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Starting the Personal Injury Case in the Right Courthouse in Ontario

Jurisdiction is a term that we hear a lot in personal injury cases, but what does it really mean?

Jurisdiction is the power of a Court to hear a case, and/or enforce the law. Jurisdiction also means “the extent of a power to make, or to enforce law, judgment or legal decision“.

Which Court or Power has jurisdiction depends on a lot of factors. But, for the purpose of the Toronto Injury Lawyer Blog, we will focus on jurisdiction in personal injury cases.

As a rule of thumb, where the accident took place is a very good starting point for determining which Court has jurisdiction.

For example: let’s say that you have a slip and fall in Saskatchewan while on a trip to visit a family member. You call a lawyer based out of Toronto Ontario to see if they can handle your out of province claim. All of your treating doctors and specialists are based out of Toronto. You live in Toronto. So, based on that logic, you believe that your case should be commenced and heard in Toronto, Ontario.

But the law says that if you fell in Saskatchewan, your case will need to be commenced and started in Saskatchewan.

The Rules of Civil Procedure are a pretty good starting point for determining where to commence a claim; meaning which Court will have “jurisdiction” over the case itself.

A Plaintiff can start a claim where ever s/he wants to. If they were involved in a car accident in the North Pole, they can still commenced their action in an Ontario Court. It doesn’t mean that it’s the right thing to do. But, they are free to start their action in Ontario.

Once the action has been commenced, a Defendant might take issue to where the action was commenced. They will argue that an Ontario Court does not have the “jurisdiction” to hear the case. The Defendant might bring a motion to the Court to have the case transferred to another county, or dismissed altogether.

It’s important to discuss some of the factors which a Court will look to in determining whether or not they can hear the case or not. Rule 13.1.02 of the Ontario Rules of Civil Procedure is the place to go to review those factors. It’s important to note that a Court can transfer the proceeding on its own initiative, or may do so on a motion by any party.linkedin-2-300x300

Motion to Transfer to Another County

13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced.  O. Reg. 14/04, s. 10.

(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a)  that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(b)  that a transfer is desirable in the interest of justice, having regard to,

(i)  where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii)  where a substantial part of the damages were sustained,

(iii)  where the subject-matter of the proceeding is or was located,

(iv)  any local community’s interest in the subject-matter of the proceeding,

(v)  the convenience of the parties, the witnesses and the court,

(vi)  whether there are counterclaims, crossclaims, or third or subsequent party claims,

(vii)  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,

(viii)  whether judges and court facilities are available at the other county, and

(ix)  any other relevant matter.

These factors provide a lot of leeway for the Courts to determine whether or not the particular matter is fit to be heard by their particular Court. We find it interesting that a Court has wide discretion to “kick out” a case based on the unavailability of Judges, Court Facilities, or simply “any other relevant matter“.

A Plaintiff might want a case to be heard in a particular Courthouse district because it’s easier for them to commute to that Courthouse. Perhaps the district is known to have more lenient judges or juries. Perhaps it’s just an easier commute for the Plaintiff and his/her personal injury lawyers. A Defendant on the other hand might want the case transferred to another county based on the opposite reasons; or simply to frustrate and delay the litigation process. Just getting the physical (or electronic) Court file transferred from one jurisdiction to another is time consuming and will likely delay the case from moving forward.

Last second requests to transfer an action can be viewed as attempts to tactically delay the trial from moving forward. Some Judges see right through these delay attempts and deny the transfer request. The question begs to be asked as to why it has taken so long for a Defendant to realize that the case was commenced in the wrong county courthouse; and why their request to transfer the case to a different courthouse was not brought much earlier in the litigation.

Litigants can refute these late transfer requests after a matter has been set down for trial by relying on Rule 48.04(1) which states:

Consequences of Setting down

48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

But, this is not to say that it’s impossible not to get an action transferred at the eleventh hour so to say. A Court has wide jurisdiction to grant leave to grant the motion to have the action transferred to a different Court, or a different jurisdiction. This is why it’s important to start the action in the right place to begin with.

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