COURT FILE NO.: CV-19-80322
DATE: 2021/04/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.H.G., Plaintiff
AND:
R.J.B., Defendant
BEFORE: Regional Senior Justice C. MacLeod
COUNSEL: Graham S. Ragan & Justin McCarthy, for the defendant, moving party
D. Larry Segal, for the plaintiff, responding party
HEARD: December 15, 2020
decision and reasons
[1] The plaintiff in this action is the applicant in a divorce proceeding before the Family Court. The pleadings in both proceedings contain identical allegations but seek different forms of relief.
[2] The defendant argues that it is unreasonable for him to have to face two lawsuits. He argues that the civil suit, complete with a jury notice, is an improper attempt to circumvent the family law regime and is an abuse of process. He also argues that the claim as drafted discloses no cause of action – or at least no cause of action not already encompassed by the divorce proceeding. I am asked to strike the claim or stay the action.
[3] The plaintiff brings a cross motion proposing that the court dismiss the defendant’s motion and let both proceedings continue independently. Alternatively, the plaintiff concedes that the actions could be tried together or consolidated. In that case, however, he seeks to preserve access to the procedural rights normally available to tort claimants including the right to trial by jury.
[4] The motions pose the question whether this tort action is properly constituted and if so, whether it is appropriate to have two separate proceedings in two branches of the court under different procedural rules? Subsidiary questions arise. Is it appropriate to determine the bona fides of the tort action at a pleading stage? What steps should the court take now to promote efficient and effective resolution of both matters?
[5] As I will discuss, there is a principle that a plaintiff is the master of the litigation (dominus litis) and has the freedom to structure it in the manner that is most advantageous. This remains an important component of the adversarial system, but it is subject to important limitations.
[6] One limitation is that the right may not be abused. Another is the overriding authority of the court to control its own process in order to promote justice and judicial efficiency. There are also significant differences between the Family Law Rules and the Rules of Civil Procedure which bear on the question of joinder and consolidation.[^1]
[7] I have determined that there are some aspects of the statement of claim that should be struck, but because this is a pleadings motion, it is premature to determine if the entire civil action is an abuse of process. It raises very serious allegations concerning events pre-dating the marriage.
[8] It is not premature to review the extent to which the actions overlap and to take steps to ensure that duplication is minimized. Nor is it premature to ensure the civil action does not operate to the detriment of the family law regime. The solution is an order for joint case management, a combined production and discovery schedule and a presumptive order for trial together. I am also striking the jury notice.
Background
[9] By way of background, the parties are spouses. Each of them was previously in a heterosexual relationship and they each have children. The defendant is a physician. According to the statement of claim, the parties were in a doctor patient relationship in 2009 when the plaintiff sought advice about his sexuality. A relationship ensued. The parties began cohabiting and in September of 2010 they were married. They separated in August of 2017. Their co-habitation took place in Ottawa.
[10] In 2019, following separation, the plaintiff was living in Toronto. The defendant was living in Quebec although he maintained his office in Ottawa. On March 12th, 2019, the plaintiff commenced a divorce proceeding in Toronto. (Court file no. FS-19-8978). Mr. Segal who brought the Divorce Application on behalf of the plaintiff (applicant in the divorce proceeding) has his office in Ottawa.
[11] The divorce application seeks spousal support, equalization of net family property, a 50% interest in the defendant’s (respondent’s) property, exclusive possession of certain household contents and associated relief. There is no claim for tort damages in the divorce application, but the pleading (Notice of Application) alleges an improper doctor patient relationship, a pre-marital predatory sexual relationship, breach of trust, financial dependency and financial losses and hardship arising out of the relationship.
[12] On May 27th, 2019, approximately two months after commencing the divorce, the plaintiff commenced this civil action in Ottawa (Court file CV-19-80322). The statement of claim contains almost word for word the same allegations as are set out in the divorce application but this action is a civil claim for damages for physical and sexual assault and battery, “intentional or negligent infliction of pain and suffering”, breach of fiduciary duty, medical malpractice, breach of contract and related causes of action. The plaintiff seeks general and special damages, compensation for loss of income and earning capacity, cost of future care and punitive damages.
