Court File and Parties

COURT FILE NO.: CV-20-00000074-000T

DATE: 20220720

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.O.S. Mortgage Solutions Ltd., Plaintiff

AND:

Innovatus Engineering Inc., Daniel Ferrari, Italo Ferrari, Wilsondale Asset Management Inc., Ridley & Associates Appraisal Services Limited, Fingal Properties Holdings Inc., Michael Olynyk, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Andrew Rogerson, for the Plaintiff

Murray Maltz, for the Defendants, Italo Ferrari, Wilsondale Asset Management Inc. and Fingal Properties Holdings Inc.

Charlotte Freeman-Shaw, for the Defendants, Innovatus Engineering Inc. and Daniel Ferrari

Domenic Saverino, for the Defendant, Michael Olynyk

Murray Stieber, for the Defendant, Ridley & Associates Appraisal Services Limited

HEARD: In Writing

Endorsement

[1] This is a motion brought on consent of all parties seeking to transfer an action commenced in St. Thomas to Toronto. In my capacity as the delegate of the Regional Senior Justice I have been assigned this motion for determination.

[2] This action arises out a syndicated mortgage investment with respect to the development of a senior living facility located at 39232 Fingal Line Road, St. Thomas and it was commenced in 2020. Pleadings have been exchanged. There is a related action involving some of the same parties which was commenced in Toronto in June 2020.

[3] The Ridley Defendants bring this motion and have filed the affidavit of Noah Eklove in support of the order sought. It is deposed that apart from the fact that the property which was the collateral for the investment is located in St. Thomas, there is no other connection to that location. It is noted that the offices of the Plaintiff are in Mississauga, the offices for 4 of the Defendants are in Woodbridge, one of the Defendants is in Keswick and the offices of another of the Defendants are in St. Catharines.

[4] Mr. Eklove deposes that the investment advice, the contracts, and discussions took place at the offices of the parties, all located in the Greater Toronto area. That may be true; and I accept that the nexus to St. Thomas is not strong. However, at the same time, apart from the fact that counsel practice in Toronto with the exception of Mr. Severino who practices in Central East, the evidence does not disclose any reason why Toronto is the most appropriate jurisdiction for the transfer. It seems to me that given that the Plaintiff is located in the judicial region of Central West and 5 of the Defendants are located in the judicial region of Central East either one of those regions is more appropriate for the transfer of the St. Thomas action. I note as well that the “companion action” was commenced in Toronto 5 months before this action was started in St. Thomas so if the parties were interested in the 2 actions proceeding together, the decision to commence this action in Toronto could have been made at that time, in 2020.

[5] I do not accept that Toronto is the “most convenient and least expensive location” given that examinations for discovery and pretrials are held virtually. The fact that counsel practice in Toronto cannot be the basis for the transfer of an action that has no tie to Toronto. If that were the case, many actions around the province would be transferred to Toronto without any tie to this jurisdiction, simply because the lawyers involved practice in Toronto. In my view, none of the considerations set out in Rule 13.1.02 of the Rules of Civil Procedure are met in this case. There is no reason that this action should be transferred to Toronto and the motion is dismissed.

Date: July 20, 2022