COURT FILE NOS.: CV-15-6178; CV-15-6241 DATE: 2024/08/26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lynda Lounds Plaintiff – and – Harry Lounds Defendant

Counsel: Dale Orlando, for the Plaintiff Sandi Smith, for the Defendant

AND

BETWEEN:

Darren MacIsaac and Lynn Connor Plaintiffs – and – Harry Lounds and Lynda Lounds Defendants

Counsel: Michael Switzer and Mikolaj Grodski, for the Plaintiffs Sandi Smith, for the Defendants

HEARD: In writing

REASONS FOR DECISION ON TRANSFER

Ellies J.

BACKGROUND

[1] On January 17, 2014, two vehicles collided on Highway 17 near Finnerty Road in Renfrew County. One vehicle was being driven westbound by Harry Lounds. The other was being driven eastbound by Darrell MacIsaac. Lynda Lounds was a front seat passenger in the Lounds vehicle. Fortunately, there were no passengers in the MacIsaac vehicle.

[2] It is alleged that the collision occurred because the Lounds vehicle improperly crossed the dividing line between the lanes of traffic and collided in a “T-bone” fashion with the MacIsaac vehicle. Unfortunately for Mrs. Lounds, the passenger side of the Lounds vehicle was the one struck by the front of the MacIsaac vehicle.

[3] It is alleged that both Mrs. Lounds and Mr. MacIsaac suffered serious and permanent injuries as a result of the collision. In 2015, they each sued Mr. Lounds for their damages. [^1] Both actions were commenced in North Bay. Jury notices were delivered on behalf of Mr. Lounds in each of them.

[4] On May 9, 2017, I ordered that the two actions be tried together or immediately after one another. On December 6, 2019, I ordered that the MacIsaac action would proceed first.

[5] Both actions were pre-tried numerous times, but failed to resolve. In January 2023, they were scheduled for trial over a six-week period beginning on September 9, 2024. Although counsel believed that the trials would take eight weeks, it was my view that with aggressive trial management, six weeks would be enough.

[6] Counsel in the MacIsaac action were less confident. In April 2024, they moved for an order striking the jury notice in that action. For reasons released on April 5, 2024, Richard J. granted their motion: Lounds v. Lounds; MacIsaac v. Lounds, 2024 ONSC 2010.

[7] During a trial management conference (“TMC”) held on June 7, 2024, I expressed concern that, even with the jury notice being struck, both actions might still not be completed within the six weeks allotted. I also expressed concern that neither matter would be reached. As I explained in my June 7 endorsement, the presumptive ceilings set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1. S.C.R. 631, under s. 11(b) of the Canadian Charter of Rights and Freedoms require the court to give priority to criminal matters where judicial resources are not enough to allow for the timely disposition of all matters coming before the court.

[8] Because of these concerns, I canvassed the possibility of having these actions transferred to Ottawa, in the East Region, where this accident occurred. I determined that there is a “blitz” sitting being held in Ottawa for six weeks commencing on October 7, 2024. I sought and obtained authority from the Regional Senior Judges in both the East and the Northeast Regions to transfer these proceedings to Ottawa to be tried during those sittings, if I concluded that it was in the interest of justice to do so.

[9] I then canvassed this possibility with counsel in both actions. Counsel for the plaintiffs in both actions consented to the transfer. However, counsel for the defendant refused to consent. Therefore, I provided defence counsel with an opportunity to make submissions in writing for my consideration on the issue. Following the receipt and review of those submissions, I released an endorsement in which I ordered that both actions would be transferred to Ottawa, with reasons to follow.

[10] These are my reasons.

ISSUES

[11] The defendant opposes the transfer of these actions for three reasons.

[12] One reason is purely procedural. Counsel submits that the court cannot transfer this proceeding in the absence of a motion by one of the parties to do so.

