Court File and Parties
COURT FILE NO.: CV-19-27973 DATE: 20210216 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Isuru P. Polgampalage, Plaintiff -and- Darshankumar Jagdishbhai Devani., Defendant
BEFORE: F.L. Myers J.
COUNSEL: Lisa Bishop for the plaintiff Marnie Kirby for the Defendant
READ: February 13, 2021
Endorsement
The Motion
[1] The plaintiff moves to transfer this action to the Toronto Region from Windsor. The defendant does not oppose.
[2] There is no basis at all in the evidence filed to meet the requirements of Rule 13.1.02 (2) of the Rules of Civil Procedure, RRO 1990, Reg 194. Accordingly, the motion is dismissed without costs.
The Statutory Test
[3] Under Rule 13.1.02 (2) of the Rules of Civil Procedure, RRO 1990, Reg 194, a party who seeks 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), 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; 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.
[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)
[4] In this case, the plaintiff chose to commence the action in Windsor and now asks to move it to Toronto. The plaintiff is dominus litis and has the right to pick the initial venue for her action.
[5] However, a change of venue affects interests beyond the immediate interests of the parties to the litigation. It is also an issue affecting utilization of the court’s resources. The Consolidated Provincial Practice Direction deals expressly with motions to change venue for this reason. Para. 49 of the Practice Direction requires that the motion be brought to the Regional Senior Justice of the location to which the change of venue is sought so that she or he can consider resource issues. I am hearing this motion as delegate of the Toronto Region RSJ.
[6] Para. 48 of the Practice Direction provides:
- A high volume of requests to transfer civil proceedings to another county, often in another Region, are being received. Counsel frequently seek to transfer a case, on consent. While the transfer may be appropriate in the circumstances of the case, the onus rests with the moving party to satisfy the court that a transfer is desirable in the interest of justice, having regard to the factors listed in rule 13.1.02(2)(b). It is not sufficient to bring a transfer motion orally, on consent, or to file a consent for an order to transfer a case to another county under rule 13.1.02. [Emphasis added.]
[7] While the parties’ consent (or non-opposition) are factors to consider in the contextual soup, there is a primary burden on the moving party to establish that it is desirable in the interests of justice to change the venue of the case.
The Affidavit “Evidence”
[8] The plaintiff’s evidence is adduced by a student at the plaintiff’s lawyers’ firm. The student advises that he has reviewed the file so that he has knowledge of the matters to which he testifies save and except where his evidence is based on information and belief. Actually, ignoring the waiver of privilege issues arising from a bald statement of having reviewed the file, when one has no personal knowledge of events and reviews a file to obtain evidence, all of the evidence is hearsay.
[9] Para. 4 of the student’s affidavit says:
On or about June 20. 2019, this action was commenced in the Ontario Superior Court of Justice on behalf of the Plaintiff by the Statement of Claim bearing Windsor Court File number CV-19-27873. It was commenced in Windsor on the misunderstanding that both parties were residing in Windsor. It has been determined that the Action should have been commenced in Toronto.
[10] I note the repeated use of the passive voice in this paragraph. While things happened, I am not told who did them or for what purpose. For example, who had a misunderstanding about where the parties lived, and when? What was the nature of the misunderstanding? Who determined that the action should have been commenced in Toronto? On what basis did the undisclosed person determine that the action should have been commenced in Toronto?
[11] The affidavit never tells me where either party lives.
[12] I have gleaned from an affidavit of service that the defendant lives in Windsor. In his statement of claim, the plaintiff pleads that he lives in Windsor too.
[13] The medical records attached as an exhibit to the affidavit recite that the plaintiff lives in Ajax, Ontario. No one attests that this is correct either from personal knowledge or on information and belief.
[14] So, by telling me that a passive misunderstanding led to the commencement of the action in Windsor, does the affiant mean that the plaintiff’s lawyer or staff made a mistake and thought the plaintiff lived in Windsor when he actually lives in Ajax?
[15] Mistakes happen. Or said in the active voice – people make mistakes. That would not seem to be a major concern. But I do not know if that is indeed the case.
