Court File and Parties

COURT FILE NO.: CV-23-00705006-0000 DATE: 2024-03-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: AYLMER MEAT PACKERS INC. AND RICHARD WALTER CLARE Applicant (Responding Parties) – and – HARRISON PENSA LLP Respondent (Moving Party)

Counsel: Ronald D. Davis, for the Applicant (Responding Party) James L. Vigmond, for the Respondent (Moving Party)

HEARD: In writing.

Transfer Motion

THOMAS, J. :

[1] This is a motion by the respondent Harrison Pensa LLP for an order pursuant to r. 13.1.02(2) of the Rules of Civil Procedure transferring this application from Toronto to London. The applicants, Aylmer Meat Packers Inc. and Richard Walter Clare, (“Aylmer Meats” and “Clare”), resist the transfer.

[2] I have been designated by Regional Senior Justice Pomerance to determine this motion.

Background

[3] Aylmer Meats was an abattoir with business premises in Aylmer, Ontario. The Town of Aylmer is 41 kilometres from London, Ontario. Clare is the President of Aylmer Meats.

[4] In 2003, the Ministry of Natural Resources for Ontario (“the Ministry”) commenced an investigation into alleged unlawful processing of meat by Aylmer Meats.

[5] On August 21, 2023, search warrants were executed at Aylmer Meats and the processing plant was subsequently shut down.

[6] The record before me indicates that the Ministry continued to control the plant for 19 months. The record further indicates that the occupation caused significant damages as a result of the deterioration of equipment, loss of stored meat, loss of business, and a loss of opportunity to sell the business.

[7] At a point which is unclear from the record before me, the applicants retained Harrison Pensa LLP to advance a claim against the Province of Ontario and the Attorney General of Canada, seeking damages for negligence, trespass and conversion.

[8] It is clear that Harrison Pensa LLP proceeded to represent the applicants on their understanding that a contingency fee agreement was in place. Again, the record before me is unclear as to when that agreement was discussed, signed, or verbally agreed upon. It is clear, however, that Clare, as President of Aylmer Meats, knew that the retainer was a contingency fee arrangement and he now agrees that terms were consistent with those in the written retainer agreement produced by the respondent firm.

[9] The action against the Attorney General of Canada was settled before trial. The action against the Province of Ontario proceeded to trial in London over 17 days in January and February, 2020. The applicants’ action was dismissed by Tranquilli, J. by her Reasons for Judgment dated October 5, 2020.

[10] The applicants retained Jonathan C. Lisus to appeal the trial dismissal. The appeal was heard by the Court of Appeal on June 1, 2022. Lauwers, J.A. rendered judgment on August 10, 2022, allowing the appeal in part ordering damages be paid to the applicants in the amount of $3,520,000, prejudgment interest of $600,000, $103,665.21 in post-judgment interest and $500,000 in costs.

[11] In September, 2022, Clare signed a direction that the monies ordered on appeal be paid by the Province of Ontario to Harrison Pensa LLP in trust. Clare’s affidavit in this motion maintains that he signed a direction under some protest and that Harrison Pensa LLP subsequently produced a second direction which he does not recall signing.

[12] In any event, Harrison Pensa LLP rendered an account to the applicants in the amount of $1,725,019.64 and withheld that amount from the damages paid by the Province. The sum of $3,000,000, being the balance of the monies in trust, was then paid to the applicants.

[13] It is the position of the applicants that the contingency fee agreement related only to damages achieved at trial and, specifically excludes a percentage of damages achieved after a successful appeal. As a result, the applicants maintain Harrison Pensa LLP was not entitled to retain $1,725,019.64 to satisfy their account.

[14] The applicants delivered a Notice of Application on August 16, 2023. The respondents delivered a Notice of Appearance on September 16, 2023. This motion to transfer was delivered January 22, 2024. The respondent is represented herein by Oatley Vigmond LLP with offices in Toronto and Barrie. The applicants are represented by Fogler Rubinoff LLP with offices in Toronto.

