When will a court consider the location of expert witnesses as a factor in determining the venue of a trial?

In Rowling v. Crotta, supra, the court held that in considering the question of anticipated witnesses there must be some real ability to assess the course of the litigation before a decision should be made. Kennedy J. stated at page 338: Further, the court cannot be expected to evaluate the preponderance of the balance of convenience based on the location of expert witnesses a party may or may not retain sometime in the future. To do so would be to engage in undue speculation with respect to the course and conduct of the litigation. Instead, the court must examine and consider the actual circumstances surrounding the parties, the witnesses and the action when assessing the balance of convenience with respect to the venue of the trial

In Laurin v. Favot, supra, the court concluded that the balance of convenience favoured North Bay as opposed to Toronto, because many of the witnesses would come from North Bay which would create a financial hardship for the plaintiffs to hold the trial in Toronto. Furthermore, the court found that two other considerations could contribute to a decision about venue; firstly, there must be some rational connection between the facts of a case, and the place where it is to be tried; secondly, the availability of court resources. The evidence indicated that the location of the residence of the parties had absolutely no connection to Toronto and that Toronto had a substantial backlog of cases.

In addition to the above considerations, the question of fairness, or more specifically, the lack of fairness that might result from a decision about a change of venue, appears to be a consideration found in the jurisprudence. In Ridley v. Ridley, [1989] O.J. No. 1121 (O.H.C.), a choice of venue that resulted in a party’s inability to be present at the trial for financial reasons was found to touch on the fairness of the trial and should be avoided. This would also be consistent with the directive found in Rule 2(3) of the Family Law Rules.