Canada Grace Park Ltd. v. Grigoras, 2019 ONSC 3150

Court File and Parties

Date: 2019-05-23 Superior Court of Justice - Ontario

Re: CANADA GRACE PARK LTD., Plaintiff And: PETER GRIGORAS, Defendant

Before: Firestone J.

Counsel: Faisal Hameed, for the Plaintiff Jeffery Kaufman, for the Defendant

Heard: In Writing

Endorsement

[1] The defendant brings this motion for an Order transferring this action from the Superior Court in Oshawa (Central East Region) to the Superior Court of Justice in Toronto (Toronto Region). The plaintiff Canada Grace Park Ltd. opposes the motion.

[2] 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 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, crossclaims, 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.

[3] 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.

[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), 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para 28.

[5] 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.

[6] No one of the enumerated factors is more important than the other. Rather, the court is to look at all the factors together and balance them in determining whether a transfer is “desirable in the interest of justice”. Of significance is the fact that the moving party is required to establish that the proposed place of trial is not only better, but is “significantly better”, than the plaintiff’s choice of trial location: See Siemens Canada Ltd. v. Ottawa (City) (2008), 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para. 29.

[7] In this action, Canada Park seeks payment of sums owing under two loan agreements both dated April 10, 2018 for which personal guarantees were given by Grigoras.

[8] The plaintiff’s head office is located in the City of Toronto. The defendant resides at the City of Vaughan, Ontario. The defendant’s corporate head office is located at Thornhill, Ontario. None of the parties reside in Oshawa.

[9] Counsel record for both the plaintiff and defendant are located at the City of Toronto.

[10] The loan agreements at issue were prepared, executed and commissioned at the defendants corporate head office located in Thornhill, Ontario. The majority of meetings, events as well as the loan transactions occurred in Thornhill, Brampton, Vaughan and Richmond Hill. None of these took place in Oshawa.

[11] The plaintiff’s alleged damages were sustained in Toronto. Demands for payment were made by the plaintiff in Toronto.

[12] The defendant’s corporate office which is located at Thornhill is closer to Toronto than Oshawa.

[13] The defendant’s witnesses are located in Toronto or Thornhill. None of the witnesses are located in Oshawa.

[14] There is no rational connection to Oshawa. I find that this choice of venue was not reasonable. Based on the record before me, I am satisfied that Toronto is a substantially better venue and that the interest of justice requires that this action be transferred from Oshawa to Toronto. This is especially so given the inconvenience and additional costs which will be incurred by the parties if this action remains in Oshawa.

[15] I order that this action be transferred from Oshawa to Toronto. I further direct that counsel are to arrange a case conference before me pursuant to Rule 50.13 in order to establish a litigation timetable for the remaining steps in this proceeding. I further order that the costs of this motion be reserved to the trial judge.

Firestone J. Date: May 23, 2019