March 26, 2009

Worlds in Collision: Windsor and Toronto (SCC declines Ontario procedural appeal accomodating change of venue order with order to bear travel expenses of opposition)

Filed under: 1 — ruleswatch @ 9:38 pm
The Supreme Court of Canada Visic v. University of Windsor yesterday (March 26, 2009) has rejected leave to appeal where the would-be appellant sought to appeal an order that, having successfully obtained a change of venue in a civil proceeding, the appellant nevertheless bear travel and accommodations expenses to be incurred.*
The decision is useful because it acknowledges flexibility in the applicable Ontario rule to make such an order and because it raises questions of when impecuniosity might influence the terms of such an order. It may also be of interest to those who labour in the vineyard of disability litigation.
Visic, a former University of Windsor law student, sued in Toronto where she lived. The University applied for a change of venue to move the action to Windsor under Ontario Civil Procedure Rule 13.01(2) (b) – which sets up a detailed series of criteria to consider in adjudicating a challenge to the place of trial, the last of which was “(ix) any other relevant matter.”
The court of first instance [Visic v. University of Windsor [2006] O.J. No. 3727] awarded the change of venue on the grounds that the subject matter of the action had arisen in Windsor and the proximity of witnesses favoured it as the place for trial. The decision further provided however, that, because of Visic’s difficult financial circumstances, the university would have to provide her reasonable travel and accommodation expenses for occasions requiring her to be in Windsor.
On application for leave to appeal to the Divisional Court, [ [2006] O.J. No. 4730] the chambers judge on the latter, along with other doubts, questioned the granting of a change of venue conditional on the payment of expenses of the opposing party. He described that disposition as “novel” and granted leave for the appeal.
In a terse judgement, the panel of the Divisional Court [2007 CanLII 21126 ] modified the original Order by including with the condition that the University undertake to pay Visic’s expenses, be expressly subject to any further Order ordering Visic to reimburse them..
The Ontario Court of Appeal, refusing to accept second place in the terseness category, pointedly affirmed the Divisional Court’s disposition [2008 ONCA 731]. The Supreme Court of Canada (not saying anything at all) has now refused leave to appeal.

The result is that, at least under the Ontario rules, the flexibility to treat severe financial imbalance in the respective positions of the parties in the context of venue, seems clearly affirmed. How much farther that flexibility might go, procedurally and geographically, remains to be seen.

The Divisional Court leave decision may invite further consideration of how Ontario rule 13.01(2)(b) is to be read, in the sense of how much flexibility it gives the hearing judge on its own to craft the order to fit individual circumstances. The analysis may also raise an interesting question of how a rule calling for “any other relevant matter” is to be read, in the context of an apparently ejusdem generis set of factors, in going so far as effectively to allow the imposition of such a separate condition as the accommodation of the opposing parties expenses resulting from a change of venue.



* Visic was a graduate lawyer who had failed courses in her first year of law school because the law school had not adequately accommodated a disability in writing examinations. She had long before successfully internally overturned a decision by the University to have her leave law school and had then completed all three years of her degree. The University, however, continued to insist that it show the academic results for the first year on her transcript. Visic had sued the University contending that the fact that the first year results, being the result of insufficient accommodation should not appear and that in the result, she was unable to advance in the profession. 

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