Young v. Tyco International of Canada Ltd., 2008 ONCA 709

Young v. Tyco International of Canada Ltd. et al. [Indexed as: Young v. Tyco International of Canada Ltd.]

92 O.R. (3d) 161

Court of Appeal for Ontario,

Laskin, Simmons and Juriansz JJ.A.

October 17, 2008

Conflict of laws -- Forum conveniens -- Plaintiff bringing wrongful dismissal action in Ontario after being dismissed in Indiana -- Plaintiff claiming that his employment in Indiana was temporary and was governed by Ontario agreement -- Defendants claiming that Ontario agreement was superseded by plaintiff's acceptance of permanent employment in Indiana -- Defendants bringing motion to stay action on ground that Ontario was forum non conveniens -- Motion judge erring in analyzing forum non conveniens factors in light of his acceptance of defendants' version of which agreement governed -- Record disclosing reasonable evidentiary basis for plaintiff's claim that Ontario agreement governed -- Proper approach being to analyze forum non conveniens factors by accepting that claim -- Record not clearly establishing that Indiana was more appropriate forum.

The defendants were related corporations. The plaintiff was employed by one of the defendants in Ontario for eight years. When his position as general manager disappeared because of downsizing, he and his Ontario boss agreed that he would perform temporary assignments in North America until a permanent position became available at another plant in Canada (the "2004 agreement"). While working at a plant in Indiana, the plaintiff experienced a number of grand mal seizures. He was fired for sexual harassment. The plaintiff brought an action in Ontario for damages for wrongful dismissal. He maintained that his employment in Indiana was governed by the 2004 agreement. The defendants maintained that the 2004 agreement was superseded by an offer of permanent employment in Indiana which the plaintiff accepted. Indiana is an "at will" state: employees may be dismissed without cause and without notice or termination pay. The defendants brought a motion for a stay of the action on the basis that Ontario was forum non conveniens. Accepting the defendants' position on the governing agreement, the motion judge found that the plaintiff was shopping for a jurisdiction where he could succeed in his action. He concluded that Ontario was forum non conveniens. The plaintiff appealed.

Held, the appeal should be allowed.

Per Laskin J.A. (Juriansz J.A. concurring): On a forum non conveniens motion, the standard to displace the plaintiff's chosen jurisdiction is high. The balancing of the relevant factors should aim to achieve the twin goals of efficiency and justice. Because a forum non conveniens motion typically is brought early in the proceedings, the motion judge should adopt a prudential, not an aggressive, approach to fact finding. However, on some motions, the efficiency and fairness considerations at the heart of the forum non conveniens test will be tied inextricably to the factual issues in dispute. On those motions, the motion judge will have no choice but to address the competing versions put forward by the parties. In doing so, the motion judge should accept the plaintiff's version so long as it has a reasonable basis in the record. In this case, the record disclosed a reasonable evidentiary basis for the plaintiff's underlying contention that the October 2004 agreement governed his subsequent employment, so that his wrongful dismissal claim was for breach of the October 2004 agreement. Accordingly, the motion judge should have accepted the plaintiff's version and assessed the forum non conveniens [page162] factors on that basis. The connection to Ontario was strong: the plaintiff resided there; two of the defendants resided there; some important witnesses resided there; the agreement was made there; and Ontario law applied to the agreement. The plaintiff, therefore, could legitimately claim the juridical advantages available in Ontario. The record did not clearly establish that Indiana was the more appropriate forum.

Per Simmons J.A. (concurring in the result): When confronted with competing versions of facts that are critical not only to the underlying dispute between the parties but also to the forum non conveniens analysis, so long as both versions of the critical disputed facts have a reasonable evidentiary basis in the record, the motion judge should take account of both versions by conducting the forum non conveniens analysis up to three stages. In the first stage, the motion judge may conduct the forum non conveniens analysis accepting the plaintiff's version of the facts. If the defendant's forum is clearly more appropriate, even on the plaintiff's version of the disputed facts, the motion judge need proceed no further and should simply stay the action. In the second stage, the motion judge may conduct the forum non conveniens analysis accepting the defendant's version of the disputed facts. Here, the motion judge should dismiss the defendant's request for a stay of proceedings if the defendant is unable to establish that its forum is clearly more appropriate based on its version of the disputed facts. Where a third stage is necessary because the defendant's stay motion cannot be disposed of at either the first or second stage, the motion judge should confront a forum non conveniens analysis recognizing that certain critical facts are in dispute and accepting that both versions have a reasonable prospect of being adopted. In effect, in relation to each of the forum non conveniens factors, the motion judge should use the findings that would be made in relation to that factor at both stages one and two and balance those findings against each other.

APPEAL from the order of Lederer J., [2007] O.J. No. 3904, 2007 44823 (S.C.J.) staying a wrongful dismissal action.

