The Ontario Superior Court: Open for Business, Closed for ‘Forum Shopping’

The introduction of virtual hearings has provided greater flexibility and access to justice for litigants across Ontario. However, because travel is no longer an issue, it has also made it easier for parties to commence litigation in regions further from their homes and businesses – sometimes even in regions that are not connected to the matter at all. This practice, known as “forum shopping,” has been a growing concern amongst judges and court staff.

Justice Firestone of the Ontario Superior Court of Justice recently commented on this issue in the decision of The Toronto-Dominion Bank v. The Other End Inc. et al., 2025 ONSC 85 (”Other End”). Justice Firestone made it clear: “The practice of forum shopping must stop.” While plaintiffs are entitled to choose where to commence proceedings, that choice must be informed, reasonable and rationally connected to the matters at issue. Delay in a particular forum, on its own, is not a valid basis for choosing one forum over another.

The Issue in Other End

The plaintiff, The Toronto-Dominion Bank (“TD”) sought summary judgment in relation to unpaid loan and credit card amounts owed by the defendants, The Other End Inc. and its principal. That summary judgment motion was argued on September 27, 2024, but was ultimately adjourned by Justice Leach pending the hearing of this motion by the defendants to transfer the proceedings from London, Ont., to Toronto.

Implicit in both the 2024 and 2025 decisions is that TD commenced proceedings in London because the matter could be heard and disposed of sooner in London than in Toronto. However, TD ultimately consented to the transfer motion, so any arguments for their initial position were not considered by Justice Firestone.

Regardless, in his decision to allow the transfer, Justice Firestone took the opportunity to broadly comment on the practice of forum shopping.

The Test on a Transfer Motion

Generally, plaintiffs may decide where to commence proceedings. If the defendants do not raise any issue with the forum, then the matter may proceed. However, defendants may move to transfer the matter to a new forum under Rule 13.1.02 if the court is satisfied that: (a) a fair hearing cannot likely be held in the county where the proceeding was commenced; or (b) a transfer is desirable in the interests of justice. The first branch was not applicable in this case.

Therefore, Justice Firestone conducted a holistic assessment of the factors listed under Rule 13.1.02(2)(b) to determine whether a transfer was desirable in the interests of justice. According to the rule, if the plaintiff’s initial choice is reasonable, the onus is on the defendant to demonstrate that their proposed choice of venue is significantly better. Relevant factors in determining the appropriate venue include:

• where a substantial part of the events or omissions that gave rise to the claim occurred;
• where a substantial part of the damages were sustained;
• where the subject-matter of the proceeding is or was located;
• any local community’s interest in the subject matter of the proceeding;
• the convenience of the parties, the witnesses and the court;
• whether there are counterclaims, crossclaims, or third or subsequent party claims;
• any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits;
• whether judges and court facilities are available at the other county; and
• any other relevant matter.

The Transfer Was Desirable in the Interests of Justice

After applying the factors holistically to the factual matrix, Justice Firestone found that the dispute had no rational connection to London and that Toronto was the proper venue.

All parties and their counsel were based in Toronto (with the exception of TD’s counsel being located in Vaughan, Ont.). Furthermore, all dealings took place in Toronto, and any damages occurred in Toronto, as damages related to monies are presumed to take place where the plaintiff is located. Lastly, given that this was a private dispute, there was no community interest in the subject matter and, even if there was, that interest would be in Toronto.

This was a contested motion which, according to the Practice Directions, would normally be heard in person by a judge alone. The parties also did not consent to, nor did the court approve, a virtual trial. Therefore, it would be easier for the parties to proceed in Toronto.

Furthermore, since counsel are not required to provide affidavit evidence about the availability of judges and court facilities, Justice Firestone consulted with the Regional Senior Judge for the Southwest Region to gather evidence. It was found that in London, it would not be faster to schedule a short non-jury trial, but earlier dates for long motions were available.

In the prior motion, TD argued that further delays caused by this transfer motion would prejudice them. However, Justice Firestone agreed with Justice Leach in that forum shopping also places a burden onto the region, which may harm the ability of those with matters more closely connected with the region to have their disputes determined in a reasonable time.

Takeaways

Due to the widespread availability of virtual hearings, defendants may be more likely to consent to litigating outside of their home region. However, this case serves as a reminder to plaintiffs that, if there is no rational connection between the forum, issues and parties, defendants still have the ability to request to transfer the proceeding to another region. Responding to these transfer motions can result in significant, unexpected expenses and delays.

Therefore, in considering where to commence litigation, plaintiffs should choose a venue with a rational connection to the dispute or one where they know the defendant will attorn or has attorned to. Even if a defendant consents, plaintiffs should still be cautious. A regional senior judge may, on their own initiative, make an order transferring the proceeding to another county, albeit in the same region, pursuant to Rule 13.1.02(4).

The Litigation & Dispute Resolution Group at Aird & Berlis LLP will continue to monitor developments with respect to civil practice and procedure. Please reach out to the authors or a member of the group to learn more regarding strategic advantages for your litigation needs.