Stolove v. Waypoint Centre for Mental Health Care, 2021 ONSC 7712
COURT FILE NO.: CV-20-648579-00CP
DATE: 22112021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RUBEN STOLOVE by his litigation guardians MICHA STOLOVE and LINDA HINDREA, MICHA STOLOVE and LINDA HINDREA
Plaintiffs
– and –
WAYPOINT CENTRE FOR MENTAL HEALTH CARE, CAROL LAMBIE, ROB DESROCHES, LINDA ADAMS and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
Joel P. Rochon, Peter R. Jervis, Golnaz Nayerahmadi and Matthew W. Taylor, for the Plaintiffs
Shanti E. Barclay, for the Defendants, Waypoint Centre for Mental Health Care, Carol Lambie, Rob Desroches and Linda Adams
Kathryn M. Frelick and F. Paul Morrison, for the Defendants, Waypoint Centre for Mental Health Care, Carole Lambie, Rob Desroches and Linda Adams
Ann Christian-Brown, Hart Schwartz, Daniel Huffaker and Vanessa Glaser for the Defendant, Her Majesty the Queen in Right of Ontario
HEARD: In writing, with additional submissions received October 15, 2021
reasons for decision
EDWARDS RSj.:
Overview
[1] This claim is a class action that arises out of allegations of systemic abuse of solitary confinement and restraint at the Waypoint Centre for Mental Health Care (“Waypoint”). Waypoint has been the maximum secure psychiatric facility in the Province of Ontario since 2000.
[2] The action was commenced in Toronto. The Defendants now seek to transfer the action from Toronto to Barrie.
[3] The relevant factors which the Court must consider are set forth in Rule 13.1.02(2)(b) (the Rule). In addition to the specific factors set forth in the Rule, the court may consider “any other relevant matter”.
[4] It has been well established from a review of the jurisprudence that change of venue motions are fact specific. As Leitch J. in Gould v. BMO Nesbitt Burns Inc. (2006), 2006 CanLII 63726 (ON SC), 81 O.R. (3d) 695, at para. 18, in the context of a change of venue motion of a class action stated:
The current rule makes it clear that none of the enumerated factors are more important than the other and all of those factors and any other factors relevant to the location of the action must be balanced to ensure that a proceeding is transferred from the county where it was commenced only if such transfer is “desirable in the interests of justice”.
The Defendants argue that all the enumerated factors set forth in the Rule should tilt the court’s decision in favour of transferring this action to Barrie. The Defendants stress that Barrie is the appropriate venue because it is the closest courthouse to where a substantial part of the alleged events in this class action occurred. Furthermore, the defendants argue that the local community’s interest in the subject matter of this proceeding is best served by having this matter heard in Barrie.
[5] The Plaintiffs, as is their right, have chosen Toronto as the venue for this class action: see Skidmore v. Carlton University (2009), 79 C.P.C. (6th) 301, at para. 3. It is also well understood that the onus is on the moving Defendants in this case to establish that the transfer sought to Barrie is in the interests of justice: see Skidmore, at para. 3.
[6] The approach that this court must employ as it relates to the consideration of all of the factors set forth in the Rule, is what has been described by then Associate Chief Justice Marrocco as a “holistic exercise”: see Chatterson et al. v. M.&M. Meat Shops Ltd., 2014 ONSC 1897. In that regard, at para. 22, Marrocco A.C.S.J. stated:
It is our view that decisions on motions to change venue will be better understood if they are seen to result from the holistic application of the factors in subrule 13.1.02(2).
[7] I am satisfied that but for the considerations that I will refer to below, Barrie may have certain distinct advantages as the choice of venue for any trial in this matter. The judiciary in Central East includes judges who have experience with class actions. Having this matter heard in Barrie might also better provide for the local community’s interest in this action.
[8] The more determinative factor in the exercise of this court’s discretion rests with weighing the advantages and disadvantages of a transfer from Toronto to Barrie. The court must ensure that the just, most expeditious and least expensive determination of the proceeding can be achieved on its merits if such a transfer was ordered by the court.