[13] The plaintiff no longer resides in Toronto and has returned to Ottawa. On the day of the hearing, the parties agreed that the divorce proceeding should be transferred from the Superior Court of Justice (“SCJ”) in Toronto to the Family Court branch of the SCJ in Ottawa.[^2] I made the necessary order and the divorce proceeding will now continue in the Family Court in Ottawa. The parties agree that Ottawa is the appropriate venue, but they disagree whether two separate proceedings are appropriate.
Defects in the Pleading
[14] The first question raised by the notice of motion is whether the statement of claim complies with the rules of pleading. A pleading with minor defects may be partially struck out or struck out with leave to amend, but it may be entirely struck out and the action dismissed if it fails to disclose a cause of action or if it seeks to pursue a remedy or a wrong that is not recognized at law.[^3] That is not a step to be taken lightly. Pleadings must be read generously and should be struck out in only the clearest of cases where, assuming the facts as pleaded to be correct and provable, the action as pleaded stands no chance of success.[^4]
[15] There are some difficulties with the wording of the pleading in the case at bar. They are sufficiently problematic to require some adjustment, but none of them standing alone justifies striking the entire statement of claim. It is worth remembering that Ontario adheres to the system of “fact-based pleading”. Under our pleading rules, a party is obligated to plead the material facts on which it intends to rely, but not the evidence by which it anticipates proving those facts.[^5] Under our rules, though it is good pleading practice to do so, it is not necessary to name the cause of action and failing to properly identify the legal conclusion will not be a bar to establishing liability. A party will not be held to the named cause of action provided it should have been apparent what the case was about and provided the material facts supporting liability are set out in the statement of claim or other pleadings.[^6]
[16] In paragraph 1 (a) of the prayer for relief, the statement of claim seeks damages for “physical and sexual assault and battery, intentional and/or negligent infliction of mental pain and suffering”. I agree with the defendant that there is no such tort as “intentional and/or negligent infliction of mental pain and suffering” and this wording leaves it unclear if the plaintiff is pleading something other than negligence and assault.
[17] There is, of course, a tort of “intentional infliction of emotional distress” which applies in certain circumstances of “flagrant or outrageous conduct calculated to cause harm and resulting in a visible and provable medical illness”.[^7] This has been applied most often, though not exclusively, in employment cases where the damages would otherwise have been confined to breach of contract. In Frame v. Smith, the Supreme Court of Canada ruled that this tort is not available in the context of family law proceedings.[^8]
[18] If this is what the plaintiff intends to plead, then he should use clear language to do so in order that the defendant can know what defences to raise and may argue that it offends the ruling in Frame v. Smith. The plaintiff should not be able to slide it in by calling it something else. I am striking out the phrase “intentional and/or negligent infliction of mental pain and suffering”. It is sufficient to plead damages for assault, sexual assault and negligence. The plaintiff also pleads entitlement to punitive damages based on these facts and is entitled to do so.
[19] To be clear, the removal of this phrase does not mean the plaintiff cannot recover damages for psychological injury. If he can prove the necessary elements of assault, sexual assault or negligence and if personal injury of a physical or psychological nature was the result then it is compensable.[^9] In addition, in these torts, it is neither necessary nor useful to attempt to prove subjective intent to injure. Intent is not a component of a negligence action. While assault and battery are “intentional torts”, the intention that must be shown is the intentional, as opposed to inadvertent, application of force. It is not necessary to prove that the specific harm suffered by the plaintiff was intended by the defendant.
[20] Similarly, in paragraph 1 (b) the plaintiff pleads entitlement to damages for “Breach of fiduciary duty … including but not limited to” ... “professional and general negligence; breach of fiduciary duty owed to a patient; breach of contract; professional and general Malpractice. The phrase “breach of fiduciary duty … including but not limited to” should be struck so that the sentence reads “Damages in the sum of $500,000 for: …”. Fiduciary duties are not necessary to found a claim on negligence, breach of contract or “malpractice” and breach of fiduciary duty to a patient is already pleaded in paragraph b) ii).