Cases referred to Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 2003 52135 (ON CA), 63 O.R. (3d) 431, [2003] O.J. No. 560, 223 D.L.R. (4th) 627, 169 O.A.C. 1, 31 B.L.R. (3d) 161, 30 C.P.C. (5th) 282, 120 A.C.W.S. (3d) 966 (C.A.), consd Other cases referred to Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, 102 D.L.R. (4th) 96, 150 N.R. 321, [1993] 3 W.W.R. 441, J.E. 93-674, 23 B.C.A.C. 1, 77 B.C.L.R. (2d) 62, 14 C.P.C. (3d) 1, 39 A.C.W.S. (3d) 600; Antares Shipping Corp. v. Capricorn (The), 1976 5 (SCC), [1977] 2 S.C.R. 422, [1976] S.C.J. No. 79, 65 D.L.R. (3d) 105, 7 N.R. 518; Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, 1999 3785 (ON CA), [1999] O.J. No. 3275, 178 D.L.R. (4th) 409, 125 O.A.C. 54, 50 B.L.R. (2d) 33, 39 C.P.C. (4th) 160, 90 A.C.W.S. (3d) 862 (C.A.); Fidelity Management & Research Co. v. Gulf Canada Resources Ltd. (1995), 1995 7121 (ON SC), 25 O.R. (3d) 548, [1995] O.J. No. 2864, 42 C.P.C. (3d) 93, 58 A.C.W.S. (3d) 46 (Gen. Div.); Frymer v. Brettschneider (1994), 1994 1685 (ON CA), 19 O.R. (3d) 60, [1994] O.J. No. 1411, 115 D.L.R. (4th) 744, 72 O.A.C. 360, 28 C.P.C. (3d) 84, 48 A.C.W.S. (3d) 1343 (C.A.); Hodnett v. Taylor Manufacturing Industries Inc., [2002] O.J. No. 2281, 18 C.C.E.L. (3d) 297, 22 C.P.C. (5th) 360, 118 A.C.W.S. (3d) 202, 2002 49503 (S.C.J.); Hunt v. T&N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289, [1993] S.C.J. No. 125, 109 D.L.R. (4th) 16, 161 N.R. 81, [1994] 1 W.W.R. 129, J.E. 93-1890, 37 B.C.A.C. 161, 85 B.C.L.R. (2d) 1, 21 C.P.C. (3d) 269, 43 A.C.W.S. (3d) 1070; Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128, 213 D.L.R. (4th) 577, 160 O.A.C. 1, 13 C.C.L.T. (3d) 161, 26 C.P.C. (5th) 206, 114 A.C.W.S. (3d) 634 (C.A.); Tisi v. Cornell Trading Inc., [2006] O.J. No. 3468, 52 C.C.E.L. (3d) 152, 151 A.C.W.S. (3d) 47, 2006 29665 (S.C.J.) [page163] Statutes referred to Canada Business Corporations Act, R.S.C. 1985, c. C-44 Corporations Act, C.C.S.M. c. C225 Courts of Justice Act, R.S.O. 1990, c. C.43 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.06

J. Michael Mulroy, for appellant. M. Paul Michell and Amy Salyzyn, for respondents.

LASKIN J.A. (JURIANSZ J.A. concurring): -- A. Overview

[1] The issue on this appeal is whether the appellant David Young's wrongful dismissal action against the respondents (which are all owned by Tyco International Ltd.) should be tried in the State of Indiana instead of in Ontario.

[2] Young was employed by one or more of the Tyco entities for nearly ten years. For the first eight years, he worked for Tyco's Ontario operation, initially as its plant manager and then as its general manager. By 2004, because of downsizing, Tyco no longer needed a general manager in Ontario. In October 2004, Young and his Ontario boss agreed that Young would continue to work for Tyco and would perform temporary assignments in North America until a permanent position became available at another Tyco plant in Canada.

[3] Over the next 21 months, Young worked at three of Tyco's U.S. plants, first in Wisconsin, then in Georgia and finally in Indiana. He had been plant manager of the Indiana operation for only two and a half months when Tyco fired him for allegedly sexually harassing three female employees. Young denied the allegations and claimed that he was let go because he had a disability arising from brain seizures he had suffered.

[4] Young started this action in Ontario against the six Tyco defendants, two of whom have offices in this province. Tyco moved for a stay of the action. It contended that Ontario was not the convenient forum and that Young's action should be tried in Indiana. The motion judge granted the stay.

[5] At its heart, the debate before the motion judge turned on what agreement governed Young's employment with Tyco in Indiana. Young maintains that his October 2004 agreement governed [page164] his employment in Indiana. Tyco maintains that the October 2004 agreement was superseded by an offer of permanent employment in Indiana, which Young accepted. The motion judge resolved that debate by agreeing with Tyco's position. He held that "there is little beyond the belief of David Young to sustain this idea" that the October 2004 agreement governed. The motion judge added that, by suing in Ontario, Young was simply shopping for a jurisdiction where he could succeed in his action.

[6] Young's principal submission on appeal is that the motion judge erred by deciding the merits of Young's underlying claim and by too easily dismissing the evidence supporting his claim. I agree with that submission. In my respectful view, the motion judge erred in principle by accepting Tyco's position on the governing agreement for the purpose of deciding where Young's claim should be tried. The resulting stay that he ordered was unreasonable. I would set aside the motions judge's decision and dismiss Tyco's stay motion. B. Discussion (1) Young's employment with Tyco

[7] Tyco first hired Young in October 1996, as plant manager for Columbia-MBF, its Ontario operation. He was paid over US$200,000 in salary and bonus and was given a generous benefits package. He was hired for an indefinite term and therefore, absent cause, was entitled to reasonable notice of termination under Ontario law. In 2000, Tyco promoted Young to the position of general manager of Columbia-MBF.

