Behiels v Tibu, 2024 ABKB 12

Court of King’s Bench of Alberta Citation: Behiels v Tibu, 2024 ABKB 12 Date: 20240105 Docket: 1503 08564 Registry: Edmonton Between: Oscar Robert Behiels also known as Robert Behiels Plaintiff / Defendant by Counterclaim - and – Simona Gabriela Tibu Defendant/ Plaintiff by Counterclaim -and- The Solicitor General and Minister of Public Security of Alberta on Behalf of His Majesty the King in Right of Alberta Third Party Defendant

_______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] Should the venue of this long-running action be changed from Edmonton to Calgary? [ 2 ] The initial claim was long-ago discontinued.

The (largely) self-represented plaintiff in the crossclaim seeks the transfer, based primarily on her long-ago move to Calgary (from Camrose), health concerns for her, and the disproportionate share of witnesses based in and around Calgary. [ 3 ] The cross-defendant and the third party, represented by the same counsel, resist, disputing (in part) the severity of the plaintiff’s health concerns and the need for all of the plaintiff’s proposed witnesses or at least the need for the personal attendance of all of them. [ 4 ] As explained below, the balance of convenience favours the action (including the trial) continuing in Edmonton.

II. Change-of-venue rule [ 5 ] Here is the governing 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, or (

b) at the request of the parties. [ 6 ] Given the dispute here, the focus is on the first branch (“unreasonable for the action to be carried on in [Edmonton].” III. Onus [ 7 ] Odland v Odland , 2017 ABCA 397 sets the onus in a change-of-venue application. The starting point is rule 3.3, which defines the “appropriate judicial centre”:

(1) The appropriate judicial centre for the purpose of these rules is (

a) the closest judicial centre, by road, to the Alberta residences or Alberta places of business of all the parties, or (

b) if a single judicial centre cannot be determined under clause (a), the judicial centre that is, by road, the closest to the Alberta residence or Alberta place of business of one of the parties, that party being selected by the party starting the action.

(2) If a party carries on business in more than one Alberta location , the place of business in Alberta of that party for the purpose of this rule is the place of business that is nearest to the location at which the matters in issue in the action arose or were transacted.

(3) Despite subrules (1) and (2), the parties may agree on a judicial centre in which to start and carry on the action, in which case the judicial centre agreed on by the parties is the appropriate judicial centre unless the Court otherwise orders. [ 8 ] In light of that rule, Odland outlines the onus here: In our view, rule 3.3 operates much like a presumption. If the action is commenced in compliance with rule 3.3 , it is presumed that it was brought in the correct judicial centre .

If a defendant wishes to challenge the plaintiff’s choice, the defendant must rebut that presumption and bears the burden of establishing that the plaintiff’s choice was unreasonable. In contrast, if the plaintiff does not commence the action in compliance with rule 3.3 , the plaintiff does not obtain the benefit of the presumption and it will be necessary for the plaintiff to establish that the choice of judicial centre was reasonable . [para 19] [ 9 ] In this case, Dr. Tibu did not challenge Mr. Behiels’ selection of Edmonton in the first place.

In any case, as between Edmonton and Calgary, nothing in the facts at the launch of Mr. Behiels’ action suggested Calgary as a potential starting point. [ 10 ] Viewed differently, with the initial claim (by Behiels) discontinued long ago, what remain is Dr. Tibu’s cross-claim, which was also filed, and proposed trial, in Edmonton. With Dr. Tibu now seeking to undo her initial selection, it seems appropriate, from this

perspective too, for her to bear the burden of showing why. [11] Either way, Dr. Tibu has the onus of proving that Edmonton is an unreasonable venue for the remainder of the action: SobeysCapital Inc v Gulf & Pacific Equities Corp, 2018 ABQB 151 at para 22 (“ … because no reliance has been placed upon rule 3.3 [by thenew-venue-seeking defendant], the onus of proof is on the defendant …”). That is, with an apparently orthodox selection of Edmontonin the first place, the party seeking to change that selection (Dr. Tibu) bears the “should change” onus. IV.

