Ontario Civil

Civil Procedure


Defendants’ motion to change venue from Windsor to Toronto was granted

Plaintiffs brought class action on behalf of two classes of investors who had purchased shares in defendant company W Inc, either on basis of prospectus or in secondary market, and held those shares at close of trading on TXS on November 12, 2014. Plaintiffs sought, among other things, declarations defendants had breached s. 130 of Securities Act and been negligent. Defendants brought motion pursuant to R. 13.1.02 of Rules of Civil Procedure to change venue of proceeding from Windsor, Ont. to Toronto, Ont. Motion granted. Plaintiffs had prima facie right to choose venue. They were not required to establish any rational connection or that choice reasonable. Defendants seeking change of venue required to establish change in interests of justice. Where plaintiffs’ choice unreasonable and defendants’ choice reasonable, change likely to be granted as matter of common sense. Where both choices reasonable, defendants required to establish theirs was “significantly better”. Issue had to be considered as holistic exercise with no enumerated factor entitled to greater weight. In this case, while one original representative plaintiff resided in Windsor, neither current representative plaintiff did. Windsor, where plaintiffs’ counsel located, was, however, recognized as centre for class actions. Comparison of two venues required. Events or omissions allegedly giving rise to claim had taken place in Vancouver, BC or Toronto, not Windsor. Substantial part of alleged damages had been sustained in Toronto. Subject matter of claim was in Toronto. Toronto would be more convenient to parties, most counsel and witnesses. Judicial resources appeared to be reasonably available in Toronto. Since only meaningful factor weighing in favour of Windsor was location of plaintiffs’ counsel, Toronto was significantly better choice. Change was in interests of justice.

Cass v. WesternOne Inc. (Nov. 24, 2015, Ont. S.C.J., Christopher M. Bondy J., File No. CV-14-00021629-00CP) 261 A.C.W.S. (3d) 581.

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