[8] However, in late 2004, Tyco closed down its manufacturing operation in Ontario. It therefore no longer needed a general manager. Young wanted to continue to work for Tyco, but only in Canada. Both he and his common-law spouse had medical problems. They wanted to remain Ontario residents. However, Tyco had no senior position available in Canada.

[9] In October 2004, Young met with his boss, Vijay Patel, who also wanted Young to stay with Tyco. Although they discussed job opportunities in the United States, Young did not want to move there. Eventually, they agreed that Young's employment would continue on essentially the same terms as he had at Columbia-MBF, but that he would perform temporary assignments until another permanent position arose in Canada. Unlike other Ontario employees of Tyco who lost their jobs in the downsizing, Young did not receive any termination pay.

[10] After their agreement, in late 2004, Patel asked Young to go to a Tyco plant in Green Bay, Wisconsin to perform a safety [page165] audit and deal with other management issues there. Young did as he was asked. This was one of the temporary assignments contemplated by the October 2004 agreement. Up to this point in the chronology of Young's employment with Tyco, the parties largely agree on what occurred.

[11] However, the parties fundamentally disagree over the basis on which Young worked in his final two jobs with Tyco, first at Georgia Pipe and then at Century Tube in Indiana. (a) Young's version

[12] Young claims that he took both jobs under his October 2004 agreement with Patel. He says that in February 2005, Patel called him to talk about an assignment as general manager at one of Tyco's subsidiaries, Georgia Pipe, in Thomasville, Georgia. Patel told him to call Steven Norvilas, the man to whom he would report if he accepted the assignment. Young called Norvilas and accepted the job.

[13] Young was asked to sign a written offer of employment. He says that he was reluctant to do so but did sign it after Norvilas assured him that it would not affect his October 2004 agreement. Young contends that he told both Patel and Norvilas that he would not move permanently to the United States because both he and his common-law spouse (who remained in Ontario) had medical conditions and could not get health insurance coverage there. Norvilas told him that he would be paid the same salary as he was paid in Ontario, but in U.S. dollars.

[14] To work at Georgia Pipe, Young had to apply for an L-1A visa. The L-1A visa is a temporary visa that permits a company with operations in both the United States and a foreign state (in this case, Canada) to bring a non-U.S. citizen to work as a manager or executive at one of its U.S. operations. To comply with the requirements of the L-1A visa, Tyco told U.S. immigration authorities that Young was not being offered a permanent position. Young's application for an L-1A visa was approved for three years. He began working at Georgia Pipe in mid-March 2005. Nonetheless, he was paid by Columbia-MBF until January 2006.

[15] Young worked at Georgia Pipe for about 15 months. By then, Richard Filetti had replaced Patel as Young's boss. In late June 2006, Filetti talked to Young about a new assignment as plant manager at another Tyco company, Century Tube, in Madison, Indiana. Young claims that while he was thinking about this new assignment, Filetti called and told him to go there urgently. Young flew to Indiana the same day and took up the assignment as plant manager beginning at the end of June 2006. He maintains that this was another temporary position. [page166]

[16] On August 9, 2006, while giving a strategy presentation to senior management staff and other Tyco executives, Young experienced a grand mal seizure. He was taken to hospital by ambulance. Despite increases to his seizure-control medications, these seizures continued throughout August. On September 15, 2006, Young was fired for sexual harassment.

[17] In May 2007, Young sued Tyco in Ontario. He seeks damages for wrongful dismissal or negligent misrepresentation, a declaration that he is totally disabled and recovery of disability benefits. (b) Tyco's version

[18] Tyco maintains that both Young's job at Georgia Pipe and his job at Century Tube were full-time regular positions and not temporary assignments under the October 2004 agreement. Young was required to relocate to the United States, which, in each case, he agreed to do. He was told that his benefit and bonus plans would be U.S. plans and that he would need a U.S. Social Security number to participate in them and go on the U.S. payroll. Although the L-1A visa is a temporary visa for immigration purposes, it does not say anything about the nature of Young's employment with Tyco. According to Tyco, once Young accepted these positions in Georgia and then in Indiana, his employment with Columbia-MBF ended.

[19] In late February 2005, Young signed an offer letter for the general manager's position at Georgia Pipe. The letter specified his salary, bonus and benefits, as well as a transfer allowance to relocate to Georgia. On March 10, 2005, Norvilas issued a public announcement that Young would begin as general manager at Georgia Pipe. Once Young received his Social Security number in December 2005, he was removed from the Canadian payroll and put on the U.S. payroll.

[20] In May 2006, Filetti called Young about the Century Tube plant manager position in Indiana, saying that it was an opportunity Young might wish to pursue. Filetti claims that Young appreciated the offer, as there had been friction at Georgia Pipe between him and Norvilas.

[21] In June 2006, Young began working as plant manager at Century Tube. Tyco says that this was a regular full-time position, requiring Young to relocate to Indiana. No written employment contract was prepared. Young worked under the same terms as he had worked under at Georgia Pipe. He was on the U.S. payroll and a U.S. benefits plan, and was paid in U.S. dollars. In July 2006, Young enrolled his common-law spouse in Tyco's U.S. benefits plan.

