Court File and Parties

COURT FILE NO.: 16-67479

DATE: 20210526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Farley Manufacturing, Plaintiff

AND:

Oz Optics Ltd., Defendant

BEFORE: D.A. Wilson J.

COUNSEL: Richard S. Nishimura, for the Plaintiff

Nicholas Karnis, for the Defendant

HEARD: In Writing

ENDORSEMENT

[1] This motion was filed in writing by the Defendant seeking an order transferring this action from Ottawa to Toronto pursuant to Rule 37.12.1 of the Rules of Civil Procedure. The main ground for the motion is apprehension of bias among the judiciary in Ottawa and “evidence suggests justice may not be administered impartially to this Plaintiff in the city of Ottawa.” In support of the motion, the affidavit of Elizabeth Ramirez sworn February 26, 2021 is relied on. Ms. Ramirez is a paralegal who works in the legal department of the Defendant.

[2] The Plaintiff opposes the motion and has filed the affidavit of Richard Pyne, former counsel for the Plaintiff.

[3] The Statement of Claim was issued in 2016 in Ottawa and it is a claim by the Plaintiff under the Simplified Procedure for the sum of $75,531.46 pursuant to a contract executed in May 2015. The Plaintiff alleges it built and installed a dome at the Defendant’s premises in Ottawa and was not paid in full for the work in accordance with the terms of the contract. The pleadings disclose that the Plaintiff corporation (“Farley”) has its head office in Guelph and the Defendant corporation (“Oz”) is located in Ottawa.

[4] In the Ramirez affidavit, there is a bald statement that the majority of witnesses reside in Toronto; there is no evidence of that, no listing of the witnesses anticipated to be called at trial. At her cross examination on her affidavit, Ms. Ramirez was unable to name any witnesses the Defendant intends to call who reside in Toronto. In his affidavit, Mr. Pyne deposes that none of the witnesses expected to testify for the Plaintiff reside in Toronto.

[5] The remainder of the Ramirez affidavit is simply a list of 25 exhibits all of which relate to an action brought by Oz Merchandising Inc. against a number of Defendants which appear to be Canadian soccer leagues or associations. That action was commenced in 2004. Ms. Ramirez has included a variety of endorsements from numerous judges in that action, transcripts of proceedings before various judges, and correspondence from Mr. Karnis, counsel for Oz in that action, to the Regional Senior Justice of Ottawa requesting that an out of town judge be appointed as trial judge in that action. That request was declined, and the trial commenced before Justice Bell Ryan with a jury in April 2019 and proceeded for a period of some 7 weeks.

[6] The Plaintiff brought a motion for a mistrial on May 6, 2019 which was dismissed by the trial judge. Counsel for the Plaintiff, Mr. Karnis alleged actual bias and a reasonable apprehension of bias against the trial judge as the grounds for the mistrial motion. The trial judge dismissed the motion and awarded costs of the motion to the Defendants on a substantial basis payable forthwith.

[7] After the closing address of counsel for Oz in that action, the Defendants moved for an order striking the jury based on the improper comments made by counsel for the Plaintiff. On June 11, 2019 Justice Ryan Bell granted the Defendants’ motion and ordered the jury be discharged. There is no further information as to what the outcome of the trial was, just that it has been appealed by Oz.

[8] In the Pyne affidavit, it is asserted that it was not until the trial management conference in Ottawa on February 2, 2020 that counsel for the Defendant advised the Court that it was its intention to bring a motion to move the case to Toronto based on “apprehension of institutional bias.”

[9] Apprehension of bias against a judge is a serious allegation to make; the case law is clear that such an allegation is not to be made lightly. When Ms. Ramirez was asked at her cross examination what evidence the Defendant relied on to support their position that there exists an apprehension of bias among the judiciary in Ottawa against the Defendant, Mr. Karnis refused to allow her to answer that question. There is absolutely no evidence of bias in any of the materials filed by the Defendant on this motion to transfer; the companion action that is referenced in the Ramirez affidavit may have resulted in an adverse outcome for Oz and perhaps adverse findings against Oz, but that is not evidence of bias.

[10] All of the steps in this proceeding have occurred in Ottawa, including examinations for discovery, mediation and trial management conferences. The action was set down for trial without any complaint about venue from the Defendant, who waited until very late in the proceedings to bring this motion to transfer.

[11] I reject the submission that a fair hearing of this action cannot be held in Ottawa; there is not a scintilla of evidence that supports the allegation of institutional bias against the Defendant by the judiciary in Ottawa. There is no connection to Toronto; the contract giving rise to this claim was executed and it was performed in Ottawa. The Defendant has not identified any witnesses from Toronto who will testify at the trial.

[12] This motion was ill-conceived, without any evidence to support a transfer of the action. It ought not to have been brought and once the solicitor for the Defendant received the responding motion record of the Plaintiff, the motion ought to have been withdrawn. It has resulted in a waste of counsel’s time as well as Court time. It has resulted in unnecessary delay. The Defendant shall pay costs fixed in the sum of $3,500 to the Plaintiff forthwith.

Date: May 26, 2021