Executive Summary: Key legal and evidentiary issues

• Whether this breach of contract claim should be transferred from Newmarket to Thunder Bay under Rule 13.01.02

• Determining where the substantial part of the events giving rise to damages occurred

• Assessing convenience of witnesses, parties, and the court in selecting the trial venue

• Evaluating judicial availability and scheduling options between the two locations

• Considering fairness where a company providing services in Northwestern Ontario resists trial there

• No final ruling on the breach of contract claim; only a procedural decision on venue

Facts of the case

Don Anderson Haulage Limited (DAHL) was retained by Wilco Contractors Superior Inc. (Wilco) to transport large precast girders from Winnipeg to Marathon, Ontario. Wilco alleges that DAHL’s deliveries were late, which triggered crane standby time, idle labour, and lost productivity. It also alleges DAHL used smaller trailers than those quoted, damaged girders in transit, and overbilled for escort services. Wilco made a partial payment of approximately $288,000. DAHL sued Wilco for $95,440.13 after Wilco withheld further payment, claiming a right of set-off for its alleged losses. The claim was commenced under Rule 76 (Simplified Procedure) in Newmarket.

Outcome

The motion before Justice Fitzpatrick was brought by Wilco, seeking to transfer the proceeding from Newmarket to Thunder Bay. The court reviewed all nine factors under Rule 13.01.02(2)(b). It found that the substantial part of the events giving rise to damages occurred in Northwestern Ontario, particularly at the Marathon job site. The location of the subject matter and damages also supported Thunder Bay. Witness convenience weighed in favour of Thunder Bay, where all of Wilco’s witnesses are located. DAHL’s witnesses were based in various parts of Southern Ontario, with little connection to Newmarket. The court also considered judicial availability and the broader fairness of requiring trial where services were performed. Holistically, the court determined that most factors supported transferring the case. An order was made transferring the action to Thunder Bay. As this was a procedural motion, no final ruling has been made on the breach of contract claim itself. Wilco was successful on the motion and entitled to partial indemnity costs, with submissions on costs to follow.