Court File and Parties

Court File No.: CV-767-17-OT Date: 2022-04-25 Ontario Superior Court of Justice

Between: Michael Weinberger, Plaintiff And: Samuel Gray, Defendant

Counsel: Gordon W. Harris, Counsel for the Plaintiff Stan Savvateikine, Counsel for the Defendant

Heard: In writing.

Thomas, RSJ.:

Endorsement

[1] The defendant brings this motion to transfer the action from Kitchener to London, claiming it is in the interests of justice. The plaintiff disputes the transfer.

Background

[2] The plaintiff was injured in a motor vehicle collision in London, Ontario on August 6, 2015. The statement of claim was issued in Kitchener, Ontario on July 28, 2017. Examinations for discovery were completed on December 20, 2018 in London. A trial record was served on November 5, 2020. The matter was set down for trial in Kitchener. A mediation held on July 8, 2021 failed to resolve the claim. A pre-trial scheduled last month was adjourned when the defendant brought this motion to transfer.

[3] The statement of claim proposes the action be tried in Kitchener. The statement of defence does not contest trial venue. The defendant has served a jury notice.

[4] Counsel for the plaintiff practices in Kitchener. Counsel for the defendant is legal counsel for Echelon Insurance practicing in Mississauga, Ontario.

[5] The defendant resides in the London area. The plaintiff resided in London at the time of the collision, and then from time to time in Europe to attend school and was employed there for a time.

[6] The plaintiff, at the time of the collision, was a summer law student in London. The affidavit filed suggests he retained Kitchener counsel and had the action started in Kitchener, so that news of his injuries would not compromise potential employment in London. Presently, he resides in London and is practicing lawyer at Siskinds LLP.

[7] At this stage it is difficult for me to determine, but it would seem that the majority of the treating medical professionals who will testify for the plaintiff, practice in the London area. However, while in Europe, the plaintiff was treated by a number of doctors in Germany.

[8] The defendant suggests 6 witnesses and a 7-10 day trial. The plaintiff indicates at least 12 witnesses and a 9-12 day trial.

Analysis

[9] There is no doubt that the plaintiff has the prima facie right to choose a venue for the hearing of his action. See, for example, McDonald v. Dawson (1904), 8 O.L.R. 72, [1904] O.J. No. 42 (H.C.J.); J.G. Fitzgerald & Sons Ltd. v. Kapuskasing District High School Board, [1968] 1 O.R. 136 (S.C.O., Senior Master); and Paul’s Hauling Ltd. v. Ontario (Minister of Transportation), 2011 ONSC 3970, 106 O.R. (3d) 590 (S.C.J.), at para. 13. The instant case is not one where there is some statute or rule that requires the hearing of this action to be held in a particular county, as contemplated by r. 13.1.01(1) of the Rules of Civil Procedure.

[10] As such, r. 13.1.01(2) applies, and the plaintiff was entitled to commence this proceeding at any court office in the Province of Ontario.

[11] To disrupt the plaintiff’s choice, the defendant here needs to satisfy the Court that taking into account the factors in r. 13.1.02(2)(b)(i)-(ix), it is desirable in the interests of justice to transfer the action to London.

[12] Rule 13.1.02(2)(b) is set out below:

(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.

[13] The Court is to consider a holistic application of the factors outlined above, to the specific facts of the case. (Chatterson v. M&M Meat Shops Ltd., 2014 ONSC 1897 (Ont. Div. Ct.) para. 22).

[14] The factors set out in r. 13.1.02(b), (i), (ii) and (iii) favour the transfer. The cause of action, damages and subject matter are London centric.

[15] Contrary to the defendant’s position, I doubt that a London jury for this motor vehicle accident litigation amounts to the “local community interest” contemplated by r. 12.1.02(b)(iv).

[16] The convenience of the parties and witnesses (r. 13.1.02 (b)(v)) would seem to favour the transfer. Plaintiff’s counsel seems to suggest that the defendant would not need to testify as liability is likely to be admitted. That may be true. Counsel, as well, suggests that witnesses could testify remotely by video and references the Court’s January 19, 2022 Notice to the Profession and Public Regarding Court Proceedings.

[17] Since that Notice, matters related to the pandemic have progressed. On March 16, 2022, Chief Justice Morawetz released the Guidelines to Determine Mode of Proceedings. Consistent with these Guidelines, and recognizing this is a jury trial, it will be held in person. The issue of witnesses providing testimony remotely will be resolved by the pre-trial judge or the trial judge.

[18] There are no additional claims here as contemplated by r. 13.1.02(2)(b)(vi).

[19] My concern arises from the consideration of r. 13.1.02(b)(vii), (viii) and (ix). Plaintiff’s counsel advocates for the Courthouse facility in Kitchener. Initially, his purpose is to impress upon me the technical ability to conduct remote proceedings at the Kitchener Courthouse.

[20] The Kitchener Courthouse is certainly impressive and far superior to the London Courthouse, especially in courtroom capacity. However, the London Courthouse has the technology to allow for the kind of hybrid testimony that may be needed for this trial.

[21] Technology is not the issue. As alluded to in the plaintiff’s material, there is a significant backlog in criminal cases in London. These cases are in danger of being stayed pursuant to s. 11(b) of the Charter. London can conduct up to 3 jury trials at a time. All jury courtrooms for the foreseeable future will be occupied with criminal litigation.

[22] Civil jury trials in London, in excess of 2 weeks, have no chance of being heard until late in 2024 at the earliest. The plaintiff here clearly has a right to timely justice.

[23] I also must consider the impact of s. 267.5 of the Insurance Act on any past loss of income.

[24] Part of the problem in attacking the backlog of cases in London is the judicial complement. The Southwest Region, at the time of these Reasons, has a complement of 26 full-time judges. From those 26 positions, we are awaiting 2 appointments and there are 3 judges on extended medical leave. Twenty-one full-time judges to cover all the work of 8 judicial centres does not assist in the resolution of civil litigation.

[25] Finally, I would note that the plaintiff had the action started in Kitchener for a reason. While a summer law student in 2015, he is now a lawyer with a large London firm which represents many litigants before this Court. Both parties believe a lawyer from the firm will likely need to testify regarding the lost income claims of the plaintiff. It would be necessary for me to assign a trial judge from out of London even recognizing that this is a jury trial. That will not assist a timely trial.

Conclusion

[26] I recognize that this analysis begins with the plaintiff’s stated preference for venue. After holistically considering all the factors in the relevant rule, I am not satisfied that this action should be transferred. The motion is dismissed.

[27] I will receive written submissions regarding costs, limited to 5 typed pages, excluding the bill of costs as follows:

1. The plaintiff’s submissions within 14 days of the release of these Reasons.
2. The defendant’s submissions within 7 days thereafter, and any reply, 3 days after that.

If no submissions are received on this schedule, there will be no order as to costs.

Regional Senior Justice B. G. Thomas Released: April 25, 2022.