Court File and Parties

COURT FILE NO.: CV-18-00000802

DATE: 2022-01-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason Carpentier, Doris Hall and Bryce Carpentier-Fernandes by his Litigation Guardian, Doris Hall Plaintiffs

AND:

Steven James Gauthier, Patrick Raposo, and The Corporation of the City of London and Mobil Services Inc. Defendants

AND:

Patrick’s Mobile Truck and Trailer Repair Inc. Third Party

BEFORE: Regional Senior Justice B. G. Thomas

COUNSEL: Brennan Kahler, Counsel for the plaintiffs Catherine McGhee, Counsel for the defendants Gauthier and Raposo Sheila Handler, Counsel for the defendant The Corporation of the City of London Robert Betts, Counsel for the defendant Mobil Services Inc.

HEARD: In writing.

ENDORSEMENT

Motion to Transfer Proceeding

[1] The defendant, The Corporation of the City of London, (“London”), brings this motion in writing to transfer this proceeding, including a third party claim, from Barrie to London. The plaintiffs object to the proposed transfer to London and take the position that the proceeding should be transferred from Barrie to Sarnia. The remaining defendants and the third party have not responded to the motion.

Background

[2] The action arises from a motor vehicle collision that occurred on January 18, 2018 on Hamilton Road, at or near its intersection with Meadowlily Road North in the City of London, involving a bicycle operated by the plaintiff, Bryce Carpentier-Fernandes, (“Carpentier-Fernandes”), and a motor vehicle operated by the defendant, Steven James Gauthier, and owned by the defendant, Patrick Raposo.

[3] The plaintiffs allege that the defendant London failed to clear the snow from the bicycle lane, requiring Carpentier-Fernandes to operate his bicycle on the road in the moments prior to the collision.

[4] The plaintiffs collectively seek damages in excess of 8.5 million dollars as against the defendants.

[5] Carpentier-Fernandes is represented by his mother and litigation guardian, Doris Hall, (“Hall”). Both Hall and Carpentier-Fernandes’s father, Jason Carpentier, (“Carpentier”), make claims for damages pursuant to the Family Law Act.

[6] It is alleged that Carpentier-Fernandes suffered significant injuries as a result of this collision, the most serious of which is a traumatic brain injury with impaired memory, concentration, headaches, anxiety, depression, and PTSD.

[7] At the time of the collision, Carpentier-Fernandes and Hall resided in London. They now reside in Sarnia. At the time of the collision, Carpentier resided in Barrie, but now resides in Wainwright, Alberta. The statement of claim was issued in Barrie and names Barrie as the place of trial. There is presently no connection to Barrie but for the location of plaintiffs’ counsel.

[8] While it is acknowledged that the plaintiffs 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).

[9] Counsel for the plaintiffs strenuously argue that they have the right to commence their action wherever in Ontario they choose. Further, that the plaintiffs’ named place of trial should not be disturbed unless the moving party has proposed a “significantly better” venue. (Guenette v. Furness, 2014 ONSC 4593, paras. 21-22). While that argument is compelling, it ignores the fact that this motion is unique. Here, although the plaintiffs named Barrie as the place of trial, they have responded by proposing a transfer to Sarnia. In my view, as a result, the plaintiffs have lost any preferential right to name the place of trial. The matter must therefore be determined by taking a holistic view of all the circumstances after considering the criteria in r. 13.1.02(2)(a) & (b), set out below:

(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(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.

2 (a)

[10] While this subrule considers whether a fair trial can be held in the county where the proceeding was commenced, in the context here there is no reason why trial fairness would be negatively affected in Sarnia or London.

(b)(i) & (ii)

[11] This motor vehicle collision took place in the City of London. the events and any omissions occurred there. While any ongoing disabilities may be taking place in Sarnia, the initial injuries and damages happened in London.

(iii)

[12] At least with respect to the defendant London, the subject-matter of the proceeding would appear to be the City’s snow clearing practices. Beyond that, as mentioned, the collision and any resultant injuries occurred in London.

(iv)

[13] There is a claim of $8.5 million against London alleging negligent municipal practices. I would suggest there is local community interest in London regarding the subject-matter of this proceeding.

(v)

[14] When considering the convenience of the parties and witnesses, plaintiffs’ counsel submits that the ongoing disabilities and PTSD suffered by Carpentier-Fernandes argues for access to justice taking place in Sarnia. Counsel for the plaintiffs also advises that Hall, as well as two other potential family witnesses reside in Sarnia, and that the treating medical practitioners’ practice in Sarnia.

[15] There is no doubt, Carpentier-Fernandes suffered injuries in this collision. He does, however, reside alone and the concerns expressed by the family emphasize his anxiety at leaving his home and riding in a motor vehicle. No matter where the trial is held, he will have to do both, albeit a drive to the London Courthouse from Sarnia would obviously be a longer trip.

[16] If, however, Carpentier-Fernandes attended the trial remotely and participated on Zoom, he could stay at home and still have access to justice without the negative impact of leaving his home.

[17] Similarly, Sarnia-based caregivers could testify in the same fashion. It is of interest to me that the one medical report offered by counsel to support the transfer to Sarnia is authored by Dr. Basile, a Markham, Ontario based neurologist. Of note, the initial treatment took place in London hospitals.

[18] On the defendants’ side of the argument, all defendants reside in or around London. All businesses operate in or around London, including the third party.

(vi)

[19] There is a third party claim that would be transferred as well.

(vii) & (viii)

[20] Normally, these factors plays a minimal role in transfer analysis, but in 2022 it needs to be examined in more detail. There is a considerable backlog of civil litigation throughout the Province. Judicial time and courtroom availability is being consumed by criminal and family cases. Even if this trial proceeded in a hybrid fashion, a courtroom is still required as is a trial judge.

[21] At this time, Sarnia has two courtrooms available to the Superior Court. There is one full-time Superior Court judge chambered there. The most expeditious determination of this proceeding would be accomplished by a transfer to London with 12 full-time and 4 supernumerary judges, and multiple courtrooms.

Conclusion

[22] Examining the enumerated criteria and considering the circumstances holistically, leads me to the conclusion that this action and third party claim should be transferred to London, and I so order.

[23] The defendants motion claims costs if opposed. I will consider written submissions as to costs. The submissions are limited to three pages, not including a bill of costs, and are to be received within 30 days of the release of this endorsement. If submissions are not received within 30 days, there will be no order as to costs.

Regional Senior Justice B. G. Thomas

Date: January 13, 2022.