Regular v Regular, 2016 ABQB 570

Court of Queen’s Bench of Alberta Citation: Regular v Regular, 2016 ABQB 570 Date: 20161007 Docket: 1503 18281 Registry: Edmonton Between: Perry Regular Applicant - and - Sharon Regular Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] I confirm that pursuant to my direction in Chambers on August 25, 2016, Mr.

Regular’s application to transfer this action from the judicial centre of Edmonton to the judicial centre of Fort McMurray was to be dealt with by way of written submissions followed by a written decision. I have received and reviewed Mr. Henrie’s correspondence of September 9, 2016 and Mr. Brownlee’s correspondence of September 16, 2016. [ 2 ] My decision is that

a) the action not be transferred from the judicial centre of Edmonton to the judicial centre of Fort McMurray at this time;

b) Mr. Regular’s application under rule 3.5 may be renewed once this action ready to be set down for trial; and

c) Mr. Regular’s application under rule 3.5 may be renewed as part of an application for the hearing of viva voce testimony from third party witnesses in the course of a

summary judgment hearing, a hearing respecting a particular issue under rule 7.1, or a

summary trial under rule 7.5. My reasons are as follows:

[ 3 ] Mr. Regular resides in Fort McMurray. Ms. Regular resides in Spruce Grove. The action was properly commenced in Edmonton by Ms. Regular under rule 3.3. [ 4 ] Under rule 3.5, The Court may order that an action be transferred from one judicial centre to another (

a) if the Court is satisfied that it would be unreasonable for the action to be carried on in the judicial centre in which it is located .... [ 5 ] It is clear that the onus of proof lies on the party applying for the transfer of an action to another judicial centre: Christensen v Proprietary Industries Inc ., 2002 ABQB 97 , Watson J, as he then was, at para 60; Wickstrom v Wetter , 2007 ABQB 402 , Graesser J at para 8; 325303 Alberta Ltd v Prime Property Management , 2011 ABQB 817 , Michalyshyn J at para 19; Abou-Morad v Aboumourad , 2015 ABQB 584 , Veit J at para 1. [ 6 ] There are two lines of authority respecting the

interpretation of the “unreasonableness” criterion in rule 3.5. In Siver v Siver , 2010 ABQB 755 , Justice Veit adopted a literal or plain meaning approach to rule 3.5. The inquiry under rule 3.5 concerns whether carrying on the action in the current judicial centre is “unreasonable,” in the sense of being arbitrary or irrational, having “no logical grounding:” at paras 14 – 16. This test is highly deferential to the original judicial centre selection.

Alternatively, satisfying this test is difficult for a party seeking to change the judicial centre. [ 7 ] The weight of authority is that rule 3.5 imposes a “balance of convenience” test. This test was imported from authorities that considered the preceding version of the rules. The authorities do not discuss whether the language of rule 3.5 should entail a revised approach to rule 3.5. Regardless, the “balance of convenience” approach is supported by Abou-Morad v Aboumourad at para 1 ; 325303 Alberta Ltd v Prime Property Management at paras 19 and 27 ; and Wickstrom v Wetter at para 5 .

Earlier authorities include Christensen v Proprietary Industries Inc at para 60; Apache Canada Ltd v Johnson , 2005 ABCA 71 at para 5 ; Schafer v Lenhardt , 1998 ABCA 47 at para 3 ; Silver Springs Oil Recovery Inc v UMA Engineering Ltd , 2004 ABQB 942 at para 6 ; and CS v AJ , 2004 ABQB 73 . [ 8 ] In the application of the balance of convenience test, the location of counsel is not a decisive factor: Christensen v Proprietary Industries Inc. at para 61 ; Silver Springs Oil Recovery Inc v UMA Engineering Ltd at para 7 ( contra , Siver v Siver at para 18 ; but in that case, because of conflicts, counsel in the proposed judicial centre may not have been available: at para 20). [ 9 ] Factors important in the application of the balance of convenience test include the following:

a) the number of parties or witnesses in the current judicial centre and the proposed judicial centre: Schafer v Lenhardt at para 2 ; Silver Springs Oil Recovery Inc v UMA Engineering Ltd at para 7 ; Wickstrom v Wetter at para 15 ; 325303 Alberta Ltd v Prime Property Management at paras 24 and 27 .

b) the nature of the issues in the lawsuit: Apache Canada Ltd v Johnson at para 7 .

c) the relationship between the parties in respect of the issues in the lawsuit (e.g. where relevant interactions between the parties relating to issues took place): Apache Canada Ltd v Johnson paras 7 and 9 .

d) the parties’ respective financial resources: Siver v Siver at para 19 .

