Don Anderson Haulage Limited v. Wilco Contractors Superior Inc., 2025 ONSC 3432

COURT FILE NO.: CV-24-04611-00
DATE: 2025-06-09
COURT: Superior Court of Justice – Ontario
HEARD: In Writing
BEFORE: F.B. Fitzpatrick
COUNSEL:
N. Wainwright for defendant (moving party)
R. Shastri and D. Winer for plaintiff (responding party)

Endorsement on Motion

Introduction

[1] This is a breach of contract claim where the defendant asserts a right of set-off. The action was commenced under Rule 76, or the Simplified Rules, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in Newmarket in October 2024. The matter is at an early stage. Pleadings are closed, and the plaintiff has delivered its affidavit of documents.

Background

[2] The plaintiff, Don Anderson Haulage Limited (“DAHL”), was retained by the defendant, Wilco Contractors Superior Inc. (“Wilco”), to transport industrial-sized, precast girders from Winnipeg, Manitoba to Marathon, Ontario. Wilco alleges that DAHL's deliveries were late, triggering crane standby time, idle labour, and lost productivity at the Marathon site. It also alleges that DAHL used smaller trailers than those it quoted, damaged the girders in transit, and overbilled for escort services.

[3] Wilco made partial payment for the services provided of approximately $288,000.00. DAHL sued Wilco for $95,440.13 when Wilco withheld payment equal to what it asserts are losses related to DAHL’s breach of contract. Wilco defends on the basis that it is entitled to a set-off.

The Motion

[4] The defendant moves under Rule 13.01.02 of the Rules for an order that the matter be transferred to Thunder Bay. The plaintiff opposes the motion.

[5] I am the delegate of R.S.J. Newton to hear and determine such motions in the Northwest Region.

[6] Both parties have framed their materials by addressing the nine factors set out in Rule 13.01.02(2)(b) in the context of this matter. There is no issue that the parties will receive a fair trial wherever this matter is held. There is no need to consider Rule 13.01.02(2)(a).

[7] I will now review the respective positions of the parties on the enumerated factors in Rule 13.01.02(2)(b), which govern whether an action should be moved from the place where it was originally commenced. I will also make findings for each factor as I go along.

Factor 1 – Substantial Part of Events Giving Rise to Damages

[8] There is no dispute that the girders were hauled exclusively in Northwestern Ontario. Wilco alleges that the damages occurred at the bridge site where the girders were delivered, in Marathon. DAHL says its main witness, Dave Barnett, negotiated the contract from his home office in Fenelon Falls. The payments were sent by Wilco to DAHL’s office in Gormley.

[9] Mr. Barnett provided Wilco with a Manitoba phone number and an email referencing DAHL’s Winnipeg office. The goods never made it east of Marathon. I am of the view that the substantial part of events giving rise to damages occurred in Northwest Ontario. Factor 1 therefore militates in favour of moving the matter to Thunder Bay.

Factor 2 – Location of Substantial Portion of Damages

[10] Wilco asserts that the girders were delivered late to the Marathon job site. DAHL says that the damages occurred in York Region, as partial payment was sent to its head office in Gormley.

[11] I am of the view that the issue of lateness of delivery will be more significant in any trial of this matter than where the money was or wasn’t sent for payment. Factor 2 therefore militates in favour of moving the matter to Thunder Bay.

Factor 3 – Location of the Subject Matters of Proceedings

[12] Both parties replicated their arguments under Factors 1 and 2 in addressing this factor. Based on my conclusion for Factors 1 and 2, in my view, Factor 3 militates in favour of moving the matter to Thunder Bay.

Factor 4 – Local Community Interest

[13] I agree with DAHL’s submission that there was no evidence put forward by either party on this issue. It is an unimportant factor given what is at issue in this case.

Factor 5 – Convenience of the Parties, Witnesses and the Court

[14] All of Wilco’s witnesses live in the Northwest Judicial District, which is served by the courthouse at Thunder Bay. DAHL’s material indicates that eight of its witnesses live in Southern Ontario. The three who live in Beaverton, and Mr. Barnett who lives in Fenelon Falls, arguably, would be more easily able to attend court at the Central East Region site in Lindsay. One of the plaintiff’s witnesses lives in Barrie, which is another major Central East Region Centre. Only one of DAHL’s witnesses lives in Stouffville, Ontario, which is served by the Newmarket Courthouse.

[15] The plaintiff’s counsel’s office is on Avenue Road just north of Davenport. The defendant’s counsel’s office is in Thunder Bay.

[16] In my view, Newmarket Courthouse has no significant connection to this matter. The Central East Region does. As I practiced in Peterborough for 18 years before being appointed to Thunder Bay, I have a familiarity with how matters tend to proceed in the Central East Region. Newmarket is not the best courthouse to hold this matter if convenience of the plaintiff’s witnesses is an important consideration.

[17] If the trial is held in person, the balance of convenience would favour Thunder Bay as opposed to Newmarket. I accept the defendant’s argument that the majority of the proposed witnesses for the plaintiff are not necessary, as all that is at issue is the disputed deliveries, which represent about 1/3 of the value of the total contract. Also, I am aware that Central East continues to operate a twice a year “blitz” type approach to civil matters (as it did when I practiced in Central East). This means that there are more restricted trial options for scheduling than there are available at Thunder Bay, where the court now runs monthly running lists except in July and August.

[18] Factor 5 therefore militates in favour of the matter being transferred to Thunder Bay.

Factor 6 – Whether there are Counterclaims, Cross Claims or Third Party Claims

[19] Wilco asserts a set-off as a defence. In my view, this factor is neutral as to the place of trial.

Factor 7 – Advantages or Disadvantages of Particular Place with Respect to Securing the Just, Most Expeditious and Least Expensive Determination of the Proceedings on its Merits

[20] In terms of expediting matters, I am advised that Newmarket is accepting short trial matters for its January 2026 bi-annual civil blitz. I am aware that the January 2026 running list at Thunder Bay now has available space. The matter will impose costs on whichever side has to travel. At this point, however, I am persuaded that it is more likely that the defendant will be required to call more viva voce evidence, and that this would therefore militate in favour of lessening any travel cost burden on the defendant.

[21] At best, Factor 7 is a neutral factor until matters crystalize, if the parties agree to do discoveries or agree on facts.

Factor 8 – Judicial Availability

[22] This is addressed in Factor 7 above. This matter could get on for trial as soon as January 2026 in either Newmarket or Thunder Bay.

Factor 9 – Any Other Relevant Matter

[23] I agree with the defendant’s argument that there is a broader fairness concern when a southern Ontario company – holding itself out as having a Winnipeg office and being capable of servicing business in the Northwest – then resists having a trial in the place where its services earned the company a return. It is a relevant consideration, which militates in favour of moving the matter to Thunder Bay.

Disposition of Motion

[24] Holistically, I agree with the position of the defendant that there is virtually nothing that recommends Newmarket as the appropriate place for a trial to be held in this matter. In my view, the majority of the factors militate in favour of transferring this matter to Thunder Bay.

[25] Order to go transferring this action from Newmarket to Thunder Bay.

[26] As for costs, this matter was held in writing. The defendant has been successful in its motion. Defendant will have its costs on a partial indemnity basis. Defendant can submit its claim for modest costs in writing of no more than two pages on or before June 20, 2025. Plaintiff can then submit its response of no more than two pages on or before June 27, 2025.

“original signed by”
F.B. Fitzpatrick

DATE: June 9, 2025