Court File and Parties

COURT FILE NO.: CV-24-11857 DATE: 2024-10-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rosemary Maki Applicant / Responding Party – and – Lucien Cammaert Respondent / Moving Party The Public Guardian and Trustee and Willy Cammaert

Counsel: Nima Hojjati, for the Applicant / Responding Party Devan Munch, for the Respondent / Moving Party Gary Marcuccio, for Willy Cammaert as section 3 counsel

HEARD: September 17, 2024

DECISION ON MOTION TO TRANSFER

P.J. Boucher, R.S.J.

Overview

[1] The applicant commenced this application in Toronto seeking, among other things, a declaration that her father, Willy Cammaert, is incapable, setting aside his Powers of Attorney and appointing herself as his guardian. The respondent, Lucien Cammaert, brought a motion to transfer the application to the City of Greater Sudbury.

Background

[2] Rosemary and Lucien are Willy’s biological children.

[3] For several years, Willy resided with Lucien in Espanola, in the Sudbury District. Superior court matters arising in Espanola are heard in Sudbury. Regrettably, Willy suffered a stroke in February 2024. Lucien subsequently placed Willy in a long-term care facility in Gore Bay, in the Manitoulin District, which is immediately adjacent to the Sudbury District.

[4] Lucien has been acting under Powers of Attorney that Willy signed with a Sudbury lawyer, Barry Poulson. Rosemary seeks to set aside the Powers of Attorney and have herself appointed as Willy’s guardian. She challenges Willy’s capacity to make the Powers of Attorney, as well as their facial validity. She also challenges the historic management of Willy’s property, including ownership of the home in Espanola which is exclusively in Lucien’s name.

[5] Rosemary’s application has been managed through various attendances on the estates list in Toronto. This work has resulted in consent orders (i.e., for Rosemary’s access to Willy as well as production of documents) as well as the completion of mandatory mediation.

The Law

[6] Subrule 13.02(2)(b) of the Rules of Civil Procedure permits the court to make an order transferring a proceeding to a different county where it is satisfied it is in the interests of justice. The subrule sets out the following factors the court must consider:

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.

[7] The court assesses these factors “holistically”, meaning no one factor is more important than the others: Chatterson et al. v. M&M Meat Shops Ltd., 2014 ONSC 1897 at para. 20.

[8] Unless legislation or a rule require otherwise, an applicant has a prima facie right to choose a venue for the proceeding: Chatterson at para. 14. If a respondent wishes to change the venue, they have the onus of establishing the proposed venue is “significantly better” than the applicant’s choice of venue: Chatterson, at para. 29.

Analysis

i) where a substantial part of the events or omissions that gave rise to the claim occurred,

[9] The Powers of Attorney were signed by Willy in Espanola. These documents were prepared by a lawyer with offices in Sudbury and Espanola. The home Willy and Lucien lived in is in Espanola. Except for Willy, the parties reside in the Sudbury District.

[10] Rosemary argues this proceeding is based on a written record and all the court attendances in Toronto have proceeded remotely. She submits this is a neutral factor, because remote appearances from a court in Sudbury are not significantly better than the Toronto estates list.

[11] While the nature of the proceeding should be considered, the events giving rise to this matter all arose in the District of Sudbury (save and except Willy’s placement in a care home in Gore Bay). This factor favours transfer to Sudbury.

ii) where a substantial part of the damages were sustained

[12] While this is an application for declaratory relief, Rosemary seeks to set aside the Powers of Attorney and to claim for Willy an interest in the real property in Espanola. These issues are linked to the Sudbury District and favour transfer to Sudbury.

iii) where the subject-matter of the proceeding is or was located

[13] The subject matter of the proceeding involves the Powers of Attorney executed by Willy, ownership of the real property in Espanola, and Lucien’s dealings with Willy’s property. Willy currently resides in Gore Bay, though given his current incapacity, this has a neutral impact on the analysis. This factor favours transfer to Sudbury.

iv) any local community’s interest in the subject-matter of the proceeding

[14] Given the private nature of this dispute, the parties agree this is a neutral factor.

v) the convenience of the parties, the witnesses and the court

[15] Lucien and Rosemary reside in the Sudbury District. So, too, does the lawyer who drafted the Powers of Attorney, as well as Willy’s health care professionals. Affiants are entitled to be cross-examined in the county in which they reside. If this remains a paper-based proceeding, there will be no inconvenience to witnesses and the court.

[16] However, the presumptive mode of appearance for long applications in Toronto and in Sudbury is in person: paragraph C.5(1) Notice to Profession and Parties - Toronto Region (Ontario Superior Court of Justice, amended February 01, 2024); Notice To The Profession, The Parties, And The Public Regarding Proceedings In The Northeast Region (Ontario Superior Court of Justice, March 17, 2023).

