COURT FILE NO.: CV-628334-00 (Toronto)

DATE: 20201203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EARTH BORING COMPANY LIMITED

Plaintiff

AND:

GROUPE CRH CANADA INC./CRH CANADA GROUP INC. formerly DUFFERIN CONSTRUCTION COMPANY, A DIVISION OF HOLCIM (CANADA) INC.

Defendant

BEFORE: RICCHETTI RSJ.

COUNSEL: A. Jovanovic, Counsel, for the Plaintiff

J. LeBer, E. Grigg, Counsel, for the Defendant

HEARD: November 27, 2020

ENDORSEMENT

Contents

The Motion. 2

Background. 2

The Issue. 3

The Law.. 3

Analysis. 4

Lack of Meaningful Connection with Toronto. 4

Events Giving Rise to the Claim.. 5

Convenience. 5

The Contract Submission. 5

Potential for Inconsistent Findings. 6

Earth Boring’s possible future motions. 6

Earth Boring’s Fundamental objection. 7

Conclusion. 8

Costs. 8

The Motion

[1] This is a motion by Groupe CRH Canada Inc./CRH Canada Group Inc. formerly Dufferin Construction Company, a division of Holcim (Canada) Inc. (“Dufferin”) for an order transferring this Toronto proceeding, and the associated third-party claim bearing Toronto Court file No. CV-19-628334-00A1, to Brampton.

[2] Earth Boring Company Limited (“Earth Boring”) opposes the motion.

[3] The parties agreed this motion would be heard by this court on the written materials and submissions filed by the parties.

Background

[4] This proceeding relates to Earth Boring’s grade separation work (as sub-contractor), performed for Dufferin (as general contractor), on the City of Mississauga’s (as the owner) project near Torbram Road, in the City of Mississauga, in the Regional Municipality of Peel.

[5] A dispute arose between the City of Mississauga (“City”) and Dufferin relating to the Torbram Project.

[6] As a result, in 2017, Dufferin commenced an action in Brampton, in the Regional Municipality of Peel against the City relating to one aspect of the Torbram Project.

[7] Subsequently, on August 2, 2019 Dufferin commenced an another action in Brampton against the City making various financial claims relating to the Torbram Project.

[8] As often happens in project construction disputes, disputes between the Owner and General Contractor results in “down stream” disputes with subcontractors. In this case, a dispute arose between Earth Boring and Dufferin. On October 1, 2019, Earth Boring commenced this action in Toronto relating to the Torbram Project.

[9] On October 5, 2020, Dufferin third partied the City, which third party claim also relates to the Torbram Project

[10] On July 28, 2020, A&B Rail Services Ltd. (“A&B”), also a subcontractor to Dufferin on the Torbram Project, commenced an action in Brampton against Dufferin and the City which claim relate to the Torbram Project.

[11] On November 9, 2020, this court ordered that the various Brampton actions, relating to the Torbram Project, be case managed.

The Issue

[12] The issue is whether this court should order that these Toronto proceedings be transferred to Brampton and included in the case management of the Torbram Project related proceedings.

The Law

[13] Rule 13.1.02 (2) provides as follows:

13.1.02 (2) If subrule (1) does not apply [it does not in this case], the 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 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.

[comment by this court]

Analysis

Lack of Meaningful Connection with Toronto

[14] The City of Mississauga is in the Regional Municipality of Peel. Brampton is the courthouse for the Region of Peel.

[15] Earth Boring’s head office is in the City of Mississauga.

[16] The Torbram Project is in the City of Mississauga.

[17] Earth Boring performed its work in the City of Mississauga.

[18] Dufferin, the contracting party with Earth Boring, performed its work in the City of Mississauga. Dufferin expected payment from the City. Earth Boring knew the City was the owner and expected the flow of money would be from the City to Dufferin to Earth Boring (although I acknowledge the contractual provisions in all likelihood do not state the money flows exactly like this but Part 2 of the Construction Act creates trust obligations to ensure monies flow in this manner). As a result, it can be said that Earth Boring’s damages were sustained where it did the work and was not paid – the City of Mississauga.

[19] The only connection between Earth Boring claim and the City of Toronto is that Earth Boring’s counsel’s offices are in Toronto.

[20] There simply is no other meaningful or reasonable connection between Toronto and Earth Boring’s claim.

[21] In this case, the place of trial chosen by Earth Boring is completely devoid of any connection from the location of the events giving rise to Earth Boring’s action.

Events Giving Rise to the Claim

[22] There is no dispute that the events giving rise to Earth Boring’s claim and the third-party claim is a construction dispute that occurred in the City of Mississauga in the Regional Municipality of Peel.

Convenience

[23] There is no serious submission by Earth Boring that Toronto is a more convenient or better place for the trial of its claim.

[24] Given that the City is also a party, by way of the third-party proceeding, there will likely be greater convenience to the parties, witnesses and the court that the Earth Boring action be heard in Brampton, where the project and work was performed.

