For decades, the Rules of the Small Claims Court have provided strict guidelines on where a Plaintiff may commence an action in Ontario. Rule 6.01(1) requires that an action be commenced where the cause of action arose, or where at least one of the Defendants resides, or carries on business:
“6.01(1) An action shall be commenced,
(a) in the territorial division,
(i) in which the cause of action arose, or
(ii) in which the defendant or, if there are several defendants, in which any one of them resides or carries on business; or
(b) at the Court’s place of sitting that is nearest to the place where the defendant or, if there are several defendants, where any one of them resides or carries on business.”
Additionally, Rule 11.01(3) of the Rules of the Small Claims Court limits the ability of a Plaintiff to note a Defendant in default if the Defendant was served outside of their ordinary territorial jurisdiction:
“(3) If all the defendants have been served outside the court’s territorial division, the clerk shall not note any defendant in default until it is proved by an affidavit for jurisdiction (Form 11A) filed with the clerk, or by evidence presented before a judge, that the action was properly brought in that territorial division.”
Up until 2026, Ontario’s Rules of Civil Procedure did not have similar codified requirements. A Plaintiff commencing an action in Superior Court appeared to have broad initial discretion to commence an action in any jurisdiction in Ontario. It was the Defendant’s obligation to rebut the connection to the Plaintiff’s chosen jurisdiction on motion.
However, in January 2026, Rule 13.01.01(2) was added to the Rules of Civil Procedure. The rule, as shown below, clarifies that counsel must commence a proceeding in a jurisdiction in which there is a rational connection to the case:
“Place of Commencement
Statute or Rule Governing Place of Commencement, Trial or Hearing
13.1.01 (1) If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced at a court office in that county and the county shall be named in the originating process.
If No Statute or Rule
(2) If subrule (1) does not apply, the proceeding shall be commenced at a court office in a county with which there is a rational connection, as determined on the basis of the factors listed in clause 13.1.02 (2) (b), and that county shall be named in the originating process.”
So, what factors are set out under 13.1.02(2)(b), and how are they applied by the Courts to determine a “rational connection”? Unlike the Small Claims Court Rules, Plaintiffs are provided with a list of subjective factors which they must gauge and apply to their case, which include:
“(i) where a substantial part of the events or omissions that gave 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.”
These factors are the same factors that Defendants were always required to consider upon bringing a motion to transfer the jurisdiction of a case in Superior Court. As such, previous case law, including Firestone J.’s comments in The Toronto-Dominion Bank v The Other End Inc et al (2025 ONSC 85), provide some assistance. In that case, Firestone J. noted that the factors under 13.1.02(2)(b) of the Rules are to be applied holistically. One factor is not necessarily more important than the other, but it is not a mathematical or numerical counting exercise, either. The factors must be balanced collectively, with the purpose of determining if a transfer is in the interests of justice as a whole.
While the above factors do provide some clarity, Firestone J. also makes it clear that a principal aim of the Courts is to prevent forum shopping, especially with the introduction of virtual hearings throughout Ontario during COVID-19.
Conclusion
13.1.01(2) requires a Plaintiff to carefully consider, holistically, the factors under 13.1.02(2)(b) when choosing the appropriate jurisdiction to commence an action in Ontario.
The introduction of this rule appears to be an attempt to curb forum shopping with the rise of virtual hearings throughout Ontario. Now that Plaintiffs have access to appear at many Courts throughout Ontario virtually, there is greater reason to commence actions in jurisdictions with availability, even if there is not a rational connection to the jurisdiction. Interestingly, Firestone J. noted the following at paragraph 26, almost one year prior to the codification of 13.1.01(2):
“More broadly, while plaintiffs are generally entitled at first instance to choose where they commence proceedings, their decisions must be informed and reasonable. They do not have “carte blanche” to choose a particular venue without first considering whether the proposed Judicial Region and location has a rational connection to the matters at issue in the proceeding. In making this determination, consideration should be given to the relevant factors enumerated under Rule 13.1.02(2). Forum shopping is never appropriate.”
About the Author
Nick Kruiper is an associate lawyer at Soloway Wright LLP practicing in the areas of banking and insolvency, commercial litigation and employment law.
If you are looking for assistance with your litigation related matter, reach out to Nick Kruiper and our litigation team at solowaywright.com.
