Court File and Parties

LONDON COURT FILE NO.: CV-21-00001606-0000 DATE: 20220210 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gerald Edward Williams, also known as Ted Williams, Applicant AND: Penelope Provost, personally and as Estate Trustee of the Estate of Sarah Ellen Williams, Daniel Williams, and Bradley Oliver Williams, personally and as Estate Trustee of the Estate of Sarah Ellen Williams, Respondents

BEFORE: Howard J.

COUNSEL: Lou-Anne F. Farrell, for the Applicant James E.S. Allin, for the Respondent Penelope Provost Jeffrey W. Nanson, for the Respondent Daniel Williams William W.N. Fawcett, for the Respondent Bradley Oliver Williams

HEARD: Written submissions

ENDORSEMENT

Overview

[1] This is a motion by the respondent Penelope Provost, personally and as Estate Trustee for the estate of Sarah Ellen Williams, for, inter alia, an order pursuant to subrule 13.1.02(2) of the Rules of Civil Procedure,[^1] transferring this proceeding from London to Chatham, both within the Southwest Region, for hearing in Chatham.[^2]

[2] Pursuant to the endorsement of Rady J. dated November 29, 2021,[^3] and consistent with para. 51 of the Consolidated Provincial Practice Direction, the motion to transfer was heard in writing as an opposed motion.

[3] On February 2, 2022, I was designated by Thomas R.S.J. to hear and determine the motion, consistent with the previous endorsement of Grace J. dated December 21, 2021.

[4] There are currently three separate applications before the court dealing with the same estate of the deceased Sarah Ellen Williams. The litigants are siblings of each other, all adult children of the deceased. Two of the proceedings were commenced in Chatham, and the third application was commenced in London, where the applicant’s lawyer practises law.

[5] The instant motion seeks to transfer the London application to Chatham for hearing.

[6] The issue is whether the moving party has met her burden of establishing that her proposed place of venue (Chatham) is significantly better than the applicant’s original choice of venue (London), having regard for the enumerated factors in rule 13.1.02(2), using a “holistic approach.”

[7] For the reasons that follow, the motion to transfer is allowed because I am satisfied that, in the circumstances of this litigation, Chatham would be a significantly better venue for hearing than London.

Factual Background

[8] The litigants before the court are the four children of the late Sarah Ellen Williams, who died on December 21, 2020. Mrs. Williams was predeceased by her husband. The parents were farmers in Chatham-Kent for many decades, owning and operating a number of farms, comprising some 225 acres of farm land, all of which is located in Chatham-Kent. The parents lived in Chatham-Kent all of their lives.

[9] All four children currently reside in Chatham-Kent and have lived in Chatham-Kent all of their lives. In ordinal placement, from eldest to youngest, the four children/litigants are:

a. Gerald Edward Williams, born October 21, 1971 (“Ted”);

b. Daniel Williams, born April 30, 1973 (“Dan”);

c. Penelope Provost, born September 1, 1974 (“Penny”); and

d. Bradley Oliver Williams, born March 6, 1976 (“Brad”).

[10] During the parents’ lives, they also incorporated a family farm corporation, J & S Williams Limited (“J & S” or the “corporation”). Although not directly material to the instant issue, I note that the corporation was incorporated in Chatham-Kent, its head office is situate in Chatham-Kent, and all of its shareholders reside in Chatham-Kent.

[11] Originally, both parents were the majority shareholders of J & S, with each of the four children owning five per cent of its shares. On the death of her husband, Mrs. Williams became the owner of 80 per cent of the shares in J & S, with, again, the four children, collectively and equally, owning the 20 per cent remaining.

[12] Upon the death of Mrs. Williams, and pursuant to her testamentary dispositions, each of the four children are entitled to 25 per cent of the shares in J & S.

[13] The Last Will and Testament of Mrs. Williams dated March 25, 2020 (the “Will”), named the two youngest children, Penny and Brad, as her Estate Trustees.

