Court File and Parties

COURT FILE NO.: 18-67162-000T DATE: 2019-01-31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MYRON HALUK, Applicant AND: ROMAN CHYCZJI (also known as Ron Chyczij), personally and as named Estate Trustee for the Estate of Polly Chyczij, and MARK HALUK, Respondents

BEFORE: Mr. Justice Stephen E. Firestone

COUNSEL: Jennifer M.C. Stebbing, for the Applicant Bohdan Bodnaruk, for the Respondent Roman Chyczij Mark Haluk in person

HEARD: In writing

Endorsement

[1] The respondent Roman Chyczij (“Roman”) brings this motion for an order transferring this proceeding from Hamilton (Central South Region) to the Toronto Region pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O.1990, Reg.194 (the “Rules”).

[2] The respondent Mark Haluk (“Mark”) supports the motion. The applicant Myron Haluk (“Myron”) opposes the motion.

[3] In this application the applicant seeks to remove the estate trustee.

[4] 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 subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious at 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.

[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). 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 51192 (ON SC), 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para 28.

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

[7] Roman, the estate trustee resides, in the City of Mississauga. Myron resides in the Town of Oakville. Mark resides in the City of Toronto.

[8] The deceased’s properties are located in Etobicoke, and Terra Cotta- Town of Caledon.

[9] Myron is a physician whose practice is located in Hamilton. Myron’s children attend school in Hamilton. Myron chose Hamilton as the venue for this proceeding given its proximity to his residence and place of work.

[10] A timetable for the proceeding has been set and a hearing date fixed in June, 2019.

[11] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix and procedural history of this proceeding. The moving party has not established that it would be “significantly better” that this application be heard in Toronto rather than Hamilton. The motion is dismissed.

[12] I would encourage the parties to schedule a mediation at this time in order to resolve the issues before the court.

[13] The costs of this motion are reserved to the application judge.

Firestone J.

Date: January 31, 2019