In July 2004, a new venue rule (rule 13.1) was introduced in the Rules of Civil Procedure. Under the former rule, regardless of the place where a proceeding was commenced, the plaintiff could choose the place of trial, which could be anywhere in Ontario. A defendant could then seek a change of venue for the trial if the balance of convenience or considerations of fairness favoured holding the trial elsewhere. Generally, motions to change venue were heard in the county where the plaintiff's solicitor's office was located.
Under the new venue rule, a plaintiff may still commence a proceeding anywhere and the place of commencement then determines where any motions will be heard. However, the new venue rule includes expanded authority to change venue on motion of any party, based on the interests of justice.
During consultations lawyers, particularly in northern Ontario, complained about the costs to which their clients are exposed in seeking an order to change venue. The complaints were not about the substance of the venue rule, but rather about the process engaged – and its cost – when a change of venue is sought. An example will illustrate this concern. An action is started in Toronto in circumstances where the debtor and the security are in Sudbury, which is also where the contract creating the debt was made. The venue should be Sudbury, not Toronto. To change the venue, the motion must be brought in Toronto and, of course, a motion record with affidavit evidence is required, absent a court order. All of this costs money and, in this example, the moving party resents having to incur these costs and the related inconvenience.
I recognize that bulk users of the system (typically creditors) also want to reduce costs by starting all of their actions for recovery of money in one centre, in the example above, Toronto. I have no problem with this. The narrow issue is how to change venue in the most cost-efficient, fair way.
- It seems to me that in a better world, plaintiffs should be able to start an action anywhere by filing the claim electronically. To the extent feasible, the claim should then electronically be moved to the venue stated in the claim.
- There should be a more streamlined way of securing a change of venue (e.g., by filing a two-page simplified motion form with or without affidavit evidence, modeled after the simplified procedure and case management rules).
- Venue change motions should be heard in writing or by telephone conference call, subject to a direction to the contrary if any oral argument is required. In clear cases, such as in the example cited above, the moving party should receive full indemnity costs payable forthwith.
- In the alternative, amend rules 37.03(1), 38.03(1), 77.01(5) and 76.05(2) to permit a party to bring a motion to change venue at any court location.