Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.
The defendants in Harder sought an order transferring the proceedings from Victoria to the Vancouver registry for all purposes. As an alternative, the defendants ask that the proceeding remain in the Victoria registry but that all interlocutory applications and the eventual trial take place in Vancouver.
The plaintiffs live in Alberta, and the defendant Frances lives in Delta, B.C. According to the sworn evidence, any potential lay witnesses to the proceeding live in either Alberta or the Lower Mainland. The lawyers and financial advisors involved in the critical events described in the NOCC do business in the Lower Mainland. Some of the Vancouver-based lay witnesses are quadriplegic, with those individuals’ travel to Victoria, at least according to the defendant Frances, being a particularly arduous task. The two pieces of real property that the defendant Frances owned in joint tenancy with the deceased are both in the Lower Mainland.
The defendant Frances suffers from bi-polar disorder. She deposes that travelling to Victoria and being put in “new situations” will be psychologically challenging. She also describes the importance of her dog in managing the bi-polar disorder and her inability to bring the dog with her to Victoria for any trial
THE LAW
18 As for the transfer of this proceeding, the defendants rely on McPhatter v. Thorimbert, [1966] B.C.J. No. 12 (S.C.), for the proposition that a change of venue may be ordered based on either the interests of justice or the preponderance of convenience.1 The plaintiffs have the right to control the course of the litigation, including the place of trial, with the defendant Frances having the burden of proving that serious prejudice will arise to her if the venue is not changed or the very great or overwhelming preponderance of convenience ousts the plaintiffs’ rights: Robertson v. Zimmer, 2001 BCSC 1067at paras. 3 and 4
Robertson v Zimmer stated:
“The law referable to the issues raised is not in dispute. The test to be applied was set out in McPhatter v. Thorimbert (1966), 56 W.W.R. 497 (1966), 56 W.W.R. 497 (B.C. S.C.), a decision of Kirke Smith, L.J.S.C., (as he then was), at page 497:
It is established by a line of decisions binding on me that the only two grounds for ordering a change of venue on the application of a defendant are those based upon: (a) The interests of justice; or (b) The preponderance of convenience.
It is to be noted that the conjunctive word in that passage is “or” and not “and”. At page 498, Smith, J. referred to Armstrong v. Revelstoke (City), [1927] 2 W.W.R. 245, 38 B.C.R. 253 (B.C. C.A.), Macdonald, C.J.A., at p. 246:
There is a preponderance of convenience in favour of a change of venue, but nothing short of a great or considerable preponderance of convenience and expense would justify the taking from the respondent the right which the law has given him to select his own place of trial.
4 On the same page, Smith, J. referred to Charman v. British Columbia (Attorney General) (1956), 3 D.L.R. (2d) 269 (B.C. S.C.), at 271, where Whittaker, J. (later J.A.) cites with approval the following language of Boyd, C. in McDonald v. Dawson (1904), 8 O.L.R. 72 (Ont. H.C.):
The plaintiff, as dominus litis, has the right to control the course of litigation. He has the absolute right, unless in cases covered by the Rule, to choose the place of trial, subject to its being changed by the defendant for sufficient cause. The burden is on the defendant to make it appear that serious prejudice is likely to arise to him if it is not changed. Usually the question turns on the balance of convenience, based on number of witnesses, distance from the place of trial, and expenses of attendance. It then becomes a question of degree of less or more, and the test is variously expressed as to whether there is a great, or very great, or overwhelming preponderance of convenience shewn by the defendant which ousts the right of the plaintiff.
It is to be noted that the above passage, which comments on the burden on the defendant states “that serious prejudice is likely to arise to him if it is not changed”, (the emphasis is mine).”
19 While the evidence presented here is not as complete as that described in Robertson, I find that the defendants have proven that the great preponderance of convenience justifies an order that the trial in this proceeding be held in the Vancouver registry. The parties and all of the identified witnesses either reside in the Lower Mainland and/or can more easilty and less expensively travel to Vancouver rather than to Victoria to attend a trial. The plaintiffs’ bald assertion that Victoria is more convenient for both themselves and their witnesses is simply not supported by any evidence.
20 However, the defendants have not demonstrated that either the interests of justice or the great preponderance of convenience favour the transfer of the proceeding to the Vancouver registry for all purposes. Subject to an agreement or order otherwise, examinations for discovery will be held nearest to where the examinee resides: SCCR 7-2 (11). Interlocutory applications do not require a party’s attendance, unless cross-examination on a party’s affidavit is ordered; the court can always give directions in that situation to address any specific inconvenience. In any event, if successful at trial, the defendants will likely be compensated for their counsel’s travel costs to attend these types of applications.