[22] In mid-September 2006, Tyco fired Young. As in many American states, in Indiana an employer may terminate an [page167] employee "at will" -- without severance or termination pay -- even absent cause. (2) The law on forum non conveniens

[23] When an Ontario court must determine whether to entertain an action, especially one with foreign defendants, two questions arise. First, does an Ontario court have jurisdiction over the action? Second, if it does, is there another clearly more appropriate forum to hear the action? The first question asks whether an Ontario court can entertain the action. The second question asks whether an Ontario court should entertain the action: see Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.), at paras. 42-44.

[24] Here, only the second question is in issue. Tyco acknowledges that an Ontario court has jurisdiction over this action. Two of the respondents, Tyco International of Canada and Young's Ontario employer, Columbia-MBF, reside in this province. An Ontario court would assume jurisdiction over the four foreign respondents on an application of the real and substantial connection test: see Muscutt, at paras. 75-110.

[25] Tyco, however, moved under rule 17.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to stay the action on the ground that Indiana, not Ontario, is the convenient forum to hear the action. This motion is commonly referred to as a forum non conveniens motion.

[26] Decisions on forum non conveniens motions are exercises of judicial discretion. Typically, in exercising their discretion, motion judges consider a list of factors now well established in the case law. These factors are used to assess the connections to each forum. They include: (1) the location where the contract in dispute was signed; (2) the applicable law of the contract; (3) the location of witnesses, especially key witnesses; (4) the location where the bulk of the evidence will come from; (5) the jurisdiction in which the factual matters arose; (6) the residence or place of business of the parties; and (7) the loss of a legitimate juridical advantage. See Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, 1999 3785 (ON CA), [1999] O.J. No. 3275, 178 D.L.R. (4th) 409 (C.A.), at paras. 19-20; [page168] Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 2003 52135 (ON CA), 63 O.R. (3d) 431, [2003] O.J. No. 560 (C.A.), at para. 61.

[27] The factors listed above are not exhaustive, although in practice they are the ones typically considered. All of the factors may not be relevant in a given case. Moreover, the exercise is not mathematical. Motion judges assign each factor the weight they consider appropriate to the case. Their overall balancing of these factors reflects the discretionary nature of the decision. On appeal, the usual principle of deference to discretionary decision applies: an appeal court should intervene only if the motion judge errs in principle, misapprehends or fails to take account of material evidence, or reaches an unreasonable decision.

[28] Three principles should guide the motion judge's exercise of discretion. The first principle is that, on a forum non conveniens motion, the standard to displace the plaintiff's chosen jurisdiction is high. Before Ontario motion judges decline jurisdiction, "the existence of a more appropriate forum must be clearly established to displace the forum selected by the plaintiff": see Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, at para. 33, per Sopinka J.

[29] The second principle is that the balancing of the relevant factors should aim to achieve the twin goals of efficiency and justice. Ritchie J. made this point 30 years ago in Antares Shipping Corp. v. Capricorn (The), 1976 5 (SCC), [1977] 2 S.C.R 422, [1976] S.C.J. No. 79, at p. 448 S.C.R.:

In my view the overriding consideration which must guide the Court in exercising its discretion by refusing to grant such an application as this must, however, be the existence of some other forum more convenient and appropriate for the pursuit of the action and for securing the ends of justice.

[30] More recently, in Hunt v. T&N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289, [1993] S.C.J. No. 125, at para. 59, La Forest J. reiterated this principle when he said that the court's exercise of its discretion to decline jurisdiction must be guided by the mandates of "order and fairness, not a mechanical counting of contacts or connections". In other words, the motion judge's decision whether to decline jurisdiction turns not only on efficiency or convenience; it also turns on fairness or justice to the parties.

[31] The third principle is that because a forum non conveniens motion typically is brought early in the proceedings, the motion judge should adopt a prudential, not an aggressive, approach to fact finding. As Perell J. said in [page169] Tisi v. Cornell Trading Inc., [2006] O.J. No. 3468, 2006 29665 (S.C.J.), at para. 10, wherever possible the motion judge should not "make findings of fact about fundamental issues in the action that ought to be resolved at a trial". Of course, the motion judge should not determine the merits of the lawsuit: see Incorporated Broadcasters, at para. 54. Even beyond that, however, the motion judge should avoid drawing conclusions or making findings on important factual or legal disputes relating to the merits.

[32] Often, the motion judge will be faced with two competing versions of facts critical to the dispute: the plaintiff's version and the defendant's version. However, the motion judge may still be able to resolve the forum non conveniens issue without evaluating the relative evidentiary strength of these versions. For instance, the judge may be able to decide whether there is another clearly more convenient forum by relying exclusively on uncontested or agreed-upon facts: see, e.g., Tisi, at para. 10.

[33] But, on some motions -- and this is one of them -- the efficiency and fairness considerations at the heart of the forum non conveniens test will be tied inextricably to the factual issues in dispute. On these motions, the motion judge will have no choice but to address the competing versions put forward by the parties. In doing so, the motion judge should accept the plaintiff's version as long as it has a reasonable basis in the record. Accepting the plaintiff's version where warranted should not inhibit the motion judge from assessing all the evidence in the record and finding facts regarding the forum non conveniens factors themselves. Where the evidence is disputed the party relying on a fact supporting the application of a factor in its favour will bear the evidential burden of establishing that fact: see Frymer v. Brettschneider (1994), 1994 1685 (ON CA), 19 O.R. (3d) 60, [1994] O.J. No. 1411 (C.A.), at para. 60.