Governing Law

[15] There can be no doubt that the applicants have a prima facie right to choose a venue for hearing. (Siemens Canada Ltd. v. Ottawa (City), 2008 ONSC 48152, [2008] O.J. No. 3740, para. 27; Paul’s Hauling Ltd. v. Ontario, 2011 ONSC 3970, para. 13). This is not a proceeding captured by r. 13.1.01(1) of the Rules of Civil Procedure, and so the applicants could have commenced this Application in any county in the Province. (Rule 13.1.01(2)).

[16] The parties in the within motion have debated the test for transfer discussed in Chatterson et al v. M&M Meat Shops Ltd. (2014) ONSC 1897 (Ont. Div. Ct.), (Chatterson). Their dispute centres around the “reasonableness” of the selection of Toronto as the place to start this application.

[17] For the purposes of this decision, I accept that the selection was reasonable. Having said that, the respondent has a right to challenge that decision, which then brings into play r. 13.1.02(2)(a) & (b) of the Rules of Civil Procedure, and the determination of the “interests of justice”.

[18] I have reproduced r. 13.1.02(2)(a) & (b) 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.

[19] When considering the factors set out in the above-noted rule, the motions judge 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 interests of justice”. (Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc. (2005), 2005 ONSC 19797, 76 O.R. (3d) 390 (S.C.J.)). In Re Hallman Estate (2005), 2009 ONSC 51192, 80 C.P.C. (6th) 139, para. 28 (S.C.J.), this was described as applying a “holistic approach”. Further, it is not simply a numerical exercise (Bruce Power L.P. v. BNT Canada L.P. 2018 ONSC 5968, para. 47).

[20] In Chatterson, the Divisional Court determined that to disturb the applicants’ choice of venue required the moving party to offer a “significantly better” venue (Chatterson, para. 29).

Analysis

[21] It is clear that the applicants do not bear an onus on this motion to justify their choice of venue, however, the applicants’ materials emphasize the reasons for Toronto being their choice. Let me consider those reasons before embarking upon the application of the factors in r. 13.1.02(2)(a) & (b) of the Rules of Civil Procedure.

The applicants’ choice to bring this application in Toronto

[22] The applicants submit that:

1. The catalyst for this application is the appeal heard at Osgoode Hall in Toronto and argued by Toronto counsel. Obviously it is true that the successful appeal generated damages owed by the Province of Ontario, but this argument misses the point. In paragraph 50 of the applicant’s own factum can be found the following: “The Application rises and falls on the Court’s interpretation of the CFRA between the parties”. I agree with the suggestion above. The CFRA has no connection to Toronto.

2. The applicants submit that while the CFRA was drafted in London by Harrison Pensa LLP, many of the interactions between Clare and the respondent law firm took place over the phone or in writing. I cannot determine on the record before me the facts relating to the drafting, negotiation and execution of the CFRA. It is clear, however, that it was prepared by Harrison Pensa LLP in London. The circumstances surrounding that agreement have no connection to Toronto. I note that Burford, Ontario, the place of residence of Clare and the location of the business headquarters, is 70 kilometres east of London and 100 kilometres southwest of Toronto. For what it is worth, the packing plant that was the genesis of the investigation and government occupation was in Aylmer, Ontario, which is 41 kilometres from London. This leads to a further observation. It is implied by the materials before me that this application will be determined by legal argument interpreting the CFRA. I note that there are a number of issues in dispute regarding the circumstances surrounding its creation and execution. Perhaps these issues can be determined without oral evidence; perhaps not.

3. The applicants submit that Clare has personal business ties in Toronto. The only support for this brief submission is Clare’s affidavit suggesting he has some business associates and friends in Toronto and he drives there more often than he drives to London.