[17] Rosemary submits, without evidence, that the Superior Court in Toronto will schedule this application to proceed remotely. The hearing of the application, even if it is paper based, will take place in person, subject to the discretion of the presiding judge. If it remains in Toronto, the parties and Willy’s counsel will be required to travel to Toronto for the hearing. If the application proceeds in Sudbury, only counsel for the applicant will be required to travel for the hearing. This factor strongly favours transfer of the matter to Sudbury.

vi) whether there are counterclaims, crossclaims, or third or subsequent party claims

[18] This factor is not applicable.

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

[19] Rosemary submits that this matter has been case managed in Toronto and that moving it to Sudbury will result in unnecessary costs and extra time. She also argues Lucien has participated in the proceedings in Toronto. This acquiescence is a factor, she submits, to be considered on this motion.

[20] However, Lucien’s motion to transfer has been outstanding since April 2024. It took months for this long motion to be heard. Lucien’s cooperation with the court process in Toronto, including participation in mandatory mediation, is entirely appropriate and does not represent an acknowledgement or concession that Toronto is the appropriate venue.

[21] Unlike Hilson v. 1336365 Alberta Ltd., 2017 ONSC 4990, where Firestone RSJ declined to transfer the proceeding on the eve of trial, this proceeding is not on the eve of a final hearing. At a September 9, 2024, case conference Sanfilippo J. noted the application was not ready to be heard. The original hearing date of the application, October 3, 2024, was converted to a one-hour motion to determine if Lucien should be compelled to start an application to pass his accounts as trustee de son tort, Attorney for Property or otherwise as a fiduciary for Willy. The proceeding is otherwise adjourned to November 19, 2024, in Toronto for a scheduling appointment.

[22] Transferring the proceeding to Sudbury would not represent a step backwards in the litigation. In other words, the litigation could continue its advance to a hearing without incurring unnecessary expense and time.

[23] The ultimate hearing of this application will take place in person, subject to the discretion of the presiding judge. If the matter is heard in Toronto, two counsel and the parties will be required to travel there. Although there is no evidence before me about the anticipated litigation costs, in these circumstances, “common sense makes it safe to anticipate that the overall legal costs of this application will be higher” if it is heard in Toronto: Hallman Estate (Re) at para. 64.

[24] In Hallman Estate, the parties resided in, and the subject matter of the litigation was in, the Kitchener-Waterloo region. Four of the six parties retained Toronto counsel. Counsel for The Public Guardian and Trustee was based in Toronto. Two of the respondents, represented by Toronto counsel, brought a motion to transfer the proceedings to Kitchener-Waterloo. Justice Brown (as he then was) found that in these circumstances a transfer to Kitchener-Waterloo would not result in the least expensive determination of the proceedings: Hallman Estate, at para. 64.

[25] This factor strongly favours transfer to Sudbury.

viii) whether judges and court facilities are available at the other county

[26] The parties agree, and I am satisfied that, the application can proceed in a reasonable fashion in both judicial districts. This is a neutral factor.

ix) any other relevant matter

[27] Rosemary submits that Lucien is prevented from seeking equitable relief in the form of a transfer to Sudbury because Lucien does not come to the court with “clean hands.” She argues that Lucien’s affidavit contains “demonstrably false statements, factual errors, and disguised hearsay from Willy”: Factum of the Applicant/Responding Party, dated September 11, 2024, at para. 88.

[28] In my view, the credibility of Lucien’s evidence will be determined at the hearing of the application, on a fulsome record. This is a neutral factor in my analysis.

Conclusion

[29] Considering all these factors together, I conclude the interests of justice require the transfer of this proceeding to Sudbury.

[30] The application has a far greater connection to Sudbury than to Toronto. The Powers of Attorney were drafted and executed in Espanola, Lucien’s management of Willy’s property has taken place there and the real property over which Rosemary claims a trust in Willy’s favour is located there. The parties reside in the Sudbury District. Counsel for Lucien and Willy are based in Sudbury. The only connection to Toronto is Rosemary’s choice of counsel. Hearing the application in Sudbury will result in the most cost-effective determination on its merits. I find the evidence on this motion establishes that Sudbury is a “significantly better” venue for this proceeding than Toronto.

[31] Lucien’s motion to transfer the proceedings is granted. The parties may contact my office to schedule a case conference.

[32] The parties were unable to agree on costs for this motion. Lucien may deliver written submissions on costs of no more than two pages, not including any attachments, within fifteen days of the date of this endorsement. Rosemary may deliver written submissions on costs within thirty days of the date of this endorsement. There will be no reply.

Regional Senior Justice Patrick J. Boucher Released: October 3, 2024