[21] Apart from striking these phrases from the prayer for relief, I would not strike the balance of the pleading if it was a simple stand-alone tort action. I have no doubt that the defendant is able to understand the nature of the allegations. I note that there was a Demand for Particulars and a Response to Demand for Particulars. While the defendant is not satisfied with the response, there are other tools which may be used to determine if the allegations in the pleading can be supported by evidence. That is not the question on a pleadings motion.
[22] The more difficult question is whether this pleading duplicates claims already made in the divorce action. Rule 21.01 (3) (c) permits the court to stay or dismiss a proceeding on the grounds that another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter. It is self-evident that all of the facts pleaded in the statement of claim are also pleaded in the divorce action. But the plaintiff seeks different relief in the tort action and focuses on the period of time before the parties were married. There is no doubt that at least certain types of tort damages (such as assault) may be sought in addition to relief under family law legislation. The question is whether that ought to be determined in isolation.
[23] The defendant argues that running a separate action under the civil rules is abusive and improper because it is an attempt to undermine or avoid the objectives of the family law regime in force in Ontario. As I will discuss, this is a legitimate concern, but it does not necessarily lead to the conclusion that the tort action should be halted in its tracks at this preliminary stage.[^10]
Principles Concerning Joinder of Actions
[24] As mentioned in the introduction, one of the principles enshrined in the Courts of Justice Act is to avoid a multiplicity of legal proceedings.[^11] This is a principle of long standing and it is bolstered by provisions in the Rules of Civil Procedure that permit a plaintiff to unite multiple causes of action against the same defendant in a single action.[^12] The rules encourage parties to litigation to deal with all issues between them at the same time.
[25] This principle that all issues between litigants should be dealt with at the same time is not rigid. Even where issues could logically be dealt with at the same time, the court may have to depart from this approach if the resulting litigation is unwieldy, impractical or unfair. Although Rule 5.01 encourages joinder of issues, Rule 5.02 provides for “relief against joinder”. If the joinder of multiple claims (or parties) may result in “undue delay, complication or prejudice”, the court may order separate hearings or divide the case into separate actions.[^13]
[26] The Family Law Rules approach this question slightly differently. The Family Law Rules are the governing rules for any litigation on a defined list of proceedings dealing with family law. This includes claims under family law statutes such as the Divorce Act or the Family Law Act but also various legal and equitable claims such as constructive trust claims over property following a period of cohabitation. Those rules have applied to all family law proceedings in Ontario regardless of which court is hearing the matter since 2004.[^14] There is no choice about this. All listed family law proceedings are governed by the Family Law Rules and in those areas of the province where “unified family court” is in place, those matters are in the exclusive jurisdiction of the Family Court branch of the SCJ.[^15] The Rules of Civil Procedure now apply to family litigation only peripherally and in exceptional circumstances.[^16]
[27] For this reason, although the joinder and relief against joinder provisions in the civil rules apply to this civil action, those are not the rules which govern whether the tort claims should be allowed to proceed as a separate action or should be tried together with the divorce proceeding. Rather, the governing provisions are s. 21.9 of the Courts of Justice Act and Rule 1 (5) of the Family Law Rules.
[28] The former provides that where a proceeding included in the list of matters that fall within the exclusive jurisdiction of the Family Court is combined with a related matter that is not on that list, the court may, “with leave of the judge, hear and determine the combined matters.” The latter provides that “if a case in the court combines a family law case to which these rules apply with another matter to which these rules would not otherwise apply, the parties may agree or the court on motion may order that these rules apply to the combined case or part of it.”
[29] In other words, under the family rules, joinder of tort claims with family law claims is permitted, but it requires leave of the court. It will be for the judge sitting in the Family Court or exercising jurisdiction under the Family Law Rules to give leave or not and to determine what procedural rules will apply to the portion of the case that is a tort action. In that case, it is not automatic that the civil rules will apply.
[30] It is worth noting that a party with a legitimate tort claim against a spouse who fails to make such a claim at the time of the matrimonial litigation will likely be barred from doing so subsequently. The principles of res judicata, issue estoppel and finality operate to presume that parties coming to court with a dispute arising out of a particular set of facts have put all of the issues they intend to litigate before the court. A judgment will normally operate as a bar to a subsequent action based on the same facts.[^17] It is improper to launch a civil action over issues that have already been adjudicated in family court or which constitutes a collateral attack on the decision.
