Court File and Parties

Court File No.: CV-14-48469 Date: 2019-06-18 Superior Court of Justice - Ontario

Re: Dwight Benjamin, Plaintiff And: Stacy Marcella Garcia and Toronto Transit Commission, Defendants

Before: Mr. Justice Stephen E. Firestone

Counsel: Lawrence Hatfield, for the Plaintiff Andrew Davidson, for the Defendants

Heard: In writing

Endorsement

[1] The defendant Toronto Transit Commission (“TTC”) brings this motion for an order transferring this action from the Central South Region (Hamilton) to the Toronto Region pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O 1990, and Reg. 194. The plaintiff Dwight Benjamin (“Benjamin”) opposes the motion.

[2] This action arises with respect to a collision which took place between two streetcars on August 4, 2012. At the time of the collision, Benjamin was a passenger on one of the streetcars. The collision occurred on Lakeshore Boulevard West near the intersection with Burlington Street in the City of Toronto.

[3] Rule 46.01 of 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 ONSC 51192, 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 ONSC 63726, 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 ONSC 48152, 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para. 29.

[8] The Statement of Claim was issued on July 30, 2014. The Statement of Defence and Jury Notice was delivered on December 29, 2014.

[9] Liability for the collision has been admitted. The examination for discovery of Benjamin took place on April 12, 2019 in Hamilton. The trial record was filed by the plaintiff on May 14, 2019.

[10] Mediation has not occurred and pretrial and trial dates have not been fixed.

[11] An appearance in Trial Scheduling Court (Assignment Court) is fixed for August 21, 2019 in Hamilton.

[12] At no time prior to this action being set down for trial did the TTC bring a motion to have this action be transferred from Hamilton to Toronto.

[13] The collision which is the subject matter of this action occurred in Toronto. At the time of the subject collision, the plaintiff resided in Toronto. However on or about the time the Statement of claim was issued the plaintiff resided in Brandford. Benjamin has two sons who reside in Brandford. While Benjamin now currently resides in Toronto it is his intention to return to Brandford to be the closer to his sons.

[14] Benjamin has retained two experts both of whom are located in Hamilton. There is no evidence in the record that the TTC has retained any experts at this juncture. The TTC’s submits that its anticipated expert is located in Toronto. The TTC have not scheduled any defence medical assessments at this time.

[15] In applying the factors set forth in Rule 13.1.02 (2) to the factual matrix of this proceeding, the TTC has not established that it would be “significantly better” that the trial of this Action take place in Toronto rather than Hamilton or that the transfer is desirable in the interest of justice. The plaintiff’s choice of venue was not unreasonable based on the relevant facts of this case. Further, Benjamin has demonstrated that he will suffer prejudice by a change of venue at this late juncture. The moving party’s motion is dismissed.

[16] The moving parties’ motion is dismissed. Costs of this motion are reserved to the trial judge.

Firestone J. Date: June 18, 2019