Rechik v Michie, 2017 MBCA 109

Citation: Rechik v Michie, 2017 MBCA 109 Date: 20171115 Docket: AI17-30-08841 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN : PETER STEVEN RECHIK ) V. R. Jhanji ) for the Appellant (Plaintiff) Appellant ) ) L. W. Donald and - and - ) S. E.

Arksey ) for the Respondent KENT TYLER MICHIE ) ) Appeal heard: (Defendant) Respondent ) September 18, 2017 ) ) Judgment delivered: ) November 15, 2017 MACINNES JA [ 1 ] The issue on this appeal is whether the plaintiff’s action which he commenced in the Court of Queen’s Bench (Queen’s Bench), Winnipeg Centre, and which, on requisition, the deputy registrar transferred to the Brandon Centre, should be transferred back to Winnipeg.

Background [ 2 ] While I will refer briefly to the underlying basis for this litigation, this appeal is not about the merits of the action, but is only about the situs of the proceedings. [ 3 ] The plaintiff had been married since December 1983 to one Phyllis Hayhurst, who passed away in 2011. The plaintiff and his wife resided together in a home (the property) in Winnipeg. On her death, her son acquired ownership of the property by right of survivorship from his late mother. In turn, the son died in June 2012.

The defendant, who was the son’s second cousin, acquired title to the property in October 2012, by way of a bequest from the son. [ 4 ] In June 2015, the defendant’s lawyer gave the plaintiff notice to vacate the property by the end of August 2015. The plaintiff refused to vacate and registered a caveat against the property. Ultimately, on October 28, 2015, the plaintiff issued a statement of claim in the Queen’s Bench, Winnipeg Centre against the defendant.

As well, he obtained a pending litigation order in respect of the property which he registered in the Winnipeg Land Titles Office. [ 5 ] The litigation involves questions as to the validity of a spousal agreement between the plaintiff and his late wife, whether or not the plaintiff has a life interest in the property, whether the Will of his late wife’s son is valid insofar as it pertains to his bequest of the property to the defendant and other issues, none of which is before the Court on this appeal. [ 6 ] On November 17, 2015, pursuant to a requisition by the defendant, the deputy registrar of the Queen’s Bench, Winnipeg Centre, transferred the action to the Brandon Centre.

On March 10, 2016, the defendant moved for an order striking the statement of claim. On March 16, 2016, the plaintiff moved for an order setting aside the transfer of the action from the Winnipeg Centre to the Brandon Centre and for a direction to transfer the proceedings back to the Winnipeg Centre. A Master heard both motions. He ordered that the statement of claim be struck without leave to amend. Having done so, he did not deal with the plaintiff’s motion to set aside the transfer to the Brandon Centre and to direct that the action be returned to the Winnipeg Centre.

[ 7 ] The plaintiff appealed the order of the Master. He asked the appeal judge (the judge) to set aside the Master’s order striking the statement of claim and “[t]o restore the action for a determination, along with the motion on the transfer of proceedings, back to Winnipeg Centre”. [ 8 ] The judge allowed the appeal setting aside the Master’s order. She varied it by striking out the statement of claim, but with leave to amend within 45 days. [ 9 ] However, the judge dismissed the plaintiff’s motion for transfer of proceedings back to the Winnipeg Centre. It is from that decision that the plaintiff appeals.

The Appeal [ 10 ] Determination of this appeal will engage consideration of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 (the QB Rules ) r 14 which is entitled “Commencement and Transfer of Proceedings”. The provisions of r 14 relevant to this appeal are: WHERE STATEMENT OF CLAIM TO BE FILED 14.04 A statement of claim may be issued and filed at any administrative or judicial centre except as otherwise provided by statute and subject to the transfer provisions of this Rule. . . .

TRANSFER OF ACTIONS Transfer by defendant 14.08(1) Where an action is commenced in a centre other than the judicial centre nearest the place, (

a) where the cause of action, in whole or in part, arose; (

b) where a defendant resided at the time the proceedings were commenced; or (

c) where a defendant carried on business at the time the proceedings were commenced; a defendant may, by requisition, require the registrar at the cent[re] in which the action was commenced to transfer the action to the judicial centre nearest one of the places referred to in clauses (a), (

b) or (c). Exception 14.08(2) Subrule (1) does not apply, (

a) where the action has already been transferred to a judicial centre under subrules (1), (3) or (6); or (

b) with respect to the transfer of actions between centres within the City of Winnipeg. . . . Content of requisition

14.08(4) The requisition under subrules (1) and (3) shall be in Form 4E and shall, (

a) name the judicial centre to which the action is to be transferred; (

b) if the requisition is pursuant to subrule (1), identify the clause under subrule (1) being relied upon and describe the location of the place in question; and (

c) be filed in the centre where the court file is located. Requisition 14.08(5) A requisition under subrule (1) shall be filed prior to the close of pleadings, and a copy thereof shall, upon filing, be served on all other parties. Transfer ordered by court 14.08(6) Notwithstanding subrule (1), the court may on motion and at any time order that an action be transferred to any judicial centre which better serves the convenience of the parties.