[31] It is certainly permissible and perhaps preferable to join the tort claim with the divorce proceeding.[^18] Given the need for leave under the Act and the Rules however, it cannot be said that the legislature intended to make this mandatory.
[32] It follows that an applicant for divorce seeking to also pursue independent tort claims has two options. The applicant could graft tort claims onto the divorce action and seek leave to have them determined in the Family Court under the Family Law Rules. The applicant could instead start a separate tort action as was done here. In the former case, the applicant runs the risk that leave will not be granted. In the latter, the plaintiff runs the risk of two sets of costs if the action is unsuccessful and perhaps of being denied costs of one of the proceedings if the plaintiff is successful. In either case the court will ultimately have to grapple with joinder and how best to achieve a just result. In making that choice, the court will have to apply the principles of fairness, proportionality, and judicial efficiency.[^19]
[33] As mentioned in the introduction, there is a principle that the person initiating litigation has the right to structure and pursue that litigation in the manner they consider most advantageous. This is a fundamental aspect of the adversarial system although it is subject to various ethical and legal constraints and to the overall control of the court.[^20] The point is that there may be various ways in which issues may properly be brought before the court and at least in the first instance it is for the initiating party to determine who to sue and which procedure to use.[^21]
[34] The procedure adopted by the plaintiff in commencing a second action was permissible under the rules and the statutes providing it was done in good faith to pursue legitimate tort claims. While at first blush it may seem like an overly aggressive litigation strategy to not only take this step but to commence the proceedings in two different cities, even that can be explained. The Family Law Rules contain a forum clause which required the divorce proceeding to be started in Toronto.[^22] The applicant subsequently consented to transferring it to Ottawa.
[35] The defendant asks this court to find that the tort action is not legitimate, but instead seeks to assert claims that are a duplication of issues already before the divorce court. Arguably, the civil action is designed to avoid certain aspects of the family law regime and by effectively opening a second litigation front against the defendant, to put illegitimate pressure on the defendant to settle.
The intersection of Tort Law and Family Law
[36] Tort claims are available in family litigation, but they do not always sit comfortably alongside the family law remedies or family law procedures. Statutory remedies available under provincial and federal legislation are remedial in nature and generally speaking, grant rights that are independent of fault. Apart from the provisions focusing on the best interests and rights of children, the family law statutes also provide for sharing of property and reallocating income through spousal support.
[37] Some of the statutory remedies replace or expand common law remedies and in other cases they create rights and remedies that did not exist previously. The Family Law Rules focus on the resolution of those claims, “embody a philosophy peculiar to lawsuits involving families” and were specifically drafted to address the needs of families and ex-partners during what is widely regarded as a traumatic life changing experience. The rules require automatic and ongoing financial disclosure, provide for court supervision and case management, encourage non-adversarial dispute resolution and ways to save time and expense.[^23]
[38] Divorce law concerns itself with the dissolution of marriage, rectifying economic disadvantages resulting from the marriage, relief of economic hardship resulting from marriage dissolution and promoting the economic self-sufficiency of each spouse. It is statutory law only applicable to spouses and former spouses. As mentioned, family law procedures encourage dispute resolution and family law statutes provide remedies that are largely independent of fault.[^24]
[39] Tort law by contrast is quintessentially concerned with shifting losses suffered by one person to another person based on assessments of fault and causation.[^25] It provides compensation for losses which cannot be mitigated and are causally connected to a wrongful act or omission. It is largely the creature of the common law and evolved primarily to reallocate losses amongst strangers. Although it is subject to the possibility of case management and to court mandated dispute resolution processes, tort litigation can be seen as an exemplar of the adversarial system.
[40] It is arguable that certain types of tort claims should not be pursued in matrimonial actions. I have already touched upon the decision of the Supreme Court of Canada that an action for intentional infliction of mental anguish should not be grafted onto a divorce action.[^26] This was on public policy grounds, but also on the basis that the statutory remedies available under family legislation were designed to operate in lieu of common law remedies. Looked at another way, benefits available under the Family Law Act or the Divorce Act may reduce or eliminate the loss that might otherwise be addressed by tort liability. Pursuing family law remedies, in other words, might be seen as a form of mitigation which renders a tort action superfluous.
