Court File and Parties

COURT FILE NO.: CV-22-00676784 DATE: 2022-04-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amze Holdings Limited, Applicant AND: 2132135 Ontario Limited o/a Jot Truckline, Tony Gill Transport Inc., Bramcity Trucklines Inc., Canmore Trucking, Guardian Freightlines Inc., 10966487 Canada Inc. o/a Guardian Freightlines, Newtron Trucking aka New Tron Trucking, Northern Alliance Logistics o/b 11266047 Canada Inc., Northern Alliance Logistics o/b 9089365 Canada Inc., 13007219 Canada Inc., Orbis Express Inc. and Dream Truck Sales Inc., Respondents

BEFORE: D.A. Wilson J.

COUNSEL: Igor Ellyn and Kathryn J. Manning, for the Applicant Bobby Sachdeva and Kaleigh Sonshine, for the Respondent, 2132135 Ontario Limited o/a Jot Truckline

HEARD: In Writing

Endorsement

[1] This is a consent motion brought pursuant to Rule 13. 01 to transfer an application from Brampton to Toronto to be heard with another Application issued in Toronto. In my capacity as the co-team lead for the civil team in Toronto, the Regional Senior Justice has delegated the responsibility for determining this motion to me.

Background

[2] Briefly put, the Applicant Amze Holdings Limited (“Amze or the Landlord”) is a corporation with its head office in Etobicoke and the Respondent 2132135 Ontario Limited (“213 or the tenant”) is a transportation company located in Brampton. This Application is a dispute arising from a commercial lease concerning an area for parking trucks located in Brampton. The Tenant commenced an Application in Brampton in November 2021 requesting urgent interlocutory relief to restrain Amze from entering on the leased premises. Amze served a notice to terminate the tenancy. The Landlord acknowledges that the rent is not in arrears and has agreed not to evict the Tenant without a court Order. Counsel attempted to secure a date for the hearing of the application in Brampton and were advised that the earliest date was in October 2022.

[3] Counsel were not content with the length of time until the hearing of the Application so in December 2021, counsel attempted to have the application moved onto the Commercial List in Toronto. Justice McEwen, the team lead for the Commercial List, refused to accept the Application for hearing on the Commercial team in Toronto

[4] As a result, counsel for the parties agreed that the Landlord would file its Application to terminate the tenancy in Toronto and agreed they would attend in Civil Practice Court in Toronto to secure a date for the hearing of the 2 Applications. Counsel further agreed that the original Brampton Application would be discontinued and the same material refiled in Toronto as a counter-Application and an order would be obtained that the 2 Applications would be heard together in Toronto. In accordance with the agreement between counsel, Amze issued its Application in Toronto (Court file CV-22-00676784-0000) on February 10, 2022.

[5] Counsel attended CPC on March 1, 2022 hoping to schedule the hearing date for June 17, 2022, a date that they were informed was available for the hearing. Justice Myers declined to schedule the Application and issued a written endorsement. As a result, counsel have filed this consent motion to transfer the Brampton Application to Toronto to be heard with the recently issued companion Application.

[6] After the filing of this motion to transfer in February 2022, Mr. Ellyn wrote to the Court advising that the first date for the hearing of a full day motion in Brampton was February 27, 2023 as opposed to February 13, 2023 (Mr. Ellyn’s email to the Court of March 15, 2023.) He then wrote to the Court again on March 25 advising that the date for the hearing of the full day Application in Brampton was March 27, 2023.

Analysis

[7] Rule 13.1.01 governs the transfer of a proceeding from one county to another. Generally, a proceeding can be commenced in any county which is named in the originating process, unless a statute stipulates otherwise. Rule 13.1.02(2) states that the Court can transfer a proceeding in certain circumstances: if a fair hearing cannot be held in the county where the proceeding was commenced; or if a transfer is desirable in the interests of justice having regard to where a substantial part of the events giving rise to the claim occurred or where a substantial part of the damages were sustained or where the subject matter of the proceeding was located or for the convenience of the parties, the witnesses and the court or 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.

[8] It is well established law that the Court may transfer a proceeding from one county to another if it is satisfied it is in the interests of justice and fairness to the parties to do so. The onus is on the moving parties to satisfy the Court that the transfer ought to be made. I agree with the comments of RSJ Edwards in Stolove v. Waypoint Centre for Mental Health Care, 2021 ONSC 7712 where he noted the Court must look at all the relevant factors, including judicial resources. In that regard, RSJ Edwards noted that Doherty J.A. stated in R. v. Allen 1996, 4011 (ONCA),

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.

