COURT FILE NO.: CV-19-630077 DATE: July 23, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dag Hrvoic v. Melissa Hrvoic;
BEFORE: MASTER C. WIEBE
COUNSEL: Alastair J. McNish for Melissa Hrvoic; Gregory Sidlofsky for Dag Hrvoic;
HEARD: June 25, 2020.
REASONS FOR DECISION
1The Respondent on this application, Melissa Hrvoic (also referred to as Melissa Marlowe), brings a motion seeking an order that one Aaron Franks answer 53 questions he refused to answer on a Rule 39.03 examination conducted on March 2, 2020. These questions were all refused on the grounds of privilege, either solicitor-client privilege or litigation privilege. The Applicant stands by those refusals.
Background
2The following facts are not in dispute. The Hrvoics were married in 1992 and have been separated and in matrimonial dispute since 2010. They have two children. There is a significant asset, namely the company named Marine Magnetics Inc., which is wholly owned by 1427830 Ontario Corporation (“Holdco”). The parties have shares in Holdco. Mr. Hrvoic’s matrimonial lawyer is Mr. Franks. In a financial statement Mr. Hrvoic swore on April 9, 2018, he stated that he owned 70% of Holdco and Ms. Hrvoic 30%.
3Two weeks later, on April 23, 2018, prior to the institution of any formal matrimonial litigation, Mr. Franks wrote a letter to Ms. Hrvoic’s matrimonial lawyer, Julie Hannaford, that concerned custody. At the end of the letter, Mr. Franks stated the following: “Mr. Hrvoic would also like to know whether Ms. Marlowe has given any consideration to her ongoing role in the business, Marine Magnetics, in which she holds a 49% interest (Mr. Hrovic holds the other 51%).” Nothing occurred on account of this part of the letter at that time.
4Matrimonial litigation ensued in October, 2018. On October 5, 2018, Mr. Hrvoic delivered an application for divorce. In a financial statement that Mr. Hrvoic swore in that litigation on the same day, October 5, 2018, Mr. Hrvoic stated again that he owned 70% of the shares of Holdco and Ms. Hrvoic 30%. In her financial statement that she swore on November 22, 2018, Ms. Hvroic gave no breakdown of her ownership interest in Holdco. In a case conference in May, 2019, Mr. Hrvoic reiterated his 70/30 ownership position.
5On November 26, 2019 Mr. Hrvoic brought an application for an order under the Ontario Business Corporations Act requiring that Ms. Hrvoic sell her shares of Holdco to Mr. Hrvoic. Again, Mr. Hrvoic took the position that he owned 70% of those shares and Ms. Hrovic 30%. In response, Ms. Hrvoic delivered an affidavit alleging that the parties shared the ownership of Holdco equally, 50/50. She attached the Franks April 23, 2018 letter to her affidavit.
6Mr. Franks then wrote a letter to Mr. Sidlofsky dated December 31, 2019 wherein he explained that his statement in his April 23, 2018 letter about ownership in Marine Magnetics was an error he made under the mistaken impression of an arrangement between the parties whereby Marine Magnetics would pay Ms. Hrvoic an income in exchange for family law concessions. Mr. Hrovic included this letter in a supplementary application record.
7On March 2, 2020 counsel for Ms. Hrvoic examined Mr. Franks pursuant to Rule 39.03 as a witness in the application. This is the examination that led to this motion.
8On March 3, 2020 Mr. Hrvoic was cross-examined on his affidavits. The ownership issue raised in the April 23, 2018 letter came up. He explained that the 51/49 ownership concept was no more than an idea he discussed with Ms. Hrvoic and Mr. Franks at the time of separation concerning a potential separation agreement, an idea and agreement he said never came to fruition.
9The application was returnable March 10, 2020 before Justice Dow. At this time, Ms. Hrvoic sought an adjournment to allow her to bring the within motion. His Honour granted the adjournment and specified that the motion should be scheduled in seven days and be heard at the earliest day possible on an “urgent” basis. His Honour also ordered that Ms. Hrvoic return $500,000 out of the $600,000 she had withdrawn from a line of credit secured by a house owned solely by Mr Hrvoic, and that she do so “in the next 7 days.”