[14] Paragraph 5(c) of the Will contains an option allowing the eldest son, Ted, to purchase what was called the “home farm” (the “Option”), in the following terms:

To grant my son GERALD EDWARD (TED) WILLIAMS (“Ted”) the option to purchase the home farm including the "back 15 acres'' (being approximately 115 acres of farmland known as Part of Lot 7 and Part of Lot 8, Concession 3, also known as Concession 1 or Front Concession, Geographic Township of Raleigh, Municipality of Chatham-Kent, and being Property Identifier Numbers 00883-0008 and 00883-0020) at a purchase price equal to the fair market value of such property as of the date of my death. For the purpose of this Will, the fair market value of a property shall be that price agreed upon by all of my children as named herein, or the value determined by taking the average of two independent appraisals received by my Estate Trustees. The said option shall be open for acceptance by Ted for a period of three (3) months from the date of my death and if accepted, the transaction shall close one month from the date of acceptance.

[15] On March 19, 2021, the Estate Trustees, Brad and Penny, through counsel, extended the date for the exercise of the Option to April 16, 2021. On March 26, 2021, they notified Ted that the market value calculated in accordance with the Will was $1,595,000. On April 14, 2021, Ted duly exercised the Option. By letter dated April 20, 2021, counsel for the Estate Trustees confirmed that the Option had been duly executed.

[16] That said, to date, Penny has refused to complete the transfer of the home farm to Ted.

[17] As counsel for Ted notes in her factum, Penny has not disputed the validity of the Option, the fact that it was properly exercised, or the purchase price.

[18] It is against this background that the three applications currently before the court were commenced.

[19] The first application to be commenced was and is the subject of the instant motion, which was commenced by Ted by notice of application issued September 21, 2021, in London, bearing London court file no. CV-21-00001606-0000. Upon review of the prayer for relief, I note that the first substantive claim made is for an order removing Penny as Estate Trustee and leaving Brad as sole Estate Trustee for their mother’s estate. The pleading then goes on to include claims for alternative relief, including, inter alia, a declaration that Brad has authority to sign all required documents to give effect to the sale of the home farm to Ted or, in the further alternative, an order requiring Penny to execute the necessary documents to that effect, damages for breach of trust and breach of fiduciary duty payable by Penny, etc.

[20] The circumstances surrounding the alternative relief claimed by Ted in the London application were described by Rady J. in her endorsement of November 19, 2021, as follows:

The applicant seeks an order transferring a family farm into his name pursuant to the terms of his late mother’s will. Under its terms, the applicant had three months after his mother’s death to exercise an option to purchase the farm. He did so on April 14, 2021. The transfer therefore should have been concluded by May 14, 2021. As I understand it, the applicant is purchasing the property at fair market value with funds being paid to the estate. The purchase price is $1.6 million.

The respondent, Bradley Williams, who is one of his mother’s estate trustees supports the transfer. His sister, the respondent Ms. Provost, who is the second estate trustee, opposes the transfer.

Ms. Farrell, for the applicant, submits that there is some considerable time sensitivity to the proceeding because the applicant wishes to take advantage of the 2022 growing season.[^4]

[21] The second application was commenced by Penny by notice of application issued November 9, 2021, in Chatham, bearing Chatham court file no. CV-21-00000833-0000. Penny’s notice of application seeks a wide variety of relief, but the first substantive claim for relief she makes is for an order removing Brad as Estate Trustee. Her pleading goes on to make claims for, inter alia, a declaration that Ted has engaged in “oppressive” conduct within the meaning of the Business Corporations Act,[^5] an order directing Ted to compensate the estate for “any and all funds he has been found to have embezzled from the Estate or the family farm corporation,” and an order converting the application into an action, if necessary.

[22] The third, and so far, final, application was commenced by Brad by notice of application issued November 30, 2021, in Chatham, bearing Chatham court file no. CV-21-00000853-0000. The scope of relief sought in Brad’s application is considerably less broad than that of Penny’s. Essentially, Brad seeks only an order removing Penny as Estate Trustee and an order requiring her to deliver to him all personal and financial records of their mother in Penny’s possession.

