Court File and Parties

Court File No.: CV-19-00000117-0000 Date: 2023-02-17 Superior Court of Justice - Ontario

Re: Dawn-Marie Burton, Plaintiff And: Vanessa Docker and James Docker, Defendants

Before: Regional Senior Justice B. G. Thomas

Counsel: Mary-Anne C. Strong, Counsel for the Plaintiff Catherine Costa, Counsel for the Defendants

Heard: In writing.

Endorsement

[1] The defendants bring this motion to transfer the action from Guelph to London, claiming it is in the interests of justice. The plaintiff disputes the transfer.

Background

[2] This action arises out of a motor vehicle collision which occurred on April 27, 2017 in Guelph, Ontario. The plaintiff is 24 years of age and alleges she sustained serious and permanent injuries as a result of the negligence of the defendant, Vanessa Docker, who struck her vehicle in a rear-end collision. Her injuries have recently been labelled catastrophic by her accident benefit insurer.

[3] This action has been set down for trial in Guelph. A pre-trial conference has already occurred and notice of a trial date for the May to June, 2023 sittings has been provided by the Guelph Court. Jury selection is scheduled for April. The defendant here served the jury notice. The trial estimate is five weeks.

[4] The defendants now bring this motion for an order transferring the action from Guelph to London and to be heard together with an action between the plaintiff and her long-term disability insurer.

[5] The second action commenced in London by the plaintiff has Manulife as the defendant. It is a non-jury matter. Discoveries have just been completed. It has not been set down for trial. The plaintiff advises that issues in the London action include whether an application for benefits met the required timeframe. It will require interpretation of the contract of insurance and whether the plaintiff is “disabled” as defined by that contract. The contract in question is a group policy of insurance.

Analysis

[6] 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, R.R.O. 1990, Reg. 194.

[7] 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.

[8] 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.

[9] 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.

[10] 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).

[11] The defendants state that these actions need to be tried together. They suggest that they engage common issues and not joining them risks inconsistent verdicts. They further suggest that they will be prejudiced should the plaintiff’s right to disability benefits in the London action not be determined at the same time as the trial of this action. For the reasons set out below, I reject that position and make the findings below on the basis of the material filed.

[12] The factors set out in r. 13.1.02(2)(b), (i), (ii) and (iii) do not favour the transfer. The cause of action, damages and subject matter are Guelph centric.

[13] This motor vehicle accident litigation will not attract “local community interest” as contemplated by r. 12.1.02(2)(b)(iv).

[14] The convenience of the parties and witnesses (r. 13.1.02(2)(b)(v)) do not favour a transfer:

(a) The plaintiff and her husband reside in Kitchener (closer to Guelph than London).

(b) The defendants reside in Oakville (closer to Guelph than London).

(c) While the plaintiff continues to have some treatment providers in London, the vast majority of the plaintiff’s witnesses, including experts, work in the GTA. In the material filed, the plaintiff sets out 18 potential witnesses inclusive of experts. Four of those witnesses are from London.

(d) The material before me suggests that the defendant engineering expert and the defence orthopaedic surgeon are from the GTA.

(e) The plaintiff receives $310.91 per week in income replacement benefits. Her husband does not work. A five week trial in London will negatively impact the plaintiff financially.

[15] There are no counter-claims, cross-claims or third party claims to consider. (Rule 13.1.02(2)(b)(vi)).

[16] It is clear to me that to secure the most expeditious and least expensive trial of this action, it should remain in Guelph. (Rule 13.1.02(2)(b)(viii)). Transferring this five week jury trial to be tried with a non-jury trial that is not trial ready will significantly delay the trial.

[17] A transfer to London will then couple a non-jury contract dispute with a jury trial where the dynamics of the accident, liability and damages are in dispute. In all likelihood it turns a five week trial into a seven week trial.

[18] This action is on a trial list for this spring (2023) in Guelph. A seven week jury trial, even if ready for trial now, which it is not, would in all likelihood not be tried in London until 2025. As Regional Senior Justice, I am very aware of the demands on our London resources and our continuing judicial vacancies.

[19] It would not be in the interests of justice to cause such a delay.

[20] To be considered under this subsection, or perhaps r. 13.1.02(2)(b)(ix) as “any other relevant matter”, I consider the terms of the Insurance Act. Section 267.8 allows for a credit for sums paid by Manulife in the London accident benefits action, or an assignment to the defendants here of any sums paid by Manulife after this action has been tried. (Section 267.8(12)).

[21] Any further delay in the trial of this action increases the deductible year by year for claims for non-pecuniary general damages.

[22] Finally, the plaintiff’s claim for pre-trial income loss is limited to 70 percent of the loss. Any post-trial damages for lost income are compensable at 100 percent. (Section 267.5(1)).

Conclusion

[23] The advantage of a trial of these two very different actions together, although arising from the same motor vehicle accident, is far outweighed by the benefits of leaving it in Guelph.

[24] After holistically considering all the factors in the relevant rule, I am not satisfied that this action should be transferred and the defendant’s motion is dismissed.

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

a) The plaintiff’s submissions within 14 days of the release of these reasons.

b) The defendants’ submissions within 7 days thereafter.

c) Any reply, 3 days after that.

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

“Regional Senior Justice B. G. Thomas” Regional Senior Justice B. G. Thomas Date: February 17, 2023.