10On March 15, 2020, the Superior Court suspended in-person operation due to the COVID-19 pandemic but did allow for the scheduling of matters deemed by the court to be necessary and appropriate to heard on an “urgent basis.” On or before March 17, 2020, Ms. Hvroic moved for leave to appeal the decision of Justice Dow concerning the return of the $500,000 and obtained a stay of that order. On May 28, 2020, over two months later and 79 days after Justice Dow’s order, Ms. Hrvoic emailed the civil urgent matters address seeking to schedule the within motion. On June 17, 2020 Ms. Hrvoic’s leave motion was heard and was dismissed with costs to be paid by Ms. Hrvoic in the amount of $10,000.
11The within motion was assigned to me and I scheduled a case conference with counsel on June 2, 2020 to schedule this motion. I scheduled the motion to be argued on June 25, 2020 by teleconference. At the time of the argument, Mr. McNish conceded that Ms. Hrvoic had not returned the $500,000 ordered by Justice Dow to be returned in seven days and had not paid the $10,000 costs award.
Issues
12Having reviewed the motion material and heard submissions, I conclude that the following issues need to be determined:
a) Do the refused questions seek evidence that is relevant? b) Do the refused questions seek evidence that is privileged? c) Has that privilege, if any, been waived or lost? d) Should the motion be denied on due to non-compliance with Justice Dow’s order?
Analysis
a) Do the refused questions seek evidence that is relevant?
13I have adopted the numbering and grouping system for the refused questions in the parties’ factums. I will deal with the questions in accordance with this grouping system. The refused questions fall into the following categories:
| Questions refused | Basis for refusal | Evidence being sought --- citation: "Dag Hrvoic v. Melissa Hrvoic, 2020 ONSC 4495" parties: "Dag Hrvoic v. Melissa Hrvoic" party_moving: "Melissa Hrvoic" party_responding: "Dag Hrvoic" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2020-07-23" date_heard: "2020-06-25" applicant:
- "Dag Hrvoic" applicant_counsel:
- "Gregory Sidlofsky" respondent:
- "Melissa Hrvoic" respondent_counsel:
- "Alastair J. McNish"
judge: "C. Wiebe"
summary: >
Melissa Hrvoic brought a motion seeking to compel Aaron Franks to answer 53 questions refused on grounds of solicitor-client and litigation privilege during a Rule 39.03 examination. The motion also faced dismissal due to Melissa Hrvoic's non-compliance with a prior interlocutory order to return $500,000. The court found the questions relevant and the privileges properly asserted. It determined that Mr. Hrvoic had not waived privilege by including an explanatory letter from his lawyer in the record, as this did not constitute using legal advice as a material fact in his claim or defence, nor was it equivalent to filing an affidavit. The court also dismissed the motion due to Melissa Hrvoic's non-compliance with Justice Dow's order.
interesting_citations_summary: >
The decision reinforces the high bar for waiving solicitor-client and litigation privilege, emphasizing that merely using a lawyer's explanatory letter to bolster credibility, without filing an affidavit or relying on legal advice as a material fact, is insufficient to constitute waiver. It distinguishes such use from situations involving pleadings amendments or formal admissions where privilege may be lost. The case also highlights the court's power to dismiss a motion for non-compliance with interlocutory orders under Rule 60.12.
final_judgement: "The motion brought by Melissa Hrvoic was dismissed in its entirety, both on the merits of the privilege arguments and due to her non-compliance with a prior court order."