[23] By the terms of the endorsement of Grace J. dated December 22, 2021, this motion was to be spoken to in regular Motion Court in Chatham on February 1, 2022. I note the endorsement of Carroccia J. of February 1, 2022, which indicates that Penny has now also brought a motion to consolidate the three applications into one proceeding and convert it into an action. I note that the “consolidation motion” has been scheduled for hearing by special appointment on February 23, 2022, at 11:00 a.m.

The Issues

[24] In her notice of motion(s), Penny seeks an order:

a. pursuant to subrule 13.1.02(2), transferring Ted’s application (CV-21-00001606-0000) from London to Chatham;

b. pursuant to rule 37.15, appointing a single case management judge to hear all motions in all three proceedings; and

c. pursuant to rule 50.13, directing that a case conference be held before a single judge in respect of all three proceedings.

The Legal Principles

[25] There is no doubt that an applicant or plaintiff has the prima facie right to choose a venue for the hearing of her or his application or action.[^6] The instant case is not one where there is some statute or rule that requires the hearing of this application to be held in a particular county, as contemplated by subrule 13.1.01(1) of the Rules of Civil Procedure.

[26] As such, subrule 13.1.01(2) applies, and the applicant Ted was entitled to commence this proceeding at any court office in the Province of Ontario.

[27] Ted chose to commence his application in London. On review of the evidence before me, it would appear that the only connection of the subject-matter of the application to London is that London is where Ted’s litigation counsel practises law. There is no other apparent connection of the subject-matter of the application or its litigants to London.

[28] I note that, as reflected in para. 14 of her factum, counsel for Ted takes issue with the line of cases that has suggested that the choice of venue of the applicant or plaintiff in the first instance should not be unreasonable at the time she or he commenced the proceeding.[^7]

[29] I appreciate counsel’s strictly literal reading of the text of subrule 13.1.01(2), but I would suggest, respectfully, that it is not only a question of what the text of the provision expressly states but also how that express text has been interpreted in the case law. The latter cannot be erased simply by reverting to or restating the former.

[30] In any event, for present purposes, I would not hinge my decision on this preliminary point but would approach the substantive issue on the assumption that the applicant’s decision to commence his application in London was not unreasonable.

[31] However, a defendant or respondent has the right to challenge the plaintiff’s or applicant’s choice of venue. Accordingly, Penny now seeks to transfer the proceeding from London to Chatham, both within the Southwest judicial region.

[32] On a motion to transfer a proceeding to a county other than the one in which it was commenced, the court must be satisfied that the “transfer is desirable in the interest of justice,” having regard for the various factors enumerated in subrule 13.1.02(2), which provides that:

(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(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.

[33] The proper approach of the court on a motion to transfer under subrule 13.1.01(2) was set out by Stinson J. in Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management,[^8] as developed by D.M. Brown J. (as he then was) in Re Hallman Estate.

[34] In Eveready, after undertaking a comprehensive review of the legislative history of the provision prior to the adoption of the new rule 13.1 in 2004, Stinson J. concluded that the approach that the judge ought to take is “to weigh and consider each of the factors enumerated in subrule 13.1.02(2) in order to determine whether a transfer of the action was desirable in the interest of justice.”[^9] In Hallman Estate, Brown J. described this as the “holistic approach.”[^10]

[35] A corollary of the holistic approach is that no one of the enumerated factors is more important than another and, as such, change of venue motions are fact specific.[^11]

[36] The caselaw has said that where the plaintiff’s choice of venue is reasonable, the onus is on the defendant to show that its proposed place of venue is not only better but “significantly better” than the plaintiff’s choice of venue. Here, Penny must demonstrate that a change of venue to Chatham would be significantly better than a hearing in London.

[37] The “significantly better” dictum comes out of the 2008 decision of Corbett J. in Siemens Canada Ltd. v. Ottawa (City).[^12] The previous leading decisions of this court in Hallman Estate and Eveready had not used the language of “significantly better,” resting their analysis on merely the holistic approach. The Siemens decision had attracted some commentary for its seeming insistence that the plaintiff’s choice of venue must be “rationally connected” to the plaintiff’s claim, which was seen to be a departure from the holistic approach embraced by decisions such as Hallman Estate and Eveready.

