Sullivan v. Four Seasons Hotels Limited, carrying on business as Four Seasons Hotels & Resorts et al.

[Indexed as: Sullivan v. Four Seasons Hotels Ltd.]

Ontario Reports

Ontario Superior Court of Justice,

Chapnik J.

July 8, 2013

116 O.R. (3d) 365 | 2013 ONSC 4622

Case Summary

Conflict of laws — Forum conveniens — Plaintiff employed in New York by subsidiary of Ontario corporation — Plaintiff bringing action in Ontario for damages for wrongful dismissal and violations of Ontario Human Rights Code after her employment was terminated — Ontario court having jurisdiction to hear action but jurisdiction declined on ground that New York was more appropriate forum — Key witnesses and evidence located in New York — New York being jurisdiction in which factual matters at core of dispute between parties arose.

Conflict of laws — Jurisdiction — Plaintiff entering into employment contract with Ontario corporation in 2002 and being transferred to New York in 2007 — Contract governing transfer executed by plaintiff in Ontario — Plaintiff employed by U.S. subsidiary of Ontario corporation after transfer but Ontario corporation's human resources manager continuing to have effective control over her — Plaintiff bringing action in Ontario for damages for wrongful dismissal and violations of Ontario Human Rights Code after her employment was terminated — Ontario court having jurisdiction to hear action.

The plaintiff entered into an employment contract with Four Seasons, an Ontario corporation, in 2002 and worked as its director of sales until 2007, when she was transferred to New York. The contract governing the transfer was executed by the plaintiff in Ontario. After the transfer, she was allegedly employed by U.S. subsidiaries of Four Seasons. Her employment was terminated in 2011. She brought an action in Ontario for damages for wrongful dismissal and violations of her rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The defendants brought a motion to dismiss or stay the action on the grounds that the Ontario court lacked jurisdiction to hear it or, alternatively, that Ontario was not forum conveniens.

Held, the motion should be granted.

This was an appropriate case in which to pierce the corporate veil. The plaintiff's transfer to New York was facilitated by Four Seasons. After the transfer, Four Seasons' human resources manager continued to exercise effective control over her. Four Seasons' human resources manager admitted that, had she been aware that the termination was contrary to corporate policy, she would have informed the plaintiffs' supervisors in New York. Moreover, a "contract connected with the dispute" was made in Ontario, as the initial employment contract was prepared in Ontario and received and signed by the plaintiff while she was residing and working in Ontario, and the contract that governed her transfer was executed by her while she was in Ontario. The Ontario court had jurisdiction to hear the action. However, the court declined to exercise that jurisdiction on the basis that New York was the more appropriate forum. New York was the jurisdiction in which the factual matters at the core of the dispute arose. Apart from the plaintiff, the main witnesses were all located in New York, and New York was the jurisdiction where most of the evidence would be found.

Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712, apld

Trillium Motor World Ltd. v. General Motors of Canada Ltd., [2013] O.J. No. 2358, 2013 ONSC 2289 (S.C.J.), consd

Other cases referred to

Black v. Breeden, [2012] 1 S.C.R. 666, [2012] S.C.J. No. 19, 2012 SCC 19, 291 O.A.C. 311, 2012EXP-1450, J.E. 2012-786, 429 N.R. 192, EYB 2012-205200, 17 C.P.C. (7th) 1, 343 D.L.R. (4th) 629, 91 C.C.L.T. (3d) 153, 212 A.C.W.S. (3d) 713; Downtown Eatery (1993) Ltd. v. Ontario (2001), 2001 ONCA 8538, 54 O.R. (3d) 161, [2001] O.J. No. 1879, 200 D.L.R. (4th) 289, 147 O.A.C. 275, 14 B.L.R. (3d) 41, 8 C.C.E.L. (3d) 186, [2002] CLLC Â210-008, 105 A.C.W.S. (3d) 434 (C.A.); Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, 1999 ONCA 3785, [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.); Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 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, 2003 ONCA 52135, 120 A.C.W.S. (3d) 966 (C.A.); Jones v. CAE Industries Ltd., [1991] O.J. No. 2295, 40 C.C.E.L. 236, 31 A.C.W.S. (3d) 604 (Gen. Div.); Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, [1973] S.C.J. No. 149, 43 D.L.R. (3d) 239, 1 N.R. 122, [1974] 2 W.W.R. 586, 1973 SCC 192; Sinclair v. Dover Engineering Services Ltd., [1988] B.C.J. No. 265, 49 D.L.R. (4th) 297, 1988 BCCA 3358, 9 A.C.W.S. (3d) 30 (C.A.); Yaiguaje v. Chevron Corp., [2013] O.J. No. 1955, 2013 ONSC 2527 (S.C.J.); Young v. Tyco International of Canada Ltd. (2008), 92 O.R. (3d) 161, [2008] O.J. No. 4046, 2008 ONCA 709, 65 C.P.C. (6th) 39, 69 C.C.E.L. (3d) 52, 300 D.L.R. (4th) 385, 170 A.C.W.S. (3d) 506

