Court File and Parties
Court File No.: CV-24-4022-0T
Date: 2025-10-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Canine Stars Inc.
Plaintiff / Respondent
- and -
Dustin Dolinski
Defendant / Applicant
Counsel:
- C. Wahlman, for the Plaintiff / Respondent
- D. Judson, for the Defendant / Applicant
Heard: August 14, 2025, at Thunder Bay, Ontario
Regional Senior Justice W.D. Newton
Reasons for Judgment
Overview
[1] This motion brought by the defendant, originally returnable June 12, 2025, seeks orders:
a. transferring the action from the City of Brampton in the Central West Region to the Town of Fort Frances, in the District of Rainy River in the Northwest Region; and
b. requiring the plaintiff to post security for costs.
[2] The motion was adjourned to August 14 to allow the plaintiff to file responding materials.
[3] For the reasons that follow:
a. the action is transferred to the Town of Fort Frances in the District of Rainy River; and
b. the plaintiff is to post security for costs in the amount of $5,000 within 30 days.
The Facts
[4] Evidence on the motion consisted of an affidavit from a law clerk from the law firm representing the defendant, and two affidavits from an officer and director of the plaintiff corporation, Keri Caraher, who resides in Colorado. The second affidavit attaches a letter of opinion from a Colorado attorney on the enforceability of an Ontario cost award in Colorado.
Transfer to another County/District
[5] According to the statement of claim, the plaintiff ("Canine Stars") is a Colorado corporation "conducting business throughout Canada, the United States, and Mexico". The main business is described as conducting dog agility performance shows for the public.
[6] The statement of claim acknowledges that the defendant resides in Fort Frances. From the pleadings, it is acknowledged that the defendant was hired by the plaintiff in 2022 as a performer with his dogs. He also had other duties. The defendant worked for the plaintiff throughout Canada and the United States. Contracts between the plaintiff and the defendant dated April 25, 2024, and May 29, 2024 list the defendant's address as Fort Frances.
[7] The statement of claim was served upon the defendant at his address in Fort Frances.
[8] The statement of claim is brought under the Simplified Rules procedure for:
a. $200,000 in general, special and punitive/aggravated/exemplary damages for breach of contract, breach of confidential information, intentional damage to personal property, bad faith, libel, slander and unlawful interference with economic relations; and
b. an interlocutory and permanent injunction restraining the defendant or any person acting under his instructions from using in any manner confidential information of the plaintiff, including but not limited to any customer information, pricing, show set up, equipment information, trainer information, or dog show performances unique to the plaintiff.
[9] At the core of the allegations is the assertion that the defendant became associated with a competitor of the plaintiff.
[10] There is no allegation in the statement of claim that any of the claims brought have anything to do with Ontario, other than the residence of the defendant. The defendant submits that there is no evidence or assertions tying any of the causes of actions alleged against the defendant to Brampton.
[11] In her affidavit filed on behalf of Canine Stars, Ms. Caraher asserts that Fort Frances is not an appropriate venue as the defendant had no fixed address during their association and that it would be difficult for the plaintiff's representatives, and witnesses to travel to Fort Frances as there are no direct flights to Fort Frances from where they reside in Colorado, Wyoming, and Illinois. Counsel for the plaintiff asserts that Brampton was chosen as the place of trial because it is close to Pearson Airport which would be convenient for the two representatives of the plaintiff and their two witnesses.
Security for Costs
[12] The plaintiff is not ordinarily resident in Ontario and is a corporation without assets in Ontario to satisfy an order for costs.
[13] Ms. Caraher deposes on behalf of the plaintiff that the corporation has a bank account in Colorado and has annual gross earnings "typically over $500,000". She also deposes that the corporation owns four "performance sets" with acquisition costs of about $100,000 each and three recreational vehicles. She says that the defendant can garnish contract fees from any events in Ontario or other province.
[14] She deposes that the corporation is not impecunious and "has regular income".
[15] Further, she deposes that, from her research, Colorado is a reciprocating jurisdiction for enforcement of foreign judgments. Her supplementary affidavit sworn two days before the return of the motion attached an opinion letter from a Colorado lawyer which provides an opinion that an award of costs would be enforceable in Colorado. This would require filing the authenticated foreign judgement and affidavit, stating the name and post address of the judgment debtor, and the payment of undisclosed filing fees.
[16] She asserts that, when not in use, the equipment is stored in Wyoming and that Wyoming is not a reciprocating jurisdiction. Additionally, her home, which is not owned by the corporation, is also in Wyoming.