[38] In my view, the apparent discrepancy in the caselaw, particularly insofar as the “significantly better” dictum is concerned, was reconciled by the Divisional Court in its decision in Chatterson v. M & M Meat Shops Ltd., where Marrocco A.C.J.S.C., on behalf of a unanimous court, said:

The same paragraph [para. 24 of Siemens] establishes that if the plaintiff’s choice of venue is reasonable and the defendant moves for a change of venue, then a comparison of the two venues is required. The court also stated that in this situation the defendant’s choice has to be significantly better in order to prevail. This is because the Rules permit the plaintiff to choose the venue at the commencement of the claim. [Emphasis added.][^13]

[39] The “significantly better” test has been adopted in subsequent decisions of our court.[^14]

[40] In sum, as I said in Concept Plastics, given that the Rules of Civil Procedure permit the plaintiff or applicant (absent requirements under rule 13.1.01(1)) the prima facie right to select a venue for their proceeding, it is not enough for the defendant or respondent to propose a merely competing or similarly reasonable alternative place of venue for the hearing. The respondent or defendant is required to demonstrate that its proposed venue is better in some significant aspect(s) than that selected by the applicant or plaintiff. Whether the respondent/defendant has satisfied that onus should be determined using the holistic approach embraced by the Hallman Estate line of decisions.

[41] Finally, as Firestone J. observed in Bruce Power, in applying the holistic approach, it is important to recognize that the balancing of the factors under clause 13.1.02(2)(b) “is not a purely numerical or mathematical exercise.” It is not the case that one simply counts whether there are more factors favouring the transfer than those favouring the originating jurisdiction.[^15]

Analysis

The Motion to Transfer the London Application to Chatham

[42] In my view, it cannot be said that “it is likely that a fair hearing cannot be held” in London, within the meaning of clause 13.1.02(2)(a). In fairness, there was no suggestion of that in Penny’s materials.

[43] Having considered the clause 13.1.02(2)(b) factors holistically, I find that Penny has satisfied her onus of demonstrating that a transfer of the London proceeding to Chatham would be significantly better than the venue selected by the applicant, for the reasons that follow.

Subclause 13.1.02(2)(b)(i): “where a substantial part of the events or omissions that gave rise to the claim occurred”

[44] As reviewed above, all of the parties here reside in Chatham-Kent. All of the land at issue is situate in Chatham-Kent. The Will containing the Option was made in Chatham-Kent. The Option was exercised in Chatham-Kent. The factual matrix giving rise to the claim all occurred within Chatham-Kent. Indeed, there is nothing in the factual matrix giving rise to the claim that points to London.

[45] In her factum, counsel for Ted “concedes that in this case, there are a number of factual connections to the Chatham area.”

[46] I pause to note that, significantly, counsel does not actually submit that there are any similar “factual connections” to London.

[47] However, counsel goes on to submit that “those geographic factors are only significant when there is going to be a trial or at least an in-person hearing, so that the convenience of witnesses and parties is affected by the location.” Given that subclause 13.1.02(2)(b)(v) specifically addresses the convenience of the parties and the witnesses, it is not clear to me whether counsel intended her argument concerning the alleged lack of significance of the “geographic factors” to also apply to the consideration of subclause 13.1.02(2)(b)(i). If that is the intent, respectfully, I must disagree. In my view, subclause (i) speaks to “geographic factors” or interests that go beyond and are different than the location and/or convenience of the parties and witnesses.

[48] The considerations under subclause (i) significantly favour Penny’s proposed change of venue to Chatham.

Subclause 13.1.02(2)(b)(ii): “where a substantial part of the damages were sustained”

[49] In para. 1(f) of his notice of application, Ted claims “damages for breach of trust and breach of fiduciary duty, payable by the Respondent Penny Provost personally, in an amount equal to the amounts lost by the Applicant as a result of the improperly delayed transfer of the [home farm] Property.”

[50] Any such damages, if sustained, would be sustained by Ted in Chatham-Kent. They would not be sustained in London.