[41] To take an obvious example, equalization of net family property or unequal division of net family property pursuant to the Family Law Act, are statutory remedies which diminish the need to rely upon theories such as unjust enrichment or to seek remedies such as constructive trust. An award of compensatory spousal support might reduce the need to make a tort claim for loss of income or loss of earning capacity. But while I accept this may be the case in some cases, it will certainly not be the case in every situation and for every type of potential tort action. It is abundantly clear that is not always the case. Tort damages are not infrequently awarded in cases where the compensation awarded under the family law regime is inadequate to compensate for loss or damages flowing from tortious actions such as assault.[^27]
[42] Intimate relationships and spousal status are not a shield from tort liability. It would be wrong to suggest that the law should allow intimate partners to commit actionable wrongs with impunity. As a consequence, great caution should be exercised at a pleadings stage in trying to assess whether tort claims are genuine. But the court should have no such compunction in seeking to find efficiencies, reduce duplication and in making a presumptive order for trial together.
Ordering a joint trial & joint case management
[43] I use the term presumptive order because an order for trial together at this point when both proceedings are in their infancy may have to be revisited. Circumstances may change. It is possible, for example, that there may be a partial settlement. Perhaps with the benefit of documentary production and discovery, certain claims will be abandoned or summary judgment may appear appropriate.
[44] It is also possible that issues will arise to make the combined trial unwieldy. Issues may arise in connection with judicial scheduling or other resources that require this issue to be revisited. Unless consolidation is ordered, the usual order is for “matters to be tried together or one after the other unless otherwise directed by the trial judge”. Consolidation as such is premature, but that too may be revisited if it transpires that there is no real basis for an independent civil action.
[45] All else being equal, however, these actions must be tried together. While it is not hard to envision civil actions, which happen to be between spouses or ex-spouses, but are truly independent of the claims being litigated in divorce court, that is not the case here. The factual allegations are identical. It would be absurd to have to call the same evidence twice in two different forums and run the risk of inconsistent findings of fact.
[46] I would go further. While I am not prepared to conclude on the basis of the pleadings alone, that the tort action is brought in bad faith or is per se an abuse of process, there is a real possibility of mischief if the actions are not brought under court supervision and issues such as mediation, production and discovery are not regulated. Counsel, of course, have an obligation to discuss these matters and seek procedural agreement whenever possible. That obligation is explicit under the civil rules.[^28] In family cases, production of documents and questioning of witnesses are issues to be discussed at a case conference and regulated by the court.[^29] Counsel are expected to have discussed these matters and to cooperate on procedural matters.[^30]
[47] There is no legal impediment to joint case management of a civil proceeding and a related family law proceeding. Every judge who is a member of the family court is a superior court judge who may be assigned work in any area of the court’s jurisdiction and every superior court judge is a judge of the Family Court.[^31] Similarly, there is no jurisdictional impediment to assigning the same judge to related cases in different branches of the court. There may of course be scheduling challenges. In Ottawa, however, the case management judge has the benefit of access to the masters in both civil and family law proceeding and will be empowered to refer aspects of case management or certain motions to one of the masters.[^32]
[48] I am therefore making an order for Rule 77 to apply to the civil proceeding and for the appointment of a case management judge. There will also be an order for case management of the divorce proceeding. The two actions will proceed under joint case management on a joint schedule with the objective of trial together. All documents and discovery in either proceeding may be used in the other without limitation. All reasonable efforts will be made to avoid duplicate steps or processes and nothing in this order will preclude a subsequent consolidation order.
The jury notice
[49] As indicated earlier, I am striking the jury notice. The right to trial by jury pursuant to s. 108 of the Courts of Justice Act is subject to specific statutory limitations including any of the matters assigned to the Family Court under s. 28.1. Jury trials are presumptively available in tort actions, but the right is not absolute. It is open to the court to strike the jury notice in the exercise of its case management powers and in order to ensure the timely and efficient delivery of justice.[^33]
[50] In this case the tort action relies upon the same facts as are pleaded in the divorce action. These cases will be tried together unless something arises to alter that disposition. It is not impossible to design a trial in which some issues are for the judge to decide and some issues are for the jury to decide, but such a trial is awkward and cumbersome at the best of times. In this case the findings of fact are identical. It makes no sense to have two triers of fact for the very same facts and in a real sense would undermine the legislative direction that jury trials are not appropriate in family law proceedings.[^34]
[51] In addition, as we are still functioning under COVID restrictions in which numerous civil and criminal jury trials have had to be postponed, there will be a backlog of jury trials when in-court trials can resume. Permitting the plaintiff to retain the jury notice would impede the orderly and timely resolution of this matter.