[17] The statement of claim also claims damages for libel with respect to certain posting and broadcasting on social media commencing June 6, 2024. A notice of action was issued within the limitation period and the statement of claim alleges compliance with the notice compliance requirements of the Libel and Slander Act (the "Act"). The plaintiff argues that the defendant has not complied with the specific procedure set out in the Act to claim security for costs.
Analysis and Disposition
Transfer to another County/District
[18] If no statute or rule requires a proceeding to be commenced or heard in a particular county or district, a proceeding may be commenced at any court office in any county or district.
[19] A party may obtain an order to transfer a proceeding to a county or district other than the one where the proceeding 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.
[20] The procedures set forth in the Consolidated Civil Provincial Practice Direction amended February 1, 2024 (the "Practice Direction") regarding the transfer of civil proceedings state that the motion should be brought at the court location to which the moving party seeks to have the proceeding transferred, should be brought in writing, and heard by the Regional Senior Judge or designate.
[21] This procedure was not followed in this case and, by chance I heard this motion. No party objected to the failure to follow the Practice Direction no doubt because this motion was joined with a motion for security for costs and I elected to hear the motion orally.
[22] Regional Senior Justice Firestone recently made these observations about r.13.1.02(2):
[13] The factors set forth in Rule 13.1.02(2)(b) are to be applied holistically. No one of the enumerated factors is more important than the other. These factors are to be examined together and balanced in order to determine whether a requested transfer is desirable in the interests of justice: Darteh v. Gross, 2017 ONSC 2479, at paras. 8-9; Hilson v. 1336365 Alberta Ltd., 2017 ONSC 4990, at paras. 12-13; Chatterson et al. v. M&M Meat Shops Ltd., 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Div. Ct.), at para. 22; Siemens Canada v. Ottawa (City), 93 O.R. (3d) 220 (S.C.), at para. 25; and Walcott v. Zheng, 2021 ONSC 4679, at paras. 20, 22-23.
[14] In applying the "holistic approach" it is important to recognize that the balancing of the Rule 13.1.02(2)(b) factors is not a purely numerical or mathematical counting exercise: Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968, at para. 16.
[15] At first instance a plaintiff(s) is entitled to commence a proceeding at any court location: Chatterson, at para. 14. If the plaintiff's choice of venue is reasonable and the defendant challenges that venue, then a comparison of the two venues is required. The defendant must establish that its proposed choice of venue is significantly better than the one chosen by the plaintiff: Chatterson, at paras. 28-29; Walcott, at para. 28.
[26] More broadly, while plaintiffs are generally entitled at first instance to choose where they commence proceedings, their decisions must be informed and reasonable. They do not have "carte blanche" to choose a particular venue without first considering whether the proposed Judicial Region and location has a rational connection to the matters at issue in the proceeding. In making this determination, consideration should be given to the relevant factors enumerated under Rule 13.1.02(2)… [Emphasis added.]
[23] Neither party asserts that a fair hearing cannot be held in Brampton. Therefore, the court is to consider whether a transfer "is desirable in the interests of justice" having regard to the factors set out in subrule 13.1.02(2)(b).
[24] None of the events or omissions that give rise to the claim occurred in the Regional Municipality of Peel where Brampton is located or anywhere in Ontario.
[25] No damages were sustained there or in Ontario.
[26] The subject-matter of the proceeding is or was not located there or in Ontario.
[27] There is no suggestion that any local community has any interest in the subject-matter of the proceeding.
[28] There are no counterclaims, crossclaims or third-party claims.
[29] There are judges and court facilities available in both locations.
[30] Therefore, the only remaining considerations "at play" are the convenience of the parties, the witnesses and the court; any advantages or disadvantages of the places with respect to securing the just, most expeditious and least expensive determination of the proceedings on its merit; and any other relevant matter.
[31] The only other relevant factor is that the defendant resides in Fort Frances and that he was served in Fort Frances.
[32] To some extent, assessment of the other factors is premature. The action is in its early stages. Discoveries have not been held. The issues have not been narrowed. What witness(es) will be required for trial have not been determined.
[33] Since COVID-19, standard practice has been that most litigation steps prior to trial are held remotely via videoconference. That includes conferences and pre-trial conferences. All motions in the Northwest Region are heard via videoconference unless a judge orders otherwise. In the Central West Region, short motions are presumptively via videoconference and long motions are presumptively in-person. Simplified Rules action discoveries are limited to three hours. No party has suggested that in-person discoveries are necessary for this action or that they would not consent to a trial by videoconference. Rule 34.03 provides that, as a resident of Ontario, the defendant shall be examined in the District of Rainy River no matter where the action was commenced unless the court orders otherwise.