[51] The considerations under subclause (ii) favour the proposed change of venue to Chatham.

Subclause 13.1.02(2)(b)(iii): “where the subject-matter of the proceeding is or was located”

[52] The subject-matter of the proceeding was described in para. 3(a) of the factum filed on behalf of Ted, where counsel stated that, “[t]his application involves the enforcement of an option to purchase a farm property from the estate of the parties’ mother, Sally Williams.” The home farm is located in Chatham-Kent.

[53] To the extent that it may also be said that the subject-matter of the proceeding involves the administration of the estate of Mrs. Williams – again, the first claim for relief in Ted’s notice of application is an order removing Penny as Estate Trustee – this also points to Chatham.

[54] The considerations under subclause (iii) significantly favour the proposed change of venue.

Subclause 13.1.02(2)(b)(iv): “any local community’s interest in the subject-matter of the proceeding”

[55] In my view, consideration of subclause (iv) has little, if any, application to the instant motion. In any event, there is no real evidence before me of any local community interest in the subject-matter of Ted’s application.

[56] The considerations under subclause (iv) cannot be said to favour the proposed change of venue.

Subclause 13.1.02(2)(b)(v): “the convenience of the parties, the witnesses and the court”

[57] On the question of the convenience of the parties and the witnesses, I appreciate that all of the parties and likely most of the witnesses reside in Chatham-Kent.

[58] However, given the state of the “virtual” litigation at present, there is no real evidence before me that either venue of London or Chatham would be considerably more convenient or considerably less convenient for either the parties or the witnesses. Further, at present, the proceeding is framed as an application, and so the “witnesses” would not be attending in court but, rather, would be affiants swearing or affirming affidavits.

[59] In other words, there is merit in the point made by Ms. Farrell in her factum that considerations of the convenience of the parties and witnesses are tempered by the court’s current reality and its embrace of virtual hearings as a result of the COVID-19 pandemic.

[60] As such, at this moment in time, the subclause (v) factor is essentially neutral as to venue.

[61] As I have said, I am aware that Penny has brought a motion to consolidate the three proceedings and have them converted into an action. If that motion is successful, and if the proceedings are converted into an action, and if that action proceeds to trial at an in-person hearing, then consideration of subclause (v) would bear greater meaning and may well substantially favour Chatham.

[62] However, that consolidation motion has not yet been determined, and it would not be appropriate for me to speculate as to its outcome or the eventual mode of hearing.

[63] In any event, even if the proceedings are consolidated, converted into an action, and proceed to a trial that is held in person, the parties may wish to consider an arrangement that would best accommodate the witnesses by allowing any out-of-town witness or any witness who is concerned about attending a public courthouse for health reasons to testify at trial by video-conference.

[64] On balance, consideration of the convenience of the parties and witnesses does not favour one venue over the other.

[65] On the question of the convenience of counsel for the parties, which will often have cost implications for their clients, I note that the lawyers for Ted and Brad practise in London, the lawyer for Penny practises in Chatham, and the lawyer for Dan practices in Windsor. Again, given the current state of the litigation being conducted by virtual hearing, the consideration of the lawyers’ convenience (and clients’ costs) is a neutral factor.

[66] Thus, on balance, it cannot be said at present that the considerations of convenience to those involved in the litigation under subclause (v) significantly favour the change of venue proposed by Penny.

Subclause 13.1.02(2)(b)(vi): “whether there are counterclaims, crossclaims, or third or subsequent party claims”

[67] At present, the proceeding is framed as an application, and so there is no counterclaim, crossclaim, third party or other such claims. I give no weight to this factor.

Subclauses 13.1.02(2)(b)(vii) and (viii): judicial resources

[68] In the context of the instant case, the considerations set out in subclauses 13.1.02(2)(b)(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”) and (viii) (“whether judges and court facilities are available at the other county”) speak to the issue of judicial resources.

[69] That is, there is some overlap between subclauses (vii) and (viii) in the instant case, in that, the primary concern of Ted here is how quickly the issue of the enforcement of the Option can be brought on for determination, which, in turn, involves consideration of the extent to which judicial resources are available to secure the most expeditious determination of the proceedings. Thus, this implicates both subclauses (vii) and (viii).

