. This would include individuals who work for the defendants in Durham Region and in Mississauga.
- The defendants and their witnesses are located in Durham Region, and Mississauga, which is closer to Oshawa then to Perth.
- To the extent there is any identifiable community interest in this case, it is in Durham Region rather than Perth.
- It is not suggested that any expert witnesses will be called by any party.
- Neither counsel for the plaintiff nor the defendants is located in Perth or Oshawa. Counsel for the plaintiff has an office in Ottawa, but also one in Toronto. Counsel for the defendants is located in Toronto.
- I am aware that judges and courtrooms are located in Oshawa and in Perth. However, Oshawa is a large and very modern courthouse with multiple courtrooms, multiple judges, and three week civil trial sittings in November 2019 and again in the spring of 2020.
- This will not be a lengthy or complex trial.
Decision:
[12] I have balanced the factors set out in Rule 13.1.02(2)(b) and considered any other relevant matters. Applying a holistic approach, I find that the defendants have shown that Oshawa is a significantly better place of trial than Perth. The defendants have demonstrated that it is desirable in the interest of justice that the action be transferred to Oshawa.
[13] The motion is granted. The action is ordered transferred from Perth to Oshawa.
[14] If the parties are unable to agree on costs, they may file brief written submissions according to the following timetable: the defendants by May 6, 2019, and the plaintiff by May 20, 2019.