winning_degree_applicant: 1
winning_degree_respondent: 5
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2020
decision_number: 4495
file_number: "CV-19-630077"
source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc4495/2020onsc4495.html"
cited_cases:
legislation:
- title: "Ontario Business Corporations Act" url: "https://www.ontario.ca/laws/statute/90o16"
- title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law:
- title: "Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31" url: "https://www.minicounsel.ca/scc/2004/31"
- title: "Lizotte v. Aviva Cie d’assurance du Canada, 2016 SCC 52" url: "https://www.minicounsel.ca/scc/2016/52"
- title: "S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218" url: "https://www.canlii.org/en/bc/bcsc/doc/1983/1983canlii407/1983canlii407.html"
- title: "Creative Career Systems Inc. v. Ontario, 2012 ONSC 649" url: "https://www.minicounsel.ca/scj/2012/649"
- title: "Roynat Capital Inc. v. Repeatseats Ltd., 2015 ONSC 1108 (Div. Ct.)" url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1108/2015onsc1108.html"
- title: "Iozzo v. Weir, 2004 ABQB 259" url: "https://www.canlii.org/en/ab/abqb/doc/2004/2004abqb259/2004abqb259.html"
- title: "Belanger v. Algoma Condominium Corporation No. 1, 2016 ONSC 3845 (SCJ)" url: "https://www.minicounsel.ca/scj/2016/3845"
- title: "Land v. Kaufman" url: "https://www.canlii.org/en/on/onsc/doc/1991/1991canlii7000/1991canlii7000.html"
- title: "R. v. McClure, 2001 SCC 14" url: "https://www.minicounsel.ca/scc/2001/14"
- title: "SNC-Lavalin Engineers & Constructors Inc. v. Citadel General Assurance Co. (2003), 63 O.R. (3d) 226" url: "https://www.canlii.org/en/on/onsc/doc/2003/2003canlii64289/2003canlii64289.html" keywords:
- Solicitor-client privilege
- Litigation privilege
- Waiver of privilege
- Rule 39.03 examination
- Rule 60.12
- Non-compliance with court order
- Matrimonial litigation
- Share ownership
- Credibility areas_of_law:
- Civil Procedure
- Evidence
- Family Law
COURT FILE NO.: CV-19-630077 DATE: July 23, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dag Hrvoic v. Melissa Hrvoic;
BEFORE: MASTER C. WIEBE
COUNSEL: Alastair J. McNish for Melissa Hrvoic; Gregory Sidlofsky for Dag Hrvoic;
HEARD: June 25, 2020.
REASONS FOR DECISION
1The Respondent on this application, Melissa Hrvoic (also referred to as Melissa Marlowe), brings a motion seeking an order that one Aaron Franks answer 53 questions he refused to answer on a Rule 39.03 examination conducted on March 2, 2020. These questions were all refused on the grounds of privilege, either solicitor-client privilege or litigation privilege. The Applicant stands by those refusals.
Background
2The following facts are not in dispute. The Hrvoics were married in 1992 and have been separated and in matrimonial dispute since 2010. They have two children. There is a significant asset, namely the company named Marine Magnetics Inc., which is wholly owned by 1427830 Ontario Corporation (“Holdco”). The parties have shares in Holdco. Mr. Hrvoic’s matrimonial lawyer is Mr. Franks. In a financial statement Mr. Hrvoic swore on April 9, 2018, he stated that he owned 70% of Holdco and Ms. Hrvoic 30%.
3Two weeks later, on April 23, 2018, prior to the institution of any formal matrimonial litigation, Mr. Franks wrote a letter to Ms. Hrvoic’s matrimonial lawyer, Julie Hannaford, that concerned custody. At the end of the letter, Mr. Franks stated the following: “Mr. Hrvoic would also like to know whether Ms. Marlowe has given any consideration to her ongoing role in the business, Marine Magnetics, in which she holds a 49% interest (Mr. Hrovic holds the other 51%).” Nothing occurred on account of this part of the letter at that time.
4Matrimonial litigation ensued in October, 2018. On October 5, 2018, Mr. Hrvoic delivered an application for divorce. In a financial statement that Mr. Hrvoic swore in that litigation on the same day, October 5, 2018, Mr. Hrvoic stated again that he owned 70% of the shares of Holdco and Ms. Hrvoic 30%. In her financial statement that she swore on November 22, 2018, Ms. Hvroic gave no breakdown of her ownership interest in Holdco. In a case conference in May, 2019, Mr. Hrvoic reiterated his 70/30 ownership position.
5On November 26, 2019 Mr. Hrvoic brought an application for an order under the Ontario Business Corporations Act requiring that Ms. Hrvoic sell her shares of Holdco to Mr. Hrvoic. Again, Mr. Hrvoic took the position that he owned 70% of those shares and Ms. Hrovic 30%. In response, Ms. Hrvoic delivered an affidavit alleging that the parties shared the ownership of Holdco equally, 50/50. She attached the Franks April 23, 2018 letter to her affidavit.
