Court File and Parties

COURT FILE NO.: CV-21-00655668-0000

DATE: 2021-08-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CLC TREE SERVICES LTD. Plaintiff

AND:

DAVEY TREE EXPERT CO. OF CANADA, LIMITED, DAVEY RESOURCES GROUP, INC., THE CORPORATION OF THE CITY OF LONDON, ANDREW MCKENZIE BEATON, JOHN STUART PARSONS and TIMOTHY MARTIN HOLLEY Defendants

BEFORE: Regional Senior Justice B. G. Thomas

COUNSEL: Steven M. Bookman and Maia Rabinovitch, Counsel for the Plaintiff, CLC Tree Services Ltd.

Geoffrey P. Belch and Danilo Popadic, Counsel for the Defendants, The Corporation of the City of London, Andrew McKenzie Beaton and John Stuart Parsons

Douglas B. B. Stewart and M. Theresa Cesareo, Counsel for the Defendants, Davey Tree Expert Co. of Canada, Limited, Davey Resources Group, Inc. and Timothy Martin Holley

HEARD: August 24, 2021 in writing.

ENDORSEMENT

[1] This motion is brought by the defendants, The Corporation of the City of London, ("City of London"), Andrew McKenzie Beaton, ("Beaton") and John Stuart Parsons, ("Parsons"). These defendants request that this action be transferred from the City of Toronto to the City of London (Southwest Region). Pursuant to the relevant Provincial Practice Direction of the Superior Court, the motion is in writing and directed to me as the Regional Senior Justice of the Region proposed to receive the transfer.

[2] The defendants Beaton and Parsons are employees of the City of London. The defendants Davey Tree Expert Co. of Canada, Limited, Davey Resources Group Inc. and their employee Timothy Martin Holley will be referred to as the "Davey defendants".

[3] All defendants in the action have consented to the transfer of the action to London. The material filed in the motion indicates that the plaintiffs will not consent. The motion record was served upon counsel for the plaintiff on June 25, 2021. No response to the motion has been received by the Court. As such, I will determine the motion on the material filed.

[4] The action was commenced in Toronto on January 26, 2021. The action alleges a conspiracy in awarding contracts for forestry operations in the City of London which effectively excludes the plaintiff from providing forestry services in London. The defendants deny all allegations. The plaintiff seeks general, compensatory and punitive damages together with interlocutory and permanent injunctive relief. The action seeks $31 million in total damages.

[5] There is no apparent connection between the action and the City of Toronto but for the fact that the plaintiff's counsel is located there.

[6] While it is acknowledged that the plaintiff had an initial right to choose the venue when issuing the statement of claim, (Dooner v. Szklanko, 2021 ONSC 277, para. 4), when faced with a motion seeking transfer, the Court must engage in a holistic, fact-specific exercise weighing the factors contained in r. 13.1.02(2). (Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 189 (Div. Ct.) para. 35).

[7] Rule 13.1.02 (2)(b) lists the following considerations when determining if a transfer is in the interest of justice:

(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.

[8] The plaintiff claims that preferential treatment was given to the Davey defendants by the City of London and that employees of the City ensured that the plaintiff would not be contracted to work on City of London trees. As such, a substantial part of the events giving rise to the claim occurred in London and a substantial part of the damages were sustained in London.

[9] As the impugned conduct relates to the actions of City of London employees in concert with the Davey defendants, the subject-matter of the proceeding occurred in London.

[10] The City of London is a defendant as are two of its high-ranking employees. The allegations amount to a corrupt contracting process for municipal contracts. Various media entities have reported on the allegations and the significant damages claimed. The taxpayers in London have an interest in the actions of their officials and how their tax dollars are being spent. There is community interest in London regarding the subject-matter of this action.

[11] In considering the balance of convenience, the City of London is a defendant. All personally named defendants live and work in and around London. The City of London advises that it will call witnesses from several of its departments to defend this claim and anticipates calling eight witnesses, all of whom live and work in the London area. The plaintiff corporation has its head office in the City of London. The balance of convenience clearly favours the transfer of this action. In addition, the cost of travel for the parties and witnesses will be reduced with a transfer.

[12] The administration of civil justice in London can accommodate the trial of this non-jury action.

[13] In addition, it is important to note that the moving parties have moved expeditiously. Pleadings have just closed and no examinations or motions (but for this transfer request) have been scheduled.

Conclusion

[14] All the enumerated factors favour the requested transfer of this action from the City of Toronto to the City of London, and I therefore order the action transferred.

[15] The motion claims costs if opposed. The plaintiff has not opposed the motion. There will be no order as to costs.

Regional Senior Justice B. G. Thomas

Date: August 25, 2021.