Chapter 5 - Management of Cases

5.3 - Venue

Introduction

In our First Report, [1] we noted that the demand for courtroom facilities and resources is inconsistent across the province. Certain court centres are faced with backlogs of civil cases when, within reasonably short distances, there exist facilities and resources which are being under-utilized. In order to address this issue, we recommended that the Rules of Civil Procedure be amended to provide Regional Senior Justices with the discretionary authority to order, on their own initiative or at the request of one or more of the parties, that a proceeding be transferred from one court centre to another within the same Region. [2]

We further recommended that this authority extend to the transfer of a proceeding between Regions with the concurrence of the Regional Senior Justices of each Region in question. [3]

The Review decided to defer any further recommendations with respect to venue until the report of the Joint Committee on the Distribution of Civil Cases in Ontario had been completed.

Background: History of Civil Venue and Former Rule 245

Prior to 1985, "situs" provisions required that proceedings take place in a specified locale and limited the plaintiff's freedom to choose where to initiate a lawsuit. These provisions were found in individual statutes and in the Rules of Procedure. Where statutes or the rules were silent on the issue of venue, Rule 245 [4] prescribed generally that the proceeding should be commenced in the county where the cause of action arose and where the parties resided, subject to specific provisions governing mortgage and matrimonial actions.

In the sweeping changes which were made to the rules with the promulgation of the new Rules of Civil Procedure in 1985, the situs requirements of former Rule 245 were removed, and other statutes were amended to delete such constraints. There may have been differing rationales for such a change. The general organization of the courts in the Province along county and district lines had been eroding for some time. There was a sense that parties should be free to choose where to start their proceedings, and there may have been a feeling that "market forces" would prevail in the end and that, for the majority of proceedings, individuals would launch their cases in their respective vicinities, following the maxim that justice is local.

Whatever the rationale, however, the change has not worked. Many major centres have excessively disproportionate caseloads and, not surprisingly therefore, excessively disproportionate backlogs.

Joint Committee on the Distribution of Civil Cases in Ontario

The Joint Committee on the Distribution of Civil Cases in Ontario was formed in January 1994 by agreement between the former Deputy Attorney General, George Thomson, and the late Chief Justice of the Ontario Court, the Honourable F.W. Callaghan. The Committee was comprised of representatives from the Ministry, the Bar and the Judiciary.

The Committee was asked to consider:

  1. whether the civil venue provisions in Ontario law were contributing to the backlog of civil cases; and
  2. better ways to apportion the civil caseload throughout the province to ensure a speedier and more efficient civil judicial process.

The Committee has prepared a draft Report [5] which the Task Force has had an opportunity to review. The Committee's preliminary findings and conclusions are generally consistent with our own. For instance, we are aware of no other jurisdiction which allows a plaintiff such complete freedom in initiating litigation anywhere in the province, and that freedom and the current civil venue provisions which permits it in Ontario have contributed significantly to the backlog at certain court locations. Moreover, all other common law jurisdictions, including other provinces, maintain some form of check on the location of filing and hearing of civil cases which allows for appropriate planning and allocation of resources.

Reform of the Current Venue Provisions

As discussed in our First Report, the subject of venue raises a number of important and difficult issues concerning the ability of litigants to determine where their proceedings should be dealt with, and about the allocation of judicial and court resources in the province generally. [6] Concerns have been expressed that parties and witnesses are being inconvenienced by the lack of venue rules, as many actions are being commenced in the province's major centres simply because the originating party's lawyer practices in the area. [7] It has been suggested that, with the return of venue rules, a more efficient use of the court system could be managed. [8]

It is estimated that upward of a third of cases in Toronto have no legal or factual connection with the Toronto Region. This makes it difficult to plan an efficient use of courts and staffing.

It is clear that Ontario stands alone among common law countries in allowing plaintiffs near carte blanche in determining the place an action will be commenced, often to the detriment of other parties to the action. This freedom is bolstered by the heavy onus placed on defendants who wish to challenge the plaintiff's choice of venue and an inability on the part of the court to unilaterally order a change in venue. [9]

The Task Force is of the view that situs provisions should be reintroduced either in specific legislation or in the Rules of Civil Procedure, in conjunction with a general venue provision which would apply where specific legislation or rules were not applicable. We believe that the administration of justice would be greatly enhanced and the public better served if venue rules were in place which required a connection between where the litigation arose, the parties' residence and the place of hearing. It is our view that reinstatement of comprehensive venue provisions will result in a fairer and more appropriate allocation of caseload across the province, provide for greater caseload predictability, and eliminate the practice of "forum shopping".

RECOMMENDATION

We recommend that situs provisions be reintroduced into Ontario law. These situs provisions should be of both general and specific application and apply to both actions and applications. There should be a venue provision of general application such as former Rule 245 for proceedings not subject to specific situs provisions.

Judicial Transfer of Civil Cases

While there has been general support for the Review's recommendation that the law of venue requires reform, some concerns have been expressed with respect to our recommendation that the judiciary be given the authority to transfer cases.

The Bar, for example, has expressed some apprehension concerning the potential cost implications for litigants who could be required to travel to a new centre, as well as the impact on the ability of lawyers to plan effectively for hearings and trials. Concerns were also raised that cases might be assigned a lower priority on the list at the new court centre.

Notwithstanding these concerns, the Task Force is of the view that judicial transfer of cases is an important tool in the efficient management of the civil justice system. We recommend, however, that guidelines should be in place to govern such transfers. For example, we would suggest that, in making an order transferring a case, Regional Senior Justices be required to take into consideration all relevant factors. Further, the Task Force recommends that transfers between regions should only be ordered in exceptional cases, and provided the Regional Senior Justice of the region to which it is proposed the case be transferred has consented.

RECOMMENDATION

We recommend that the Regional Senior Justices should be given the authority to transfer cases to a different location for hearing or for trial, subject to the following considerations:

  1. An order transferring a case to another location should not be made without notice to the parties and without an opportunity for them to be heard. In making an order for change of venue, the judge should take into consideration the following factors:
    • cost to the parties;
    • the parties' place of residence;
    • where the cause of action arose;
    • the availability of judges or trial dates at the proposed transfer location; the witnesses' place of residence;
    • the need for special facilities;
    • the distance to the proposed transfer location;
    • the length of the proposed trial or hearing; and
    • any other relevant factor.
  2. Transfers between regions should be ordered only in exceptional cases, and provided the Regional Senior Justice of the region to which it is proposed the case be transferred has consented.

Footnotes:

[1] First Report of the Civil Justice Review(Toronto: Ontario Civil Justice Review, March 1995) [hereinafter "First Report"].
[2] Id., at pp. 248 - 249.
[3] Id.
[4] Rules of Civil Procedure, O.Reg. 560/84.
[5] Draft Report of the Joint Committee on the Distribution of Civil Cases in Ontario(October, 1995) [hereinafter "Joint Committee Draft Report"].
[6] First Report, supra, note 1, at p.249.
[7] Submission to the Civil Justice Review: Canadian Bar Association - Ontario, Civil Litigation Section(December 19, 1995), at p. 4.
[8] Id., at p.5; see, also, Joint Committee Draft Report, supra, note 5, at pp. 5 - 6.
[9] Joint Committee Draft Report, supra, note 5, at p.3.

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