Court File and Parties

Date: 2019-06-05 Superior Court of Justice - Ontario

Re: GWYNKING HOLDINGS INC., Plaintiff And: PHILIP ISENBERG, Defendant

And Between: PHILIP ISENBERG, Plaintiff by Counterclaim And: GWYNKING HOLDINGS INC., SUNNYSIDE DENTAL CENTRE, ROBERT RESNICK, RALPH BLATT, ALISON BLATT, ROBYN BLATT, IRWIN LANCET, and STEVEN BONGARD, Defendants by Counterclaim

Before: Firestone J.

Counsel: Norman Epstein, for the Plaintiff/Defendants by Counterclaim Stefan Juzkiw, for the Defendant/Plaintiff by Counterclaim

Heard: In Writing

Endorsement

[1] The defendant (plaintiff by counterclaim) collectively referred to as “the defendant “brings this motion for an order transferring this action from the Central West Region (Milton) 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 plaintiff and defendants by counterclaim collectively referred to as “the plaintiff” oppose the motion.

[2] This action arises with respect to the rights, obligations and alleged monies owing pursuant to and in accordance with a lease agreement regarding premises located at 1244-1246 King Street West, Toronto, Ontario.

[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 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.

[4] 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.

[5] 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.

[6] 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.

[7] 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) 2008 CanLII 48152 (ON SC), 93 O.R. (3d) 220 (S.C.) at para. 25; Chattrson at para. 29.

[8] It would appear that this proceeding has no rational connection to The Central West Region.

[9] I order this action be transferred from Central West Region (Milton) to Toronto. Given the stage of this proceeding counsel are to take the necessary steps to ensure that the transfer of this proceeding takes place as soon possible.

[10] Once transferred, I direct that the parties immediately arrange an attendance at the first available To Be Spoken to Court (“TBSC”) date at which time trial and pretrial dates are to be fixed and a litigation timetable set for all remaining steps in this proceeding.

[11] Costs of this motion are reserved to the trial judge.

Firestone J.

Date: June 5, 2019