[34] However, the important point is that at this preliminary stage of the action, the motion judge's assessment and weighing of the forum non conveniens factors should be based on the plaintiff's claim if it has a reasonable basis in the record, not on the defendant's defence to that claim. This approach makes sense to me because the ultimate question is whether an Ontario court should take jurisdiction over the plaintiff's claim.

[35] My colleague, Rosenberg J.A., adopted this approach in the Incorporated Broadcasters case. There, the plaintiffs (appellants) were minority shareholders of a Manitoba corporation. The majority shareholder was a federally incorporated company. The plaintiffs brought an action in Ontario against the majority shareholder and related entities seeking an oppression remedy under the Canada Business Corporations Act, R.S.C. 1985, c. C-44. [page170] The defendants moved for a stay, arguing, among other things, that Manitoba, not Ontario, was the convenient forum.

[36] The motion judge granted the stay. He concluded that the lawsuit was about the internal management of a Manitoba corporation, and only a Manitoba court could give an oppression remedy under that province's Corporations Act, C.C.S.M. c. C225.

[37] Although this court upheld the stay, Rosenberg J.A. disagreed with the motion judge's approach. He noted that the plaintiffs were seeking an oppression remedy under the federal statute, not under the provincial statute. In his view, they were entitled to have the forum non conveniens issue decided on the basis of their claim. He wrote, at para. 54:

The appellants do not seek an oppression remedy under the Manitoba Corporations Act. They seek remedies under the CBCA. In my view, the appellants are entitled to have the jurisdiction and convenient forum issues determined on that basis. The motions judge may be right in his interpretation of the Manitoba and federal legislation, in which case the appellants' action will fail, but it seems to me that is a question to be determined at another time either under a Rule 20 or 21 motion or at trial. The merits of the claim should not, in my view, be decided at this preliminary stage. (Footnote omitted) And, at para. 57:

In any event, as I have said, it is my view that the court should not decide the merits of the claim for the purposes of determining jurisdiction or convenient forum. I will therefore apply the convenient forum test, taking the appellants' claim at face value. I add the caveat that the motion judge should approach the balancing of the forum non conveniens factors by taking the plaintiff's claim at face value, provided that claim has a reasonable basis in the record.

[38] In this present case, as I have said, in respect of Young's employment in Indiana, the motion judge was faced with Young's claim (for damages for wrongful termination of the October 2004 agreement) and Tyco's response (that the October 2004 agreement was superseded by permanent contract of employment in Indiana). Rather than resolving which agreement governs Young's claim, the proper approach was for the motion judge to consider whether Young's version had a reasonable basis in the record. If it did, the motion judge should have accepted it for the purpose of weighing the forum non conveniens factors. After all, the motion judge should not decline Ontario's jurisdiction unless another jurisdiction is clearly more appropriate.

[39] I disagree with the motion judge's reasons in the present case because he did not adopt this approach. Or, if he did, he erred in dismissing Young's claim as having no basis in the record. [page171] (3) Analysis

[40] The motion judge's analysis was not organized according to the commonly cited forum non conveniens factors, noted above. Instead, the motion judge grouped them into three categories: questions related to the job (factors 1 and 6); questions related to the conduct of the action (factors 3, 4 and 5); and questions related to the applicable law (factors 2 and 7).

[41] Early in his reasons, the motion judge addressed the key dispute between the parties: whether the October 2004 agreement governed Young's employment in Georgia and Indiana or whether he was employed there under permanent contracts of employment with the U.S. companies. The motion judge agreed with Tyco's version of Young's employment. At paras. 19 and 20 of his reasons, he found that: -- The October 2004 arrangement "did not continue for long"; -- neither the Georgia nor the Indiana position was temporary; and -- Canadian company, (Columbia-MBF Inc.). For the remainder of the time he was in Georgia, he was employed by the U.S. corporation, Georgia Pipe Company, and throughout his time in Indiana, he was the employee of another U.S. firm -- Century Tube Corp."

[42] As I said in the overview, the motion judge dismissed Young's version by saying that "there is little beyond the belief of David Young to sustain this idea". Although he stopped short of deciding whether Young had been wrongfully terminated, the motion judge also resolved another key aspect of Young's underlying claim adversely to him when he found, at para. 24, that Young's " 'disability' " (quotation marks in original) was not a consideration in his termination. For the motion judge, the only real question to be decided at trial was whether Young was properly dismissed for sexual harassment.

[43] Once the motion judge had made these findings, it was inevitable that all the forum non conveniens factors would point to Indiana as the more appropriate jurisdiction to entertain Young's claim. Most of the necessary witnesses on the sexual harassment allegations resided in Indiana (however, this conclusion was based on the motion judge's finding that Young's witness list contained insufficient information, even though that list was in the same form as the witness list Tyco presented). The bulk of [page172] the evidence would come from Indiana, and the main factual dispute arose there. Young's contract with Century Tube was made in Illinois, a neighbouring state to Indiana. The applicable law of the contract would be the law of Indiana. And thus, Young's attempt to litigate in Ontario to avoid an "at will" state was dismissed by the motion judge as forum shopping.