[16] I take judicial notice of the fact that the City of Ajax, Ontario is approximately 50 km east of Toronto. It is not in the Toronto Region. It is in the court’s Central East Region.
[17] I am no closer to understanding how “it has been determined” that the action should have been commenced in Toronto.
[18] The student tells me that the proceedings have concluded examinations for discovery of both parties and are awaiting mediation.
[19] Para. 6 of the affidavit says:
The transfer of proceeding from Windsor to Toronto is desirable in the interest of justice, having regard to rules 13.1.02(2)(b)(i), (ii), (iii), and (vii) of the Rules of Civil Procedure. As shown in the Motor Vehicle Accident (MVA) Report, the subject event that gave rise to a claim happened in Vaughan, Ontario at or near Keele Street and Highway 7. This is where the damages were sustained, and where the subject matter of the proceeding was located.
[20] I will treat the first sentence as a submission that sub-rules 13.1.02 (2)(b)(i), (ii), (iii), and (vii) are relied upon by the plaintiff. But I think it is my role and not the affiant’s to decide whether the transfer is desirable in the interests of justice. The sentence belongs in a factum and not in a student’s affidavit.
[21] Sub-rules 13.1.02 (2)(b)(i), (ii), and (iii), direct me to consider where the substantial part of the events occurred, where a substantial part of the damages were sustained, and where the subject matter of the action is located.
[22] The City of Vaughan lies just north of Toronto. It is located in the Regional Municipality of York. It is not in Toronto. Under O. Reg. 186 under the Courts of Justice Act, RSO 1990, c. C.43, like the City of Ajax, the Regional Municipality of York lies in the Central East Region of the Superior Court.
[23] The student swears that the damages were sustained and the subject matter of the events were located in Vaughan. He does not explain how he then determined that there is any connection to Toronto except, perhaps, that the city limits of Toronto are nearby to the site of the accident. The boundary of the Region of Peel is also very close to the site of the accident. Peel is in the court’s Central West Region.
[24] Paragraph 7 of the student’s affidavit says:
Further, having regard to rule 13.1.02(2)(b)(vii) the Plaintiff is at a considerable disadvantage if he was to travel from Toronto to Windsor for further proceedings in this matter. Not only has our client sustained considerable financial damages making the travel more expensive but physically he is unable to sit down without considerable pain for a prolonged period of time. It is for the convenience of the plaintiff to transfer his claim to Toronto.
[25] Under this paragraph, the student attaches as an exhibit to his affidavit a clinical note from Humber River Hospital dated June 21, 2019. That is the document that suggests that the plaintiff lives with his wife and son in Ajax. It does say that the plaintiff told the doctor that he has trouble sitting for long periods of time.
[26] How does this note become admissible evidence for the truth of what the plaintiff told a doctor two years ago? It is double hearsay at best. The student has no basis to attest to its authenticity or to the truth of anything in it.
[27] Even if I was prepared to risk ignoring the technicalities of the law of evidence for the moment, this evidence still does not help me. [1]
[28] First, why would the plaintiff ever drive from Toronto to Windsor? On the only information before me (inadmissibly), he lives in Ajax. Either the student does not know that the City of Ajax is not in the City of Toronto or the affidavit is a touch misleading by suggesting that the plaintiff starts his drive (i.e. lives in) Toronto.
[29] Assuming the plaintiff has difficulties with a long drive, at the time that the student swore his affidavit, September 25, 2020, civil trials were being held remotely throughout the province. Why does the plaintiff need to travel? Can he not participate by videoconference from home? How did he participate in the examinations for discovery? If he does need to go to Windsor, can he fly? Can he not stand on a train?
[30] The student also says that the plaintiff will be subject to “considerable disadvantage”. Compared to whom? How does one single trip to Windsor compare to driving to and from downtown Toronto from Ajax on the DVP in both rush hours every day of the trial? How does any of this subject a party to disadvantage?
[31] The student then refers to the plaintiff having incurred “considerable financial damages”. How does he know this? Does he know anything about the financial means of the plaintiff or what he can afford?
