COURT FILE NO.: CV-14-0195-OT

DATE: 2019-09-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TARWINDER SHOKAR

Plaintiff

– and –

WINDSOR CASINO LIMITED, CAESARS WINDSOR, CAESARS ENTERTAINMENT WINDSOR LIMITED, HILTON HOTELS CORPORATION, DANIAL IBRAHIM and ONTARIO LOTTERY AND GAMING CORPORATION

Defendants

Justin S. Linden and Iain A.C. MacKinnon, for the Plaintiff

R. Seumas M. Woods and Max Shapiro, for the Defendants

HEARD: In writing.

DECISION ON MOTION TO TRANSFER

THOMAS, RSJ.:

[1] The defendants move pursuant to Rule 13.1 of the Rules of Civil Procedure and the Consolidated Provincial Practice Direction to transfer this action from Brampton to Windsor. The plaintiff resists.

The History of the Action

[2] The legal proceeding which underlies this motion is an action by the plaintiff seeking the return of monies he lost gambling at Caesars Windsor in October 2013. Caesars Windsor is a commercial casino complex located in Windsor, Ontario owned by Ontario Lottery and Gaming Corporation and operated by Casino Entertainment Windsor Limited.

[3] The plaintiff commenced this action in the Superior Court of Justice at Brampton on January 16, 2014. He was living in Mississauga at the time. The most recent version of the plaintiff’s claim, a Second Fresh as Amended Statement of Claim amended November 2, 2015, claims general damages of $342,000.00, punitive damages of $500,000.00, interest and costs.

[4] The plaintiff is currently a Toronto resident and is represented by counsel at a Toronto law firm.

[5] The defendants defended the action on March 10, 2014. The most recent defence delivered on their behalf is a Fresh as Amended Statement of Defence amended December 5, 2014.

[6] Three of the defendants, WCL, CEWL, and Danial Ibrahim, are based in Windsor. OLG is headquartered in Toronto and Sault Ste. Marie. Caesars Windsor is not a legal entity. The defendants are represented by the same Toronto-based counsel.

[7] There is no counterclaim. There are no crossclaims among the defendants, nor have any of the defendants brought a third party claim against someone else.

[8] At this point the action has progressed through the pleadings, documentary production and oral examinations for discovery stages.

[9] The plaintiff served a trial record on July 5, 2019.

[10] Apart from this motion to transfer the action from Brampton to Windsor, at this point, there appears no intention to bring further motions.

[11] The parties have not attempted to mediate this case. As a Brampton action, mediation was not mandatory.

[12] No pre-trial conference has occurred or is scheduled.

[13] A trial estimate of between five and ten days seems reasonable. No party has served a jury notice so the action will be tried by a judge alone.

Nature of the Claims

[14] The plaintiff self-describes as an alcoholic and compulsive gambler. He has lost substantial amounts of money gambling at casinos in Ontario, British Columbia and Quebec. He has been convicted of fraud.

[15] The plaintiff has been banned from Casino Rama, The Great Bruce Heron Casino, and Fallsview Casino. OLG operates each of these casinos as it does Caesars Windsor.

[16] In October 2011 the plaintiff’s evidence is that he lost all his money gambling at Brantford Casino and then attempted suicide by jumping in front of a truck. He was seriously injured.

[17] By October 2013 the plaintiff had recovered and received a monetary settlement for his injuries related to the suicide attempt.

[18] On October 17 and 18, 2013 he travelled to Windsor and lost $92,000.00 at Caesars Windsor. He was hosted by the defendant Ibrahim in his capacity as Senior Executive Casino Host. The plaintiff returned on October 23, 2013 and lost a further $250,000.00.

[19] The plaintiff alleges negligent conduct and wrongdoing by the defendants summarized as follows:

a) overserving him with alcohol and then allowing him to play roulette;

b) failing to promote responsible gambling at Caesars Windsor, failing to adopt a proper system of supervision and training of Caesars Windsor staff to identify Mr. Shokar as a problem gambler, and failing to identify Mr. Shokar as a problem gambler based on documents within OLG’s possession prior to his attendances at Caesars Windsor;

c) actively inducing, encouraging or allowing Mr. Shokar to gamble knowing that he was a problem gambler and had voluntarily self-excluded himself from casinos in Quebec, was gambling using the proceeds of a settlement of a motor vehicle action, and was mentally incompetent;

d) spoliation of evidence perpetrated by Casino Windsor when it failed to preserve all the video footage of his conduct inside the casino.

Analysis

[20] This motion is governed by subrule 13.1.02(2)(b) which is set out below:

(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.

[21] The plaintiff has a prima facie right to select the venue for an action and the onus rests on the party seeking to displace the chosen venue to show that the transfer is necessary “in the interests of justice”. I am to consider a “holistic” application of the factors in subrule 13.1.02(b) (Chatterson v. M&M Meat Shops Ltd., 2014 ONSC 1897 para. 22).

[22] The defendants here must satisfy me that the proposed place of trial is “significantly better” than the plaintiff’s choice. (Chatterson, para. 29; Siemens Canada Ltd. v. Ottawa (City), 2008 CanLII 48152 (ON SC), 93 O.R. (3d) 220, para. 25).

[23] In response to the motion, the plaintiff points to the delay in the bringing of the motion until the action had been set down in Brampton. The moving defendants state that their defence disputed the plaintiff’s choice of Brampton and that it was clear to the plaintiff that they would seek this transfer. Further, the defendants state that a transfer at this time will not prejudice the plaintiff and in fact allowed for interlocutory motions to be heard in Brampton and Toronto. I do not see how the timing of this motion has prejudiced the plaintiff. In Benjamin v. Garcia, 2019 ONSC 3777 para. 15, Firestone J. found prejudice to the plaintiff by a proposed late motion to transfer the action. I find no such similar prejudice in the motion before me.