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106

Human Rights Code, R.S.O. 1990, c. H.19 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3) (a)

MOTION for an order dismissing or staying an action.

Albert S. Frank, for plaintiff.

Christopher Burkett and Cherrine Chow, for defendants (moving parties).

[1] CHAPNIK J.: — This motion deals with the unique nature of a global multinational employer in cases where the jurisdiction of this court to deal with the matter is disputed. The defendants bring a motion under rule 21.01(3)(a) 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 requesting the dismissal or permanent stay of the plaintiff's action on the basis that the Ontario Superior Court of Justice lacks jurisdiction to hear this dispute. Alternatively, they submit that even if the court has jurisdiction, it should decline to exercise this jurisdiction based on the principle of forum non conveniens.

[2] The defendants' motion flows from the plaintiff's claim against them for wrongful dismissal and violations of the Ontario Human Rights Code, R.S.O. 1990, c. H.19.

[3] The plaintiff asks that the court dismiss the defendants' motion with substantial indemnity costs. She submits that Ontario courts have jurisdiction to handle these proceedings, and that there is no other forum that is clearly more appropriate. She also requests leave to deliver an amended statement of claim.

[4] The plaintiff has over two decades of experience in the international hotel industry. From 2002 until 2007, she was employed by the Four Seasons Hotel, Toronto, as director of sales. In 2007, she entered into an employment agreement with Nevis Resort, a resort that operates using the Four Seasons Hotel and Resorts trademark. She was employed by the Nevis Resort as director of sales and operated out of the New York satellite office where the resort's sales team was based.

[5] The plaintiff worked as director of sales for the Nevis Resort from July 30, 2007 until September 29, 2011, at which time she was terminated, effective the following day.

The Position of the Parties

[6] The plaintiff asserts that the Ontario courts have jurisdiction to hear her action and that there is no reason to look to another forum.

[7] She bases this largely on her position that the Ontario head office corporation, Four Seasons Hotels Limited, provides management services and support to the various other Four Seasons corporations, including the Nevis Resort and FS US Services Limited (the defendant whom the defendants allege was the plaintiff's employer at the relevant time). Accordingly, all such corporations should be found to be carrying on business in Ontario. The plaintiff asserts that her position is supported by the following factors.

[8] The plaintiff worked for Four Seasons in Ontario and was then transferred to New York as an assignment or transfer of her already existing employment contract. According to the plaintiff, her period of "continuous service" continued to run from the original 2002 contract date.

[9] The employment offer signed by the plaintiff makes no reference to FS US Services Limited (formerly FS U.S. Employment Inc.), nor SK Nevis Resort, LLC, and there was no document informing the plaintiff that her employer had changed from Four Seasons Hotels Limited to FS US Services Limited.

[10] Four Seasons presents itself as an integrated international operation with worldwide presence, whose operations include the Four Seasons Resort Nevis and its New York satellite sales office. Four Seasons Hotels Limited has a Canadian trademark registration for the name "Four Seasons Hotels and Resorts" and all entities using the name and device require permission of the Four Seasons Hotels Limited or one of its subsidiaries.