[70] At present, a special appointment hearing has been scheduled in London for March 2, 2022, for the hearing of Ted’s application on the issue (only) of the enforcement of the Option. As I say, that is the primary concern of Ted, and it largely drives his opposition to Penny’s change in venue motion. However, depending on the outcome of the consolidation motion on February 23, 2022, the March 2nd date may be in jeopardy in any event.

[71] Assuming that determination of the issue of the enforcement of the Option may require a special appointment, it is appropriate to consider generally the differences in the two court centres in terms of availability of special appointment dates. In this vein, I note that it was at the attendance before Rady J. on November 19, 2021, that the special appointment date of March 2, 2022, was scheduled, which is almost four months later. That said, in fairness, there is no indication in the file whether the March 2nd date was the first available date in London or just a date that was selected, and in any event, it was necessary to set a litigation timetable, and the special appointment date had to allow for that.

[72] That said, I note that it was at the attendance before Carroccia J. on February 1, 2022, that the special appointment date for the consolidation motion was scheduled for February 23, 2022, just three weeks later.

[73] Further, as Local Administrative Judge for Chatham and as designate for the Regional Senior Justice in respect of the instant motion, I can advise that it is certainly the case that, absent exceptional circumstances, one can obtain a special appointment in Chatham on a much earlier date than one can in London. Moreover, if one considers the availability of dates for “short trials” (i.e., two weeks or less), the disparity between the two court centres is even more pronounced. That is, as of January 1, 2022, the first available date for a short trial in Chatham would be 19 weeks out, i.e., May 2022. In London, the parties would be waiting some 65 weeks, i.e., April 2023.

[74] In my view, there is a significant difference between the two venues in terms of available hearing dates and securing the most expeditious determination of the matter, and such considerations significantly favour the proposed change to Chatham.

[75] Having said that, I remain alive to Ted’s concern that he believes the issue of the enforcement of the Option is, as Ms. Farrell says, a discrete issue that is time-sensitive and is capable of being determined in a summary fashion on the basis of the written record. To be clear, I am not making a finding that Ted is correct in his beliefs; I am simply noting his concern.

[76] However, it is not clear to me that such concern poses a valid basis to oppose the change of venue motion, given that it would appear that his concern may be capable of being addressed even if his application were transferred to Chatham. That is, the consolidation motion is scheduled to be heard on February 23rd next, now less than two weeks away, and on that motion, Ted would be at liberty to request that the motion judge, in the course of his or her deliberations on the consolidation motion, give some thought to allowing the issue of the enforcement of the Option to proceed on an expedited basis, if that were thought appropriate, either by giving that portion of the application some priority in hearing or allowing that issue to proceed as an interim motion within the context of a consolidated action or proceeding.

[77] In other words, Ted’s fundamental concern here is when that issue will be decided. That concern does not necessarily determine where that issue should be decided.

Subclauses 13.1.02(2)(b)(ix): any other relevant matter

[78] To my mind, it goes without saying that the other highly relevant consideration here is the fact that there are two other related proceedings, all involving the same parties, based on the same factual matrix, that have been commenced in Chatham.

[79] That feature of this case raises a consideration that was not present in most of the modern “change of venue” line of cases. In Eveready, Stinson J. found that it was in the interests of justice to transfer the action from Toronto to Sarnia – but there were no other outstanding proceedings on the same facts, involving the same parties, in Sarnia. In Hallman Estate, Brown J. (as he then was) found that it was not in the interests of justice to transfer the proceeding from Toronto to Kitchener-Waterloo – but there were no other outstanding proceedings on the same facts, involving the same parties, in Kitchener-Waterloo. In Siemens, Corbett J. found that it was not in the interests of justice to transfer the proceeding from the Region of Peel to Ottawa– but there were no other outstanding proceedings on the same facts, involving the same parties, in Ottawa.

