Court File and Parties

COURT FILE NO.: CV-19-68872 DATE: 20200117 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JASON PALMER, Plaintiff AND: TEVA CANADA LIMITED, Defendant

BEFORE: Mr. Justice Stephen E. Firestone

COUNSEL: Mitchell J. Bates, for the Plaintiff/Responding Party Malcolm MacKillop, for the Defendant/Moving Party

HEARD: In writing

Endorsement

[1] The defendant Teva Canada Limited (“Teva”) 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, Reg 194 (the “Rules”).

[2] 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 Acting Regional Senior Judge has delegated the responsibility for deciding this motion to me in my capacity as civil team leader in the Toronto Region.

[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 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 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.

[4] On January 7, 2020, I requested that the plaintiff provide his position on this motion and deliver any responding submissions by January 14, 2020 following which time, I would determine the motion based on the materials received. To date, the plaintiff has not provided me with his position on this motion and no responding materials have been received. This motion proceeded on an unopposed basis.

[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), 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para 28. When the plaintiff’s choice of jurisdiction is challenged by a defendant and there is no connection whatsoever to the issuing jurisdiction, barring any unusual circumstance, the proceeding must be transferred to the other jurisdiction bearing in mind the factors in Rule 13.1.02(2): Ferrari v. Polytainers Inc; 2014 ONSC 5938, 2014 CarswellOnt 14140 at para. 7.

[6] I have applied the factors set out in Rule 13.1.02 (2) to the factual matrix of this case. I am satisfied that the defendant has met the requisite onus and has demonstrated that the interest of justice requires that this action be transferred from Hamilton to Toronto.

[7] This is a wrongful termination action. The record before me confirms that none of the parties to this action reside in the Central South Region. The plaintiff resides in the Central East Region (Newmarket). The defendant employer’s Head Office is in the Toronto Region. The plaintiff’s primary place of work was at the Head Office and the termination took place at the Head Office.

[8] A substantial part of the events which give rise to this action occurred in the Toronto Region. The alleged damages were sustained within the greater Toronto Area or in proximity thereto. The only connection to Hamilton appears to be that the plaintiff’s lawyer is located there.

[9] I order that this action be transferred from the Central South Region (Hamilton) to the Toronto Region. The issue of costs is reserved to the trial judge.

Firestone J. Date: January 17, 2020