6Mr. Franks then wrote a letter to Mr. Sidlofsky dated December 31, 2019 wherein he explained that his statement in his April 23, 2018 letter about ownership in Marine Magnetics was an error he made under the mistaken impression of an arrangement between the parties whereby Marine Magnetics would pay Ms. Hrvoic an income in exchange for family law concessions. Mr. Hrovic included this letter in a supplementary application record.
7On March 2, 2020 counsel for Ms. Hrvoic examined Mr. Franks pursuant to Rule 39.03 as a witness in the application. This is the examination that led to this motion.
8On March 3, 2020 Mr. Hrvoic was cross-examined on his affidavits. The ownership issue raised in the April 23, 2018 letter came up. He explained that the 51/49 ownership concept was no more than an idea he discussed with Ms. Hrvoic and Mr. Franks at the time of separation concerning a potential separation agreement, an idea and agreement he said never came to fruition.
9The application was returnable March 10, 2020 before Justice Dow. At this time, Ms. Hrvoic sought an adjournment to allow her to bring the within motion. His Honour granted the adjournment and specified that the motion should be scheduled in seven days and be heard at the earliest day possible on an “urgent” basis. His Honour also ordered that Ms. Hrvoic return $500,000 out of the $600,000 she had withdrawn from a line of credit secured by a house owned solely by Mr Hrvoic, and that she do so “in the next 7 days.”
10On March 15, 2020, the Superior Court suspended in-person operation due to the COVID-19 pandemic but did allow for the scheduling of matters deemed by the court to be necessary and appropriate to heard on an “urgent basis.” On or before March 17, 2020, Ms. Hvroic moved for leave to appeal the decision of Justice Dow concerning the return of the $500,000 and obtained a stay of that order. On May 28, 2020, over two months later and 79 days after Justice Dow’s order, Ms. Hrvoic emailed the civil urgent matters address seeking to schedule the within motion. On June 17, 2020 Ms. Hrvoic’s leave motion was heard and was dismissed with costs to be paid by Ms. Hrvoic in the amount of $10,000.
11The within motion was assigned to me and I scheduled a case conference with counsel on June 2, 2020 to schedule this motion. I scheduled the motion to be argued on June 25, 2020 by teleconference. At the time of the argument, Mr. McNish conceded that Ms. Hrvoic had not returned the $500,000 ordered by Justice Dow to be returned in seven days and had not paid the $10,000 costs award.
Issues
12Having reviewed the motion material and heard submissions, I conclude that the following issues need to be determined:
a) Do the refused questions seek evidence that is relevant? b) Do the refused questions seek evidence that is privileged? c) Has that privilege, if any, been waived or lost? d) Should the motion be denied on due to non-compliance with Justice Dow’s order?
Analysis
a) Do the refused questions seek evidence that is relevant?
13I have adopted the numbering and grouping system for the refused questions in the parties’ factums. I will deal with the questions in accordance with this grouping system. The refused questions fall into the following categories:
| Questions refused | Basis for refusal | Evidence being sought --- SYSTEM INSTRUCTIONS:
INSTRUCTIONS FOR PROCESSING CASELAW FILES
You will receive a caselaw file in markdown (MD or MDX) format. Your task is to output the entire file in full, including:
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Do not remove or modify any content except where explicitly instructed. Formatting, capitalization, and all other text must remain exactly as in the original.
1) Correct and Complete the YAML Frontmatter
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Required fields to fill in and/or add:
case_type(see Section 2 for rules)date_judgement(format:YYYY-MM-DD)date_heard(format:YYYY-MM-DD). Can be an array of dates if multiple hearings occurred. For example,date_heard: ["2022-01-01""2022-02-01"]applicant(list of applicant names)applicant_counsel(list of counsel names, or"Self-represented")respondent(list of respondent names)respondent_counsel(list of counsel names, or"Self-represented")judge(full name, without title). Can be an array of judges if multiple judges presided over the case. For example, `judge: ["John Doe""Jane Smith"]summary(A incisive summary of the case written in legalese for lawyers to read, as they seek case law to match their fact pattern. Do not include individual names or initials here.)interesting_citations_summary(An incisive summary focusing on case law matching of their fact pattern, judicial reasoning, and legal principles. Do not include individual names or initials here.)final_judgement(The final judgement of the case stated if short or summerized if long.winning_degree_applicant: A number from 1 (won 100%) to 5 (won 0%) to the degree to which the applicant won.winning_degree_respondent: A number from 1 (won 100%) to 5 (won 0%) to the degree to which the respondent won.judge_bias_applicant: A number from 0 (biased 0%) to 5 (biased 100%) to the degree to which the judge seemed biased towards the applicant.judge_bias_respondent: A number from 0 (biased 0%) to 5 (biased 100%) to the degree to which the judge seemed biased towards the respondent.
