SOBEY’S CAPITAL INCORPORATED v GULF & PACIFIC EQUITIES CORP, 2018 ABQB 151
3.3: Determining the appropriate judicial centre
3.5: Transfer of action
4.14: Authority of case management judge
Gulf & Pacific Equities Corp., one of a number of Defendants, applied before Feehan J. as the Case Management Justice, to have the Action transferred from Calgary to Edmonton pursuant to Rules 3.5 and 4.14. No Affidavit was filed in support of the Application. The Plaintiff resisted the Application on the grounds that the Applicant had not put forward the required evidence; the Parties had an agreement that no steps would be taken in the Action without reasonable notice; and that the Plaintiff might bring an Application for Summary Judgment, which would be more conveniently brought in Calgary.
Justice Feehan, referring to Regular v Regular, 2016 ABQB 570 (CanLII) (“Regular”), stated that the test for transferring an action is whether the balance of convenience favors transferring the action. The factors to be considered when assessing the balance of convenience are:
(a) the number of parties or witnesses in each judicial centre;
(b) the nature of the issues in the lawsuit;
(c) the relationship between the parties in respect of those issues;
(d) the parties’ respective financial resources;
(e) the stage of proceedings;
(f) the convenience of location for pre-trial motions; and
(g) the location of relevant assets.
The latter two factors are relevant but of lesser weight. Feehan J. noted that there are two procedures that may be used to transfer an action from one judicial centre to another. A defendant may apply for a Declaration that the action was not commenced in the correct judicial centre in compliance with Rule 3.3 and then, once the Declaration is received, apply to have the action transferred to the judicial centre in which it should have been commenced. Alternatively, an applicant may apply to have an action transferred pursuant to Rule 3.5 because the balance of convenience favors a different judicial centre. When the application is made under Rule 3.5, the onus is on the applicant to prove that the balance of convenience favors transferring the action.
Justice Feehan applied the factors set out in Regular and observed that neither party submitted evidence regarding the location of witnesses, the location of assets, or the Parties’ financial positions. As a result, Feehan J. decided the Application based on the number of Parties in the Action, the nature of the issues, the relationship between the Parties, the stage of the proceedings, and the convenience of the location for pre-Trial motions. Feehan J. held that the balance of convenience favored transferring the Action from Calgary to Edmonton. His Lordship noted that four related matters were commenced in Edmonton. As such, the Action would be case managed together in Edmonton and would proceed to Trial together to be heard by the same Trial Judge.View CanLII Details