[44] It seems to me, respectfully, that the motion judge was wrong to have accepted Tyco's version of the nature of Young's employment in Georgia and Indiana and to have summarily rejected Young's version. Unquestionably, some facts on the record support Tyco's version. In my view, however, contrary to what the motion judge said, Young's version is supported by much more than his mere belief.

[45] The record discloses a reasonable evidentiary basis for Young's underlying contention that the October 2004 agreement governed his subsequent employment, and that his jobs in Wisconsin, Georgia and Indiana were all temporary assignments under that agreement. And, thus, his wrongful dismissal claim is a claim for breach of the October 2004 agreement. If that is so, then the motion judge erred in making any determination on Young's underlying claim. Instead he should have accepted Young's version of his employment and his claim, and assessed the forum non conveniens factors on that basis.

[46] The reasonable evidentiary basis for Young's claim comes from the following: -- Young's own evidence about the October 2004 agreement and his later assignments in the United States, which is not merely his "belief" but his sworn testimony; -- Tyco did not give Young termination pay under Ontario employment standards legislation, as it would have been required to do if his employment with Columbia-MBF had ended, and as it did with other Ontario employees who lost their jobs in the downsizing; -- from November 2004 to September 2006, Young went where Tyco wanted him to go. Tyco asked him to go to Wisconsin. He went. Three months later, Tyco asked him to accept a job in Georgia. He did. Fifteen months later Tyco asked him to take a job in Indiana. He took it. Three jobs in less that two years, all initiated by Tyco, speaks at least as much to temporary assignments as it does to permanent employment; -- Young never gave up his residence in Ontario. In Indiana he lived in a furnished apartment, rented month-to-month. He [page173] banked in Ontario. His common-law spouse never joined him in the United States; and -- the position Tyco adopted when dealing with the U.S. immigration authorities contradicts its claim that Young accepted a permanent job in Indiana. Tyco told Young to apply for a temporary visa. And, more important, Tyco advised the immigration authorities that Young was not being offered a permanent position in the United States.

[47] Accepting Young's version of his employment in Indiana produces a very different assessment of the forum non conveniens factors. (i) Location where the contract in dispute was signed

[48] The October 2004 agreement was made in Ontario. (ii) The applicable law of the contract

[49] The October 2004 agreement is an Ontario contract, governed by Ontario law. (iii) Location of witnesses, especially key witnesses

[50] Each side produced a list of witnesses in a table, setting out their residences and the subject matter of their anticipated evidence. Young listed 13 witnesses, all residents of Ontario. Six of his witnesses would speak to his employment, three to the sexual harassment allegations as well as to his employment, and four, including three doctors, to his health. In addition to Young, Tyco also listed 13 witnesses, eight of whom live in Indiana and five of whom live in neighbouring states. Of Tyco's witnesses, nine would speak to the sexual harassment allegations and four to the circumstances of Young's move to Indiana.

[51] Undoubtedly, Young, Patel, Norvilas, Filetti and the three sexual harassment complainants are key witnesses. Beyond that, the information in both tables is too general to determine who also might be a key witness. And though Patel, Norvilas and Filetti live in the United States, none of them resides in Indiana.

[52] Overall, the "location-of-witness" factor is probably neutral. For a cross-border, sophisticated company such as Tyco, the location of witnesses is a relevant but not a weighty consideration: see Fidelity Management & Research Co. v. Gulf Canada Resources Ltd. (1995), 1995 7121 (ON SC), 25 O.R. (3d) 548, [1995] O.J. No. 2864 (Gen. Div.), at p. 558 O.R. No matter where the action is tried, some of Tyco's witnesses will have to travel. Moreover, because Tyco is a cross-border company, its senior executives likely all [page174] travel extensively. If the action is tried in Ontario, Tyco will no doubt arrange transportation for the three complainants. Alternatively, their testimony can be heard through live video conferencing. (iv) The location where the bulk of the evidence will come from

[53] Evidence will come from both Ontario and Indiana. The Ontario evidence will include the evidence about the October 2004 agreement and medical evidence about Young's disability. The Indiana evidence will include evidence about Young's move there and his dismissal. This factor, too, is likely neutral. (v) The jurisdiction in which the factual matters arose

[54] Factual matters arose both in Ontario and Indiana. This factor is neutral. (vi) The residence or place of business of the parties

[55] Young lives in Ontario. Two of the respondents are located in Ontario; the rest operate in the United States. Century Tube alone operates in Indiana. On balance, this factor is neutral. (vii) Loss of legitimate juridical advantage

[56] Once Young's version of his employment in Indiana grounds the forum non conveniens analysis, his decision to sue Tyco in Ontario can no longer be characterized as forum shopping. Instead, in my view, were Young obliged to sue in Indiana, he would lose legitimate juridical advantages available in Ontario.

[57] The difference between forum shopping and legitimate juridical advantage turns on the parties' connections to the jurisdiction in question. Sopinka J. explained this difference in Amchem, at para. 32:

The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as "forum shopping". On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available.

[58] If, as I have concluded, Young's October 2004 agreement should direct the forum non conveniens analysis, then the connections to Ontario are strong: Young resides there; two [page175] of the defendants reside there; some important witnesses reside there; the agreement was made there; and Ontario law applies to the agreement.

