Is a plaintiff allowed to file its statement of claim in whatever city it finds most convenient, even if that place has no connection to the parties or the claim?
While Ontario’s Rules of Civil Procedure would appear to permit an action to be commenced in any jurisdiction, not all judges are as welcoming.
In The Toronto-Dominion Bank v. The Other End Inc., 2024 ONSC 5377, the Honourable Justice I.F. Leach had some thoughts on the issue.
Facts
In a short endorsement, said to have been penned during a lunch break, Justice Leach explained how the situation arose, writing:
Before me is a motion brought by the plaintiff bank, seeking summary judgment against the defendants in relation to loan and credit card arrangements in respect of which the defendants are said to be in default.
The plaintiff filed substantial motion material, (e.g., a 224-page motion record as well as a factum), providing a detailed background to the plaintiff’s claim, with supporting documentation, and is anxious to proceed with its motion for summary judgment.
The defendants argue that this matter should not be proceeding here in Middlesex County, (in respect of which London is the judicial centre), as it has no discernible links with Middlesex County, and appears to have been brought in London solely for the purpose of obtaining an earlier hearing than that which might be available in other centres, (such as Toronto), which seem to represent a more appropriate forum for the proceeding and motions herein.
Decision
In attempting to balance the legitimate interests of all parties, including other users of the London courthouse, Justice Leach wrote the following endorsement:
[4] As I indicated to plaintiff counsel, the phenomenon of financial institutions increasingly initiating collection proceedings and corresponding motions here in London, when the underlying matters seem to have no discernible connection with Middlesex County, (or the Southwest Region more generally), is a growing concern that has been noted by court staff and numerous judges here in London.
[5] Our already busy motions court dockets increasingly are seeing material-intensive and time-consuming motions for summary judgment and similar collection measures in relation to credit arrangements agreed upon elsewhere, (usually in the Greater Toronto Area), between financial institutions dealing with debtors residing elsewhere and/or whose businesses are based elsewhere, and/or in relation to property located elsewhere. Such motions usually reserve the maximum 60-minute permissible hearing time, in relation to motions that realistically require longer to be heard if they are contested, and require review of material extending into many hundreds of pages. Several such motions, brought on any particular “regular motions” hearing day, are easily capable of occupying the majority of available hearing time, making it more difficult to address motions with an obvious connection to Middlesex County.
[6] There frankly seems to be little reason for such proceedings to be pursued here apart from the reality that the parties are able to do so, pursuant to the Rules of Civil Procedure, and the newfound ability of parties to have their counsel just as easily argue matters “here” in London, rather than more suitable and appropriate judicial centres, after our court has transitioned to presumptively virtual hearings. In other words, the practical constraints that formerly encouraged litigants and their counsel to pursue litigation in the appropriate forums, associated with their respective disputes, have largely disappeared.
[7] Providing timely access to justice is an understandable concern across the province. However, potential “forum shopping” raises other concerns about justice from a broader perspective. In particular, while plaintiff counsel emphasized concerns about possible injustice to her client, our court needs to be mindful of broader concerns in that regard, including the potential injustice caused to other litigants, whose matters have clear and obvious connections with Middlesex County, having their access to justice delayed and complicated by litigants from elsewhere choosing to impose an additional inappropriate burden on the limited resources of this judicial centre and/or region, when their matters properly should be dealt with elsewhere.
[8] In my view, it was only a matter of time before a responding litigant raised such venue issues, and that now has been done in the context of this proceeding. In particular, the responding defendants seek an adjournment of the hearing of the plaintiff’s summary judgment motion here in London that provides sufficient time for them to bring a motion in Toronto to transfer this civil proceeding there, pursuant to Rule 13.1.02 of the Rules of Civil Procedure. Pursuant to the Consolidated Civil Provincial Practice Direction, (amended as of February 1, 2024), and paragraph 49 thereof in particular, that motion nevertheless must be brought in Toronto; i.e., the court location to which the moving defendants seek to have the proceeding transferred. That motion is then to be dealt with by the Regional Senior Judge for Toronto, or that RSJ’s designate.
[9] For the reasons outlined above, I think the defendants should be provided with that opportunity, not only for their sake but for the sake of the court’s resources here in London and the Southwest Region more generally.
[10] While the plaintiff argues that it should not be faced with the delay associated with such a venue motion, in circumstances where it contends that the merits of its motion are clear, it seems to me that the risk of such delays is inherent in the plaintiff choosing to initiate a proceeding and bring motions here in London in circumstances where there appears to be no connection with this judicial centre, or indeed this region. Going forward, perhaps litigants in the position of the plaintiff will factor such risks into their decision-making when it comes to venue selection.
