Berger, Rowbotham and Greckol JJA

3.3: Determining the appropriate judicial centre
3.5: Transfer of action

Case Summary

The Defendant’s Application to transfer divorce proceedings from Calgary to Edmonton was dismissed, and he appealed. The Alberta Court of Appeal considered Rule 3.3 in the context of determining the issue of who bore the onus of establishing that the Plaintiff’s choice of venue was reasonable.

The Court noted that Rule 3.3 provides that the appropriate judicial centre is either: (a) the closest judicial centre, by road, to the Alberta residence or place of business of all the parties, or (b) if a single judicial centre cannot be determined, the closest judicial center to the party commencing the Action. The Court stated that, if the Plaintiff’s selection of judicial centre is in compliance with Rule 3.3 then the onus of proving the Plaintiff’s choice was unreasonable is on the Defendant; however, if the Plaintiff’s selection does not comply with Rule 3.3 then the onus shifts to the Plaintiff.

The Court found that the Plaintiff’s selection of Calgary was not in compliance with Rule 3.3. As such, the onus shifted to the Plaintiff to justify the reasonableness of her selection of the judicial centre. The Court referred to leading authority which provided that reasonableness is determined on the balance of convenience. The factors that the Court may consider include: (a) the number of parties or witnesses in the current and proposed judicial centres; (b) the nature of the issues in the lawsuit; (c) the relationship between the parties in respect of the issues in the lawsuit; (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.

The Court applied the factors to the facts and allowed the Appeal, concluding that the appropriate judicial centre was Edmonton. The Court outlined two different approaches for transferring the Action available to the Defendant: (1) the Defendant could apply to have the Action transferred under Rule 3.5, and (2) the Defendant could apply for a Declaration that the Action was not commenced in compliance with Rule 3.3 and, then the Defendant could apply to transfer the Action to a different judicial centre.

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