[9] In his endorsement of March 1, 2022, Justice Myers declined to schedule a date for the hearing of the Applications. He noted that the consent of counsel to transfer a proceeding is not a basis for a transfer and he stated, “The fact that some earlier dates have opened in this region does not lead to the conclusion that multiple proceedings should be brought so that this region can be the overflow for other region’s backlogs. It is not efficient, affordable, proportionate civil justice for multiple proceedings to be used to arbitrage court schedules. Whether this matter has any real connection with this region will be in issue, no doubt, if a transfer motion is brought.”

[10] This is not an urgent matter. In the affidavit filed in support of the transfer, it is deposed that counsel have agreed an urgent interlocutory injunction is not necessary and Amze has agreed not to evict the tenant without a court Order. In November 2021, a date for the hearing in Brampton could have been secured in October 2022, but counsel chose not to confirm that date. Instead, they decided to bring an Application in Toronto and obtain an earlier hearing date, then move the Brampton Application to Toronto. They attended before Myers J. in March 2022 and not surprisingly, by that time, the dates for hearing of the Application in Brampton had moved from October 2022 to February 2023.

[11] It is clear that the reason that counsel are seeking to transfer the Brampton Application to Toronto is simply because an earlier date can be secured for the hearing of an Application in Toronto than the dates being offered in Brampton. The Application was commenced in Brampton because the lands in question, which are the subject of the lease, are located in that jurisdiction.

[12] The Court must consider a variety of relevant factors before determining that a matter should be transferred. Had counsel accepted the October 2022 dates in Brampton when the Application was issued in November 2021, the hearing would be set for that date. When counsel attended before Justice Myers last month seeking the June 2022 hearing date in Toronto, the difference in timing was 4 months from the date that was originally offered to them by the Brampton court. In my opinion, on an Application that is not urgent, the difference of 4 months for a hearing date on the facts of this case does not justify a transfer of the Application from Brampton to Toronto. There is no evidence of irreparable harm to the parties.

[13] This isn’t a case where a fair hearing cannot be obtained in the jurisdiction in which the proceedings were commenced or where the convenience of the witnesses demands that the venue be moved. Rather, the only basis on the evidence for the transfer of the Brampton Application to Toronto is to secure an earlier hearing date. The fact that the request is made on consent of counsel is not determinative. The evidence does not disclose any urgency to the hearing, as counsel have agreed that an injunction is not necessary, rent is not in arrears, and the tenant will not be evicted prior to the determination of the Applications.

[14] This is a time where judicial resources in all regions are strained and despite the best efforts of the Court, there are delays in all jurisdictions arising from the pandemic. In addition to the scheduled dates for the hearing of motions and applications, the Court must deal on a daily basis with the requests for urgent hearings of matters. The fact that one jurisdiction may have an earlier date for the hearing of a motion or an Application does not lead to the conclusion that the Application ought to be transferred from the county where it was issued to another county with an earlier hearing date. If that were the case, counsel would move to transfer any number of proceedings to the county where the earliest motion or trial date could be secured, regardless of the lack of any connection to the place of transfer.

[15] In my view, a better manner of proceeding would have been for counsel to have confirmed the hearing date of October 2022 when the Application was issued in Brampton in November 2021; at that time, counsel was of the view that Brampton was the appropriate county in which to commence the proceeding. Nothing has changed since that time, except that counsel have lost the October 2022 hearing date but that is due to the fact that counsel did not confirm that date. Additional, and in my opinion, unnecessary costs have been incurred in the attempt to have the matter heard on the Commercial List in Toronto and then an attendance at CPC and the issuance of an additional Application in Toronto, as well as the filing of this motion.

[16] I do not agree that counsel should transfer matters that were instituted in other jurisdictions to Toronto or to other jurisdictions simply to get an earlier hearing date. If that were the practice, counsel would file motions to transfer proceedings to jurisdictions with the earliest available hearing dates, and the time outs for hearings in Toronto and other centres that can offer early dates would become unacceptably long. I agree with the comments of Justice Doherty in R. v. Allen, supra, that this case cannot be considered in isolation, as the only one needing judicial resources.

[17] The Court must consider the unique facts of each case when determining if a proceeding ought to be transferred to another county pursuant to Rule 13.1(2). In my view, the evidence does not persuade me that it is in the interests of justice to move the Application issued in Brampton to Toronto and I decline to make such an order.

Date: April 6, 2022