--
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case_typeis missing, empty, or incorrect, determine it from the caselaw content. - Valid case types (must be exactly one of these):
motion
motion to change
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Guidelines for determining case type:
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Example of HTML and Markdown so you can see how to prepare our markdown file from the html:
<div class="solexHlZone lbh-document" id="originalDocument">
<div>
<div>
<div>
<p>COURT FILE NO.: CV-20-00009461-0000</p>
<p>DATE: 20250603</p>
<p>SUPERIOR COURT OF JUSTICE – ONTARIO</p>
<p>RE: SAMUEL MIDDLETON, Plaintiff</p>
<p>AND:</p>
<p>MATTHEW SHAWN KEY and Michelene catherine key, Defendants</p>
<p>BEFORE: Firestone RSJ.</p>
<p>COUNSEL: Thomas L. W. Orendorff , for the Plaintiff</p>
<p>Ryan D. Truax and Marcus Rozsa, for the Defendants</p>
<p>HEARD: In Writing</p>
<p>ENDORSEMENT</p>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-parag="1" data-viibes-start="0">
[1] The Defendants bring this motion for an order transferring this proceeding from Sudbury (Northeast Region) to the Toronto Region.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="0" data-viibes-parag="2" data-viibes-start="1">
[2] The Plaintiff opposes the transfer motion. He also brings a cross-motion requesting that should a transfer be necessary, it should be to Gore Bay in the Northeast Judicial Region.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="1" data-viibes-parag="3" data-viibes-start="2">
[3] The motion is brought pursuant to Rule 13.1.02 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) and the procedures set forth in the Consolidated Civil Provincial Practice Direction amended February 1, 2024 (the “Practice Direction”). In accordance with the Practice Direction, I am to determine the Defendants’ request to transfer this proceeding from another judicial region to the Toronto Region.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="2" data-viibes-parag="4" data-viibes-start="3">
[4] In determining whether a transfer is desirable in the interests of justice, the court is to consider the factors enumerated in subrule 13.01.02(b)</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="3" data-viibes-parag="5" data-viibes-start="4">
[5] The factors set forth in Rule 13.1.02(2)(b) are to be applied holistically. No one of the enumerated factors is more important than the other. These factors are to be examined together and balanced in order to determine whether a requested transfer is desirable in the interests of justice: Chatterson et al. v. M&M Meat Shops , 2014 ONSC 1897 , 68 C.P.C. (7 th ) 135 (Div. Ct.), at paras. 22 , 34, and 35.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="4" data-viibes-parag="6" data-viibes-start="5">
[6] Balancing the factors in Rule 13.1.02 (2)(b) is not a purely numerical or mathematical counting exercise : Bruce Power L.P. v. BNT Canada, L.P. , 2018 ONSC 5968 , at para. 16 .</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="5" data-viibes-parag="7" data-viibes-start="6">
[7] If the Plaintiff’s choice of venue is reasonable and the Defendant challenges that venue, then a comparison of the two venues is required. The Defendant must establish that its proposed choice of venue is “significantly better” than the one chosen by the Plaintiff: Chatterson, at paras. 28-29.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="6" data-viibes-parag="8" data-viibes-start="7">
[8] The subject collision took place in the City of Toronto. At that time the Plaintiff was a student at Tyndale University in Toronto and was employed at Starbucks. He attends university between September and April of each year. The Plaintiff is ordinarily resident in the Northeast Judicial Region.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="7" data-viibes-parag="9" data-viibes-start="8">
[9] Following the collision, he was transported to the North York General Hospital and then St. Michael’s Hospital in Toronto where he remained for a number of days. Upon discharge he sought treatment at the Manitoulin Health Centre.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="8" data-viibes-parag="10" data-viibes-start="9">
[10] The Defendants reside in Aurora which is located the Central York Region and is part of the greater Toronto area. Neither the Defendants nor the Plaintiff reside in the City of Toronto.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="9" data-viibes-parag="11" data-viibes-start="10">
