Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff initiated a mortgage enforcement action in Halton Region despite the mortgaged property being located in Owen Sound.

• The court examined whether venue selection under the Practice Direction aligned with the fairness principles in the Rules of Civil Procedure.

• Justice Kurz condemned forum shopping, emphasizing its burden on judicial resources and impact on procedural justice.

• Despite improper venue selection, the court granted possession due to procedural timing and previous steps already taken in the matter.

• The ruling reasserts the court's inherent jurisdiction to address unfair procedural conduct, especially where it disadvantages unrepresented defendants.

• The plaintiff was barred from recovering any motion-related fees or costs due to the procedural concerns raised.

Background and filing venue controversy

In BFT Mortgage Services Inc. v. Getz, the plaintiff mortgage lender sought possession of a residential property in Owen Sound after obtaining a default judgment against the defendant, Desiree Getz, for mortgage default. However, the action had been filed in Halton (Milton), a venue with no factual or geographic connection to the property or the parties. The discrepancy raised judicial concern about forum shopping—a practice where parties file cases in a venue believed to be more favorable or convenient for them, regardless of its relevance to the dispute.

Justice Kurz, reviewing the case in writing, challenged the procedural appropriateness of bringing the claim in Halton. He noted the geographic distance (over 160 km) between the mortgaged property and the Halton courthouse and found that the choice of venue imposed undue hardship on the self-represented defendant. The plaintiff defended the choice based on a Practice Direction for the Central West Region, which allowed mortgage proceedings to be initiated in Brampton, Milton, Orangeville, or Owen Sound.

Analysis of procedural fairness and forum shopping

The court held that even where the Practice Direction permitted a choice among several venues, such discretion must be exercised in accordance with the overarching principles of the Rules of Civil Procedure—namely, justice, proportionality, and cost-effectiveness. Justice Kurz emphasized that initiating proceedings far from a defendant’s home, without justification, could inhibit their ability to defend the action, particularly where the defendant may not have legal representation.

Citing prior judicial criticisms of similar venue selection practices, including decisions in The Toronto-Dominion Bank v. The Other End Inc. and Calloway REIT v. MYJKL Investments Ltd., the court reiterated that forum shopping unfairly burdens certain courts and undermines access to justice for defendants.

Outcome and judicial response

Although Justice Kurz agreed that the proceeding had been improperly filed in Halton, he did not transfer the case to Owen Sound. He reasoned that doing so at this late stage, after considerable delay and procedural activity, would not serve the interests of justice. Instead, he allowed the plaintiff to proceed with enforcement and granted leave to issue a writ of possession.

However, as a consequence of the improper venue selection and the strain it placed on judicial resources, the court prohibited the plaintiff from recovering any legal fees or costs related to the motion.

Conclusion

The Ontario Superior Court of Justice granted possession to the mortgage lender but delivered a strong condemnation of forum shopping practices in mortgage litigation. The decision reinforces the importance of selecting appropriate venues consistent with procedural fairness and the equitable treatment of unrepresented litigants. It also affirms the court’s inherent jurisdiction to curtail litigation conduct that frustrates the administration of justice.