You have been dismissed from your employment with your former employer, whose headquarters are in a different province. Your tenure was in Ontario out of a branch office, and your employment contract says that the laws of Ontario govern any disputes arising from your employment. You should sue in Ontario, right? Maybe not!
Where litigation should proceed is based on whether a court has jurisdiction simpliciter over the matter. Jurisdiction simpliciter is the place that is rationally connected to the matters at issue.
Jurisdiction simpliciter is presumed.
A party may challenge this, and a court will review the following “presumptive connecting factors” to determine if it has jurisdiction:
- the defendant is domiciled or resident in the province,
- the defendant carries on business in the province,
- the tort was committed in the province, and
- a contract connected with the dispute was made in the province.
This answer here seems straightforward: your former employer carries on business, and you suffered your damages here. However, like many things in the law, the obvious answer may not be the correct one. As we always say, “it depends”.
Note that the last presumptive connecting factor is whether “a contract connected with the dispute was made in the province”. A contract is formed in the location where the offeree’s acceptance of the offer is communicated to the offeror.
It is probable that you sent your signed employment contract to your employer at its headquarters, outside of Ontario. The contract was formed outside of Ontario. This means that the location of your former employer’s headquarters, where the contract was formed, is jurisdiction simpliciter.
Seems far-fetched? It is not – the Ontario Superior Court of Justice reviewed similar facts in the 2014 decision of Christmas v Fort MacKay. Even with language in the employment contract that it was governed under the laws of the Province of Ontario, receipt of the executed employment contract in Alberta was enough to find jurisdiction simpliciter there. The original litigation, in Ontario, was stayed.
The location where a contract of employment is formed does not impact an employee’s basic rights or the employer’s obligations under the Employment Standards Act, 2000 – almost any time work is done in Ontario, it is governed by that act.
Forum Non Conveniens: An Alternative to Challenging Jurisdiction Simpliciter
Either party may challenge jurisdiction simpliciter by showing that there is no actual connection or that the connection is weak, but it is a high bar to clear. The alternative is to acknowledge jurisdiction simpliciter – and request the Court decline to exercise it, moving for a finding of forum non conveniens.
Moving for a finding of forum non conveniens requires that a party show that another forum is “clearly more appropriate”. In Club Resorts Ltd. v Van Breda, the Supreme Court of Canada noted that the factors to consider could include:
- the locations of parties and witnesses,
- the cost of transferring the case to another jurisdiction or of declining the stay,
- the impact of a transfer on the conduct of the litigation or on related or parallel proceedings,
- the possibility of conflicting judgments,
- problems related to the recognition and enforcement of judgments, and
- the relative strengths of the connections of the two parties.
Where there is no conflict of laws between potential jurisdictions, the location of parties and witnesses (and evidence) is the ultimate consideration of ‘convenience’. Where is it easiest for litigation to proceed, based on the location of the witnesses and evidence? In the age of Zoom and online proceedings, a better question now is: does the location of witnesses and parties matter any longer?
Recent decisions of the Ontario Superior Court of Justice and the Court of Appeal for Ontario suggest a change in the forum non conveniens test may be coming.
Recent Court Findings on Forum Non Conveniens
Kore Meals LLC v Freshii Developments LLC
In Kore Meals LLC v Freshii Developments LLC, the Superior Court of Justice noted:
 …If hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question is to answer it. Freshii Developments may have a miniature post office box or an entire office tower in Chicago, and witnesses or documents may be located in Canada’s Northwest Territories or in the deep south of the United States, and no location would be any more or less convenient than another.
Li v Li
In Li v Li, decided in late September 2021, the Court of Appeal for Ontario noted:
I note that in a recent Superior Court decision, Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 2896, 156 O.R. (3d) 311, E.M. Morgan J. observed that the world of videoconference hearings may have implications for the relevance of forum non conveniens. I leave that issue for another day.
There is nothing substantive on which to report yet. However, watch this space for future developments. The courts have moved with admirable speed to get things running online. Eventually, the procedural changes made to allow the court system to continue during the pandemic will bleed into the substantive application of the law – to everyone’s benefit.
In the meantime, if your employer is out of province – consider how you communicated your acceptance of your job offer. The answer may become important should you get dismissed by your employer.
These issues can be complicated, and we remind everyone not to make decisions without getting proper advice; fixing a problem is inevitably more expensive than preventing one. We work with employees and employers, so feel free to reach out to us so one of our team of employment lawyers can give you the advice you need.
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