Registrar to forward court file 14.08(7) Upon receipt of a requisition in compliance with subrules (1) or (3), or an order under subrule (6), the registrar shall forthwith forward the court file to the judicial centre named in the requisition or order. Standard of Review [ 11 ] The plaintiff’s notice of appeal to the judge as to relief sought was poorly worded. Relevant to this appeal, it sought restoration of the motion which he had made before the Master (with which the Master did not deal) for the transfer of the proceedings back to the Winnipeg Centre. It did not seek determination of that motion.

Nonetheless, as is evident from the judge’s order, the motion for transfer of proceedings to the Winnipeg Centre was determined by its dismissal. [ 12 ] Ordinarily, a judge’s decision in respect of such a motion would be a discretionary decision and the standard of review would be one of deference, such that this Court would be justified in intervening in a judge’s decision only if the judge misdirected his/herself or if his/her decision was so clearly wrong as to amount to an injustice.

See Homestead Properties (Canada) Ltd v Sekhri et al , 2007 MBCA 61 . [ 13 ] In her reasons for decision, the judge stated as follows: I am giving my decision on the two matters involving [the plaintiff] and [the defendant]. The first is an appeal by [the plaintiff] of the Master’s decision to strike his statement of claim without leave to amend and discharge a pending litigation order that was registered against title to the property. The second matter is an application filed by [the defendant] seeking a writ of possession for the property as well as occupation rent from [the plaintiff].

She did not identify the transfer motion as a matter before her. [ 14 ] After giving what she described as a brief

summary of the two matters that she identified involving the parties, she stated the following: Accordingly I make the following order:

1. The order of the Master is set aside. 2. The statement of claim is struck for failing to disclose a reasonable cause of action with leave to amend. A new proper statement of claim must be filed within 45 days. 3. The claim will continue to be heard in the Brandon Centre. Queen’s Bench Rule 14.08(1) provides that where an action is commenced in a centre other than the judicial centre nearest the place where a defendant resided at the time the proceedings were commenced, a defendant may require the registrar to transfer the action to the nearest centre.

This is exactly what [the defendant] did and he was entitled to do so.

As well, the formal order which followed upon her reasons and was signed on April 11, 2017, provided in part: “ The plaintiff’s motion for transfer of proceedings back to Winnipeg Centre is dismissed.” [ 15 ] It is apparent from her reasons for decision that the judge did not address the plaintiff’s motion to transfer the action back to the Winnipeg Centre or, at the very least, did not direct her mind to r 14.08(6) and thus, did not consider the test for transfer under that rule, namely, the transfer of an action to any judicial centre which better serves the convenience of the parties.

Either situation amounts to misdirection. Accordingly, this Court owes no deference to the judge’s decision and may proceed to consider the question afresh. Analysis [ 16 ] The QB Rules provide, in separate rules and in separate sections of the rules, for venue of proceedings and for venue of trial. [ 17 ] Rule 14 pertains to the venue for proceedings while r 47 pertains to the venue for trial. While it is true that, in most instances, the proceedings and trial do take place in the judicial centre where the statement of claim is issued, transfer may occur.

Further, the transfer of proceedings under r 14 does not preclude the transfer of the place of trial under r 47. [ 18 ] The current QB Rules which took effect March 1, 1989, were preceded by rules enacted in 1986, which replaced rules that became effective December 24, 1939. [ 19 ] Relevant to this appeal, I note that in the Manitoba, King’s Bench Rules of 1939 (the 1939 Rules ), r 7 provided: 7.

(1) The statement of claim shall be issued in the judicial district in which the cause of action wholly or in part arose, or in which the defendant, or any one of several defendants, resides or carries on business at the time the action is brought, except that where the action is for, or includes a claim for, the recovery of land the statement of claim shall be issued in the judicial district in which the land, or any part thereof, is situate. 7.

