Court File and Parties

COURT FILE NO.: CV-19-81118 DATE: 20200205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ingrid Moore, Applicant/Responding Party AND: Waltruad Boccongelle, Respondent/Moving Party

BEFORE: Madam Justice A. Casullo

COUNSEL: Gigi Costanzo, for Ingrid Moore Yolanda Song, for Waltruad Boccongelle

HEARD: In Writing

Endorsement

[1] I hear this matter as the designate of the Senior Regional Judge.

[2] The Applicant in this Application seeks: (1) an accounting from the Respondent; (2) the removal of the Respondent as co-executor of the Estate; and (3) a Certificate of Appointment of Estate Trustee with a Will granted in her name only.

[3] The Respondent brings this motion seeking to transfer this matter from Ottawa, where the Application was issued and the Applicant resides, to Newmarket, where the Respondent resides. Both parties face obstacles that would make travel difficult: the Respondent has COPD, and the Applicant is the sole caregiver for her wheelchair-bound husband.

[4] Rule 13.1.01 of the Rules of Civil Procedure provides that a proceeding may be commenced in any court office in any county unless a statute or rule requires it to be brought, tried, or heard in a particular county.

[5] Rule 13.1.02(2) provides:

(2) If subrule (1) does not apply, 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. O. Reg. 14/04, s. 10.

[6] The Rules do not provide that an Application to pass accounts must be commenced in the jurisdiction in which the deceased resides, thus it was open to the Applicant to issue out of Ottawa.

[7] Given that neither party has advanced an argument that they could not get a fair hearing in the jurisdiction of their choice, the question before me today is whether, in the interests of justice, a transfer from Ottawa to Newmarket is desirable.

[8] Not one of the enumerated factors set out in rule 13.1.02(2)(i) – (ix) is more determinative than the other. As Firestone J. set out in Haluk v. Chyczij, 2019 ONSC 777:

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.

[9] The Applicant lives in Ottawa. The Respondent lives in York Region. I acknowledge that the deceased lived in York Region prior to her passing.

[10] The convenience of the parties is equally balanced: any convenience to one in terms of travel will work to the detriment of the other.

[11] While the Respondent submits that all likely witnesses reside in York Region or Toronto, the court was not provided with the names of these potential witnesses. In any event, it appears to me that the material witnesses are the parties themselves, which once again renders no venue more advantageous than the other.

[12] This matter is currently constituted as an application, which will proceed to a hearing on the written record. There is no evidence before me that a motion to convert the Application to an action is pending. Thus, an application to change venue does not present the same issues of convenience that would exist in an action: Hallman v. Pure Spousal Trust (Trustee of), 2009 CarswellOnt 5795, at para 55.

[13] Any cross examinations on affidavits will, by virtue of the Rules, take place in the jurisdiction in which the affiant resides.

[14] The material before me provides that the Application will be heard in a timely manner, regardless of whether it remains in Ottawa or is transferred to Newmarket.

[15] Pursuant to rule 13.1.02(2)(b)(ix), on motions to change venue the court is entitled to have regard to any other relevant matter. Where an application to pass accounts is commenced in Ottawa, Rule 75.1 provides for mandatory mediation. I believe it would be in the best interests of both parties to be compelled to conduct a mediation and attempt to resolve the issues in dispute prior to the hearing of this Application. While a list of assets at the time of death has not been produced to the court, presumably the deceased’s major asset was her home, which was sold in 2014. It appears the proceeds from such sale, in the amount of $631,416.39 was deposited into the deceased’s bank account. As of May 2, 2019, there was $385,434.36 in the same account. An early resolution would allow a distribution to the beneficiaries, as the deceased intended, and avoid further dissipation of assets through potentially lengthy litigation.

Conclusion

[16] The Respondent has not demonstrated that it would be in the interests of justice to have this matter heard in Newmarket. While a transfer from Ottawa may be more convenient for the Respondent, I am not satisfied Newmarket is a “significantly better” venue.

[17] Accordingly, the Respondent’s motion is dismissed, without prejudice to the Respondent to renew the motion to transfer, should the court order a trial of the issues or convert this Application into an action.

[18] Costs to the Applicant in the amount of $2,000 inclusive of disbursements.

Casullo J.

Date: February 5, 2020