[32] The student testifies to his belief that the transfer proposed “is for the convenience of the plaintiff”. How is the plaintiff’s convenience not better served by a trial in Oshawa which, like his home in Ajax, is in the court’s Central East Region? Oshawa is about half the distance to downtown Toronto from Ajax and the drive to and from court each day would be against rush hour.
[33] The student’s affidavit concludes:
I verily believe that it is a fit and proper case for the Court to grant an Order to transfer proceedings from the Windsor Courthouse located at 245 Windsor Avenue, Windsor Ontario, N9A 1J2 to any fit and reasonable Courthouse in Toronto.
I verily believe that the Defendant. Darshankumar Jagdishbhai Devani, will not suffer any prejudice as a result of the Order for to transfer proceedings that cannot be compensated for by means of costs or an adjournment.
The Plaintiff has always had a bona fide intention to proceed with this Action, and I verily believe that the Plaintiff will suffer prejudice if this Order is not granted.
[34] Para. 8 is a conclusion of law. At best, it belongs in a factum perhaps; although “fit and proper” is not the legal test.
[35] As to para. 9, the student seems to be recognizing that the defendant may incur the prejudice of travel costs to come to Toronto for the trial. Am I to infer that the plaintiff is inviting the court to order, as a condition of the transfer, that the plaintiff keep the defendant whole by paying his travel costs?
[36] As to para. 10, I do not understand the relevancy of the plaintiff’s intention to proceed with the action. As to the student’s belief that the plaintiff will suffer prejudice, it would be a bit more helpful if he let me in on his basis for drawing this conclusion.
Analysis
[37] There is one and only one fact connecting this action with Toronto. It is not mentioned anywhere in the student’s affidavit. But the motion record tells me that the plaintiff’s lawyers practise law in North York in Toronto. The Defendant’s lawyers are in London, Ontario.
[38] While the convenience to the plaintiff’s counsel could be a fact relating to the convenience of the parties under sub-rule 13.1.02 (2)(b)(v), the office address on its own is of little weight without evidence about the convenience of the parties themselves, the witnesses, and the court as called for in the sub-rule. Similarly, the unopposed ambivalence of the defendant’s counsel as between Windsor and Toronto does not tell me anything about this factor. The plaintiff has not shown that this factor favours Toronto.
[39] On the evidence submitted, ignoring its inadmissibility, there is not a single factor in Rule 13.1.02 that has been shown to connect this action with Toronto. There is no basis in the evidence adduced to support a submission that a transfer to Toronto is desirable in the public interest.
[40] I find it very disappointing that a principal allowed a student-at-law to swear and submit the affidavit that is before me. Closer supervision was required.
[41] The pandemic has been a difficult time for everyone. I have special empathy for students and young lawyers who may be deprived of close contact with mentors and senior peers to assist with their training. Partners, employers, and mentors may not even realize how much their juniors are suffering from the lack of ready access to more experienced colleagues whether for formal training, informal feedback, or even serendipitous educational opportunities that may arise from casual chats in office corridors.
[42] But all students and lawyers also have independent duties to scrutinize with great care every word to which they put their names. During the pandemic in particular, juniors need to insist that they receive full instructions and that their work product is properly reviewed. As difficult as it may be at times, junior lawyers and students alike must guard against allowing employers, clients, or anyone to put their integrity or reputations at risk by inadequate instructions or releasing inadequately reviewed material under their names.
F.L. Myers J. Date: February 16, 2021
Footnote
[1] See: Bruno v. Dacosta, 2020 ONCA 602, at para 65:
This case highlights the deplorable tendency in civil cases of admitting evidence subject only to the weight to be afforded by the trial judge: “Seduced by this trend towards [evidentiary] flexibility, some judges in various jurisdictions have been tempted to rule all relevant evidence as admissible, subject to their later assessment of weight”: Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161, per Stratas J.A. at para. 83. This is legal heresy, as Stratas J.A. noted, citing R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 59. I agree with his trenchant comments.