(2) In all other cases the statement of claim may be issued in any judicial district. [ 20 ] In the Manitoba, the Queen’s Bench Rules , Man Reg 115/86 (the 1986 Rules ), r 7 provided: 7(1) A statement of claim may be issued in any administrative centre of the court. 7(2) Notwithstanding the administrative centre in which a statement of claim is issued, if it is issued in an administrative centre other than (

a) the administrative centre nearest the place where the cause of action, in whole or in part, arose; or (

b) the administrative centre nearest the place where the defendant or one of several defendants resides at the time the action is commenced; or

(

c) the administrative centre nearest the place where the defendant or one of the several defendants carries on business at the time the action is commenced; [T]he defendant has the right, upon request, to have the action transferred to one of the administrative centres referred to in clause (a), (

b) or (c). . . . 7(4) A request for a transfer made under sub-rule (2) shall be made in writing and shall indicate whether the request is made pursuant to clause (2)(a), (

b) or (

c) and shall be addressed to the deputy registrar of the administrative centre in which the statement of claim is issued. . . . 7(6) Upon the deputy registrar receiving a request for transfer of an action, the action shall be transferred. 7(7) Any transfer to a different administrative centre, other than a transfer pursuant to sub-rule (2), whether at the instance of the plaintiff or the defendant, shall be by order of the court, pursuant to a notice of motion and on such terms as may be just. [ 21 ] There is some similarity between r 7 of the 1939 Rules and the 1986 Rules , although the latter have enlarged the scope and effect of r 7 of the 1939 Rules .

The current QB Rules which apply to this litigation have added to the 1986 Rules , but in my view, their effect is substantially the same. The regime is as follows: 1. The plaintiff can sue in any administrative or judicial centre in the province except as otherwise provided by statute and subject to the transfer provisions of r 14 (r 14.04); 2. The defendant, in three named circumstances, may require the registrar at the centre where the action was commenced to transfer the action to another judicial centre (r 14.08(1)); 3.

This step (requisition for transfer) must be taken before the close of pleadings (r 14.08(5)); and 4. Notwithstanding the forgoing, the court may on motion at any time, order that the action be transferred to any judicial centre which better serves the convenience of the parties (r 14.08(6)). [ 22 ] There has been little judicial comment in Manitoba in respect of r 14 of the QB Rules , and, it appears, none by this Court. However, Sandney v Sandney , 1998 CarswellMan 289 (QB) , was a case in which both rr 14.08(1) and 14.08(6) were considered.

There, the petitioner, wife, resided in the Brandon Centre where she petitioned for divorce. By requisition, based upon his residing in Portage la Prairie, Manitoba, the respondent, husband, caused the deputy registrar in Brandon to transfer the file to the Portage la Prairie Centre. The husband then filed an answer to the divorce petition there.

The wife moved in Portage la Prairie for an order that the action be returned to the Brandon Centre, asserting that the requisition for the transfer of the file was not properly done and served, and that the proceedings instituted in the Brandon Centre were properly instituted where the cause of action arose. The parties were directed by Clearwater J to address, as well, r 14.08(6). [ 23 ] Clearwater J concluded that subrules (a), (

b) and (

c) of r 14.08(1) were to be read disjunctively and determined that, in the circumstances of the case before him, the action should not have been transferred on requisition. He concluded that the divorce action was properly commenced in the Brandon Centre where the cause of action arose and wrote (at para 12): As long as an action or proceeding, on the face of the pleading commencing it, is properly started in any one of the judicial centres as described in the circumstances of either (a), (

b) or (c), then the action may not be transferred on requisition. The litigant wanting the action transferred should proceed under Rule 14.08(6). [ 24 ] Clearwater J then went on to consider r 14.08(6).

Having made the finding that he did in respect of r 14.08(1)(a), he determined that it was “for the husband to establish, on balance, that the convenience of the ‘parties’ would be better served if the action was transferred to Portage la Prairie” (at para 18). [ 25 ] As well, he concluded that the words of r 14.08(6) “‘which better serves the convenience of the parties’ . . . should be interpreted and applied as our court regularly applies the ‘balance of convenience’ test in interim or interlocutory applications for

injunctive or other relief” (at para 16). [ 26 ] I agree with Clearwater J’s

interpretation and decision respecting r 14.08(1) and with the outcome of the case, namely that the proceedings be transferred back to the Brandon Centre. However, I do not agree, with respect, with his conclusion that the words of r 14.08(6) “which better serves the convenience of the parties” should be interpreted and applied as the court regularly applies the “balance of convenience test” in interim or interlocutory applications for injunctive or other relief. [ 27 ] Another Manitoba case that was referred to us was Simplot Canada Limited v Dresser-Rand Company et al , 2007 MBQB 209 .