Venue reasonableness [12] Odland also explains how to gauge venue reasonableness, outlining various key factors: We endorse the approach that reasonableness is determined on the balance of convenience: Regular [v Regular, 2016 ABQB 570] atpara 7; Pacific Investments at para 41; Abou-Morad v Aboumourad, 2015 ABQB 584 at para 1, [2015] AJ No 1007 (QL). The following factors were considered under the balance of convenience in Regular at paragraph 9: a)the number of parties or witnesses in the current and proposed judicial centre;

b) the nature of the issues in the lawsuit;

c) the relationship between the parties in respect of the issues in the lawsuit (e.g. where relevant interactions between the parties relatingto issues took place);

d) the parties’ financial resources;

e) the stage of proceedings;

f) the convenience of location for pre-trial motions; and

g) the location of relevant assets. Generally, the location of counsel is not a decisive factor: Pacific Investments at para 38; Regular at para 8. A party can retain counselin whichever city they wish, but counsel will be expected to make themselves available in the proper judicial centre: Keaton v Keaton,2017 ABQB 429 at para 2, [2017] AJ No 712 (QL). [paras 20-22] [emphasis added] [13] A useful synthesis of Alberta change-of-venue case law, including Odland, was prepared by Professor Anna Lund in“Litigating on One’s Doorstep: Access to Justice and the Question of Venue”,

(2019) Alberta Law Review 56:4 1039 (2019 CanLIIDocs2090). [14] She first summarized the pre-2010 change-of-venue rule and associated case law: The 1968 Rules of Court governed civil procedure in the Alberta Court of Queen’s Bench from the time it was established in 1978through to when the new Rules of Court took effect in 2010. ... Defendants could apply to transfer a matter to a different venue.

To succeed on such an application, a defendant would need to establishthat the “preponderance of convenience” favoured the proposed venue. [FN 88: Wade Investments Ltd v Hat Travel Ltd, (1979) (AB KB), 21 AR 454 9QB)] The court decisions on venue transfer applications focused on practical questions like wherewitnesses and key evidence were located as opposed to more abstract notions such as where a contract was formed or where mortgagepayments were made. [FN 89: See Van Horn v Coal Valley Systems Ltd, (1987), (AB KB), 78 AR 203 (QB) at para26; Montreal Trust Co [v 385070 Alberta Inc (1993), (AB KB), 10 Alta LR (3d) 201 (QB)] at para 43].

The formerconsiderations more directly impacted the costs and logistics of a court application or trial than did the latter. ...

If the action was commenced in compliance with the rules [including the 1996-introduced rule 6.1 (where an action should becommenced], the plaintiff’s choice of venue was entitled to deference, although it was still open to a respondent to argue that a venuetransfer was appropriate [FN 95: Wickstrom v Wetter, 2007 ABQB 402 at para 15]. [pp 1051-52] [emphasis added] [15] She then described R. 3.5 (introduced in 2010) in action: The general transfer rule [3.5] provides that an action can be transferred to a different judicial centre if the parties request such a transferor if the Court thinks it would be unreasonable to proceed with the action at its current location.127 [reference to R. 3.5] A partycontesting the venue must file an application in the judicial centre where the claim has been commenced and prepare a written affidavitcontaining the evidence that suggests a transfer is warranted.

Unless the other side consents to the transfer, the party must attend ahearing in the original venue to argue the merits of its application.

Courts do have jurisdiction to transfer an action on their owninitiative; however, they would need to have the issue of venue brought to their attention and be satisfied that there was sufficientevidence to justify a transfer of the matter.128 [In two cases decided under the old rules, the Court noted that “[it] is entitled to govern[its] own proceedings and insure the rules are being complied with”: Lim, supra note 23 at para 14, cited with approval in NationalHoldings, supra note 22 at paras 4–5. Nothing in the revised venue rules suggests that the Court has been stripped of this power.

Courts have interpreted the “unreasonableness” threshold to mean that an application to transfer an action should be grantedwhen the balance of convenience favours the proposed venue over the existing one.129 [Odland, supra note 123 at para 20; PacificInvestments [Investments & Development Ltd v Wood Buffalo (Region), 2017 ABQB 469] ... at para 41.] This standard remainsunchanged from the pre-2010 rules.130 [Rules of Court (1968) ..., r 12; Pacific Investments, ibid.]

There has been some case law suggesting that a higher threshold must be met, namely that the applicant must establish that it would becapricious, arbitrary, or irrational to continue proceedings in the existing venue; however, the preponderance of authority rejects thishigher threshold.131 [Regular v Regular, 2016 ABQB 570 at paras 6–7 [Regular]; Pacific Investments, ibid; Sobeys Capital [Inc v Gulf& Pacific Equities Corp, 2018 ABQB 151] ... at paras 17–18.