[80] Here, as I have said, there are two other related proceedings, involving the same parties, and based on the same facts, that have been commenced in Chatham. The issues in those other proceedings overlap with the issues in the instant proceeding. In Penny’s application, commenced on November 9, 2021, in Chatham, she seeks an order, inter alia, removing Brad as Estate Trustee. In Brad’s application, commenced on November 30, 2021, also in Chatham, he seeks an order removing Penny as Estate Trustee. And, as I have said, in Ted’s application, commenced September 21, 2021, in London, he also seeks an order, inter alia, removing Penny as Estate Trustee.

[81] The case law has held that the existence of other related proceedings being tried together is a relevant factor under clause 13.1.02(2)(b). For example, in Boehringer Ingelheim (Canada) Ltd. v. Sollen, the court held, in the context of a class proceeding commenced in Ottawa, that the venue of proceedings should be transferred to Toronto, where related proceedings were pending, and in respect of which the court held that the “deciding factor in this case is the existence of the related proceedings that are already located in Toronto.”[^16]

[82] In a similar vein, I find that the existence of Brad’s application to remove Penny as Estate Trustee, and Penny’s application to remove Brad as Estate Trustee, both of which proceedings were commenced in Chatham, are a significant factor in considering the place of venue for the hearing of Ted’s application to remove Penny as Estate Trustee. The existence of the related proceedings already commenced in Chatham significantly favour the proposed change of venue.

Summary

[83] In sum, balancing all of the considerations enumerated in clause 13.1.02(2)(b), I find that the evidence on this motion establishes that the venue proposed by the moving party, in Chatham, is significantly better than the venue originally selected by the applicant, in London. Accordingly, the motion to transfer the proceeding to Chatham is allowed.

The Motion to Appoint a Case Management Judge under rule 37.15

[84] Subrule 37.15(1) of the Rules of Civil Procedure provides that:

Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, a regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (where motions to be brought) does not apply to those motions.

[85] Subrule 37.15(2) of the Rules of Civil Procedure provides that:

A judge who hears motions pursuant to a direction under subrule (1) shall not preside at the trial of the actions or the hearing of the applications except with the written consent of all parties.

[86] Consistent with the express language of subrule 37.15(1) and the practice within the Southwest Region, any motion brought pursuant to rule 37.15 to have a case management judge (“CMJ”) appointed in respect of the instant case and its related proceedings must be brought before the Regional Senior Justice for determination.

[87] That said, in my view, such a motion is premature.

[88] As I have said, a special appointment has been scheduled for February 23, 2022, to hear Penny’s consolidation motion.

[89] In the context of the Regional Senior Justice’s consideration of the instant request by Penny to appoint a CMJ in respect of Ted’s application, it will be highly relevant for the R.S.J. to know the actual state of the litigation landscape of these proceedings before deciding whether the appointment of a CMJ is warranted.

[90] In particular, it will be critical for the R.S.J. to know whether he is being asked to appoint the same CMJ to preside over all motions in three separate proceedings or whether he is being asked to appoint a CMJ to preside over one, consolidating proceeding. In my view, any request for the appointment of a CMJ before the outcome of the consolidation motion is known is premature.

[91] Accordingly, the motion for an order pursuant to rule 37.15 is adjourned sine die to a date to be arranged through Trial Coordination, not before the issues on the consolidation motion are determined.

The Motion to Direct a Case Conference under rule 50.13

[92] Subrule 50.13(1) of the Rules of Civil Procedure provides that:

A judge may at any time, on his or her own initiative or at a party’s request, direct that a case conference be held before a judge or associate judge.

[93] For essentially the same reasons as explained above concerning the request for the appointment of a CMJ, I am of the view that Penny’s request for a case conference is also premature at this point.

[94] By its very nature, the special appointment scheduled for February 23rd next to hear the consolidation motion will address certain fundamental aspects of case management of these applications. I would expect there will be an opportunity to discuss other case management issues at that time as well, subject of course to the discretion of that motion judge.

[95] Depending on the outcome of the consolidation motion, if the judge hearing that motion believes it would be of assistance to the parties or is otherwise required, a case conference may be directed at that time.