Summary & Conclusion
[52] By way of summary, I have reached the following conclusions:
a. It is not prima facie an abuse of process to commence a separate tort proceeding related to a family law proceeding. This is an option open to the applicant or plaintiff as is adding the tort claim to the divorce proceeding and seeking leave to have them determined together. In either case the court will have to determine how the issues should be adjudicated.
b. The fact that it is not prima facie abusive does not mean that the plaintiff’s claim should avoid careful scrutiny. The pleading should be scrutinized to ensure that it is a proper pleading and to ensure the tort claims that are being advanced are open to the plaintiff under the circumstances. At the pleadings stage, however, the court must assume that the facts as pled are true unless they are incapable of proof or are clearly absurd.
c. Family law legislation in Canada and the Family Law Rules have several objectives including the orderly and equitable disentangling of the economic aspects of domestic relationships. Another objective is to encourage non adversarial dispute resolution and to minimize the trauma inherent in litigation between former partners.
d. The court should be alert to improper use of tort claims at cross purposes to the family law regime. At the same time, an intimate partner relationship should not insulate a tortfeasor from liability if tort damages are not adequately addressed by family law remedies. It may or may not be appropriate to determine this at the pleading stage, but it is appropriate to restrain litigation that appears unnecessary, vindictive, disproportionate or punitive.
e. The rules regarding joinder (and relief against joinder) under the civil rules and the family rules start from different presumptions, but the objective should be the same. The objective should be to effectively and completely adjudicate all issues between the parties. The factors to be considered include cost, complexity, delay, fairness, prejudice and judicial scheduling and efficiency.
f. The existence of parallel litigation is a factor in ordering case management. Amongst other things, duplicate or overlapping production and discovery requirements should be viewed through the lens of proportionality.
g. Service of a jury notice in a civil action which is intimately connected to an existing family law proceeding should be scrutinized carefully. In appropriate cases the jury notice may be struck out at a preliminary stage.
Costs
[53] I encourage counsel to agree on the appropriate costs disposition, but if they are unable to agree and either party seeks costs, they are to contact my office for further direction within the next 30 days.
Order
[54] For the reasons set out above, there will be an order as follows:
a. The phrases “physical and sexual assault and battery, intentional and/or negligent infliction of mental pain and suffering” and “Breach of fiduciary duty … including but not limited to” are struck out of paragraphs 1 (a) and 1 (b) of the statement of claim.
b. As the plaintiff has chosen to commence two separate actions and the proceedings are only at the pleadings stage, there will be no decision on formal consolidation at this time.
c. This action and the related divorce proceeding shall each proceed under case management on a common timetable and shall be assigned to the same case management judge. Counsel are directed to confer and seek agreement on a production and discovery plan in advance of a joint case conference.
d. Any production, discovery or questioning in one of the actions may be used in both proceedings subject to any contrary ruling by the case management judge or the trial judge.
e. Subject to the discretion of the trial judge or case management judge, this action will be tried together with the related divorce proceeding on a date to be determined.
f. The jury notice in this proceeding is struck out.
g. The costs of this motion shall be as agreed between the parties or subsequently determined by the court.