As discussed in the previous section, the onus on an application totransfer an action rests with the applicant (defendant), unless the applicant can show that the plaintiff did not comply with thevenue rules when it commenced its action.132 [Odland ... at para 19; Regular ... at para 5].

In establishing which location the balance of convenience favours, courts will consider the following factors: • The number of parties or witnesses in each judicial centre; • The nature of the issues in the lawsuit; • The relationship between the parties in respect of those issues; • The parties’ respective financial resources; and • The stage of proceedings.133 [Regular ... at para 9, cited with approval in Odland ... at para 21; Pacific Investments ... at para 39] Courts will consider, but give “lesser weight” to these additional factors: • The convenience of location for pre-trial motions; and • The location of relevant assets.134 [Regular ... cited with approval in Odland ...; Pacific Investments ... at para 40] The location of a party’s chosen counsel should not be “a decisive factor” in the balance of convenience test 135 [Odland ... at para22; Regular ... at para 8; Pacific Investments ... at para 38] — although, it may be given some weight if the other factors are evenlybalanced.136 [Stevenson & Côté [Civil Procedure Encyclopedia, vol 1] ... at 23-5, citing Nescorp Resources Inc v Color Your WorldCorp [1994] AJ No 1281 (QL) (QB)].

The justification for not putting weight on “[t]he factor of inconveniently located counsel” is thatit “only arises because of a choice by a party and [the party] should not gain by that choice.”137 [Anderson v Kent, 1981 ABCA 242 atpara 3, cited with approval in Christensen v Proprietary Industries Inc, 2002 ABQB 97 at para 61 [Christensen].] ... Prior to the 2010 rules being enacted, Alberta courts refused to put weight on a litigant’s financial capacity when deciding where amatter should be adjudicated.

As Master Funduk put it in a 1989 decision, the Court would not force “the wealthier litigant [to] litigate inthe backyard of the poorer litigant.”141 [Deadmarsh v Sheraton Business Forms Ltd, (1989) (AB KB), 95 AR 17 atpara 36 [Deadmarsh], cited in The Honourable William A Stevenson & The Honourable Jean E Côté, Civil Procedure Encyclopedia, vol2, ed by Debra MacGregor et al (Edmonton: Juriliber, 2003) at 26-8.] In a break from this previous case law, courts now recognize thatthe relative financial capacity of litigants is a proper concern when deciding applications regarding venue.

In Abou-Morad vAboumourad, the Court was asked to transfer the venue of divorce proceedings from Edmonton to Fort McMurray.142 [Abou-Morad vAboumourad, 2015 ABQB 584 at para 1 [Abou-Morad]. The wife, a resident of Fort McMurray, alleged that she earned significantly lessthan her husband, who resided and had commenced the action in Edmonton. In dismissing the application, the Court noted that the wife’sfinancial position remained a factually contested matter.143 [Ibid at para 2] In other words, the Court recognized that financial disparitycan matter but held that it remained unproven in this case.

Subsequently, the litigants’ financial capacity was incorporated into the listof factors a court should consider when asked to transfer an action.

A litigant’s financial capacity may not be determinative, becauseit is just one of seven factors a court is directed to balance, but the courts’ willingness to consider this factor indicates that thesubstantive law on venue has evolved to make space for judges to adopt an access to justice ethos. [pp 1056-58] [16] She also commented helpfully on the remote-participation option: When parties are able to use technology, it may provide greater access to the court system, but a few notes of caution must be sounded.First, the ability to participate electronically may not always be available to individuals.

They may lack the requisite technology athome, or the Court may not have the necessary services to support an electronic appearance. ... Second, appearing electronically is notthe same as appearing in person.

A defendant appearing electronically is physically separated from the plaintiff’s counsel and thejudge, who are together in the courtroom.190 [Jane Bailey, Jacquelyn Burkell & Graham Reynolds, “Access to Justice for All”: Towardsan ‘Expansive Vision’ of Justice and Technology” (2013) 31:2 Windsor YB Access Just 181 at 202-204] This set-up may result indefendants feeling excluded from the process and may hinder their ability to present their cases.191 [Amy Salyzyn, “A New Lens:Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario” (2012) 50:2 Osgoode Hall LJ 429 at 449]Opposing counsel and judges might treat defendants appearing remotely differently than those appearing in person.

