April 20, 2018

Where does one commence a legal proceeding? When can one transfer a proceeding to one’s own hometown? These are simple enough questions, but with answers that may surprise you. The recent Ontario Superior Court of Justice decision of Estate of Byung Sun Im, deceased, 2018 ONSC 2223, set out the answers clearly.


Byung Sun Im (the “Deceased”) lived in Toronto until the day she died. She left a sizeable estate, including two properties there.

The Deceased’s estate trustee, Hyang-Bin Im (“Helen”), resided in Toronto. Following the Deceased’s, Helen proceeded in the normal course to apply for a Certificate of Appointment of Estate Trustee, which was issued in Toronto.

Not everyone was happy with how Helen administered the estate. One such malcontent was Tae-Bin Im (“Toby”), a beneficiary of the estate and a (presumably) proud resident of the city of Brantford. Toby commenced an action against Helen in Brantford seeking, among other things, her removal as estate trustee.

Helen responded by bringing a motion to have Toby’s action transferred to Toronto pursuant to subrule 13.1.02(2) of the Rules of Civil Procedure. Helen argued that the forum of convenience was Toronto given that the Deceased died in Toronto and the fact that most of the allegations being pursued against Helen related to her conduct and work as estate trustee, which also occurred in the Toronto. Helen further argued that Toby’s grievances would be more appropriately dealt with on the estate list in Toronto.

Toby, for his part, argued that there was no basis for transferring his proceeding to Toronto. He argued that it was properly commenced in Brantford and that Helen had been unable to cite any rule or statute which required that it be commenced in any particular jurisdiction.

In reply, Helen agreed there were only two types of estate proceedings that are required to be commenced in a particular location – the first being an application for Certificate of Appointment of Estate Trustee under subrules 74.04 or 74.05 (required to be commenced in the jurisdiction in which the deceased resided at the time of their death), and the second being a will challenge.[1] Helen further agreed that Toby’s action did not fall into either of those categories. However, Helen pointed out that subrule 13.1.02(2) allowed an action to be transferred from one jurisdiction to another on the basis of convenience.


Subrule 13.1.02(2) states:

“…[t]he court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a) that it is likely that a fair hearing cannot be held in a the county where the proceeding was commenced; or

(b) that a transfer is desirable in the interest of justice, having regard to;

(i) where a substantial part of the events or omissions that give rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses, and the court,

(vi) whether there are counterclaims, crossclaims or third or subsequent party claims,

(vii) 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,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter.

As Helen conceded that a fair hearing could in theory be held in Brantford, the main issue became whether the transfer of Toby’s action would be “desirable in the interest of justice” having regard to the above factors.

The Court proceeded to consider the parties’ arguments and the relevant case law. The Court held that the application of subrule 13.1.02(2) is fact specific and must include a balancing of all of the factors outlined to ensure that any transfer granted is desirable and in the interest of justice. The Court further held that plaintiffs (in this case Toby) have a prima facie right (i.e. accepted as correct until proven otherwise) to select the venue for their action. The onus is on the party challenging the chosen jurisdiction to show that it is “in the interest of justice” to have the action transferred.

Although the Court accepted many of the points raised by Helen, the Court placed a heavy emphasis on the fact that significant procedural steps in Toby’s action had already taken place, in Brantford, before Helen brought her motion to transfer. Examinations, documentary production, and scheduling and accounting issues had all been dealt with, in Brantford. Moreover, the Brantford Court had issued orders for the production of appraisals, the transfer of assets to the beneficiaries, and interim distributions (again, all of this took place in Brantford).

After applying all of the factors set out in subrule 13.1.02(2) to the facts of the case, the Court held that Helen had not met the test of convenience and agreed with Toby that the action remain in Brantford. In particular, the Court held that transferring the action to a new jurisdiction at this juncture would hinder the expediency of the proceeding. The interest of justice, then, did not require that the action be transferred to Toronto and Helen, at least for the time being, was stuck in Brantford.

[1]           See, however, the decision of Brown J. (as he then was) in Pearsall Estate (Re), 2009 CanLII 25140 at para. 6 where his Honour stated that he was aware of only one type of proceeding mentioned in the Estates List Practice Direction which was required to be commenced in a particular county: an application for a certificate of appointment of estate trustee.