Mr. Justice C. MacLeod
Date: April 1, 2021,
COURT FILE NO.: CV-19-80322
DATE: 2021/04/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: M.H.G., Plaintiff
AND:
R.J.B., Defendant
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Graham S. Ragan & Justin McCarthy, for the defendant, moving party
D. Larry Segal, for the plaintiff, responding party
DECISION AND REASONS
Mr. Justice Calum MacLeod
Released: April 1, 2021
[^1]: Family Law Rules, O. Reg. 114/99 as amended. Rules of Civil Procedure, RRO 1990, Reg. 194 as amended [^2]: See s. 21.1 of The Courts of Justice Act., RSO 1990, c. C. 43 as amended. The Family Court branch of the SCJ is a unified family court with exclusive jurisdiction over family law matters in parts of Ontario identified in the legislation. This includes Ottawa but not Toronto. The distinction between the jurisdiction of the Family Court and jurisdiction over family law cases in the SCJ elsewhere in Ontario is not relevant to this motion. [^3]: See Abernethy v. Ontario, 2017 ONCA 340 [^4]: See Abdi-Jama (Litigation Guardian of) v. McDonalds Restaurants of Canada Ltd., [2001] O.J. No. 1068, 2001 CarswellOnt 939 (SCJ) @ para. 21 [^5]: Rule 25.06 (1) [^6]: Rule 25.06 (2) and see 1100997 Ontario Inc. v. North Elgin Centre Inc., 2016 ONCA 848 [^7]: See Linden, Feldthusen et. al., Canadian Tort Law, 11th edition, 2018 @ p. 60 – para 2.74 [^8]: Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99 [^9]: See Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114 [^10]: See TAW v. JCL, 2021 ONCA 192 in which the tort claims were dismissed. [^11]: Courts of Justice Act, RSO 1990, c. C.43 as amended, s. 138. [^12]: Rule 5.01, Rules of Civil Procedure. This has been a fundamental organizing principle of civil litigation in Ontario since the Judicature Acts of the late 19th Century. [^13]: Rule 5.05, Rules of Civil Procedure [^14]: O. Reg. 131/04. [^15]: See Rule 1 (2) of the Family Law Rules and s. 21.8 of the Courts of Justice Act. [^16]: Rule 1 (7) of the Family Law Rules [^17]: See Cunningham v. Moran, 2011 ONCA 476, (2011) 2 RFL (7th) 1 [^18]: See Ajayi v. Oziegbe, 2017 ONSC 2732 [^19]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. See also Rule 1.04 of the Rules of Civil Procedure and Rule 2 (2) of the Family Law Rules, O.Reg. 114/99 as amended. [^20]: See the discussion at pp 403 – 405, Morden & Perell, The Law of Civil Procedure in Ontario, Third Edition, Lexis Nexis Canada Inc, 2017 [^21]: School of Dance (Ottawa) Pre-Professional Programme Inc. v. Chrichton Cultural Community Centre, [2006] OJ No. 5224, 2006 CarswellOnt 8434 (SCJ) [^22]: Unless the respondent had been habitually resident in Quebec for the past year and the Applicant was prepared to sue in that province, the divorce proceeding had to be brought in Toronto. See. S. 3 (1) of the Divorce Act, RSC 1985, c.3 (2nd Supp) as amended and Rule 5(2) of the Family Law Rules. There are no such venue requirements under the civil rules and the events in question are most intimately connected with Ottawa. [^23]: See commentary, Coates, Steinberg et al., Ontario Family Law Practice, 2021, Rule 1, p. 1858 [^24]: See preamble to Family Law Act, RSO 1990, c. F.3 as amended, s. 7.7 (2) of the Divorce Act, Rule 2 of the Family Law Rules. [^25]: Linden & Feldthusen, Canadian Tort Law, 10th Edition, LexisNexis, 2015, para. 1.4 [^26]: Frame v. Smith, supra [^27]: See Shaw v. Shaw, 2012 ONSC 590, (2012) 9 RFL (7th) 359; Costantini v. Costantini, 2013 ONSC 1626, (2013) 28 RFL (7th) 356 and Sorrenti v. Blair, 2013 ONSC 2584 as examples. [^28]: Rule 29.1 and 29.2 [^29]: See in particular Rules 17 and 20 [^30]: See Chapter 5, Rules of Professional Conduct, Law Society of Ontario and Principles of Professionalism and Civility for Advocates, The Advocates Society [^31]: See s. 21.2 of the Courts of Justice Act [^32]: See Rules 37.15 (1.1) and 77.07 (3) of the civil rules and Rule 42 of the family rules. [^33]: Louis v. Poitras, 2021 ONCA 21 [^34]: Ajayi v. Oziegbe, supra