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A Change of Scenery: Motions to Transfer to a New Venue

With just a few exceptions, a plaintiff can start a claim in any county in Ontario. The choice of venue belongs exclusively to the plaintiff.

What if the other parties disagree with the choice of venue? They can move to transfer the proceeding to a different county. The applicable rule provides that,

13.1.02(2) … 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.

The recent case of Bhatt et al v. Chan et al, 2012 ONSC 5220 (CanLII) confirms the growing judicial consensus on the applicable principles for deciding a motion to change venue. First, the plaintiff does not have to meet any threshold test to show that there is some connection between the case and the venue chosen. Literally any place in Ontario is acceptable.

Second, the onus is on the moving party to show that the transfer to a new venue is more desirable, not just as desirable, as the initial venue.

Third, the court will take a “holistic” approach to the evidence. No one factor will be determinative. The evidence should be, “cogent and persuasive … that such a transfer would be in the interest of justice in the sense that the adjudication of the dispute in another venue would better secure ‘the just, most expeditious and least expensive determination of [the] civil proceeding on the merits’.”

Bhatt is a tort action arising out of severe injuries to a child that she suffered in a fall out of a third-storey apartment window. The child, through her litigation guardian, sued the landlords in Toronto. However, the building was in Waterloo and the landlords sought to have the case transferred there.

In deciding that the trial should be heard in Toronto rather than moved to Waterloo, the court reviewed all of the factors in the rule, not giving overriding importance to any.

One of the factors in Bhatt may be particularly applicable in the context of capacity litigation. The court held that the infant plaintiff’s special care needs during the trial would be better met in Toronto than in Waterloo. Although this factor was not determinative, the court gave it emphasis.

Two other points are worth noting in passing. The court found that the defendants had not complained about the original choice of venue in their statement of defence and had waited many years to bring this motion. This spoke to the lack of urgency of the venue change. Also, the court declined to take judicial notice that there was less of a backlog in the trial list in Kitchener. If backlog is an issue, the party should procure evidence to back this up.

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