For example, thetechnology used may impede credibility assessments or impair the emotional connection between the remote participant and thepersonnel present in the courtroom.192 [Ibid at 443–50. The shortcomings of remote appearances have also been considered in thecase law applying sections 486.2 and 714.1–714.8 of the Criminal Code of Canada, RSC 1985, c C-46, which allow witnesses to appearby video or telephone: see e.g. R v Hinkley, 2011 ABQB 567.

On the other hand, “[p]articipating comfortably in one’s home mayreduce anxiety or logistical hurdles for those with mental health issues or physical disabilities,” ...: [Shannon Salter, “OnlineDispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal” (2017) 34:1 Windsor YB Access Just112 at 126].

Giving a party the option to appear remotely is preferable when the alternative is that the party cannot appear at all, butwhen faced with an application to transfer a matter, courts need to recognize that the possibility of remote participation is notequivalent to the opportunity to attend in person. Likewise, legislators need to recognize that the possibility of a remote appearance isnot a complete antidote to venue rules that are unfair in substance or in practice. [p 1064] [emphasis added]

V. Relevant factors here A. Central-events location closer to Edmonton than Calgary [17] The claims and cross-claims here arise from an August 3, 2013 traffic stop conducted by Behiels, an Alberta Sheriff, of Dr.Tibu on Highway 21 “approximately halfway between the cities of Camrose and Wetaskiwin” (per Behiels’ statement of claim filed June9, 2015). [18] Judicial-centre-wise, this would indicate Wetaskiwin.

As between Edmonton and Calgary (with neither party filing in orpointing to Wetaskiwin), it indicates Edmonton. [19] Having said that, neither side advised or signaled that visiting the scene of the incident would be beneficial for anyoneinvolved in the case or that any evidence is being stored or may be found at or near the scene. [20] All to say: this pro-Edmonton factor carries very modest weight. B. Dr. Tibu long (and recently) concurred with Edmonton as the place of trial [21] Behiels filed his statement of claim in Edmonton. In his claim, he described himself as a resident of Wetaskiwin and Dr.

Tibuas a resident of Camrose. [22] Dr. Tibu responded with a statement of defence, counterclaim, and third-party claim (against the Solicitor General andMinister of Public Safety of Alberta), all filed on June 22, 2015, in Edmonton. In each document, Dr. Tibu listed a Camrose address asher address for service. [23] In her statement of defence (para 2), Dr. Tibu agreed with the proposal in Behiels’ statement of claim (para 43) that “the Trialof this matter take place … in Edmonton, Alberta ….” In her counterclaim, she proposed Edmonton as the place of trial (para 19).

Samething in her third-party claim against Alberta (para 19). [24] In her amended counterclaim filed December 8, 2016, Dr. Tibu continued to provide a Camrose address for service and topropose Edmonton as the place of trial (para 19). [25] On October 17, 2017, Behiels discontinued his claim against Dr. Tibu. Since then, this action has consisted of Dr. Tibu’scounterclaim against Behiels and her third-party claim against Alberta. [26] On June 20, 2022, Dr.

Tibu filed an amended amended counterclaim providing a Calgary address for service and continuing topropose Edmonton as the place of trial (para 19). [27] Notably, Dr. Tibu commenced a separate action against Behiels, in Edmonton (and also listing Edmonton as the proposedplace of trial), on August 30, 2021, apparently aimed at raising allegations not made in her 2015 cross-action.

As far as I can tell, thoseallegations are also the focus of the above-noted June 2022 amendments to her 2015 cross-claim. [28] Per a procedure card obtained January 4, 2024, no steps have been taken in the 2021 action since June 2021. [29] Whether or not the 2021 action was necessary in the end, the point here is that, as recently as August 2021, Dr. Tibu sawEdmonton as the appropriate place of trial for both the new action and the 2015 action. Per paragraph 18 of the 2021 action: [Dr.

Tibu] proposes that this action be tried in Edmonton, Alberta at the same time with the trial of the court action 1503-08564 [i.e. thefirst action], to properly make use of court time. C. Dr.