[9] Implicit in the defendants arguments is an assumption that if this action is transferred to Barrie that the trial – and for that matter any other significant step in this proceeding, will be heard in Barrie. Barrie is, of course, one of several courthouses within the jurisdiction of Central East. As the Regional Senior Justice for Central East, I am responsible for the scheduling of all matters within the Central East Region. The Central East Region is a large geographic area that encompasses Bracebridge to the north, Newmarket to the south and Cobourg to the east. The courthouse with the largest number of courtrooms is in Oshawa.
[10] In years gone by, civil actions in Central East were typically placed on a trial sittings list and cases were called from that list to the specific courthouse where the action had been commenced. More recently, and even prior to COVID, counsel was advised that they would have to be ready to conduct the trial of an action anywhere within Central East. As such, an action commenced in Barrie might very well find its way to Oshawa or anywhere else in Central East where there was a courtroom and a judge available.
[11] The Defendants urge upon this court the importance of Barrie being the appropriate forum for the trial of this action given Barrie’s proximity to Waypoint, its employees, and potential witnesses. There exists a real possibility, particularly as we address the aftereffects of the COVID-19 pandemic, that as the Regional Senior Justice I may be required to move the trial of this action from Barrie to another courthouse where we have a courtroom available. In that regard, it is worth repeating the comments of Doherty J.A. in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331, as follows:
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
[12] The aforesaid comments of Doherty J.A. were made in the context of a criminal case, but in my view are equally applicable to how as the Regional Senior Justice I must ensure that cases can be tried in a timely fashion by moving them within the Central East Region to locations where we have courtrooms and judges available to conduct trials. The court must ensure that the lights in a court room should never be dark. The Barrie Courthouse has a defined number of courtrooms. As we move out of the COVID-19 pandemic, the harsh reality is those courtrooms will be strained as a result of the backlog of criminal, civil and family law cases.
[13] As the Regional Senior Justice, I will be required to ensure that criminal cases where the Jordan timelines are ticking can be accommodated where we have available courtrooms. Inevitably this will have an impact on the court’s ability to conduct a trial of this action, and thus the real possibility that if the action was transferred to Barrie the trial might nonetheless have to be transferred to another courthouse some considerable distance from Barrie. Were that to happen, the public interest factor urged upon me by the Defendants becomes less of a factor. The convenience of the witnesses also becomes less of a factor. The physical travel distance between Barrie and Oshawa is, in fact greater than the physical travel distance between Barrie and the courthouse in downtown Toronto.
[14] It is beyond dispute that the judicial resources available in Toronto, including the specialized members of the Superior Court of Justice who routinely deal with class actions, together with the availability of courtrooms, can provide what is required to conduct the trial of this matter. In my view there is a real uncertainty that the trial of this action if transferred to Barrie, would actually take place in Barrie. It is more reasonable - and in fact will ensure the most just, expeditious and least expensive determination of the proceeding if this matter remains in Toronto, where the Plaintiffs have sought to have the trial.
[15] The Defendants’ motion to transfer this action to Barrie is, therefore, dismissed.
[16] The parties are encouraged to resolve the issue of costs. If the issue of costs cannot be resolved, the parties are to submit written submissions limited to no more than four pages in length, to be received by the court no later than December 15, 2021. If written costs submissions are not received within that timeframe, the court will assume that the issue of costs has been disposed of.
Regional Senior Justice M.L. Edwards
Released: November 22, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RUBEN STOLOVE by his litigation guardians MICHA STOLOVE and LINDA HINDREA, MICHA STOLOVE and LINDA HINDREA
Plaintiffs
– and –
WAYPOINT CENTRE FOR MENTAL HEALTH CARE, CAROL LAMBIE, ROB DESROCHES, LINDA ADAMS and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
REASONS FOR DECISION
Regional Senior Justice M.L. Edwards
Released: November 22, 2021