[11] For now, the plaintiff’s motion will be adjourned to allow the defendants the opportunity to bring that contemplated Rule 13.1.02 motion in Toronto.
Commentary
While a short endorsement, there is a lot to consider in Justice Leach’s decision.
He is correct in his observation that some judicial centres, such as Toronto, are notoriously slammed and slow. He is also correct that it is now easier than ever for counsel to “appear” in counties other than it which they physically located, given the introduction of online hearings. (On which point, I once “appeared” in courts in both Germany and California on the same day from my home office. So much for litigation tourism.)
With the reality now being that one can “appear” in any courtroom in Ontario, from Kenora to L'Orignal to Windsor all from the comfort of home, should it make any difference where the case is filed and eventually heard?
Justice Leach raises one valid reason for why it matters: Not everyone wants or can appear in court via Zoom. Some litigants want or need to appear in person, and where there is such an interest, I doubt that they wish to travel across the province to do so. (Although if it means having one’s case heard one or more years sooner, then perhaps a compelling reason presents itself. Plus, there are some really beautiful places in this province that everyone should see.) Few courthouses, including apparently that in London, can accommodate the GTA’s overflow.
The second reason is the belief that local judges bring with them to court local understandings. To quote the current United States Vice-President, we exist in the context of all in which we live and what came before us. No one just fell out of a coconut tree. Context can matter in employment cases as the “availability of similar employment,” one of the four most-cited “Bardal factors,” will vary from region to region. A judge who lives in Thunder Bay may have a different perspective on such issue from another judge who resides in downtown Toronto. (A factor often cited by the Court of Appeal for affording deference to trial judges in different judicial centres.)
While both of those concerns are valid, the fact remains that there is considerable disparity in the amount of time it may take one to obtain a hearing depending on where the case is filed. Every county in Ontario would benefit from more judicial resources. (To say nothing of the fact that litigants in Ontario have the legal right to have their case in either English or French, and the ability of some places to offer a French-speaking judge is non-existent absent bringing one in from another centre.)
There is considerable appeal then to moving around judges from place-to-place to help reduce backlogs from time-to-time. Again, given the advent of Zoom, it is just as easy for the judge to “sit” in Kenora while sitting in Windsor. It’s not a perfect solution, but it’s a good one right now.
Returning to this case, I can’t fault the Bank for attempting to move its case through the Ontario Superior Court via what it perceived to be as the path of least resistance. Nor can I fault Justice Leach for advising the Bank that it should not be using the, already overburdened, London courthouse for its Toronto-based matters. The simple fact is that the system needs more resources.
Alternative for Employment Matters
While the system requires more resources, it also requires parties and their representatives to consider alternatives that reduce the demand on the system.
The Supreme Court of Canada, in recommending the greater use of summary judgment motions to dispose of matters (although, on reflection, I believe what the Court was actually endorsing was a system more akin to the Simplified Procedure model of Rule 76 of the ROCP) told the bar that it needed a “culture shift.” I’m not sure many answered that call.
But employment matters are ideal for resolution by summary judgment motion. The court has repeatedly said so. The problem, especially in Toronto, is trying to book one.
To quote so many infomercials, “There’s got to be a better way.”
As advertised in a few other places, I am now offering one:
If you are attempting to schedule a motion for summary judgment, especially if both sides are prepared to proceed via such a manner, then why not retain me to arbitrate it instead?
Price: $2,500+HST fixed fee, provided that the only matters in dispute are: whether the employment contract is dispositive of termination entitlement, quantum of reasonable notice, and mitigation.
If there are other matters in dispute, such as aggravated damages or Human Rights claims, then contact me and we can discuss process and price.
Written materials must comply with the ROCP.
Oral hearing of no more than one hour combined. Hearing available via Zoom; in-person in Ottawa at my Elgin Street office; or in-person, in Toronto or Thunder Bay, for disbursements (Porter Reserve + hearing room) and $2,000+HST for travel.
Written decision and reasons within 30 days of hearing.
Fun Fact You May Not Know: I've been sitting as an adjudicator in the sports realm for about one year now. At least one of my decisions has recently been upheld on appeal. I've also written dozens of workplace harassment reports and findings.
You've seen my writing via my blog. You have a sense of my knowledge base.
Interested? Send me an email at sbawden@kellysantini.com and we can discuss.
Contact Me
Sean Bawden is Experience. At Work.
I am an experienced employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, which is based in Ottawa. I have appeared, in-person, in courtrooms all across Ontario from Stratford, to L’Orignal, to Thunder Bay.
For 2.5 years I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.
I have also been a part-time professor at Algonquin College and have taught Employment Law, Trial Advocacy for Paralegals, and Small Claims Court Practice.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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