[13] The other reasons are more substantive. For one, counsel for the defendant submits that it is unfair now to transfer these actions because one of the reasons Richard J. struck the jury notice was to increase the probability that at least the MacIsaac action would be completed during the September sittings in North Bay.

[14] Finally, counsel submits that the interest of justice does not require that the actions be transferred.

[15] I will deal with the issues raised by these submissions in the order in which I have set them out.

ANALYSIS

Can the actions be transferred in the absence of a motion?

[16] Generally speaking, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permit a party to commence a proceeding anywhere in Ontario. Subrules 13.1.01(1) and (2) provide:

13.1.01 (1) If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced at a court office in that county and the county shall be named in the originating process.

(2) If subrule (1) does not apply, the proceeding may be commenced at any court office in any county named in the originating process.

[17] There is no requirement in this case that the proceedings be commenced anywhere in particular. Therefore, subrule (1) does not apply. As the defendant correctly submits, where subrule (1) does not apply, the Rules provide that a proceeding may be transferred upon a motion being brought for that purpose by one of the parties. Rule 13.1.02 provides:

(1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced.

(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.

[18] The defendant is also correct in submitting that no motion has been brought to transfer these proceedings. However, that does not end the matter.

[19] Rule 2.03 provides that the court “may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.” In my view, it is in the interest of justice to dispense with the requirement that a motion be brought by one of the parties to transfer these proceedings under r. 13.1.02(2).

[20] I will explain my thinking in detail when I address the “best interest” test, below. For now, I point out that the plaintiffs in both actions have consented to the transfer of these actions. As counsel for the defendant admits, unless a proceeding must be commenced in a certain place, it is the plaintiffs who determine the venue of the action. Had the rules permitted form to defeat substance, I could simply have required the plaintiffs in one or both actions to bring the necessary motion. However, that would have been an unnecessary formality, given their consent and, as I will explain, the strength of the reasoning behind it.

Is it unfair to transfer the actions after the jury notice was struck?

[21] The defendant is also correct in submitting that the main reason Richard J. struck the jury notice in the MacIsaac action was because of a concern that the action would not be completed within the six weeks set aside in North Bay to try it.

[22] However, that same concern exists if the action is transferred to Ottawa. The sittings in Ottawa are also only six weeks long. Therefore, if striking the jury notice will help to have the action tried within a six-week period, the basis for Richard J.’s decision remains intact.

[23] But, as I will now explain, there is another, even more pressing concern, namely that the action will not be tried at all if it is not transferred from North Bay.

Is it in the best interest of justice to transfer the actions?

[24] As set out above, r. 13.1.02 includes a non-exhaustive list of factors to be considered when determining whether to transfer a proceeding. To explain why I believe this matter should be transferred, I will address the factors listed in the rule that are relevant in this case.

Where the Events Occurred

[25] As I mentioned earlier, the accident that brings this matter before the court occurred in the East Region, where Ottawa is located, and not in the Northeast Region.

[26] Therefore, this factor favours a transfer to Ottawa.

Where the Damages Occurred

[27] Counsel for the defendant submits, at para. 8b) of her written submissions, that:

The bulk of the treatment for both Plaintiffs for the past 10 years has been in the North Bay area. The Plaintiffs have continued to reside in this area.

[28] It is not clear to me whether counsel is referring to Mr. MacIsaac and Ms. Connor, or to Mr. MacIsaac and Mrs. Lounds. There was no affidavit or other evidence filed in support of counsel's submissions. Based on the pleadings, I believe that Mr. and Mrs. Lounds live in North Bay, in the Northeast Region, and that Mr. MacIsaac and Ms. Connor live in the Township of Cobden, in the East Region.

[29] If this is correct, this factor is a neutral one in the analysis.

The Convenience of the Parties, the Witnesses, and the Court

[30] This factor is also either a neutral one, or favours to some extent a transfer to Ottawa.