[11] Four Seasons Hotels Limited, which is an Ontario corporation with offices in Toronto, is referred to by people associated with Four Seasons as the "head office", "home office" or "corporate office". Four Seasons Limited in Toronto ("home office") employs a vice president of compensation and benefits who negotiates rates for benefits for all U.S. employees, which included the plaintiff.

[12] Four Seasons Hotels Limited is responsible for oversight of the marketing activities and expenditures from the marketing fund that all hotel owners pay into.

[13] Human resources policies are set at the head office in Toronto rather than locally in each office and the plaintiff reported to the same human resources manager (Ms. Mitchell) while in both Ontario and New York. The Ontario office and HR manager (Ms. Mitchell) assisted with the plaintiff's immigration to the U.S. both during the time she was employed at the satellite office in New York and even post-termination. Further, Ms. Mitchell was aware of the performance concerns raised with respect to the plaintiff and was copied on correspondence leading up to and including the plaintiff's termination. She also provided the satellite office employees handling the termination, Mr. LaBreche and Mr. Humphries, with the corporation's no-fault separation policy, which is standard for all U.S. employees.

[14] An additional factor connecting the various corporations is the manner in which the plaintiff was remunerated. The corporate office in Toronto oversaw, processed, and managed the U.S. payroll, and it was this office, not FS US Services Limited, who paid the plaintiff for her work in the New York satellite sales office.

[15] The plaintiff asserts further connections to Ontario in that the original employment contract she signed was executed in Ontario and covered Ontario employment. The contract she signed prior to moving to the New York location was merely an extension of this, which was also made in Ontario. Even if it is treated as a new contract, it was prepared by the head office in Ontario and signed by the plaintiff in Ontario, where she was working and residing at the time.

[16] The plaintiff highlights other more personal reasons why the Ontario courts should exercise jurisdiction. She has had difficulty entering the United States, which makes litigation in New York harder for her. Several essential witnesses are located in Ontario and the others can travel to Ontario more easily than the plaintiff can travel to the United States.

[17] Further, the law in Ontario is significantly different than that of New York with respect to employment termination. She was never informed that her contract would be governed by New York law and will be disadvantaged if that is where the litigation proceeds.

[18] The defendants assert that the Ontario courts lack jurisdiction to hear the plaintiff's action and even if they have jurisdiction they should decline to exercise said jurisdiction based on the principle of forum non conveniens.

[19] The defendants' arguments focus largely on the corporate structure and relationships (or lack thereof) between the various defendants, in particular the Nevis Resort (wholly owned by SK Nevis Resort, LLC); FS US Services Limited; Four Seasons Hotels Limited; 2066751 Ontario Limited; Kingdom Hotels (Toronto) Ltd.; and FS U.S. Employment Inc. The defendants resist the plaintiff's position that Four Seasons Hotels Limited was directly connected to her employment in New York. Each Four Seasons hotel, across the globe, is independently owned and operated.

[20] According to the defendants, the plaintiff had an employment contract with the Four Seasons Hotel, Toronto, for five years. In 2007, she applied for a transfer, which was accepted. After interviews with senior officials there, she was offered the position of director of sales and marketing for the Nevis Resort and began employment at their New York satellite office in July 2007. The employment was specifically with the Nevis Resort and she signed a binding agreement with them.

[21] This change in employment meant the plaintiff became employed for the Nevis Resort through FS US Services Limited (who processed her payroll). She was no longer on the Four Seasons Hotel, Toronto, payroll or health and welfare plans. Her salary and benefits were paid by FS US Services Limited, which is incorporated in Delaware.

[22] Ms. Mitchell was director, corporate human resources and administration, and in this capacity was responsible for corporate employees, rather than hotel-level employees. She was given information on the plaintiff's employment and performance but was not directly involved in performance management or termination.

[23] Mr. LaBreche, the plaintiff's direct supervisor, found her performance to be below the expected standards and created a performance monitoring plan meant to assist her in achieving a higher level of proficiency within 90 days. The human resources departments of the Four Seasons Hotels Limited or Four Seasons Hotel, Toronto, were not involved in the performance monitoring plan or the termination. The decision to terminate was made by the plaintiff's supervisors on site in New York (Mr. LaBreche and Mr. Humphries), and Ms. Mitchell, Four Seasons Hotels Limited, and Four Seasons Hotel, Toronto, had no involvement.

