COURT FILE NO.: 12-54421
DATE: 20191107
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE TORONTO-DOMINION BANK, operating a credit card division as MBNA, Plaintiff
AND:
ROSE COSTA also known as ROSARIA F. COSTA also known as ROSARIA DE FATIMA COSTA, Defendant
BEFORE: Mr. Justice Stephen E. Firestone
COUNSEL: Ryan McConaghy, for the Plaintiff
Andrew R. Kerr, for the Defendant
HEARD: In writing
ENDORSEMENT
[1] The Defendant Rose Costa (“Costa”) brings this motion for an order transferring this action and all proceedings arising from it from the East Region (Ottawa) 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 the Toronto-Dominion Bank, operating a credit card division as MBNA (“Toronto-Dominion Bank”) opposes this motion.
[2] For the reasons that follow, Costa’s motion is granted.
Procedural History
[3] Toronto-Dominion Bank is a Chartered Bank with offices throughout Canada including Ottawa. Costa resides in the City of Toronto.
[4] On May 17, 2012, Toronto-Dominion Bank issued a Statement of Claim (“Claim”) under the Simplified Procedure against Costa for payment of the sum of $41,434.69 plus applicable interest allegedly owing on a MBNA credit card issued on or about 2009. The Claim was issued in Ottawa by the Plaintiff’s former counsel who were in Ottawa. The Plaintiff’s current counsel are located in Toronto.
[5] Costa acknowledges that she was served with the Statement of Claim in or around June 2012. Costa subsequently served her Statement of Defence dated June 19, 2012 on the Plaintiff’s former solicitors.
[6] Costa acknowledges that she was subsequently served in late October 2012 with the Toronto-Dominion Bank’s motion for Summary Judgment with a (return) date of December 13, 2012. Costa submits that the Motion Record made use of a simplified procedure motion form which was less than clear about what was going on and where it was happening.
[7] Costa submits that she did not know what a motion for summary judgment was, that she had no way of getting to Ottawa for the motion and really did not understand what the motion involved. She further submits that she did not believe that a court hundreds of miles away in a City that she had absolutely no connection with and nothing to do with would summarily order payment.
[8] On December 13, 2012, Toronto-Dominion Bank’s motion for Summary Judgment was heard by Justice McNamara in Ottawa. Costa did not appear. At that time, Justice McNamara granted Summary Judgment and ordered that Costa pay to Toronto-Dominion Bank the amount of $46,458.55 plus costs payable forthwith in the amount of $2,329.15 and applicable interest.
[9] A Summary Judgment is a final decision. It carries the same effect as a decision at the end of a trial: Hryniak v. Mauldin, 2014 SCC 7 at paras. 1-3, 34.
[10] Costa did not appeal Justice McNamara’s Order.
[11] Toronto-Dominion Bank registered a Writ of Seizure and Sale on or about January 16, 2013; which was subsequently renewed on November 30, 2018; and a Notice of Garnishment on or about September 25, 2013.
[12] In or about December 2014, settlement discussions took place between counsel, but the matter was not resolved. Between 2015 and 2018, Toronto-Dominion Bank did not make any efforts to enforce their judgment.
[13] In 2018, Toronto-Dominion Bank again took steps to realize their judgment. Costa received notice in March 2018 and April 2019 that a firm was taking steps to have her house sold under a Writ of Seizure and Sale.
[14] In or about August 2019, Costa’s lawyer contacted the Plaintiff’s lawyer regarding this matter. On September 6, 2019, the Sheriff’s Office of the City of Toronto mailed a Notice of Sheriff’s Sale of Lands to Costa, indicating a sale would be held on October 24, 2019.
[15] On or about September 20, 2019, Costa’s lawyer served the materials for this motion on the Plaintiff.
Applicable Legal Principles-Motion to Transfer
[16] 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 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.
[17] 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 37.03 provides that motions (which includes motions for summary judgment) shall be brought in the county where the action was commenced or to which it was transferred. 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 incurred,
(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 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.
[18] 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.
[19] The analysis of Rule 13.1.02 is fact-specific. 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”: 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.
[20] 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 (Ont. S.C.J.) at para. 25; Chatterson at para. 29.
Post-Judgment Motions
[21] Justice McNamara granted Summary Judgment. Summary Judgment is final. That does not mean that a proceeding is functus. Any post-judgment motions are made as part of that same proceeding.