Tibu’s move to Calgary, on its own, not a reason for a venue change [30] A party’s move away from the existing place or area of trial is not, on its own, a compelling reason to change the trial venue:Bhatia v Gera, (ONSCSM) (DJ Winny) at para 2. [31] Even without a move, the mere fact that the venue-change-seeking party resides in a different judicial centre is not enough, onits own, to warrant a venue change: Van Horn v Coal Valley Systems Ltd, (ABKB). Per Master Funduk: The statement of claim indicates the plaintiff's residence to be Edmonton.

Essentially, what the defendant's position comes down to isthat it is in Lethbridge and carries on business there and so the action should be in Lethbridge. Without more, that is notsufficient. That can be said of every action in which the parties reside in different judicial districts. A defendant cannot say thatactions against him should be in his judicial district merely because he resides there and it would be more convenient to him to have theaction on his home turf.

A plaintiff can just as logically say it would be more convenient to him to have the action on his home turf. [para30] [emphasis added] [32] Dr. Tibu’s evidence on the application did not include her reason(

s) for moving from Camrose to Calgary. [33] She is of course free to move where she wishes, but here she moved while a party to an Edmonton action and apparently didso without first raising the issue of a venue change (e.g. seeking Behiels’ or Alberta’s consent to a shift to Calgary) or applying for achange.

[34] In doing so, she ran the risks that the other parties would not later consent to a venue change and that an application might notsucceed. [35] On the other hand, courts have accepted that parties can and do relocate after causes of action accrue or actions are started,and new-location parties apparently do not have to justify or defend their moves in a venue-change exercise: see, for example, Fleet vJim Penney Ltd, 2007 NLTD 194 (Goulding J.) (paras 26-32) and Laurin v Favot, (1996) (ON SC), 28 OR (3d) 114(Borins J.) (first five and last two paragraphs). [36] In both of those cases, courts accepted moves, plus the accumulation of witnesses in the moving party’s new location (e.g.treating medical professionals), at face value. [37] In the present case, Alberta’s counsel did not take issue with Dr.

Tibu’s relocation to Calgary or otherwise call on her todefend her move there. [38] Accordingly, I treat her move, on its own, as a neutral factor. In other words, Dr. Tibu’s move to Calgary is not held againsther in this “reasonableness of venue” exercise. And neither is it a “pro-Calgary” factor, on its own. Instead, the move is simply abackdrop element here, in part explaining why Dr. Tibu seeks a venue change to Calgary. D. Location of witnesses [39] Dr. Tibu intends to call 41 witnesses, most of whom are based in southern Alberta: Calgary (22), Medicine Hat (2), Canmore(1), and Cochrane (1).

Nine of her other proposed witnesses are from central Alberta: Edmonton (4), Camrose (4), and Spruce Grove(1).

The remaining six witnesses reside outside of Alberta (Vancouver, Vancouver Island, Toronto, Texas, England, and Romania). [40] Alberta pointed to nine other potential witnesses, from these centres: Camrose (4), Edmonton (2), Grande Prairie (2), andLeduc (1). [41] Aggregating this data and assuming that all these witnesses have relevant, material and differential (i.e. not overlapping)evidence, there will be 26 witnesses from Calgary and region, 18 from Edmonton and area or points east or north, and 6 from outsideAlberta. [42] Notably, Alberta did not argue that Dr.

Tibu’s witness list is excessive e.g. the overall number of proposed witnesses,duplication of evidence among witnesses, or simply relevance or materiality grounds. (I observe that her list includes four differentpsychiatrists, the Alberta Minister of Justice (with no explanation of what evidence he might provide), an unidentified person from theRomanian consulate in Vancouver (same thing), a lawyer who acted for her in an unrelated matter, and the Alberta Justice lawyerformerly handling this file for Alberta.) [43] I also note that this matter is under case management (with Loparco J.) and the possibility that some streamlining ofwitnesses, on both sides, may be suggested or directed. [44] As well, Dr.

Tibu herself recently applied for an order allowing at least some of her proposed witnesses to testify remotely. [45] In these circumstances, it is too early to gauge how many witnesses each side will realistically be calling to testify in person. (On deferring consideration of the number-of-witnesses factor, see Dr Leonard Reeves Foundation v Coterie Group Inc, 2018 ONSC5672 (Hebner J.) at paras 24-26 and 34.) [46] Accordingly, this factor is neutral, at least for now. E. Financial means [47] Dr. Tibu claims financial incapacity.