e) the stage of proceedings: Siver v Siver at para 22 . The following additional factors are relevant, although of lesser weight:

f) the convenience of location for pre-trial motions: Christensen v Proprietary Industries Inc at para 62.

g) the location of relevant assets: Christensen v Proprietary Industries Inc at para 63; see Canadian Imperial Bank of Commerce v. Nemeth , 2013 ABQB 290 , Schlosser M at para 28. [ 10 ] In this case, the issues concern the

interpretation and application of the Divorce and Property Contract of April 19, 2010 between the parties. Pursuant to the Contract, Ms. Regular claims half of the net sales proceeds of a house in Fort McMurray. Also pursuant to the Contract, Mr. Regular claims set-off (or reimbursement) for certain amounts, reducing the amount of sales proceeds otherwise payable to Ms. Regular. [ 11 ] It is true that the parties had cohabited in Fort McMurray, divorce proceedings were commenced and finalized while they lived in Fort McMurray, and the Contract was negotiated while the parties lived in Fort McMurray. These matters are not material to the current issues.

[ 12 ] It is true that the house in question was in Fort McMurray. The house, though, has been sold. The sales proceeds are being held in trust. The location of the house is not material to the current issues. [ 13 ] The issues of contractual

interpretation do not depend on particular location factors. The Contract is governed by Alberta law. [ 14 ] Mr. Regular’s claims, though, rely on the cost of work performed by third parties. The individuals who performed the work and who could testify to the work performed and its value all reside in Fort McMurray. Moreover, a realtor who witnessed the condition of the house and whose testimony could support Mr. Regular’s contention that the work was required to sell the house resides in Fort McMurray. The evidence provided by the third parties would be important to the application of the Contractual provisions.

These factors do point to Fort McMurray as the appropriate trial venue. [ 15 ] Nonetheless, in response to a

summary judgment application by Ms. Regular, Mr. Regular made a

summary judgment application of his own. He relied on affidavit evidence only. A transfer of the action to Fort McMurray was requested, but only if the Court declined to grant

summary judgment. If, as was contemplated by the parties, the

summary judgment applications will be determined on affidavit evidence, the potential inconvenience of bringing witnesses from Fort McMurray to Edmonton is obviated. [ 16 ] Mr. Regular will bear the cost and inconvenience of attending the

summary judgment applications, should he decide to do so. He could listen in by telephone. Ms. Regular would bear similar cost and inconvenience were matters to be heard in Fort McMurray. Mr. Regular’s cost and inconvenience does not, by itself, demonstrate that hearing the

summary judgment applications in Edmonton would be unreasonable. [ 17 ] I do not know whether either party will be Questioned on Affidavit in preparation for the

summary judgment applications. If Ms. Regular wishes to Question Mr. Regular on his affidavit, she will be required to pay the appropriate allowance under rule 6.17. The cost and inconvenience to Mr. Regular is therefore mitigated. Ms. Regular would bear corresponding cost and inconvenience were the action transferred to Fort McMurray. [ 18 ] At this stage of the litigation, Edmonton remains the appropriate judicial centre. It would not be unreasonable to carry on the action in Edmonton. Mr.

Regular has not established that the balance of convenience favours transferring the action to the judicial centre of Fort McMurray at this time. [ 19 ] If this matter proceeds to trial or if third party witnesses are required to participate in pre-trial proceedings (i.e. witnesses other than Mr. or Ms. Regular), it could well be found that the balance of convenience would tilt to transferring the action to the judicial centre of Fort McMurray. That eventuality can be dealt with if it arises. Mr. Regular may renew his application once the matter is ready to be set for trial.

He may also renew his application as part of an application for viva voce evidence by third party witnesses to be heard in connection with a

summary judgment, rule 7.1, or rule 7.5 proceeding. See Siver v Siver at para 23 and Christensen v Proprietary Industries Inc at paras 66 and 70 – 72. [ 20 ] No costs are awarded for this application. Ms. Regular was successful in resisting Mr. Regular’s application. I have considered rule 10.33. This is still a relatively unsettled area of law, given the lack of sustained consideration of the language of rule 3.5. In any event, determinations under rule 3.5 are case specific. While Ms.

Regular’s action was brought in a legally correct judicial centre, given the history of the parties, an expectation that further proceedings would be brought in Fort McMurray was understandable. Depending on how matters unfold procedurally, a further application by Mr. Regular would be expected. Heard on the 25 day of August, 2016 . Dated at the City of Edmonton, Alberta this 7 th day of October, 2016. W.N. Renke J.C.Q.B.A. Appearances: Jordan Henrie for the Applicant Stewart Brownlee for the Respondent