Master’s Decision Reviews Factors Influencing Changing Place of Trial Selected by Plaintiff

In Rushnell v. Corporation of the City of Belleville, the plaintiff had been struck by a bus owned by the City of Belleville. The accident had taken place there.

The plaintiff’s solicitors had named Toronto (where their office was located) as the place of trial. That was the only connection with Toronto.

The defendant moved to have the action transferred to Belleville. The plaintiff’s solicitor opposed the motion, arguing, among other things, the trial would be heard earlier in Toronto.

Master R. Dash noted that historically, courts would only rarely interfere with the plaintiff’s choice of the place of trial. However, in 2004, the Rules of Civil Procedure were changed to permit courts to consider balance of convenience as well as “the availability of court resources, the relative backlog of civil cases and the effect on other litigants of the allowing the case to remain at the venue named by the plaintiff”.

Subrule 13.1.02(2) sets out a number of criteria that are now to be taken into account and the Master reviewed each one, in the context of this case. He found that “the balance tips substantially in favour of Belleville” and that “[t]here is absolutely no connection between this action and Toronto other than the place where the plaintiffs’ lawyer carries on his practice and where he has chosen to retain non-treating experts.” He added that unless the delay is substantial, the opportunity of having an earlier trial date in Toronto should not outweigh the balance of convenience.

This issue arises fairly often, particularly where the plaintiff’s lawyer is in Toronto. Today’s decision is helpful as an indication of how the courts will now analyze the problem, in light of the changes to the Rules.

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