[11] A number of the medical and other witness to be called at trial reside in or near the greater Toronto area. However, the record discloses that the majority of the witnesses to be called by the Plaintiff at trial are resident in the Northeast Region. This is where the post-acute care and treatment was received and is where the Plaintiff’s family doctor, treating orthopedic surgeon and psychological expert reside. It is also where the Plaintiff has worked in his chosen profession.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="10" data-viibes-parag="12" data-viibes-start="11">
[12] On a holistic consideration of the factors enumerated in subrule 13.1.02(2) and the circumstances of the case, I find that the Plaintiff’s choice of venue was a reasonable one. I am not satisfied that the record establishes that the venue proposed by the Defendants is “significantly better” than the one chosen by the Plaintiff. It cannot be said that the Plaintiff’s choice is unreasonable. I therefore dismiss the Defendants motion for a transfer.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="11" data-viibes-parag="13" data-viibes-start="12">
[13] Given this result, the cross motion is also dismissed. For clarification, a request to transfer or move a proceeding within a particular judicial region from one location to another is not a determination to be made by an RSJ in a different region.</p></div>
<div link="/en/#search/origin1=https://www.minicounsel.ca/scj/2025/3292"><p data-viibes-end="12" data-viibes-parag="14" data-viibes-start="13">
[14] I encourage the parties to agree on the issue of costs. If they cannot agree, the Plaintiff is to provide his costs submissions of no more than 2 pages by June 11, 2025. The Defendants are to provide their costs submission of the same length by June 18, 2025. Any reply is to be delivered by June 23, 2025. These submissions are to be uploaded to Case Center and provided to my judicial assistant.</p></div>
<p>_______________________________</p>
<p>Released: June 3, 2025 Firestone RSJ.</p>
</div>
</div>
</div>
</div>
```md
---
citation: "Samuel Middleton v. Key et al., 2025 ONSC 3292"
parties: "Samuel Middleton v. Matthew Shawn Key and Michelene Catherine Key"
party_moving: "Matthew Shawn Key and Michelene Catherine Key"
party_responding: "Samuel Middleton"
court: "Superior Court of Justice"
court_abbreviation: "ONSC"
jurisdiction: "Ontario"
case_type: "motion"
date_judgement: "2025-06-03"
date_heard: "2025-06-03"
applicant:
- "Matthew Shawn Key"
- "Michelene Catherine Key"
applicant_counsel:
- "Ryan D. Truax"
- "Marcus Rozsa"
respondent:
- "Samuel Middleton"
respondent_counsel:
- "Thomas L. W. Orendorff"
judge: "Firestone"
winning_degree_applicant: 5
winning_degree_respondent: 1
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2025
decision_number: 3292
file_number: "CV-20-00009461-0000"
source: "https://www.minicounsel.ca/scj/2025/3292"
cited_cases:
legislation:
- title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194"
url: "https://www.ontario.ca/laws/regulation/900194"
case_law:
- title: "Chatterson et al. v. M&M Meat Shops, 2014 ONSC 1897, paras. 22, 34, 35"
url: "https://www.minicounsel.ca/odc/2014/1897"
- title: "Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968, para. 16"
url: "https://www.minicounsel.ca/scj/2018/5968"
summary: >
The defendants brought a motion to transfer the proceeding from Sudbury (Northeast Region) to the Toronto Region. The plaintiff opposed the transfer and brought a cross-motion requesting that, if a transfer was necessary, it should be to Gore Bay in the Northeast Judicial Region. The court considered the factors under Rule 13.1.02 of the Rules of Civil Procedure and found that the plaintiff’s choice of venue was reasonable. The defendants did not establish that their proposed venue was significantly better. Both the motion and cross-motion were dismissed.
interesting_citations_summary: >
The decision provides a clear application of the holistic approach to venue transfer under Rule 13.1.02, emphasizing that no single factor is determinative and that the party seeking transfer must show their proposed venue is significantly better. The court also clarifies the limits of an RSJ’s authority regarding intra-regional transfers.
