Kevin L. Ross
Access to justice is a recurring theme. Considerable resources are allocated to assist in improving access to our courts on a timely basis. And yet our trial lists are long and our wait time for civil trials is growing. It is not surprising that inventive counsel are seeking creative ways to expedite the process. Increasingly, much more thought is being given to naming the place of trial. Similarly, motions for change of venue are in vogue as lawyers jockey for a jurisdictional advantage.
It is therefore timely that the Divisional Court has released a decision which reviews the principles applicable to motions for change of venue, outlines factors the court should consider in the exercise of its discretion and informs us that, in the end, the correct approach is a holistic one.
The case of Chatterson et al v. M&M Meat Shops Ltd.1 involved a dispute between a franchisor (resident in Kitchener) and franchisees (resident in Toronto). The plaintiff (franchisees) commenced their action in Hamilton. The franchisor, M&M, moved unsuccessfully to change the venue from Hamilton to Kitchener. Both venues are located in the same judicial region.
The Court confirmed that there is no statute or rule requiring the trial of a claim in a particular county, and found that the motion judge correctly applied the factors listed in subrule 13.1.02 (2) (b). The decision was upheld. The Divisional Court decision contains a review and consideration of the factors set out in subrule 13, which will not be discussed in this paper. The Court went on to deliver a number of instructive comments about the manner in which motions to change venue should be decided and found that the court is required to engage in a holistic exercise in the application of the factors listed in subrule 13.1.02 (2).
The Court commented, with approval, on the case of Siemens Canada Ltd. v. Ottawa (City)2, and adopted the following principles articulated in that decision:
If the plaintiff's choice of venue is unreasonable and the defendant has moved for a change of venue to a reasonable location, then a change of venue will likely be in order;
a. If the plaintiff's choice of venue is reasonable and the defendant moves for a change of venue, then a comparison of the two venues is required. In this situation, the defendant's choice must be significantly better in order to prevail. This is because the Rules permit the plaintiff to choose the venue at the commencement of the claim;
b. It is not mandated that in all cases the plaintiff's choice of venue must be reasonable or rationally connected to the plaintiff's claim;
c. Whether the plaintiff's choice of venue is reasonable or not, the court retains discretion in the matter and in the result can refuse "seemingly well founded" venue motions which, if allowed, would result in unfairness.
This decision, while instructive, preserves plenty of latitude for creative counsel to continue using "the place of trial" as an effective tool in advancing access to justice.
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