Per her affidavit: Since the Assault, I have been unable to work full-time as a dentist and I am limited to working part-time from 15-20 hours per week. My income has decreased dramatically after the assault and I currently reduced my practice to only 2 days a week, as it is too stressfulfor me to competently and safely to my job with 3 days a week I worked in the last year. Attached is Exhibit D [text message withsomeone referencing Dr. Tibu working “Wednesday and Thursday”].

I have re-mortgaged my house for $50,000 as I don’t have money in my bank account and I have spend so far around $350,000 in legaland expert fees in this litigation started in August 2013. Attached is mortgage contract ... Exhibit Dx [mortgage document reflectingadvance of $51,500 to Dr. Tibu in October 2023 from a private lender] My ability to litigate this matter, including my ability to pay for legal counsel, is severely constrained by my income. As a self-represented litigant, travelling to Edmonton for court is a significant financial burden and [would] impede [my] ability to litigate thisissue.

It is unfair for myself to appear online while the other party has an advantage to appear in person,. It also causes inconvenience and delays for both parties, as I have to coordinate with times when I will be available to attend court andmeetings. I have proposed an 8-week trial. As I am self-represented with respect to the main litigation, I would [need] to find accommodations andcover my expenses while in Edmonton for the trial. I simply do not have the financial resources to self-represent myself in this matter ifit is in Edmonton. [affidavit sworn December 8, 2023, paras 4-9]

[ 48 ] Dr. Tibu did not provide any meaningful financial disclosure, omitting to provide (for example) her current income, historical income, a statement of net worth, a monthly budget of income and expenses, a

summary of assets, the value of her home (gross and net), or anything akin. As noted, she refers to a decrease in income, but provides no specifics. [ 49 ] She does not explain how she sourced $350,000 in litigation expenses to date. [ 50 ] She says she cannot afford to participate in a trial in Edmonton.

But she did not provide any kind of litigation budget (e.g. anticipated expenses of preparing for and participating in the proposed trial and how they compare to her available resources, present and anticipated) or any forecast of differential expenses i.e. of a trial in Calgary versus one in Edmonton. [ 51 ] Until the number of plaintiff witnesses actually required or permitted for trial is determined and then the number needing to appear in person (versus remotely), it is in any case not possible to forecast witness expenses with any certainty. [ 52 ] As for Dr.

Tibu’s own differential expenses of participating in an Edmonton (versus Calgary) trial, they would appear to be limited to accommodation costs for two months and (presumably) transportation costs (gas and incidentals) i.e. assuming she returns home to Calgary on the weekends. [ 53 ] Assuming a monthly rental rate of between $1,500 and $2,000 and $100 in gas per round trip (x 9 trips), her differential expenses would likely be between $4,000 and $5,000. [ 54 ] Given effectively no income or asset disclosure, I am not able to conclude that Dr.

Tibu cannot afford such expenses or that incurring them would cause any material financial hardship for her. F. Health considerations [ 55 ] Per her affidavit, Dr. Tibu has been diagnosed with several illnesses, conditions, and disorders.

She argued that she derives important daily support from certain emotional-support animals kept at her home in Calgary, that these animals cannot practically be relocated to Edmonton for the duration of the trial (anticipated to run 8 weeks), that she cannot realistically find equivalents in Edmonton for the trial period, and that being without their support for days at a time (even with weekend return trips to Calgary) would jeopardize her emotional state. [ 56 ] She also claims stress arising simply from being in Edmonton or area i.e. the (general) locality of the core incidents in 2013. [ 57 ] Alberta does not, at present, question Dr.

Tibu’s diagnoses (even if causation is up in the air). It says that Dr. Tibu also has an emotional-support dog and that it can presumably accompany her to Edmonton and potentially even the courthouse (if properly accredited). [ 58 ] Alberta also pointed to the absence of medical or counselling evidence from Dr. Tibu on the subject of emotional-support animals, of any species, and concerning the asserted “locational stress.” [ 59 ] At the application, Dr.

Tibu did not deny having a support dog, argue that it would be impossible for the dog to accompany her to Edmonton, point to any evidence (beyond her own claims) that daily contact with her other support animals is critical to her mental health or even that support animals of any species are in fact essential or helpful to her, or submit that no other emotional-support aids or measures (dog or otherwise) are or could be available to her. [ 60 ] On the evidence here, I conclude that, while connecting daily with all of her support animals may be preferable for Dr.

