Court File and Parties

COURT FILE NO.: CV-20-00083841-0000

DATE: 20210616

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Your Electric Bill Analyzed for You Inc., Plaintiff

AND:

361173 Ontario Inc. o/a Sunray Group of Hotels Inc., 2571414 Ontario Inc. o/a Holiday Inn Express Toronto East, 2564663 Ontario Inc. o/a Radisson Hotel Toronto Airport, 2554190 Ontario Inc. o/a Quality Hotel Airport East, 2596217 Ontario Inc. o/a Lakeridge Seniors Residence, 2343577 Ontario Inc. o/a Quality Hotel and Conference Centre, 2608388 Ontario Inc. o/a Edward Hotel North York, 2207930 Ontario Ltd. o/a the Champlain Waterfront Hotel, 2480102 Ontario Inc. o/a Best Western Orillia, 6837816 Canada Inc. o/a Econolodge Kingston, 2436217 Ontario Inc. o/a Travelodge – Chatham, 207111 Ontario Inc. o/a Comfort Inn – Ingersoll, and 2447496 Ontario Inc. o/a Radisson – Toronto, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Dylan T. Dilks, counsel for the Plaintiff

Micheal Simaan and Rahul Gandotra, counsel for the Defendants

HEARD: In Writing

ENDORSEMENT

[1] The Plaintiff is a corporation which provides consultation services to clients such as hotels, and long-term residences concerning their electricity bills. There are 13 named Defendants which operate hotels in Ontario; The Sunray Group is the management company. The majority of the hotels operate in the Greater Toronto Area (“GTA”), with others in Orillia, Chatham and Ingersoll.

[2] This action arises from an agreement that was executed in Toronto in 2018. This action was commenced in Ottawa in June 2020 alleging services were performed by the Plaintiff and the invoices were not paid. In the Statement of Defence, the Defendants pleaded that Ottawa was not the proper jurisdiction for this action. The Plaintiff disagrees and as a result, the Defendants bring this motion to transfer the action from Ottawa to Toronto.

Positions of the Parties

[3] The Defendants in their affidavit filed note that none of the parties reside in Ottawa, the agreement was executed in Toronto and the witnesses who will testify at trial are in Toronto or the GTA. Apart from the fact that the solicitor for the Plaintiff practices in Ottawa, there is no tie to that city. The Chief Financial Officer of Sunray, Mr. Gupta, deposes that the officers and directors of the Defendant corporations reside in Toronto and the Plaintiff corporation is based out of Whitby. It is in the interests of justice and efficiency that the action be moved to Toronto.

[4] The Plaintiff has filed the affidavit of the owner of the Plaintiff corporation, Mr. McCann, who resides in Texas. The Plaintiff wishes to bring a motion for summary judgment. It is submitted that any witnesses can testify virtually. It seems to be the position of the Plaintiff that the Defendants’ motion to transfer is simply tactical, to avoid a Summary Judgment motion.

Analysis

[5] Rule 13 of the Rules of Civil Procedure sets out the factors the Court may consider when a request is made to transfer an action from one jurisdiction to another. The relevant ones here are where the subject matter of the proceeding was located, the convenience of the parties, the witnesses and the Court and where a substantial part of the events that gave rise to the claim occurred.

[6] It is the role of the Court to determine whether the transfer is desirable in the interests of justice. A Plaintiff has a prima facie right to select the venue for its action but it must be a reasonable choice. While the Plaintiff in its materials makes the point that a number of the Defendants are not in Toronto, but are located in the GTA, the affidavit filed in response fails to deal with the fact that the only tie to Ottawa is the fact that the solicitor for the Plaintiff practices law there. There is no other connection to Ottawa.

[7] The solicitor for the Plaintiff makes the point that the trial of this action will be held virtually and thus, the fact that the action was started in Ottawa is of no particular moment. I do not accept this submission. At the present time, the Courts are hearing matters virtually but in person hearings will resume in Toronto in the near future. This action is in the early stages, and there has been no decision as to what type of trial will be held, whether virtual, in-person or a hybrid. There is no way of knowing at this juncture what this trial will look like, and who will be called as witnesses at the trial. One thing is clear, however, there is no suggestion in any of the materials that the parties or the witnesses are from Ottawa. Thus, if the action remains in Ottawa and does not resolve and a trial is necessary, the lawyers, the parties and the witnesses will all have to travel to Ottawa, and most of these individuals reside in the GTA.

[8] In my view, the action should never have been started in Ottawa, a city with no connection to the events giving rise to this lawsuit or to the parties. The fact that the Plaintiff intends to bring a Summary Judgment motion to dispose of this action is of no particular relevance to my determination concerning the proper venue. The claims being asserted have a connection to Toronto, as do the parties and the potential witnesses. In particular, the principals of Sunray reside in Toronto and if the case proceeds to trial, they would have to travel to Ottawa, which is both inconvenient and costly.

[9] I am the lead judge in Toronto dealing with civil trials and pretrials. In that capacity, I am very familiar with the types of trials that have been held since March 2020 when Covid descended. There is no doubt that the Court will return to in-person hearings and trials when the Chief Justice directs it is safe to do so. I am not prepared to decide this motion for change of venue on the basis of our recent history of doing trials virtually and assuming this trial would be held as a virtual trial. That is not consistent with the jurisprudence nor does it accord with the direction in which the Court is moving forward. Further, at this stage of the action, it is impossible to predict how this trial will look.

[10] In my view, the Defendants have discharged their onus to demonstrate why a transfer of the action from Ottawa to Toronto should be made. Taking the factors set out in Rule 13 into account, I am of the view that a change of venue from Ottawa to Toronto is reasonable and it is in the interests of justice. Furthermore, the order ought to have proceeded on a consent basis; the Plaintiff failed to produce any evidence supporting the decision to commence the action in Ottawa. The decision to bring a Summary Judgment motion had no bearing on the venue issue. The Defendants are entitled to their costs of this motion.

Date: June 16, 2021