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Should I Bring a Change of Venue Motion?

2 minute read

There has been some confusion in recent case law as to the proper test to be applied on a change of venue motion. It is clear that the starting point for where an action can be commenced is straightforward: the plaintiff can commence their action in any county they wish. However, a defendant can bring a motion seeking to change the venue and Rule 13.1.02 provides a list of factors to be considered on such motions. Two different approaches have emerged in the case law:

  1. The Siemens approach which is named for the Superior Court of Justice decision in Siemens Canada Ltd. v. Ottawa (City) [2008] O.J. No. 3740 (S.C.J.). This approach provides a two-step process in which the court will first ask a threshold question, namely whether the place selected by the plaintiff has a rational connection to the parties or the action. If so, the Court will then proceed to analyze the factors set out in Rule 13.1.02.
  2. The Hallman approach which is named after the decision in Hallman v. Pure Spousal Trust (Trustee of) 2009 80 CPC (6th) 139 (S.C.J.). This approach requires the court to engage in a “holistic” exercise of considering the factors in Rule 13.1.02 in order to determine whether a transfer is desirable in the interests of justice.

These decisions were made by the courts of concurrent jurisdiction and have resulted in leave to appeal being recently granted to the Divisional Court. While a decision is expected shortly, counsel should not be hesitant to bring a motion in the meantime. An analysis of these different approaches reveals that any difference between them may be just a matter of semantics. If the venue has no rational connection to the cause of action or the parties and is based on, for example, the location of plaintiff counsel, it is highly unlikely that the plaintiff would be able to successfully argue that the other venue is not more desirable. Further, counsel can make strong public policy arguments, with the support of case law, that the plaintiff should not be able to manufacture a rational connection through his or her choice to counsel or experts in certain locations.

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Trevor Fisher

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