[24] Based on the above realities of the plaintiff's employment situation, the defendants assert that there is no real and substantial connection to Ontario. This leaves the Ontario courts without jurisdiction to hear the action.

Analysis

Jurisdiction of the Ontario courts

[25] The initial question that must be answered when determining whether a court can legitimately assume jurisdiction is whether there is a "real and substantial connection" between the dispute and the court whose jurisdiction is being asserted (Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, [1973] S.C.J. No. 149, 1973 SCC 192).

[26] The test for assessing whether such a connection exits was recently reformulated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17. In this decision, the court articulated a non-exhaustive set of presumptive connecting factors to be considered. The following factors prima facie entitle a court to assume jurisdiction over a dispute (Van Breda, at para. 90):

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

[27] The plaintiff bears the burden of proving that the claim falls within one of the presumptive connecting factors (Van Breda, at para. 80).

[28] In this case, the plaintiff highlights the relationship between Four Seasons Hotels Limited, based in Ontario, and the Nevis Resort's New York satellite office. She asserts that this connection and the fact that the Ontario-based head office oversaw various aspects of the other corporations operating under the Four Seasons trademark means that Four Seasons Hotels Limited and its management team, who were superiors to the plaintiff, are appropriate defendants, domiciled in Ontario. According to the plaintiff, Van Breda presumptive factors one and two are met.

[29] Further, the plaintiff maintains that one or more of the employment contracts connected with the dispute were made in Ontario, satisfying yet another presumptive factor in support of the court assuming jurisdiction.

[30] Since the list of presumptive factors articulated in Van Breda is not closed, the plaintiff suggests that there are additional presumptive factors in this case. Namely, the fact that the foreign defendants are largely managed by an Ontario corporate defendant based in Ontario, which brings all of these defendants under the definition of "carrying on business in the province".

[31] Further, FS US Services Limited is a subsidiary of a subsidiary of the Ontario head office corporation. Ms. Sullivan's salary was paid by FS US Services Limited, which received the funds provided by the Nevis Resort through Four Seasons Hotels Limited as a conduit.

[32] The plaintiff points to the common employer doctrine which is "well recognized in Canada" and permits a finding that a person is employed by both the entity who directly employs her as well as the entity that pays her salary, or by the entity who employs her and the company or consortium of companies who own or control that entity (Sinclair v. Dover Engineering Services Ltd., [1998] B.C.J. No. 265, 49 D.L.R. (4th) 297, 1988 BCCA 3358 (C.A.); Downtown Eatery (1993) Ltd. v. Ontario (2001), 2001 ONCA 8538, 54 O.R. (3d) 161, [2001] O.J. No. 1879 (C.A.)).

[33] The defendants resist this categorization of the corporate relationships and connections between the various defendants. They caution the court that the common employer doctrine, which the plaintiff asserts, is not applicable here. Although Four Seasons Hotels Limited was a conduit for the funds paid to employees, it did not itself pay the plaintiff's salary and was not her employer.

[34] The defendants' position is that the identity of the true employer "must be ascertained on the basis of where effective control over the employee resides" (Jones v. CAE Industries Ltd., [1991] O.J. No. 2295, 40 C.C.E.L. 236 (Gen. Div.), at p. 9 (QL)). This control was exercised through Messrs. LaBreche and Humphries, who supervised the plaintiff, and ultimately, through the owners of the Nevis Resort.

[35] The defendants contend that it is inappropriate to find that the various defendants are all the plaintiff's employers "carrying on business in the province". They find support for this position in the recent decision in Yaiguaje v. Chevron Corp., [2013] O.J. No. 1955, 2013 ONSC 2527 (S.C.J.). At para. 95 of his decision, Brown J. states the following:

The fact that a parent corporation operates a number of world-wide companies as an integrated economic unit does not mean that separate legal entities will be ignored absent some compelling reason for lifting the corporate veil. Ontario courts have not adopted the "group enterprise theory" of corporate liability. I adopt, as an accurate statement of the law prevailing in Ontario on this point, the following statements by the United Kingdom Court of Appeal in Adams v. Cape Industries Plc.:

There is no general principle that all companies in a group of companies are to be regarded as one. On the contrary, the fundamental principle is that "each company in a group of companies . . . is a separate legal entity possessed of separate legal rights and liabilities . . ."