The Contract Submission

[25] One of the submissions made by Earth Boring is that “Dufferin is contractually precluded from joining the two actions” (referring to the Dufferin/City action in Brampton and the Earth Boring/Dufferin action in Toronto). Again, this submission is best made when and if such a motion to “join” the actions is brought.

[26] Further, at this stage, it is not clear whether Earth Boring can take advantage of the “Subcontractors Claims First Clause” as that clause is in a contract between the City and Dufferin and there is a serious issue whether such a provision can be enforceable by Earth Boring – a third-party to the contract.

[27] Having an Earth Boring lawyer state that “in my view, this clause is intended to benefit both the City of Mississauga and Dufferin’s subcontractors” is nothing more than speculation. It is an inappropriate statement for a lawyer to make in an affidavit. A bald statement by a lawyer that the intent of other third-party’s (i.e. not his clients) intention was when the third parties entered into the agreement, is of no value whatsoever.

[28] I make no finding whether the Subcontractors Claim First Clause is or is not enforceable by Earth Boring but simply state that the evidence before me and the submissions do not persuade me that this clause is a factor for denying the motion to change venue.

Potential for Inconsistent Findings

[29] The significant interrelationship involving the Subcontractor Claims First Clause as between Dufferin and the City and between Dufferin and the Subcontractors is clearly set out in the Earth Boring affidavit filed on this motion:

[29] The issues of the applicability and enforceability of the Subcontractor Claims First Clause on each of this action, the third party claim and the City of Mississauga Action are in play and will presumably be determined at some later date.

[30] Clearly, there will have to be a judicial determination on the interpretation, enforcement and application of the Subcontractor Claims First Clause.

[31] The Subcontractors Claims First Clause impacts on A&B as well as it is a subcontractor.

[32] Given that numerous parties have an interest in the interpretation of this clause, there is a risk that a judicial determination on this clause may differ if there are separate proceedings in different venues with separate judicial determinations. On the other hand, such a common issue may very well be decided in a case managed proceeding, with all parties with an interest in the outcome participating and the decision binding on the separate actions without the actions being consolidated or tried together.

Earth Boring’s possible future motions

[33] Earth Boring submits that it may bring a Rule 29.09 motion or a motion to strike portions of Dufferin’s pleadings.

[34] The difficulty with this submission is that it fails to identify in what way either of these motions, if brought, would be delayed or prejudiced by a change in venue to Brampton.

[35] The A&B Railing claim must be heard in Peel since it is a Construction Act claim which must be brought in the jurisdiction where the improvement took place – Peel.

Earth Boring’s Fundamental objection

[36] Earth Boring states that its prima facie right, as Plaintiff, to choose the venue should be respected. The primary objection by Earth Boring is that it does not want to be “dragged” into the Brampton actions which could take “years” to get to trial and a final determination.

[37] While the Plaintiff in a legal proceeding has a prima facie right to choose the location where the proceeding is brought, that right is not absolute. The choice of venue must be a reasonable one.

[38] Proceedings are routinely moved from one venue to another, sometimes on the court’s own initiative based on its inherent jurisdiction, because the proceeding is instituted in a venue which has no rational or reasonable connection with the venue chosen by the Plaintiff. In my view, given the circumstances set out herein, Earth Boring clearly risks that on the first attendance on this matter in Toronto such an objection or concern may be raised by the court itself. However, I do not have to go there or rely on inherent jurisdiction since the Defendant, Dufferin, has moved to change venue.

[39] It should be clearly noted that any change in venue would NOT result in a consolidation of Earth Boring’s action with the existing Brampton proceedings or require that Earth Boring’s action be tried with the Brampton proceedings. This action remains a separate proceeding. Issues of consolidation or trial together may be the subject of subsequent motions. Some of Earth Boring’s submissions are most relevant to and best made on a motion to consolidate, if one is brought. As such, a change in venue, does NOT necessarily mean that these proceedings will be “dragged” into and tied to the other Brampton actions.

[40] For the reasons stated herein, I am not persuaded that Earth Boring’s choice of venue was a reasonable one.

[41] Equally important, the circumstances set out herein demonstrate that the factors set out in the Rules clearly favour the order changing the venue of this proceeding to Brampton.

Conclusion

[42] Considering the entirety of the above circumstances and factors, I am satisfied that Dufferin has established that Earth Boring’s choice of venue for its action was not reasonable and Brampton is a significantly better and more reasonable venue for the issues in Earth Boring’s claim and the third-party issues to be decided.

[43] The motion changing the venue of this proceeding and the related third-party proceeding is hereby granted.

Costs

[44] Either Dufferin or Earth Boring who seek costs shall serve and file written submissions on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[45] The responding party shall have one week thereafter to serve and file responding submissions to the party’s submissions seeking costs. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[46] There shall be no reply submissions without leave.

RICCHETTI RSJ.

Date: December 3, 2020