One of the defendants moved to have the file transferred from the Brandon Centre to the Winnipeg Centre. The plaintiff objected. Menzies J wrote (at paras 18-19): In my opinion, Rule 14.08 (6) should be read in the context of the entire Rule 14.08, and specifically Rule 14.08 (1). A defendant has the right to require a transfer of an action by simple requisition if the action has been commenced in a centre other than where the cause of action arose, the defendant resides or the defendant carries on business.

In effect, the defendant can require the litigation to be transferred to a centre with a relevant connection to the action which has been commenced. In a contested application to transfer a file between judicial centres, consideration should be given to which of the proposed judicial centres maintain a logical connection to the cause of action. The connection to a judicial district should not be the deciding factor, but nevertheless it is one of a number of important factors to be considered. [ 28 ] Menzies J there concluded that the appropriate place for the case to continue was the Brandon Centre.

While I agree with his decision in the circumstances of that case, the motion which he heard did not pertain to r 14.08(1), but was simply a motion for transfer under r 14.08(6). [ 29 ] As well, I would clarify, with respect, his statement (at para 18): “ A defendant has the right to require a transfer of an action by simple requisition” (emphasis added). [ 30 ] I note from Menzies J’s reasons that he was well aware of Sandney and therefore, of Clearwater J’s

interpretation of r 14.08(1). [ 31 ] As well, while r 7(2) of the 1986 Rules used the language “the defendant has the right, upon request, to have the action transferred”, the language of the current r 14.08(1) provides that “a defendant may, by requisition, require the registrar . . . to transfer the action”. [ 32 ] Thus, the defendant’s entitlement is not a “right”, but a “permission” to proceed by requisition if he/she so wishes, but only if the action, on the face of the statement of claim, has been commenced in a centre other than any one of subrules (a), (

b) or (

c) of r 14.08(1). [ 33 ] In my opinion, the intent of r 14.08(1) is that in a case where an action has been commenced in a centre other than the judicial centre nearest the place where the cause of action arose, in whole or in part, or the defendant resided or carried on business at the time the proceedings were commenced, the defendant may by a simple process, a requisition, require the registrar to transfer the action to the judicial centre nearest one of such places. [ 34 ] In such a circumstance, the decision for the registrar is an administrative decision.

The plaintiff’s remedy, if dissatisfied with the transfer on requisition, is to move under r 14.08(6) for a transfer of the proceedings. [ 35 ] In my view, r 14.08(6) permits any party, including the plaintiff, to move the court for an order that an action be transferred to any judicial centre which “better serves the convenience of the parties”.

This of course would require a decision of a Master or motion judge and the exercise of his/her discretion to determine, on evidence adduced, whether there is a judicial centre which better serves the convenience of the parties than that where the proceedings are located. [ 36 ] In making that determination, a Master or motion judge may consider the merits of the case, although such consideration should be a very cursory one, particularly where the motion follows upon transfer by requisition where no defence has been filed. [ 37 ] In any case, however, a motion under r 14.08(6), and the supporting evidence provided by affidavit, should focus upon the practical considerations of access to justice, including: • The residence of parties and/or witnesses who may be required to participate and their cost and convenience in so doing; • Access to evidence required in the proceedings; • The cost of and expedition with which the proceedings can move forward, including such things as interlocutory motions, attendances on cross-examination or for examination for discovery; • Whether there is a real or particular connection of the situs of the proceedings to the cause of action; and • To a lesser extent, the convenience of counsel.

Conclusion [ 38 ] In this case, the action should not have been transferred by requisition from Winnipeg to Brandon given the proper

interpretation of r 14.08(1) and the fact that the action was commenced in the judicial centre nearest where the cause of action arose. [ 39 ] If the defendant wanted the action transferred to Brandon, he should have moved under r 14.08(6). [ 40 ] As regards the plaintiff’s motion under r 14.08(6), I note that the plaintiff resides in Winnipeg, he and his wife resided there on the property until her death, the spousal agreement in question was drafted by a lawyer who resides in Winnipeg and was executed there.

The Will in question was probated in Winnipeg, a witness who swore an affidavit on behalf of the defendant resides there, as do the sons of the plaintiff who may be witnesses in the proceedings. [ 41 ] The only connection to Brandon is that the defendant resides and carries on business in Rapid City, Manitoba, located within the Brandon Centre and about 40 kilometers from Brandon.

But nothing in this case is about the defendant’s residence or business. [ 42 ] The plaintiff has thus established that the Winnipeg Centre better serves the convenience of the parties in respect of the proceedings in this action. [ 43 ] Accordingly, the plaintiff’s appeal is allowed. The action is to be transferred immediately to the Winnipeg Centre. [ 44 ] Costs of the appeal will be costs in the cause as the action continues. JA I agree: JA I agree: JA