Cooper v. Lynch

2009 BCSC 1317 Cooper v. Lynch

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cooper v. Lynch, 2009 BCSC 1317 Date: 20090928 Docket: 84347 Registry: Kelowna Between: Joan May Cooper Plaintiff And Travis Gregory Lynch Defendant Before: The Honourable Mr. Justice Barrow On appeal from: Supreme Court of British Columbia, June 23, 2009, (Cooper v. Lynch, Victoria No. 09-1521) Reasons for Judgment Counsel for the Plaintiff: M. Pohorecky Counsel for the Defendant: E. Hughes Place and Date of Trial/Hearing: Kelowna, B.C. September 8, 2009 Place and Date of Judgment: Kelowna, B.C. September 28, 2009 [1] The plaintiff appeals from the decision of the master in which he granted an application by the defendant to transfer this proceeding from the Victoria registry, where it had been commenced, to the Kelowna registry. [2] The underlying action is for damages for personal injuries sustained in a car accident that happened near Vernon. The plaintiff, her husband, and her doctor live in Vernon. Various other healthcare professionals involved in her treatment practice in Kelowna. The defendant lives in Salmon Arm. In the statement of claim, the plaintiff designated Kelowna as the place for trial. The plaintiff's lawyer practices in Victoria and presumably that is why the action was filed in that registry. The defendant's lawyer practices in Kamloops. [3] The defendant's application was brought pursuant to Rule 64(13)

which provides: (13) At any time after a proceeding is commenced, the court may on application order it to be transferred from the registry in which it was commenced to any other registry of the court for any or all purposes. [4] The order under appeal is purely interlocutory and as a result, to succeed, the appellant must establish that the master was "clearly wrong" in his decision (Abermin Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188 (S.C.)). The Decision Under Appeal [5] The master had dealt with a similar application in an earlier and unrelated case of Smith v. Shabutura, (27 January 2009), Victoria 07-3598. In Smith, he concluded that the proceedings, which had been commenced in the Victoria registry, should be transferred to the Kelowna registry for all purposes. There, as here, the plaintiff designated Kelowna as the place of trial; there, as here, the plaintiff's counsel practiced in Victoria and the defendant's counsel practiced in Kamloops; and there, as here, the great preponderance of convenience favoured the trial proceeding in Kelowna. In Smith, the master concluded at para. 5: ...the acknowledgement in the pleadings that the appropriate place of trial is Kelowna, the undisputed evidence that the entire connection of this action is with Kelowna or the Kelowna Registry, militating in favour of the trial being in Kelowna, also militates in favour

of the proceeding being transferred for all purposes to Kelowna. [6] When the application in the matter under appeal was heard, counsel for the plaintiff invited the master to come to a different conclusion than he had in Smith. The master declined. He concluded that the circumstances in Smith were indistinguishable and ordered that this proceeding be transferred to Kelowna for all purposes. Position of the Parties [7] The primary assertion of the plaintiff/appellant is that the master erred in concluding that the factual circumstances which support Kelowna as the place of trial also support, or support to the same degree, the Kelowna registry being the registry of the proceeding for all purposes. [8] The defendant/respondent argues that the master was correct. In the defendant's submission, the master considered the appropriate factors and applied the appropriate test. Here, as in Smith, the defendant argues that moving the proceeding to the place where the trial will occur promotes administrative efficiency and serves to avoid "the potential costs involved in litigating [a] matter out of two separate registries". Analysis [9] It is appropriate first to identify the practical significance of the master's decision. It is that, by operation of Rule 44(10), interlocutory and pre-trial applications will generally be heard in Kelowna. There are exceptions to this rule. Rule 44(14)