[59] Young, therefore, may legitimately claim the juridical advantages available in Ontario. There are two. First, Young will benefit from courts who are accustomed to applying Ontario's wrongful dismissal law. As Indiana is an "at will" state, its courts are accustomed to quite a different employment law regime.

[60] Under Ontario law, absent just cause for dismissal, employees hired for an indefinite term, as Young was, are entitled to reasonable notice of termination or pay in lieu. Under Indiana law, employees may be dismissed at will -- employers have no obligation to give notice or pay termination pay: see Hodnett v. Taylor Manufacturing Industries Inc., [2002] O.J. No. 2281, 2002 49503 (S.C.J.), at para. 36. Of course, even if Young's action takes place in Indiana, he may still plead that Ontario law applies. However, litigating in a jurisdiction where judges routinely award damages equivalent to reasonable notice would give Young a juridical advantage.

[61] The second juridical advantage for Young is that suing in Ontario enhances his practical ability to pursue his claim. Access to justice may be an important consideration bearing on juridical advantage. Forum non conveniens analysis is as much about fairness and justice as it is about convenience and efficiency. In this case, there is an obvious power imbalance between Young and Tyco. Forcing Young to litigate in Indiana rather than his home jurisdiction would represent a serious loss of a legitimate juridical advantage. Conversely, because Tyco is a cross-border company, litigating in Ontario does not raise any serious access-to-justice concerns for it.

[62] On my assessment, three of the forum non conveniens factors favour Ontario, and the remaining four are neutral. This assessment points to Ontario as the appropriate jurisdiction to entertain Young's action. Put differently, this assessment shows that Indiana is not clearly the more appropriate forum. C. Conclusion

[63] In my view, the motion judge erred by analyzing the forum non conveniens factors on the basis that Young's contract of employment in Indiana was permanent and superseded his October 2004 agreement. The proper approach is to analyze the forum non conveniens factors by accepting Young's underlying claim that the October 2004 agreement governed his employment in Indiana. On that basis, the record does not clearly establish that Indiana is the more appropriate forum. [page176]

[64] I would allow the appeal, set aside the order of the motion judge and dismiss Tyco's forum non conveniens motion.

[65] Young is entitled to his costs of the appeal in the agreed-upon amount of $16,000, inclusive of disbursements and GST. He is also entitled to his costs of the motion. The motion judge awarded Tyco costs of $20,000 plus disbursements. I would fix Young's motion costs at $20,000, inclusive of disbursements and GST.

SIMMONS J.A. (concurring): -- A. Introduction

[66] I have had the benefit of reading the reasons of my colleague Laskin J.A. I agree with my colleague's conclusions that the record in this matter discloses a reasonable evidentiary basis for Young's version of his employment in Georgia and Indiana and that, in these circumstances, the motion judge erred in principle by accepting Tyco's version and summarily rejecting Young's version for the purpose of the forum non conveniens analysis. I also agree with most of my colleague's review of the law concerning forum non conveniens, with his analysis of the forum non conveniens factors in relation to Young's version of his employment and with my colleague's proposed disposition of this appeal.

[67] I part company with my colleague solely in respect of the thorny problem of how a motion judge should proceed when confronted with competing versions of facts that are critical not only to the underlying dispute between the parties but also to the forum non conveniens analysis. In my view, so long as both versions of the critical disputed facts have a reasonable evidentiary basis in the record, rather than choosing one version over the other, the motion judge should take account of both versions by conducting the forum non conveniens analysis in up to three stages.

[68] In the first stage, the motion judge may conduct the forum non conveniens analysis accepting the plaintiff's version of the facts. If the defendant's forum is clearly more appropriate even on the plaintiff's version of the disputed facts, the motion judge need proceed no further and should simply stay the plaintiff's proceeding.

[69] In the second stage, the motion judge may conduct the forum non conveniens analysis accepting the defendant's version of the disputed facts. Here, the motion judge should dismiss the defendant's request for a stay of proceedings if the defendant is unable to establish that its forum is clearly more appropriate based on its version of the disputed facts. [page177]

[70] Where a third stage is necessary because the defendant's stay motion cannot be disposed of at either the first or second stage, the motion judge should conduct a forum non conveniens analysis recognizing that certain critical facts are in dispute and accepting that both versions have a reasonable prospect of being adopted. In effect, in relation to each of the forum non conveniens factors, the motion judge should use the findings that would be made in relation to that factor at both stages one and two and balance those findings against each other.

[71] This third stage will have the disadvantage of effectively neutralizing the forum non conveniens connecting factors that turn on the critical disputed facts. In practice, that may often mean that the first six of the seven forum non conveniens factors will be neutral. [See Note 1 below] However, where both versions of the facts have a reasonable foundation in the evidence and where the stay motion cannot be disposed of by either a stage one or a stage two analysis, issues about one forum or the other being inappropriate and forum shopping will be dispelled.

[72] What the third stage will do is preserve for the motion judge the opportunity of considering any potential injustice or unfairness to the defendant arising from being forced to litigate in the plaintiff's chosen forum. Once again, the motion judge should dismiss the defendant's request for a stay of proceedings if the defendant is unable to establish that its forum is clearly more appropriate. In the end, the only realistic basis for displacing a plaintiff's choice of forum on a stage three analysis is likely to be unfairness to the defendant if compelled to litigate in the plaintiff's forum that clearly outweighs any unfairness to the plaintiff if compelled to litigate in the defendant's forum.