Tibu, she has not shown that daily access to all of them is essential to her emotional stability. [ 61 ] On the subject of “locational stress”, I adopt the analysis in AB v Western University , 2015 HRTO 354 : The more pressing issue is with respect to Dr. Resnick’s opinion that the City of London is a trigger for the applicant’s post- traumatic stress. While I have no difficulty accepting that a hearing at the Western University would be extremely challenging for the applicant, it is more difficult to accept that the City of London is a similar or equal trigger . Further, the opinion of Dr.

Resnick that London is a trigger for the applicant is somewhat at odds with her request to be reinstated to her program at Western University (as part of her amended remedies). The Tribunal is committed to providing accommodation for needs related to, among other things, disability . It strikes me that there are other forms of accommodation that would help the applicant participate in this hearing short of changing the venue less than one week before the hearing .

These accommodations could include having a support person attend the hearing with the applicant, allowing the applicant to have access to her therapist during the hearing breaks, and providing additional or longer hearing breaks. [paras 16 and 17] [emphasis added] [ 62 ] In the present case, the events in question occurred on the highway between Wetaskiwin and Camrose. Without any medical or counselling evidence, I am not prepared to infer that simply being in Edmonton causes incremental stress for Dr.

Tibu or at least to the point precluding her participation in a trial here. [ 63 ] On the need for such evidence in such circumstances, see also Faulkner v Faulkner , 2008 NLTD 39 (Fowler J.): I have great difficultly in accepting that to have this matter heard in either Happy Valley-Goose Bay or Wabush would have such a severe negative effect on Ms. Faulkner such that she would be set back in her emotional rehabilitation. Labrador is not a single community but a large geographical area with many separate and diverse communities.

Both Supreme Court centers are located distant from the community of Churchill Falls where the Faulkner's lived as a family. Without further convincing evidence I am not prepared to say that hearing this matter in Wabush or Goose Bay would have a greater negative effect on Ms. Faulkner than having the case

heard in any other centre within the province. [para 9] [emphasis added] [64] See also Younge v Abraham, (ON HRT): ... in the case of Empson et al vs. Cooney

(1953) Ontario Weekly Notes 925 the Court of Appeal stated that it "required strong cogentreasons", and not simply a prima facie case, for a tribunal to grant a motion for a change of venue. All the evidence that was submittedto me in favour of a change of venue was that somehow the appearance of Mrs. Younge in Sudbury would further affecther health and well-being. Without cogent medical reasons establishing such a rather unusual claim, I am not able to concludethat this amounts to "strong and cogent reasons" or "an overwhelming preponderance of convenience".

In fact, due to thepresence of a number of witnesses who live in Sudbury, and due to other reasons I will outline below, I conclude that the evidence is tothe contrary. [para 9] [65] To the extent Dr. Tibu’s anticipated “locational stress” arises, or will arise, from being in proximity to Behiels, that will be thecase whether the trial is in Edmonton or Calgary i.e. with both apparently planning to attend the entire trial. And same for difficultiescaused by her various maladies and conditions: she will have to contend with and somehow manage them wherever the trial is held. [66] Dr.

Tibu also said that driving to Edmonton would be difficult for her, given chronic back issues. She acknowledges that shedrives from Calgary to Medicine Hat and back each week, but said that she can manage a 2-hour drive but nothing longer. [67] This is a relevant consideration, but a minor one, with Dr.

Tibu having the options of travelling by bus (e.g. if the driving isthe issue i.e. not sitting) and, in any case, of taking a break mid-drive (e.g. at Red Deer) and deciding, on some weekends of the trial, toremain in Edmonton i.e. not return to Calgary every weekend. [68] On Behiels’ health needs, Alberta provided (limited) evidence of his need of certain medical and rehabilitative care,apparently in or around Edmonton. However, it provided no particulars of that care (e.g. how often received, where, at what time(

s) ofday, and for how long), how such care would or could be obtained in or around Edmonton (i.e. if the trial is held here i.e. whether suchcare is available outside regular trial days and times), or (assuming a need) whether such care, or a reasonable substitute, might beobtained in Calgary (i.e. if the trial is held there). [69] In the end, I can only conclude that, whichever city holds the trial, the non-resident party may experience less-than-idealaccess to supports, but not to the point (on the evidence) that the health factor points in any material way to either city. G. Location of counsel [70] Dr.