permits a registrar, in some situations including to accommodate the convenience of the parties, to allow a chambers application to be heard elsewhere than in the location that Rule 44(10) would otherwise require. In the proceeding at hand, the effect of moving the file to Kelowna for all purposes will be that, absent agreement or an order under Rule 44(14), interlocutory and pre-trial applications will be heard in Kelowna, where neither counsel practice. [10] The test to be applied to an application to transfer a file for all purposes under Rule 64(13) is the same as the test that governs an application to change the place of trial under 39(7) (see Nicholls v. McLean, [1996] B.C.J. No. 1160 (S.C.) and Roberston v. Zimmer, 2001 BCSC 1067, 12 C.P.C. (5th) 131 (B.C. Master)). An early and often cited expression of the test is found in Armstrong v. Revelstoke (City) (1927), 38 B.C.R. 253, [1927] 2 W.W.R. 245 (C.A.). In Armstrong, the chambers judge dismissed an application to move the place of trial. The Court of Appeal dismissed an appeal from that decision. McDonald C.J.A. wrote at p. 256: 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 a respondent the right which the law has given him to select his own place of trial. In McPhatter v.

Thorimbert (1966), 56 W.W.R. 497, Kirke Smith L.J.S.C. (as he then was) adopted this statement of the law. He also adopted the rationale for it as set out in McDonald v. Dawson (1904), 8 O.L.R. 72, namely that the plaintiff, as the dominant litigant, has the right to control the course of the litigation. Controlling the course of the litigation extends to choosing the place of trial and choosing the registry out of which proceedings are taken. The right is not absolute, however, as the Rules of Court make plain but overriding the plaintiff's decisions as to the course of the litigation by, for example, changing the place of trial or moving the proceeding from one registry to another, is only to be done where the "great preponderance" of convenience supports doing so. [11] Although the test is the same whether considering moving the place of trial or changing the registry out of which proceedings are taken, the application of the test in these two contexts will not always yield the same result. That is so because circumstances which may prove inconvenient or greatly inconvenient for purposes of trial may be inconsequential for purposes of pre-trial applications. The most obvious example involves witnesses. The degree to which one place or another is convenient for purposes of trial will be affected by where the bulk of the witnesses reside. On the other hand, where the witnesses

reside will usually have little bearing on whether it is appropriate to move a proceeding. That is so because generally witnesses are not required and rarely attend pre-trial or interlocutory applications. [12] In Okayasu v. Poulsen, 2001 BCSC 729, Cullen J. heard an application by the defendants to transfer a file from the Vancouver registry to the Kamloops registry for all purposes, including trial. He ordered that the trial take place in Kamloops but declined to order that the file be transferred to the Kamloops for other purposes. He reached that conclusion, at least in part, because the circumstances that warranted a change in the place of trial were less significant in the assessment of the preponderance of convenience of pre-trial and interlocutory matters. [13] In Smith v. Shabutura, the master observed that most pre-trial proceedings involve only lawyers. He concluded that the action was entirely connected to Kelowna (save for the fact that plaintiff's counsel practiced in Victoria) and concluded that the circumstances that favoured holding the trial in Kelowna also militated in favour of the file being transferred to the Kelowna registry for all purposes. In so concluding, it seems to me that he conflated the effect on the trial of the various circumstances to be weighed in the balance with the effect of those same circumstances on pre-trial and interlocutory

matters. [14] It remains to be determined whether the master was clearly wrong in concluding that the great preponderance of convenience favoured moving this proceeding to the Kelowna registry for all purposes. In my view, and with the greatest of respect, I think he was. There is nothing in the record to suggest that the defendant, or the plaintiff for that matter, would be so interested in pre-trial or interlocutory matters as to wish to attend the hearing of them. Moreover, should that prove to be the case with respect to any particular application, it is open to counsel to apply to have that application heard elsewhere than in Victoria. There is no doubt some administrative convenience to having the file located where the trial will take place. Further, transferring the file to Kelowna has the effect of distributing or dividing the burden of travel as between counsel, given that neither resides nor practices in Kelowna. These circumstances whether taken individually or in combination do not support the conclusion that the great preponderance of convenience favours moving the proceeding or file from Victoria. [15] In the result, the appeal is allowed and the decision of the master is set aside. The file is to be returned to the Victoria registry for all purposes save trial. The plaintiff is entitled to her costs of this appeal. "G.M. Barrow, J." The Honourable Mr. Justice Barrow