[31] As counsel for the defendant concedes, a transfer to Ottawa favours plaintiffs’ counsel in the MacIsaac action, because they are located in Ottawa. So, too, does it favour the plaintiffs in that action, if I am correct in my conclusion that they continue to reside in the Cobden area, which is closer to Ottawa than it is to North Bay. However, if Mr. and Mrs. Lounds reside in the North Bay area, they will be required to travel to Ottawa for the trial of at least one of these actions, reducing the balance of convenience in favour of the plaintiffs and their counsel in the MacIsaac action.

[32] Counsel for the defendant also concedes that a transfer to Ottawa will not inconvenience the other lawyers involved, who are from the Toronto area, because travel between Toronto and Ottawa is no more difficult than travel between Toronto and North Bay. Nor will it inconvenience the expert witnesses who are from the Toronto area. While there are some expert witnesses who must travel from as far away as British Columbia, according to the submissions of counsel, travelling to Ottawa will be no less convenient for the other experts than travelling to North Bay.

Any Advantages or Disadvantages of a Particular Place

[33] Counsel submits that it will be more costly for the plaintiffs and for lay witnesses if these actions are transferred to Ottawa. She submits that hotels in Ottawa are more expensive than in North Bay and that North Bay has long-term stay hotels that are not available in Ottawa or as close to the courthouse as they are in North Bay.

[34] I am prepared to accept that this is true as it relates to the Lounds action. However, because I believe that the plaintiffs in the MacIsaac action reside in the Cobden area, I am not prepared to accept this submission as it relates to that action. Because the plaintiffs in one action or the other must travel either to North Bay or Ottawa, I believe that this factor is a neutral one, or at least close to it.

Whether Judges and Court Facilities are Available in the other County

[35] Even if I am wrong in my belief about where the plaintiffs in the MacIsaac action now reside, I would still transfer both of these actions based on the availability of judges in Ottawa versus North Bay.

[36] As I have set out in numerous previous endorsements in these proceedings, we have a shortage of judicial resources in our region. Our region has been waiting for more than a year and a half for the appointment of a judge to fill a much-needed additional position to our small complement. While a judge has been appointed to our region recently, he was appointed only to fill a vacancy created in Sault Ste. Marie by the recent election of another judge to become supernumerary. Our additional position remains vacant.

[37] As I have also explained before, our region has experienced a disproportionate increase in criminal cases since the pandemic was declared in 2020. I will use the East Region to illustrate my point only because it is already being considered in this case. As demonstrated in our court's recent report, entitled “Modernizing the Justice System”, our Northeast Region's judicial complement of 14 full-time and 2 supernumerary judges has had to deal with more new criminal cases in each of the last three years than have the 38 full-time and 14 supernumerary judges in the East Region: https://www.ontariocourts.ca/scj/news/annual-reports/2019-2023-EN.pdf.

[38] These criminal cases must take precedence over civil ones because of the Jordan timelines referred to earlier. In this case, that has meant having to schedule a series of pre-trial applications during the week of September 9, 2024, relating to a murder case set for trial for four weeks starting on October 21, 2024. Because we are still awaiting the appointment of an additional judge, the pre-trial applications and the murder trial have been scheduled before me. I am, therefore, unable to hear these related civil actions, as originally scheduled. Unless they are transferred to Ottawa, they will not be heard in 2024 and our 2025 sittings are already full.

CONCLUSION

[39] The accident in this case happened over 10 years ago. Although I will not disclose their ages, the injured plaintiffs in both actions are young. Every effort possible must be made to try at least one of these cases, if not both of them, this year.

[40] For this and the other reasons expressed above, I have concluded that the interest of justice requires that these actions be transferred to Ottawa, and I have so ordered.

M.G. Ellies J.

Released: August 26, 2024

Footnotes

[^1]: Mrs. Lounds was sued as the owner of the Lounds vehicle, but this allegation has been denied by the defendants, who allege that the vehicle was owned and operated by Mr. Lounds. For the sake of simplicity, I will refer only to Mr. Lounds as the defendant.