While litigants are generally entitled to choose at first instance where they commence a legal proceeding, litigants should make sure that the chosen venue has a rational connection to the matters at issue in the proceeding. Otherwise, there is a risk that the judge hearing the matter will transfer the proceeding to an alternative, more appropriate venue, as was the case in Gallant v Rowsell.
In Gallant v Rowsell, the applicant commenced, in Toronto, an urgent application challenging the will of the deceased, and for dependant’s support. The applicant claimed she was the deceased’s common law spouse. She had resided in the deceased’s home in Burlington during his lifetime. After his death, the respondents (which included the executors of the deceased’s estate) excluded the applicant from the home. They claimed she was not a spouse or dependent of the deceased, but a former common law spouse who lived in a separate basement apartment in the deceased’s home. The applicant sought an urgent order returning her to the Burlington home.
The matter went before Justice Akbarali. The preliminary issue was whether the proceeding had been properly commenced in Toronto. In considering this preliminary issue, Justice Akbarali referred to Rule 13.1 of the Rules of Civil Procedure. Rule 13.1 provides that where a statute or (other) rule requires a proceeding to be commenced in a particular county, the proceeding must be commenced at a court office in that county. However, if no such statute or rule applies, then the proceeding must instead be commenced in a county with which there is a “rational connection,” as determined on the basis of the following factors:
- where a substantial part of the events or omissions that gave rise to the claim occurred;
- where a substantial part of the damages were sustained;
- where the subject-matter of the proceeding is or was located;
- any local community’s interest in the subject-matter of the proceeding;
- the convenience of the parties, the witnesses and the court;
- whether there are counterclaims, crossclaims, or third or subsequent party claims;
- any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits;
- whether judges and court facilities are available at the other county; and
- any other relevant matter.
In this case, there was no statute or rule requiring that the application be brought in Toronto (or any other county for that matter). The key question, then, was whether there was a “rational connection” between the litigation and the Toronto region. The short answer was no. The events or omissions which gave rise to the applicant’s claim occurred in Burlington. That was where the applicant was alleged to have been damaged. In particular, that was where the deceased’s home was located. Moreover, the witnesses and expert who had been retained in the litigation were located in Burlington.
The only thing connecting the litigation to Toronto was the fact that the lawyers were located in Toronto. It also appeared that the litigants wanted to proceed in Toronto to avail themselves of the Toronto Estates List. These reasons were insufficient, by themselves, to demonstrate a “rational connection” to the Toronto region.
Moreover, as Justice Akbarali explained: “The Toronto estates list is under-resourced, especially in view of the static complement of judges appointed to Toronto in the face of the growing population in Toronto region, the increased complexity of the cases commenced in Toronto, and the growing numbers of estates proceedings which reflects the fact that the baby boomer generation has reached the senior years, and has tremendous wealth to pass down. It is unfair to those litigants who have brought their proceedings correctly in Toronto to be delayed further by proceedings that are commenced in Toronto without any rational connection to the jurisdiction.”
In sum, the litigation was rationally connected to Burlington, not Toronto. Justice Akbarali therefore ordered that the matter be transferred to Milton (the Central West Region), as Milton is the home courthouse for Burlington.