4. Finally, the applicants submit that Harrison Pensa LLP is a prominent, well-respected London law firm and “It is reasonable for Butch and Aylmer Meats to apprehend that they will not receive the fairest and most just hearing of this matter in London.” (Applicants’ factum, para. 3). This submission is as unreasonable as it is offensive. I would have hoped that counsel for the applicants would have dispelled any apprehension. Matters determined in the Superior Court proceed fairly to a just determination. Should this matter proceed in London, and should it be that a judge not chambered in London is selected for the hearing, that can be accommodated. Such judicial movement is regularly necessary in the Southwest Region. As the former Regional Senior Justice of this Region, I am aware that almost weekly a judge is sitting in a judicial centre where they are not chambered. This accommodation is regularly made for trials stretching into weeks and sometimes months. This application is not one of those.

The application of r. 13.1.02(2)(a) & (b)

2(a)

[23] There is no doubt a fair hearing can be held in Toronto. The alternative location I have addressed above.

(b)(i)

[24] It is clear that a substantial part of the events that gave rise to the claim occurred in London at the offices of Harrison Pensa LLP, where the CFRA was drafted and where Clare may have signed the document, although the circumstances of that execution may be in dispute.

(ii) & (iii)

[25] The monies in issue, the 1.7 million that was retained by Harrison Pensa LLP, relate to fees and disbursements of that law firm related to their work on a 17 day trial that took place in London. Those are the “damages” and the “subject-matter” of the application along with the CFRA discussed above.

(iv)

[26] Despite the submission of the respondent law firm, I agree with the applicants it is difficult to anticipate any local interest in a dispute for these legal fees.

(v)

[27] When considering the convenience of the parties, I note that Clare, the president of Aylmer Meats, resides closer to London than Toronto. The respondent law firm, Harrison Pensa LLP, has their offices in London. I cannot anticipate whether any oral evidence will be called and so accommodation of witnesses is not a factor. Both parties have retained Toronto counsel to represent them in this proceeding. In any event, the choice of counsel should not affect the determination of venue (Patry v. Sudbury Regional Hospital, [2009] O.J. No. 1060, para. 26).

(vi)

[28] There are no counterclaims, crossclaims, or subsequent party claims, that relate to this proceeding.

(vii)

[29] When considering a just, expeditious and least expensive determination of the proceeding, I cannot discern on all the circumstances an obvious difference between Toronto and London, and so I treat this factor as neutral.

(viii)

[30] Clearly judges and court facilities are available in London.

(ix)

[31] I find it relevant that the moving party (respondent) has moved expeditiously. On the record before me no other steps (but this motion) have been scheduled. (CLC Tree Services Ltd. v. Davey Tree Expert Co. of Canada Ltd., [2021] O.J. No. 5028 (S.C.J.)).

Conclusion

[32] I have balanced all of the considerations enumerated in clause 13.1.02(2)(b). I agree with the position taken by Firestone, RSJ. that the first three of the enumerated factors are most important and I adopt his use of the term describing them as the “factual matrix” of the proceeding. (Coppin v. Toronto Transit Commission, 2018 ONSC 5396; Palmer v. Teva, 2020 ONSC 333; Rampersaud v. Askar and Beck Taxi Ltd., 2023 ONSC 4700).

[33] The factual matrix here establishes a significant connection to London, Ontario. I find that the evidence on this motion establishes that the venue proposed by the moving party, in London, is significantly better than the venue originally selected by the applicant in Toronto, and the interests of justice dictate a transfer. Accordingly, the motion to transfer the proceeding to London is allowed.

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

[35] 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) within 30 days of the release of these reasons. If no submissions are received on that schedule, there will be no order as to costs.

“Justice Bruce G. Thomas” Justice Bruce G. Thomas

Released: March 27, 2024.

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AYLMER MEAT PACKERS INC. AND WALTER RICHARDS CLARE Applicant (Responding Parties) – and – HARRISON PENSA LLP Respondent (Moving Party) REASONS FOR JUDGMENT THOMAS, J.

Released: March 27, 2024.