[22] Although Summary Judgment was granted by Justice McNamara in 2012, there are still outstanding steps which Costa wishes to take. In the notice of motion, Costa has indicated she wishes to move for a stay of enforcement proceedings. Pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990 c. C.43, parties can move to stay enforcement of a proceeding, notwithstanding that judgment has been entered. See e.g. Ledroit v. Wilson, 2015 ONSC 4997; McEwen v. Marino, 2012 ONSC 999. In Ledroit, the Defendant sought a temporary stay of execution while acquiring funds to satisfy her debt, preventing the loss of her home. A motion for a stay is not currently before this court.
[23] Costa intends to bring a post-judgment motion to set aside the Summary Judgment. I make no determination of whether the specific requirements of Rule 37.14(1) or Rule 59.06(2)(a) are met: see e.g. Lavrijsen Campgrounds Ltd. v. Eileen Reville et al, 2014 ONSC 5302; Giancola v. Dobrydnev, 2019 ONSC 5372. The merits of such a motion are not before the court. I raise the Defendant’s intention only to highlight that any motion would properly be made under this same proceeding, rather than as a new originating process. In applying the test under Rule 13.1.02, I consider this.
Application of the Law to the Facts
[24] Rule 13.1.02(2) provides that “…the court may, on any party’s motion, make an order to transfer the proceeding…”. This proceeding is the action originated by Toronto-Dominion Bank in Court File No.: 12-54421. Costa wishes to stay the enforcement. Toronto-Dominion Bank wishes to realize their enforcement.
[25] As mentioned above, the factors must be applied holistically. In doing so, I consider what stage of the proceeding the matter is in. Summary Judgment has been granted. Toronto-Dominion Bank seeks enforcement of its judgment. Specifically, they seek a sale of Costa’s house. Costa intends to seek a stay of enforcement.
[26] Factors (i), (iii), (v) and militate in favour of transferring to the proceeding to the Toronto Region. Factor (i): the accumulation of debt and the default of Costa’s credit card took place in Toronto. Factor (iii): the subject-matter of this proceeding is the enforcement of a writ of a seizure and sale upon Costa’s house. Factor (v): this factor favours Toronto. Costa lives in Toronto and her counsel is based nearby. Costa has given affidavit evidence as to her limited funds. Toronto-Dominion Bank has Toronto counsel. Toronto-Dominion Bank is a sophisticated entity with operations in multiple cities who will be able to participate fully in Toronto. The Plaintiff relies on factors that often require carry weight during trial proceedings. Given the circumstances, the convenience of the parties carries significant weight.
[27] Factor (ii) militates against transferring the proceeding. MBNA is based in Ottawa and sustained the substantial part of the damages there. However, they have since assigned their Claim to Toronto-Dominion Bank. This factor carries less weight as a result.
[28] Factor (ix) allows me to consider any other relevant matter. The conduct of Costa in this proceeding militates against transferring this proceeding. On the record before me, Costa made very limited efforts in 2012 or 2013 to understand the proceedings. However, Toronto-Dominion Bank relaxed its efforts to enforce judgment for some time. When Toronto-Dominion Bank resumed its efforts to communicate with Costa, she was reluctant to engage. These are all considerations.
[29] I have assessed factors (iv), (vi), (vii) and (viii), and I find they have limited or neutral weight.
[30] I have applied the factors set out in Rule 13.1.02(2) to the factual matrix of this proceeding. I have considered the complete written record and cross-examination transcripts submitted. After applying the factors, I find that Costa has satisfied the onus upon her to demonstrate that the Toronto Region is “significantly better” for the remaining steps in this proceeding than the East Region. It will serve the interests of justice to transfer the proceeding.
Order
[31] I order this action and any related enforcement proceedings be transferred from the East Region (Ottawa) to the Toronto Region pursuant to Rule 13.1.02.
[32] I encourage the parties to agree on the issue of costs. If they cannot, Costa is to deliver written cost submissions, not to exceed 2 pages (excluding the bill of costs) by November 15, 2019. Toronto-Dominion Bank is to deliver written cost submissions of the same length (excluding the bill of costs) by November 22, 2019. Costa’s reply, if any, of no more than 1 page is to be delivered by November 27, 2019.
Firestone J.
Date: November 7, 2019