[73] I reach my conclusion concerning this approach for three reasons. First, the forum non conveniens analysis is rooted at least in part in the principle of attempting to avoid injustice to either party: see Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, at pp. 915-22 S.C.R. Where both parties' versions of [page178] the critical events have a reasonable foundation in the record, an approach that disregards completely one party's version of the events creates a risk of unfairness to that party. Respectfully, this risk can readily be avoided by adopting a more flexible approach. Although I conclude that no such unfairness exists in this case, that does not obviate my concern in relation to other cases.

[74] Second, I am not persuaded that this court's decision in Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp., supra, mandates an approach under which only the plaintiff's version of the facts is considered. In Canwest, Rosenberg J.A. concluded that the defendant's forum was clearly more appropriate based on the plaintiffs' formulation of their claim. In these circumstances, it was unnecessary for Justice Rosenberg to consider whether further analysis was required since the issue was disposed of on a stage one analysis.

[75] Third, although my approach may be more cumbersome than that of my colleague, it is not so cumbersome as to dictate a different result. As a practical matter, most plaintiffs will not likely advance a stage-two argument and a stage-two analysis will therefore be unnecessary. In these circumstances, the only real difference between my colleague's approach and my approach is likely to be that the motion judge will have to consider the seventh forum non conveniens factor (loss of legitimate juridical advantage) taking account of both parties' versions of events. This is because stage one of my approach is the same as my colleague's approach (except that further analysis is required if the defendant is not successful at stage one), and because the first six of the seven forum non conveniens factors are likely to be neutralized in a stage- three analysis. B. Application of My Approach to the Facts of this Case

[76] As I have said, I agree with my colleague's conclusion that the record in this matter discloses a reasonable evidentiary basis for Young's version of his employment in Georgia and Indiana. I also agree with the motion judge's implicit finding that Tyco's version of Young's employment has a reasonable evidentiary foundation. I would therefore conduct the forum non conveniens analysis taking account of both parties' versions of Young's employment.

[77] My colleague has essentially dealt with what I call the stage one and two analyses. My colleague conducted a forum non conveniens analysis accepting Young's version of his employment, which, on my approach, is a stage-one analysis. My colleague concluded that three of the forum non conveniens factors favour [page179] Ontario, four are neutral, and that, in the result, Indiana is not a clearly more appropriate forum. I agree with these findings. On the other hand, as my colleague explained, when the trial judge accepted Tyco's version of Young's employment, the forum non conveniens factors pointed virtually exclusively to Indiana as the more appropriate forum. I would call this a stage-two analysis.

[78] I move then to a stage-three analysis on my approach. On the facts of this case, if one accepts that both parties' versions of Young's employment have a reasonable prospect of being accepted as true, six of the seven forum non conveniens factors become neutral. The governing contract may have been entered into either in Illinois or Ontario; the law of either Ontario or Indiana may apply; the location of witness and evidence factors become neutral for the reasons my colleague explained when accepting Young's version of his employment; factual matters arose both in Ontario and in Indiana; and the parties are spread amongst jurisdictions.

[79] The issue boils down then to the question of loss of legitimate juridical advantage. As my colleague explained, on Young's version of his employment, there are two juridical advantages to him in proceeding in Ontario. First is the fact that Ontario judges are familiar with assessing damages for wrongful dismissal. The second is Young's improved access to justice if permitted to proceed in this jurisdiction. On Young's version of his employment, his claim has a strong connection to Ontario and he is legitimately entitled to these advantages. However, he will lose these advantages if compelled to proceed in Indiana.

[80] Turning to Tyco, the sole juridical advantage it claims if its version of Young's employment is accepted is the practical benefit of having an action governed by Indiana law tried in Indiana. In these circumstances, the disadvantage Tyco will experience if compelled to litigate in Ontario does not clearly outweigh the prejudice Young will suffer if compelled to litigate in Indiana.

[81] Although Ontario judges may not have experience in applying Indiana employment law, given that Indiana is an "at will" jurisdiction, its laws relating to the issues in this case are unlikely to be difficult for a judge hearing the case in this province to apply. Moreover, for the reasons my colleague explained, if compelled to litigate in Ontario, Tyco is unlikely to experience the access to justice problems Young will experience if compelled to litigate in Indiana.

[82] As Tyco has not demonstrated that Indiana is clearly the more appropriate forum, I would allow the appeal, set aside the motion judge's order staying Young's action and dismiss Tyco's motion.

Appeal allowed.

Notes

Note 1: For ease of reference, the seven factors are as follows: (1) The location where the contract in dispute was signed; (2) the applicable law of the contract; (3) the location of witnesses, especially key witnesses; (4) the location where the bulk of evidence will come from; (5) the jurisdiction in which the factual matter arose; (6) the residence or place of business of the parties; and (7) the loss of a legitimate juridical advantage: see Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, 1999 3785 (ON CA), [1999] O.J. No. 3275, 178 D.L.R. (4th) 409 (C.A.), at paras. 19-20; and Incorporated Broadcasters Ltd. v. Canwest global Communications Corp. (2003), 2003 52135 (ON CA), 63 O.R. (3d) 431, [2003] O.J. No. 560 (C.A.), at para. 61.