In the 2019 motion in Stanko v. Core Biofuel Inc, the Plaintiff was seeking to transfer the action from Toronto to Sarnia and the Defendant resisted the transfer.
The motion was heard before Regional Senior Justice B. G. Thomas.
Rule 13.1.02 deals with the transfer to another county. Rule 13.1.02(2) lays out what should be considered when transferring an action:
13.1.02 (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. O. Reg. 14/04, s. 10.
(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.
It was found that the principles of Rule 13.1.02(b) of the Rules of Civil Procedure were best encapsulated in the 2018 decision of Smartcentres Management Inc. v. Chubb Insurance Company of Canada, which stated:
A plaintiff has a prima facie right to select a venue for an action. The onus is on the moving party to show that it is “in the interest of justice” to transfer the action having regard to the factors outlined in Rule 13.1.02(2)(b). The plaintiff’s right to choose the venue is a right which should not be abrogated lightly. The court is to consider a “holistic” application of the factors outlined in the rule to the specific facts.
It was the holistic approach that was taken by the Court in this decision. The Plaintiff’s wife had health issues and was the basis for the request to move the action to Sarnia, which is where the Plaintiff resides. However, taking into account where all counsel were, witnesses and given that the business in question in the litigation was a virtual office, there were no ties to Sarnia, other than that is where the Plaintiff resides.
It was concluded:
The balance of the factors in the relevant rule have little application here. At this stage of the litigation, on this evidence, the plaintiff is not proposing a better location let alone a significantly better location. The application to transfer the action is dismissed.
The selection of the venue is an important component of an action. Rule 13.1.02(1) allows the Court to transfer the action to the jurisdiction where it should have been commenced.
When seeking to change the jurisdiction, a party must ensure that it has compelling reasons for the transfer and that all factors are taken into consideration when making the request.