Our law . . . recognizes the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities.

(Footnotes omitted; emphasis added)

[36] Given this court's very recent comment on the undesirability of too easily piercing the corporate veil, I proceed with caution. However, I am persuaded in this case that there is a compelling reason to do so. The HR manager for Four Seasons Hotel Limited in Ontario (Ms. Mitchell) has a real and substantial connection to the plaintiff's employment for the Nevis Resort (New York satellite office) and FS US Service Limited. When considering where "effective control over the employees" resides, I find that Ms. Mitchell, who is based at Four Seasons Hotels Limited in Toronto, had such control. She admitted on cross-examination that she drafted the contract for the plaintiff's transfer, she provided the "no-fault separation policy" to Mr. LaBreche when he informed her months before termination that things with the plaintiff were not working well, and she provided advice to the plaintiff's (and other) human resources supervisors in various locations, with whom she was in regular contact.

[37] I am persuaded by the plaintiff's categorization of the nature of her move from the Four Seasons Hotel, Toronto, to the Nevis Resort (New York satellite office) as a transfer. I find this to be a transfer that was facilitated by Four Seasons Hotels Limited, in that their human resources manager, Ms. Mitchell, drafted the updated employment contract, assisted with the process and assisted with the immigration of the plaintiff (for the purposes of her employment transfer). While Four Seasons Hotels Limited may not have had direct control over the termination of the plaintiff's employment, Ms. Mitchell admits that, had she been aware that the termination was contrary to corporate policy, she would have informed Mr. Humphries and Mr. LaBreche of this. Further, Ms. Mitchell admitted that Ms. Brown, who was "Vice President, Human Resources, the Americas" and served as vice president of human resources for "every single hotel property, including the Caribbean and Central and South America", could have weighed in on the plaintiff's termination. Also, if Ms. Brown thought her concerns were not being heard, she could have gone to the vice president of human resources, Mr. Mutton, who is employed directly by Four Seasons Hotels Limited in Ontario. While the final termination decision would remain with the owner of the hotel in question, the opinion of the vice president of human resources for Four Seasons Hotels Limited has great influence. It is hard to then argue that there is no connection between the plaintiff and Four Seasons Hotels Limited in the structure of the employment relationship.

[38] The other presumptive connecting factor upon which the plaintiff relies and the defendants resist is the fact that "a contract connected with the dispute was made in the province". In this case, the initial employment contract was prepared in Ontario and received and signed by the plaintiff while she was residing and working in Ontario. The subsequent contract which governed her transfer was admitted by the defendants as being "executed by the plaintiff in Ontario".

[39] The defendants maintain that the contract was for employment services between the plaintiff and a U.S. corporation, the performance of which employment was to take place in the United States. Thus, regarding the employment contract, there is only a very "tenuous connection" to the Province of Ontario.

[40] Subsequent to Van Breda, jurisdictional scholars have highlighted the difficulties posed by this fourth presumptive connecting factor of "a contract connected with the dispute [being] made in the province". Justice Belobaba, in his recent decision in Trillium Motor World Ltd. v. General Motors of Canada Ltd., [2013] O.J. No. 2358, 2013 ONSC 2289 (S.C.J.), quotes Professor Vaughan Black's assertion that this factor is an "odd one" and "peculiar" for several reasons. First, "it is far from obvious why, in a torts suit, any affiliation with a contract that is in some way connected with the tort should be pertinent", and second, "even if some connection between the alleged tort and some contract justifies tort jurisdiction, the affiliation required here [in Van Breda] is a debatable one" (Trillium, at para. 8 (emphasis in original)). He highlights that in a tort case the focus falls more appropriately on where the substance of the contract is being performed.

[41] The defendants cite Trillium in support of their position that a tenuous connection through the fourth presumptive connecting factor must be applied with caution since it is peculiar and requires further appellate guidance (Trillium, at para. 9). However, in both Trillium and Van Breda, the court was satisfied [at para. 11] that "[t]he events that gave rise to the [tort] claim flowed from the relationship created by the [Ontario] contract".

