Newton v. Larco Hospitality Management Inc.
[Indexed as: Newton v. Larco Hospitality Management Inc.]
75 O.R. (3d) 42
[2005] O.J. No. 479
Docket: C41753
Court of Appeal for Ontario,
Goudge, Lang and Juriansz JJ.A.
February 14, 2005
Conflict of laws -- Forum conveniens -- Plaintiff bringing wrongful dismissal action against British Columbia employer after being dismissed from employment in Nevada -- Nevada law permitting dismissal at will -- Requiring plaintiff to assert his action in Nevada would result in loss of substantial juridical advantage as plaintiff would probably be without remedy in Nevada -- Ontario held to be forum conveniens.
Conflict of laws -- Jurisdiction -- Plaintiff bringing wrongful dismissal action in Ontario against British Columbia employer after being dismissed from employment in Nevada -- Plaintiff residing in Ontario when claim was issued and defendant having presence in Ontario -- Plaintiff alleging that employment contract was made in Ontario -- Real and substantial connection existing between claim and Ontario -- Ontario having jurisdiction simpliciter. [page43]
The plaintiff was initially employed in Ontario by the defendant, a British Columbia corporation which managed hotel properties in many locations. The defendant sent the plaintiff to Las Vegas, Nevada, to do due diligence for a hotel purchase. The plaintiff was subsequently employed by that hotel as Director of Room Operations. A letter agreement signed by the plaintiff stipulated that the employment contract was to be governed by the law of Nevada. Under Nevada law, employment contracts may be terminated at will. The plaintiff claimed that he signed the letter under duress and that it did not constitute the employment contract. The plaintiff was dismissed by the defendant. He brought an action in Ontario for damages for wrongful dismissal. The defendant brought a motion pursuant to rule 17.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to set aside service of the statement of claim and to stay the proceedings. The motion judge held that Ontario had jurisdiction simpliciter and that it was also the convenient forum. The motion was dismissed. The defendant appealed.
Held, the appeal should be dismissed.
The cause of action was breach of an employment contract which the plaintiff alleged was formed in Ontario. The plaintiff resided in Ontario when the claim was issued and the defendant was present in Ontario. That was more than enough to constitute a real and substantial connection with Ontario. The motion judge did not err in finding jurisdiction simpliciter.
It was open to the motion judge to consider loss of juridical advantage as a factor in reaching a conclusion that Ontario was the convenient forum, and he did not give that factor undue weight.
APPEAL by the defendant from an order of Brennan J., reported at (2004), 2004 25032 (ON SC), 70 O.R. (3d) 427, [2004] O.J. No. 1408 (S.C.J.), dismissing a motion to set aside a statement of claim and a stay of proceedings.
Jock C. Climie, for appellant. Paul Champ, for respondent.
[1] BY THE COURT: -- The appellant raises three issues.
[2] First, it says that the motion judge erred in not dealing with its challenge to service ex juris. In our view, whether or not the motion judge did so, there is ample basis to validate service. It is conceded that the respondent was employed by a common employer that is within the jurisdiction and manages property here. This is enough to validate the service, and this ground of appeal therefore fails.
[3] Second, the appellant says that the motion judge erred in finding jurisdiction simpliciter. We do not agree. The cause of action raised by the respondent (which will have to be adjudicated at trial) is breach of a contract alleged to be formed in Ontario. The respondent resided in Ontario when the claim was issued and intends to return here. The appellant is present here. That is more than enough to constitute a real and substantial connection with Ontario. [page44]
[4] Third, the appellant argues that the motion judge erred in finding Ontario to be the convenient forum. The appellantAEs major complaint is that the motion judge erred in law in placing too much weight on the juridical advantage of Ontario to the respondent as a factor in his determination.
[5] While the motion judge did consider loss of juridical advantage in concluding that Ontario was the convenient forum, there is no basis for saying that he gave it undue weight. Moreover, in our view, it was open to him to consider it as a factor in the exercise of his discretion. If this case is tried in Ontario, Ontario employment law requiring cause for dismissal will apply if the respondent can successfully attack the purported letter contract of January 1, 2002. If it is tried in Nevada, the respondent will have two obstacles to clear to achieve this: successfully attacking the January 1 letter and establishing Ontario law as the proper law of his employment contract. If he does only the former, presumably his dispute will be adjudicated under Nevada law which is said to permit termination at will. Thus the respondent faces one less hurdle if the case is tried in Ontario.
[6] Moreover, this was an exercise of discretion by the motion judge for which there was ample justification: for example, the residence of the respondent when the claim is issued, the presence of the appellant in Ontario, the location of witnesses, where the damages were incurred, and the respondentAEs initial choice of Ontario. There is no basis to interfere with this discretion. This ground of appeal must also fail.
[7] The appeal is therefore dismissed. Costs to the respondent fixed on a partial indemnity basis at $5,000 inclusive of disbursements and GST. We are grateful to both counsel for their able arguments.
Appeal dismissed.