COURT FILE NO.: CV-18-00000042-000T
DATE: 20200925
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Rhys Fockler et al., Plaintiffs
– and –
Jonathan Speigel et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Sean Torrie, for the Defendant Garen Kassabian Kelli Preston and Justin Winch, for the Defendants Jonathan Speigel and Lawyers Professional Indemnity Company Rhys Fockler and Lyn Cartwright on their own behalves
READ: September 24, 2020
endorsement
The Motion
[1] The defendant Kassabian moves to transfer this action from Cobourg to Toronto.
[2] I am hearing the motion as delegate of the Regional Senior Justice in Toronto.
[3] For the reasons that follow the motion is dismissed.
The Facts
[4] This lawsuit concerns the sale of the plaintiffs’ home in Toronto in 2015. On selling their home, the plaintiffs moved to Warkworth, Ontario in the court’s Central East Region.
[5] In 2018, the plaintiffs commenced this lawsuit in Cobourg in the Central East Region. They sued under the Simplified Rules.
[6] Prior to the sale of the plaintiffs’ house, Lawyers Professional Indemnity Company had registered three writs of execution against the property. The plaintiffs claim that Lawyers Professional Indemnity Company and its lawyer, Jonathan Speigel committed a variety of wrongdoing in the manner by which they enforced the writs at the time of the sale transaction.
[7] The plaintiffs also claim against Garen Kassabian who was their own lawyer on the sale transaction.
[8] Mr. Kassabian moves to transfer the action to Toronto with the consent of the other defendants. The plaintiffs oppose the request.
[9] The evidence supporting the motion is an affidavit of an articling student in the law firm representing Mr. Kassabian. Much of the affidavit is unattributed hearsay. It appears from emails exhibited to the affidavit that in January, 2019 the plaintiffs proposed to bring a substantial motion for procedural relief and directions to try to streamline the case. In May, 2019, Mr. Speigel and the insurer proposed to move for summary judgment to dismiss the claims against them. In late August, 2019, the defendant Kassabian also proposed to bring a summary judgment motion to dismiss the claims against him.
[10] Mr. Kassabian’s counsel, Mr. Torrie, advised his articling student that the parties canvassed motion dates in Cobourg in the fall of 2019 “but were unable to find a date that worked for all parties.” Mr. Torrie advised that long motions in Cobourg are heard during trial sittings. Counsel are on standby for three weeks during the sittings. They can be called on 24 hours’ notice.
[11] Mr. Torrie advises and his student verily believes that scheduling a summary judgment motion through Civil Practice Court in Toronto “is more efficient than relying on trial sittings in Cobourg.”
[12] In a piece of unattributed double hearsay, the articling student reports that Mr. Torrie also advises that “for each of the parties, Toronto is the more convenient location as it is closer to their place of work or their residence.” I suspect that the plaintiffs may have a different view and I question how Mr. Torrie purports to speak for them or the other defendants.
[13] Finally, Mr. Torrie advises his student that, “[i]t is more convenient for all possible witnesses the defendants may call for the action to be in Toronto.”
[14] The affidavit appends as an exhibit, an email from Mr. Fockler that provides, in part:
As regards jurisdiction, this case has nothing to do with 1299, Don Mills, or Toronto. It could be any Canadian selling any home, buying any home, in any province, retaining any lawyer to handle the sale, and purchase, and any opposite lawyer retained to handle the sale and purchase, or lift a writ.
A final note about Central East - it is not so hard to get a fixed date, for a good hearing. Although we all smoke corn-cob pipes out here, we do know how to think and get things done.
The Law
[15] Under Rule 13.1.02 (2) of the Rules of Civil Procedure, RRO 1990, Reg 194, a party who seek a change in venue must satisfy the court:
(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.
[16] In Estate of Byung Sun Im, deceased, 2018 ONSC 2223 Firestone J. (as then was) discussed the nature of the analysis under Rule 13.1.02 (b) as follows:
[10] The application of rule 13.1.02 is fact specific and must include a balancing of all factors to ensure that any transfer granted is desirable and 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. 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; 014 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.
[11] As Himel J states in part in Telus Communications Company v. Her Majesty the Queen, 2015 ONSC 1345 at para 13:
A plaintiff has a prima facie right to select a venue for an action. The plaintiff does not have to justify that the choice made is a reasonable one. Rather, if the other party is of the view that the choice is unreasonable, it may bring a motion to change the venue. The onus is on the moving party to show that it is “in the interests of justice” to transfer the action having regard to the factors outlined in rule 13.1.02(2) (b).
Analysis
[17] The evidence does not satisfy me that there is any basis to transfer this action to Toronto. While the claim is based on torts associated with a house sale, the torts are not associated with the location of the house or the underlying land.
[18] The evidence concerning witnesses and their convenience is unattributed hearsay and double hearsay. Rather than being fact specific as required, it is bald and unconvincing. Remote hearings are in common use regardless of peoples’ locations. There is no basis in the evidence to find any inconvenience to any witness or any unfairness to any party with the proceedings remaining in Cobourg.
[19] Overall, it is not appropriate to change venue to try to obtain “more efficient” motion scheduling. The parties’ proposed motions were not scheduled in late 2019 because counsel and the plaintiffs could not agree on a convenient date – not because the court had a problem accommodating the parties. There is no evidence that a hearing would happen more quickly or more cheaply in Toronto. Moreover, parties should not be encouraged to try to use venue as a method of queue-jumping long motions lists.
[20] There is no merit in the suggestion that the parties’ motions will necessarily be heard sooner or at all with scheduling in Civil Practice Court. This is an action under the Simplified Rules. The defendants may find a judge in Civil Practice Court rather unenthused by the idea of consigning the parties to lengthy, expensive summary judgment motions rather than holding an early summary trial under Rule 76.12.
[21] The plaintiffs have a prima facie right to have the action heard where they wish. In this case, the venue chosen is near their home. The moving parties bear the onus to show that it is “desirable in the interest of justice” to deprive the plaintiffs of their choice of venue. The parties’ failure to agree on a motion date and Mr. Torrie’s apparent disinclination to rolling standby hearing lists are not relevant factors in assessing the public interest balance. There is no basis in the evidence to consider a transfer of this action.
[22] The motion is therefore dismissed.
F.L. Myers J.
Date: September 25, 2020