[42] In Van Breda, the Supreme Court found Ontario to have jurisdiction over Ms. Van Breda's tort claim for injury suffered in Cuba even though she was a third party to a contract entered into in Ontario between her husband and the Cuban resort where they were staying and he was a temporary worker. The contract was being performed in Cuba and the injury occurred in Cuba. In the present case, the contract is being performed in New York and that is where the alleged damages occurred (discrimination, termination, etc.), but following the Van Breda approach, the location of the performance of the contract and the place of the alleged damages are not determinative of jurisdiction.

[43] The next step of the jurisdiction simpliciter analysis, after assessing whether any of the presumptive connecting factors are present, requires the court to determine whether the defendants have rebutted the presumption of a real and substantial connection (Van Breda, at para. 81).

[44] To rebut the presumption of jurisdiction, the defendants must demonstrate facts establishing that the "presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them" (Van Breda, at para. 95). The Supreme Court explains, at para. 96, that this may include the following:

[W]here the presumptive connecting factor is a contract made in the province, the presumption can be rebutted by showing that the contract has little or nothing to do with the subject matter of the litigation. And where the presumptive connecting factor is the fact that the defendant is carrying on business in the province, the presumption can be rebutted by showing that the subject matter of the litigation is unrelated to the defendant's business activities in the province. On the other hand, where the presumptive connecting factor is the commission of a tort in the province, rebutting the presumption of jurisdiction would appear to be difficult, although it may be possible to do so in a case involving a multi-jurisdictional tort where only a relatively minor element of the tort has occurred in the province.

[45] The defendants emphasize that the connection to Ontario through the employment contract is tenuous. The work is executed in the United States under the direct supervision of management in the United States and during the term of her employment the plaintiff resided in the United States. However, it is difficult to say, as in the example above, that the contract has little or nothing to do with the subject matter of the litigation. The employment contract governs the relationship and conduct between the plaintiff and her direct employers. Events taking place during this employment contract are alleged as the source of the plaintiff's damages, including the actions of her direct supervisors on site in New York.

[46] In the case of presumptive connecting factors one and two, that the defendants are domiciled or resident in the province or carry on business in the province, the presumption is rebutted where the subject matter of the litigation is not sufficiently connected to the business activity. I do not find that the defendants have established that in these circumstances the connections are not sufficient.

[47] Based on the above, I find that in the particular and unique circumstances of this case, the Ontario courts do have jurisdiction simpliciter to hear this litigation.

[48] I move now to the question of whether Ontario should decline to exercise this jurisdiction under the principles of forum non conveniens.

Forum non conveniens

[49] Even where a court finds that jurisdiction exists, this does not mean that it is appropriate for the court to exercise jurisdiction (Van Breda, at para. 101). When asserting that the court should not exercise its otherwise valid jurisdiction, the burden falls to the defendant to show that there is a clearly more appropriate forum (Van Breda, at para. 103). The essential question is whether there is another forum that is better situated to deal fairly and efficiently with the litigation (Van Breda, at para. 109).

[50] In answering this question, the factors the court typically considers include the following:

(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, for example, Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, 1999 ONCA 3785, [1999] O.J. No. 3275, 178 D.L.R. (4th) 409 (C.A.), at paras. 19-20; Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 63 O.R. (3d) 431, [2003] O.J. No. 560, 2003 ONCA 52135 (C.A.), at para. 61; Young v. Tyco International of Canada Ltd. (2008), 92 O.R. (3d) 161, [2008] O.J. No. 4046, 2008 ONCA 709, at para. 26.

[51] I also bear in mind the guidance from the Court of Appeal 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 reasonable basis in the record, not on the defendant's defence to that claim" (Tyco, at para. 34).

[52] I will deal in turn with each of the above factors and see whether they point to a "clearly more appropriate forum" than Ontario. This assessment is neither mathematical nor mechanical, and not all factors will be relevant in a given case. The decision must be based not only on efficiency and convenience, but also on fairness and justice to all parties (Tyco, at para. 30).