[34] Since COVID-19, trials via videoconference are common, as are "blended" in-person trials with many witnesses appearing via videoconference.
[35] The proposed Judicial Region and location has no "rational connection to the matters at issue in the proceeding". The defendant is being forced to defend himself in a jurisdiction in which he does not reside, which has no rational connection to the matters in issue and is over 1,600 kilometers from where he resides and was served with the statement of claim. A transfer is desirable "in the interests of justice".
[36] Accordingly, this action shall be transferred to the Town of Fort Frances in the District of Rainy River. This is without prejudice to the plaintiff to move, at a later date, to change the place of trial based on the factors set out at subrules 13.1.02(b)(v) and (vii).
Security for Costs
[37] This motion was coupled with a motion to transfer the proceedings and should have been heard in the region in which the action was commenced. Given no objections from the parties, and given that I have ordered the transfer of the proceeding, I will rule on this request.
[38] Rule 56.01 states:
56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(a) the plaintiff or applicant is ordinarily resident outside Ontario;
(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;
(f) a statute entitles the defendant or respondent to security for costs.
[39] As was stated in 2311888 Ontario Inc v. Ross at para. 17:
In summary, the proper way to analyze a motion for security for costs is as follows:
(i) The initial onus is on the defendant to satisfy the court that it appears there is good reason to believe that the matter comes within one of the circumstances enumerated in Rule 56.01. See Hallum v. Canadian Memorial Chiropractic College (1989), 70 O.R. (2d) 119 at p. 123;
(ii) Once the first part of the test is satisfied, the onus is on the plaintiff to establish that an order for security for costs would be unjust. See Chachula at para. 10, and Uribe v. Sanchez (2006), 33 C.P.C. (6th) 94 at para. 4;
(iii) The plaintiff can meet the onus by demonstrating that:
(a) the plaintiff has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any order of costs made in the litigation;
[40] Authorities have stated the following:
A plaintiff corporation has a higher onus to demonstrate a sufficiency of assets "by convincing evidence". This includes information and supporting documentation as to the current status of its assets and liabilities, particularly liabilities secured against those assets put forward as available to pay a judgment for cost.
[41] With respect to security for costs in action for libel, the Libel and Slander Act states:
Security for costs
12 (1) In an action for a libel in a newspaper or in a broadcast, the defendant may, at any time after the delivery of the statement of claim or the expiry of the time within which it should have been delivered, apply to the court for security for costs, upon notice and an affidavit by the defendant or the defendant's agent showing the nature of the action and of the defence, that the plaintiff is not possessed of property sufficient to answer the costs of the action in case judgment is given in favour of the defendant, that the defendant has a good defence on the merits and that the statements complained of were made in good faith, or that the grounds of action are trivial or frivolous, and the court may make an order for the plaintiff to give security for costs, which shall be given in accordance with the practice in cases where a plaintiff resides out of Ontario, and the order is a stay of proceedings until the security is given.
[42] No affidavit has been delivered from the defendant or his agent setting out a good defence on the merits and that the statements were made in good faith as required by the Act.
[43] The claim is not solely for libel but includes many other claims: breach of contract, breach of confidential information, and damage to personal property, among other claims.
[44] I was not provided with any authority that suggested a claim for libel would oust the ability to claim for security of costs with respect to other claims. Indeed, authorities have held that the security for costs provisions for libel are "intended to co-exist with the Rules."
[45] In this case, the plaintiff is a corporation without assets in Ontario. Although I accept that a cost award would be enforceable in Colorado (although the costs associated with steps to enforce in Colorado are not set out), what is absent is particularity of the value of any exigible assets in Colorado. Mere statements as to bank accounts, gross earnings, and property without sufficient particulars does not amount to "convincing evidence". The plaintiff has not met its onus of establishing that it has appropriate or sufficient assets in Ontario or a reciprocating jurisdiction to satisfy any order for costs that may be made in this litigation.
[46] No litigation "budget" was presented by the defendant. This is a Simplified Rules action, with limited discovery rights. I fix the security for costs to be paid into court by the plaintiff at $5,000, to be paid within 30 days. This is without prejudice to the defendant applying for a further payment for security for costs after the pretrial conference has been held and before trial.
Addendum
Costs
[47] Any party seeking costs may submit costs submissions within 10 days limited to 3 pages plus costs outline. Response to be delivered within 10 days thereafter subject to same page limits.
Regional Senior Justice W.D. Newton
Released: October 15, 2025