[24] The plaintiff lived in Mississauga when the action was commenced. As a result, I cannot find the choice of Brampton to start the action was unreasonable. Whether the action is to remain in Brampton will be determined by a holistic consideration of the factors in subrule 13.1.02(b).

Rule 13.1.02(2)(b)(i) - Where a substantial part of the events or omissions that gave rise to the claim occurred

[25] The plaintiff maintains that with full knowledge of his addictions and injuries the employees of Casino Windsor encouraged and enabled his gambling until he had lost all of his money. While the plaintiff argues that his claim implicates the actions and policies of other Ontario casinos and of OLG itself, I find the substantial part of events or omissions giving rise to the claim took place in Windsor. This factor favours a transfer.

Rule 13.1.02(2)(b)(ii) - Where a substantial part of the damages were sustained

[26] The money was lost in Windsor. The actions of Caesars Windsor employees took place in Windsor. There is no doubt this factor favours a transfer. I reject the suggestion that since the plaintiff’s bank account was in Mississauga that somehow favours Brampton.

Rule 13.2.02(2)(b)(iii) - Where the subject-matter of the proceeding is or was located

[27] Consistent with my reasons in (i) and (ii) above, this factor favours Windsor.

Rule 13.2.02(2)(b)(iv) - Any local community’s interest in the subject-matter of the proceeding

[28] The plaintiff maintains this is a neutral factor and that simply because Caesars Windsor is a major employer in the city does not mean there is community interest. (Bruce Power L.P. v. BNT Canada L.P., 2018 ONSC 5968, paras. 29-30). Bruce Power was a case about commercial contract negotiations. The allegations by the plaintiff here are personal but also relate to public concerns regarding a casino in their community. I have evidence that Caesars Windsor is one of the area’s major employers. It employs 2700 persons. Since it opened, Caesars Windsor has paid 3.5 billion dollars to employees and local suppliers and 15 million dollars in community projects while its employees have volunteered 100,000 hours of their time to the community.

[29] There is a local community interest in this action and this further favours a transfer to Windsor.

Rule 13.1.02(2)(b)(v) - The convenience of the parties, the witnesses and the court

[30] I recognize it would be more convenient for the plaintiff to continue this action in Brampton since he now resides in Toronto. The defendants CEWL and WCL are based in Windsor. The personal defendant Ibrahim lives in Windsor. OLG is situated in Toronto.

[31] None of the parties live in or are based in Brampton. None of the witnesses are from Brampton. The plaintiff suggests that he may need to call those physicians from the Toronto area who treated his addictions and injuries. He may need to call his Toronto lawyer who acted on his personal injury claim. The plaintiff has not identified the physicians and his examination for discovery did not assist in illuminating the identities or substance of the testimony of these witnesses. It is unclear how much of his prior history is actually in dispute.

[32] What is clear, however, is that his claim calls into question the conduct of a large number of Caesars Windsor employees who will need to travel to Brampton to provide their evidence. The defendants have, in their affidavit material, identified the positions of these employees and the nature of their evidence as it relates to the claims of the plaintiff. This factor favours the transfer.

Rule 13.1.(02)(2)(b)(vi) - Whether there are counterclaims, crossclaims, or third or subsequent party claims

[33] This factor has no application to this case.

Rule 13.1.(02)(2)(b)(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

[34] I agree that the plaintiff will incur increased costs if he must attend in Windsor for his trial considering he lives in Toronto. In addition, his legal costs may increase as a result of his counsel conducting a trial in Windsor. While the plaintiff maintains financial hardship, I have no evidence of his income or assets.

[35] The Caesars Windsor employees are not parties to the action. There will be an inconvenience and cost to their travel to Brampton and accommodation.

[36] Under this factor I am to consider the most expeditious determination of this action on its merits. Consistent with the Provincial Practice Direction, I have communicated with Regional Senior Justice Daley regarding the time to trial in Brampton. I am advised that a pre-trial for this action would now be scheduled for the spring of 2021 and that the trial could not be heard until January 2022 at the earliest.

[37] The Windsor trial lists for a trial of this duration are not closed and so there is a substantial likelihood that this action could be pre-tried and tried in Windsor before the end of 2020.

[38] This factor favours a transfer to Windsor.

Rule 13.1.(02)(2)(b)(viii) - Whether judges and court facilities are available at the other county

[39] There are judges and facilities in both Brampton and Windsor. The advantage of Windsor as a venue has been dealt with in (vii) above.

Rule 13.1.(02)(2)(b)(ix) – Any other relevant matter

[40] This further could capture the delay argument of the plaintiff. I have dealt with this earlier in this decision

Conclusion

[41] On a holistic review of the factors under subrule 13.1.02(2)(b) it is clear that Windsor is a significantly better location than Brampton for the trial of this action. The interests of justice demand a transfer of the action to Windsor.

[42] The motion is granted and this action is transferred from Brampton to Windsor.

[43] Should the parties be unable to resolve costs, I will receive written submissions from the moving party defendants within 20 days of the release of these Reasons with the submissions of the plaintiff within 20 days thereafter. There will be no reply submissions. All written submissions are limited to four typed pages plus the costs outline.

[44] If there are no submissions within 20 days there will be no order as to costs.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Released: September 13, 2019.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TARWINDER SHOKAR

Plaintiff

– and –

WINDSOR CASINO LIMITED, CAESARS WINDSOR, CAESARS ENTERTAINMENT WINDSOR LIMITED, HILTON HOTELS CORPORATION, DANIAL IBRAHIM and ONTARIO LOTTERY AND GAMING CORPORATION

Defendants

DECISION ON MOTION TO TRANSFER

Thomas RSJ.

Released: September 13, 2019.