[53] The first factor is the location where the contract in dispute was signed. In this case, there is some debate over whether the relevant employment contract is the initial contract signed in 2002 or the subsequent contract signed in 2007 at the time of the plaintiff's transfer. Under the second contract, some employment benefits were not transferred, including accumulated vacation days, but her "continuous service date" remained unaffected and the time ran from her original contract, formed in 2002. Regardless of which contract governs this dispute, both contracts were signed by the plaintiff in Ontario.

[54] The applicable law of the contract, the second factor, is more complicated. The initial contract was clearly governed by the law of Ontario, as that is where it was signed and the employment relationship which it governed existed fully in Ontario. The transfer contract was drafted in Ontario, by Ms. Mitchell's team at Four Seasons Hotels Limited, during a time when the plaintiff was employed in Ontario. It was signed by her in Ontario, but meant to be executed in New York. The transfer employment contract does not refer explicitly to the law that governs the employment relationship.

[55] The location of witnesses is a factor that points strongly toward New York rather than Ontario. The main allegations by the plaintiff are for discrimination and other mistreatment during the course of her employment, by her direct supervisors. The main witnesses on these claims will be the people with whom she worked, all located in New York. Ms. Mitchell, based in Ontario, is a witness, but not as key a witness as the parties on site at the Nevis Resort's New York satellite office where the harms allegedly occurred.

[56] Similarly, the United States (specifically New York) is the jurisdiction where most of the evidence will be found, in the form of viva voce evidence from the witnesses who were present at the time of the relevant events.

[57] According to the plaintiff's statement of claim, New York is also the jurisdiction in which the factual matters at the core of this dispute between the plaintiff and Four Seasons arose. She takes particular issue with comments and actions of Mr. LaBreche, who was evaluating her employment performance. These actions occurred in the Nevis Resort's satellite office in New York.

[58] The sixth factor, the residence or place of business of the parties, is another complicated factor. In this case, the plaintiff and defendants have extremely disparate views on the corporate structure attaching (or not) the various entities operating under the trademark "Four Seasons". Based on the positions that I have accepted, the places of business include, at a minimum, both New York and Ontario. The place of residence of the parties is similarly split, with the plaintiff's current residence adding another jurisdiction since she currently resides in Alberta.

[59] The plaintiff asserts that the various defendants and multiple foreign witnesses can travel more easily to Ontario than she can to the United States. She basis this on the fact that she was once delayed at the border when trying to enter the U.S. However, she has never been denied entry to the country and there is no reason to believe she would have difficulty entering the United States in the future.

[60] The final factor to consider in the forum non conveniens analysis is the loss of a legitimate juridical advantage. The plaintiff places great weight on this due to the differences in employment law in Ontario and New York. In Ontario, she would be entitled to notice (or the equivalent in compensation) if dismissed without cause; however, the parties agree that in New York such is not the case. The plaintiff asserts that the fact that this remedy would be lost in the United States favours Ontario as the appropriate jurisdiction.

[61] The defendants, on the other hand, submit that the plaintiff's discrimination and tortious claims are recognized claims under the laws of the United States, which she can still pursue. Further, they highlight to this court the Supreme Court's recent comments on the issue of juridical advantage. In Black v. Breeden, 2012 SCC 19, [2012] 1 S.C.R. 666, [2012] S.C.J. No. 19, at para. 27, the Supreme Court stated, "[j]uridical advantage not only is problematic as a matter of comity, but also, as a practical matter, may not add very much to the jurisdictional analysis . . . [j]uridical advantage therefore should not weigh too heavily in the forum non conveniens analysis".

[62] In balancing the above factors, I conclude that the defendants have successfully established that New York, United States, is the clearly more appropriate forum.

Conclusion

[63] In summary, I have found that this court has jurisdiction to hear this action. However, in the particular circumstances of this case, I decline to exercise jurisdiction, based on the principle of forum non conveniens.

[64] Accordingly, the action of the plaintiff is permanently stayed.

[65] If the parties cannot agree on costs, they may submit written submissions not to exceed three pages in length, within ten days of the release of these reasons.

Motion granted.

End of Document