Tibu has alternated between having counsel (sometimes on limited-retainer basis) and self-representing. [71] For the trial, she has engaged a Toronto lawyer on a limited-retainer basis.

She said that, if the trial is in Calgary, both thatlawyer and a paralegal from his firm will be able to stay at her home, for the duration of the trial. [72] The Toronto lawyer and paralegal will have to travel and stay away from home whether the trial is in Edmonton or Calgary. [73] Behiels and Alberta are represented by an Edmonton lawyer, who has had conduct of this file for at least the last year and ahalf. [74] This factor favours Edmonton as the place of trial, with the Edmonton lawyer able to remain in his home city and the Torontolawyer and paralegal having to travel to Alberta (either city). [75] As for the financial dimension of Dr.

Tibu and her legal team sharing accommodation in Calgary, they may be able to find,and the share the cost of, shared accommodation in Edmonton. H. Trial-time availability [76] Recognizing that further pretrial steps are necessary here (which Loparco J. will likely oversee), I checked the earliestavailable eight-week-trial slots in both cities. [77] No difference exists here: both centres are booking such matters as of February 2025. I. Remote-appearance aspect [78] Dr.

Tibu stressed that appearing remotely (i.e. if the trial proceeds in Edmonton) would put her at a disadvantage, both in herability to pick up on all available clues (e.g. as to credibility) when other witnesses are testifying and, in turn, to provide the mostmeaningful (vivid, emotions-visible) testimony herself.

As well, communication between herself and her counsel would obviously bemuch easier if both are in person. [79] For the reasons outlined by Professor Lund in her discussion of remote testimony (para 16 above), I accept that remoteparticipation may be less than ideal. [80] On the other hand, so participating might allow Dr.

Tibu to remain at home (where she is obviously most comfortable) for thetrial (i.e. if permitted by the trial judge) or at least to participate from somewhere in Calgary (i.e. not have to travel to Edmonton). [81] It may be that, depending on the trial stage and the division of labour between Dr. Tibu and her counsel, she could stay inCalgary for parts of the trial e.g. participate or observe from home.

[ 82 ] In any case, as explained above and below, I am not convinced that Dr. Tibu faces material obstacles to participating at an Edmonton trial in-person. [ 83 ] Accordingly, I do not have to decide whether, on balance, participating remotely would be disadvantageous to Dr. Tibu i.e. with her able (as I see it) to participate in person. [ 84 ] It will be up to her to decide how best to participate in the trial i.e. assuming the trial judge would permit remote participation for some or all of the trial. J. Preparation of this application and Dr.

Tibu’s self-representing status [ 85 ] I earlier pointed to the absence of various evidence from Dr. Tibu. [ 86 ] I note that, per Exhibit C to Alberta’s affidavit, Dr. Tibu was assisted with the preparation of the application (to some degree) by a lawyer (Calgary-based), who I infer would have alerted her to the need for supporting evidence on (for example) her assertions of financial incapacity. VI. Conclusion [ 87 ] Considering all these factors, and particularly noting the absence of evidence corroborating Dr. Tibu’s cannot-be-in- Edmonton position, the apparent availability of emotional support from Dr.

Tibu’s dog or possibly other support measures in Edmonton, the absence of any material financial-inability-to-participate-from-Edmonton evidence, the uncertainty over the ultimate number of witnesses and how many will need to appear in person, Dr. Tibu’s lawyer and paralegal having to travel (from Toronto) anyway, Dr. Tibu’s long participation in this Edmonton action from Camrose and then Calgary, and her own endorsement, as recently as August 2021 (via the second-action statement of claim), of Edmonton as the place of trial, Dr.

Tibu has not proved that the balance of convenience requires or favours a change of venue to Calgary. [ 88 ] Accordingly, I dismiss her change-of-venue application. [ 89 ] Alberta is entitled to costs of this action under the appropriate column of

Schedule C. Heard in Edmonton, Alberta in chambers on December 19, 2023. Issued at Edmonton, Alberta on January 5, 2024. M. J. Lema J.C.K.B.A. Appearances: Andrew C. Paterson Parlee McLaws LLP for the Plaintiff / Defendant by Counterclaim and Third-Party Defendant Simona G. Tibu Self-Represented For the Defendant / Plaintiff by Counterclaim