September 30, 2025

By Jonathon Clark 

In Ontario, a plaintiff in a Superior Court action has the presumed right to decide where that action will be located and tried if necessary.

THE ISSUE

What happens if the defendant disagrees with the plaintiff’s choice?

THE RULES

The defendant has an opportunity to bring a motion under the Rule 13.01.02 of the Rules of Civil Procedure to have the action transferred to a more appropriate location. That rule sets out a detailed list of the factors a court is to consider only request to have an action transferred.

THE CASE

Don Anderson Haulage Limited v. Wilco Contractors Superior Inc. is an example where the action was commenced in Newmarket but transferred to Thunder Bay in the Northwest Region. The decision nicely illustrates how a court goes about considering the factors under the rule to determine the appropriate location. The listed factors relevant in this case are:

• where a substantial part of the events giving rise to damages occurred
• the location of a substantial portion of the damage
• the location of the subject matter of the proceeding
• local community interest (not relevant in this case)
• the convenience of the parties and the witnesses in the court
• whether there are counter claims, cross claims or third party claims.
• advantages or disadvantages of a particular place with respect to securing the just, most expeditious, and least expensive determination of the proceedings on its merits
• judicial availability
• any other relevant matter

Several of these factors favoured Thunder Bay. None favoured Newmarket, which had no substantial connection to the issues in the case.

As a result, the action was transferred to Thunder Bay.

TAKEAWAYS

• The rule continues the tradition of allowing a plaintiff to initially select the place where an action will be heard.
• however, the effect of the rule is to prevent for forum shopping or abuse of the plaintiffs right two initially select where the action will be heard and balances this with the defendants interest in having an action heard fairly quickly and as inexpensively as possible.
• This does not mean that defendants are able to forum shop.
• The rule creates an excellent balance.

WHAT WEILERS LLP CAN DO TO HELP YOU

The litigation team at Weilers LLP knows the rules and knows how to apply them to our clients’ advantage. If you are looking for a law firm to represent you either as a plaintiff or defendant, give us a call. We may be the right lawyers for you.