Court File and Parties
Court File No.: CV-23-00001148-000OT Date: 2023-09-19 Superior Court of Justice - Ontario
Re: Leela Rampersad, Plaintiff And: Turgut Askar and Beck Taxi Ltd., Defendants
Before: Firestone, RSJ.
Counsel: Sherilyn J. Pickering, for the Plaintiff Kevin Lasko, for the Defendant (Askar) Joseph Evans, for the Defendant (Beck Taxi Ltd.)
Heard: In Writing
Endorsement
[1] The Defendant, Turgut Askar (“Askar”), brings this motion for an Order changing the venue for trial in this proceeding from Barrie to Toronto and transferring this action from Barrie to the Toronto pursuant to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the “Rules”). The Co-Defendant, Beck Taxi Limited (“Beck Taxi”), consents to the motion. The Plaintiff, Leela Rampersad (“Rampersad”), opposes the motion.
[2] For the reasons that follow, the motion is granted.
[3] Rule 46.01 of the Rules provides that the trial of an action shall be held in the county where the proceeding was commenced or to which it has been transferred under Rule 13.1.02 unless the court orders otherwise. Rule 13.1.02 and the Practice Direction outline how a change of venue motion should proceed. Subsection (2) of Rule 13.1.02 states:
“…[t]he 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 incurred,
(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 subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious at 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.
[4] A plaintiff has prima facie right to select a venue for an action. The onus is on the moving party to show that it is “in the interest of justice” to transfer the action having regard to the factors outlined in Rule 13.1.02(b). The court is to consider a “holistic” application of the factors outlined in the rule to the specific facts.: see Chatterson v. M&M Meat Shops Ltd., 2014 ONSC 1897 (Div. Ct.) at para. 22; Hallman v. Pure Spousal Trust (Trustee of), 80 C.P.C. (6th) 139 (Ont. S.C.J.) at para. 28.
[5] No one of the enumerated factors is more important than the other. Rather, the court is to look at all the factors together and balance them in determining whether a transfer is “desirable in the interest of justice”. Of significance is that the moving party is required to establish that the proposed place of trial is not only better, but “significantly better”, than the plaintiff’s choice of trial location: see Siemens Canada Ltd. v. Ottawa (City), 93 O.R. (3d) 220 (S.C.) at para. 25; Chatterson at para. 29.
[6] The subject motor vehicle accident took place in the City of Toronto and was investigated by the Toronto police.
[7] Rampersad resides in the City of Toronto. Askar, the Defendant driver, resides in the City of Whitby. At the time of the subject collision, Askar was working as a taxi driver in the City of Toronto. The Defendant, Beck Taxi, also carries on business in the City of Toronto.
[8] Rampersad has a number of other connections to the City of Toronto. At the time of the collision, her place of employment (CIBC) was in Toronto. Following the collision, she was transported to Humber River Hospital which is also located in Toronto, and her family doctor, as well as where she receives psychological treatment are both located in Toronto.
[9] Plaintiff’s counsel deposes that assessment dates have been requested from a neurologist, a chronic pain specialist, and a psych vocational expert. The psych vocational expert resides in Simcoe County and works out of Barrie. The neurologist and chronic pain specialist are located in Vaughn and Richmond Hill respectively. Plaintiff’s counsel deposes it would be more convenient for these experts to travel to Newmarket rather than Toronto.
[10] Counsel further deposes that it would be more convenient for one of the lay witnesses, who resides in Concord, to travel to Newmarket, and if not Newmarket, then Oshawa, rather than Toronto.
[11] This action was commenced in Barrie, and in response to the Askar’s motion Rampersad now submits that the most appropriate venue is either Newmarket or Oshawa, not Toronto. Plaintiff’s counsel undertakes to bring a motion to transfer if the moving party’s motion is dismissed. The only motion properly before me is Askar’s motion to transfer this proceeding from Barrie to Toronto.
[12] The only connection to Barrie is that it is the location of Plaintiff’s counsel.
[13] I have applied the factors set out in Rule 13.1.02(2) to the factual matrix of this proceeding, have considered the evidentiary record before me, and considered the appropriate legal principles. I am satisfied that the requested transfer is desirable in the interest of justice. Given the location of the collision and residence of the parties and potential witnesses, the Defendant’s proposed venue is substantially better.
[14] The moving party has provided a draft order directing that there be no costs awarded for this motion. In accordance with the draft order submitted, I make no order as to costs.
[15] An Order is to be issued in accordance with the original signed by me, changing the venue for trial and transferring this action from Barrie to Toronto.