[96] Accordingly, the motion for an order directing a case conference is adjourned to the motion judge hearing the consolidation motion on February 23, 2022.

Costs

[97] I have every expectation that counsel for the parties will be able to resolve the question of costs of this motion in writing.

[98] That said, if the parties are unable to agree on costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. Penny shall deliver her submissions within twenty (20) days following the release of these reasons.

b. The responding parties shall deliver their submissions within twenty (20) days following service of the submissions of Penny.

c. Penny shall deliver her reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the last of the responding parties’ submissions.

d. If any party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Date: February 10, 2022

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[^2]: A review of the court file indicates that the moving party has in fact brought two such motions to transfer the London application to Chatham. See the moving party’s motion record dated December 14, 2021, and also her motion record dated January 18, 2022, where essentially the same relief is claimed. The reason(s) for the duplication are not readily apparent. In any event, for the sake of certainty, this decision applies to both motions.

[^3]: Williams v. Provost, 2021 ONSC 7862 (S.C.J.), at para. 14.

[^4]: Ibid., at paras. 2-4.

[^5]: Business Corporations Act, R.S.O. 1990, c. B.16, s. 248.

[^6]: 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, 1967 CanLII 159 (ON SC), [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.

[^7]: In fairness, counsel’s objection finds support in the comments of Brown J. (as he then was) in Re Hallman Estate (2005), 2009 CanLII 51192 (ON SC), 80 C.P.C. (6th) 139, 52 E.T.R. (3d) 29 (S.C.J.), at para. 28 [Hallman Estate].

[^8]: Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. (2005), 2005 CanLII 19797 (ON SC), 76 O.R. (3d) 390, 15 C.P.C. (6th) 330 (S.C.J.) [Eveready].

[^9]: Eveready, at para. 19.

[^10]: Hallman Estate, at paras. 26, 28, and 29.

[^11]: Patry v. Sudbury Regional Hospital, [2009] O.J. No. 1060, 69 C.P.C. (6th) 385 (S.C.J.), at para. 13. See also Nutech Brands Inc. v. Air Canada (2007), 2007 CanLII 56523 (ON SC), 88 O.R. (3d) 768, 57 C.P.C. (6th) 242 (S.C.J.), at para. 21 per Leitch R.S.J. (as she then was); and Wilcox v. Flintstone Glass & Mirror Ltd., 2009 CanLII 73279 (ON SC), [2009] O.J. No. 5613, 85 C.P.C. (6th) 394 (S.C.J., Master) at paras. 15-16.

[^12]: Siemens Canada Ltd. v. Ottawa (City) (2008), 93 O.R. (3d) 220, 2008 CanLII 48152 (S.C.J.), at para. 25 [Siemens].

[^13]: Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Div. Ct.), at para. 29.

[^14]: See, for example, Concept Plastics Ltd. v. Plasponics Inc., 2016 ONSC 2493 (S.C.J.), at paras. 27-30 per Howard J. [Concept Plastics]; Zhao v. Wikwemikong Nursing Home Ltd., 2016 ONSC 5400, 3 C.P.C. (8th) 418 (S.C.J.), at para. 10 per R.D. Gordon R.S.J.; Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968 (S.C.J.), at para. 47 per Firestone J. [Bruce Power]; and Purdy v. FGC Limited, 2019 ONSC 2360 (S.C.J.), at para. 14 per Raikes J.

[^15]: Bruce Power, at paras. 16-17.

[^16]: Boehringer Ingelheim (Canada) Ltd. v. Sollen, [2005] O.J. No. 2248, 14 C.P.C. (6th) 344 (S.C.J.), at para. 10 per Master MacLeod. See generally, paras. 7-11. See also Gould v. BMO Nesbitt Burns Inc. (2006), 2013 ONSC 6062, 81 O.R. (3d) 695, 37 C.P.C. (7th) 68 (S.C.J.), at para. 17; Ryan v. Air Terminal Transport, [1961] O.W.N. 169 (H.C.J.); and Chinn v. Walters, [1959] O.W.N. 195 (Co. Ct.).