keywords:
- Venue transfer
- Rules of Civil Procedure
- Ontario Superior Court
- Chatterson v. M&M Meat Shops
- Bruce Power v. BNT Canada
- Judicial region
- Civil procedure
- Costs submissions
areas_of_law:
- Civil Procedure
- Civil Litigation
---
# Court File and Parties
**Court File No.:** CV-20-00009461-0000
**Date:** 2025-06-03
**Superior Court of Justice – Ontario**
**Re:** Samuel Middleton, Plaintiff
**And:** Matthew Shawn Key and Michelene Catherine Key, Defendants
**Before:** Firestone RSJ.
**Counsel:**
Thomas L. W. Orendorff, for the Plaintiff
Ryan D. Truax and Marcus Rozsa, for the Defendants
**Heard:** In Writing
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# Endorsement
[1] The Defendants bring this motion for an order transferring this proceeding from Sudbury (Northeast Region) to the Toronto Region.
[2] The Plaintiff opposes the transfer motion. He also brings a cross-motion requesting that should a transfer be necessary, it should be to Gore Bay in the Northeast Judicial Region.
[3] The motion is brought pursuant to [Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194](https://www.ontario.ca/laws/regulation/900194) (the “Rules”) and the procedures set forth in the Consolidated Civil Provincial Practice Direction amended February 1, 2024 (the “Practice Direction”). In accordance with the Practice Direction, I am to determine the Defendants’ request to transfer this proceeding from another judicial region to the Toronto Region.
[4] In determining whether a transfer is desirable in the interests of justice, the court is to consider the factors enumerated in subrule 13.01.02(b).
[5] The factors set forth in Rule 13.1.02(2)(b) are to be applied holistically. No one of the enumerated factors is more important than the other. These factors are to be examined together and balanced in order to determine whether a requested transfer is desirable in the interests of justice: [Chatterson et al. v. M&M Meat Shops, 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Div. Ct.), at paras. 22, 34, and 35](https://www.minicounsel.ca/odc/2014/1897).
[6] Balancing the factors in Rule 13.1.02(2)(b) is not a purely numerical or mathematical counting exercise: [Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968, at para. 16](https://www.minicounsel.ca/scj/2018/5968).
[7] If the Plaintiff’s choice of venue is reasonable and the Defendant challenges that venue, then a comparison of the two venues is required. The Defendant must establish that its proposed choice of venue is “significantly better” than the one chosen by the Plaintiff: Chatterson, at paras. 28-29.
[8] The subject collision took place in the City of Toronto. At that time the Plaintiff was a student at Tyndale University in Toronto and was employed at Starbucks. He attends university between September and April of each year. The Plaintiff is ordinarily resident in the Northeast Judicial Region.
[9] Following the collision, he was transported to the North York General Hospital and then St. Michael’s Hospital in Toronto where he remained for a number of days. Upon discharge he sought treatment at the Manitoulin Health Centre.
[10] The Defendants reside in Aurora which is located in the Central York Region and is part of the greater Toronto area. Neither the Defendants nor the Plaintiff reside in the City of Toronto.
[11] A number of the medical and other witnesses to be called at trial reside in or near the greater Toronto area. However, the record discloses that the majority of the witnesses to be called by the Plaintiff at trial are resident in the Northeast Region. This is where the post-acute care and treatment was received and is where the Plaintiff’s family doctor, treating orthopedic surgeon and psychological expert reside. It is also where the Plaintiff has worked in his chosen profession.
[12] On a holistic consideration of the factors enumerated in subrule 13.1.02(2) and the circumstances of the case, I find that the Plaintiff’s choice of venue was a reasonable one. I am not satisfied that the record establishes that the venue proposed by the Defendants is “significantly better” than the one chosen by the Plaintiff. It cannot be said that the Plaintiff’s choice is unreasonable. I therefore dismiss the Defendants' motion for a transfer.
[13] Given this result, the cross-motion is also dismissed. For clarification, a request to transfer or move a proceeding within a particular judicial region from one location to another is not a determination to be made by an RSJ in a different region.
[14] I encourage the parties to agree on the issue of costs. If they cannot agree, the Plaintiff is to provide his costs submissions of no more than 2 pages by June 11, 2025. The Defendants are to provide their costs submission of the same length by June 18, 2025. Any reply is to be delivered by June 23, 2025. These submissions are to be uploaded to Case Center and provided to my judicial assistant.
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Released: June 3, 2025
Firestone RSJ.
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