Court File and Parties

COURT FILE NO.: CV-13-485603

DATE: 20140605

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Endress + Hauser Canada Limited / Plaintiff

AND:

Jeff Aikman and Pyramid Corporation / Defendants

BEFORE: Justice Edward P. Belobaba

COUNSEL: James Lingwood for Mr. Aikman / Moving Party

Jennifer Heath for Endress + Hauser / Responding Party

HEARD: May 20, 2014

Motion by defendant under Rule 21.01(3)(a). Defendant argues that the Ontario court lacks jurisdiction and that Alberta is a clearly more appropriate forum.

ENDORSEMENT

[1] Jeff Aikman was employed by Pyramid as an instrumentation technician in Alberta. He resigned from Pyramid and joined competitor Endress+Hauser and continued to work in Alberta. After about six months, Mr. Aikman decided to leave E+H and was rehired by Pyramid.

[2] In its statement of claim, E+H alleges that Mr. Aikman failed to repay training expenses and breached contractual and common law obligations by disclosing confidential information to Pyramid. E+H has sued Aikman and Pyramid in Ontario. The action against Pyramid has since been settled and discontinued. The remaining defendant, Aikman, asks that the action be dismissed or stayed because the Ontario court lacks jurisdiction, and if not, that Alberta is clearly the more appropriate forum.

[3] For the reasons set out below, I find that this court has jurisdiction because the contract connected with the dispute, namely the employment agreement, was made in Ontario. However, Alberta is clearly the more appropriate forum. Therefore, the action is stayed.

Jurisdiction simpliciter

[4] Of the four presumptive connecting factors identified by the Supreme Court in Club Resorts Ltd. v. Van Breda[^1], the only one that arguably applies here is the fourth: “a contract connected with the dispute was made in [Ontario].” The other three have no application. The defendant Aikman is not domiciled or resident in Ontario (he lives and works in Alberta); he does not carry on business in Ontario; and there is no credible evidence that he committed a tort in Ontario.

[5] In his factum, Mr. Aikman argued that the contract connected to the dispute, namely the employment agreement with E+H, was entered into in Alberta, not Ontario. During the course of the hearing, however, counsel for Mr. Aikman agreed that even though Mr. Aikman signed the agreement in Grand Prairie, Alberta, he faxed the signature page back to the E+H head office in Burlington, Ontario and thus the contract was made in Ontario.

[6] I agree that the contract was made in Ontario. I say this for three reasons:

(i) The date line filled in by Mr. Aikman[^2] simply confirmed the place and date of his signature. Even though he “accepted” the offer of employment with his signature, he still had to communicate this acceptance to the offeror before the contract became binding.[^3]

(ii) Mr. Aikman communicated his acceptance by faxing the signature page to E+H in Ontario. When the acceptance of a contract is communicated electronically, “the contract is considered to be made in the jurisdiction where the acceptance was received.”[^4]

(iii) The terms of the employment agreement specifically provided that if Aikman wanted to accept the offer, he had to “sign and return one original signed copy of this letter to Human Resources by 2:00 pm MTN on May 11, 2012 after which this offer of employment will expire.” In other words, both parties understood and intended that Mr. Aikman’s acceptance would form a valid and binding contract only if it was received by the HR department (at E+H’s head office in Ontario) before the stipulated expiry time.

[7] The presumptive connecting factor of “a contract connected with the dispute was made in the province” has therefore been established. As the Supreme Court noted in Van Breda, the presumption can be rebutted by showing “that the contract has little or nothing to do with the subject matter of the litigation.”[^5] Here, of course, the employment agreement has everything to do with the dispute between the parties.

[8] Nonetheless, counsel for Mr. Aikman argues that the presumptive connecting factor can be rebutted because the contract was to be performed in Alberta, Mr. Aikman was obliged to report to the E+H office in Alberta, and the choice of law is stated to be Alberta law. In my view, these so-called rebuttal factors fall within the domain of the forum non conveniens analysis – and the two discussions, jurisdiction and convenient forum, should not be conflated. In any event, given my finding that the employment agreement is at the heart of the dispute herein and that it was made in Ontario, I am not persuaded that there is “a weak relationship between [Ontario] and the subject matter of the litigation and that it would accordingly not be reasonable to expect that the defendant would be called to answer proceedings in [Ontario].”[^6]

[9] In short, I am satisfied that the Ontario court has jurisdiction simpliciter.

Forum non conveniens

[10] Where jurisdiction is established the court may nonetheless decline to exercise its jurisdiction in appropriate but limited circumstances in order to assure fairness to the parties and the efficient resolution of the dispute.[^7] The onus is on the defendant to show that an alternative forum is clearly more appropriate, that is, in a better position to dispose fairly and efficiently of the litigation.[^8] The factors that are typically considered include: the location where the contract in dispute was signed; the applicable law of the contract; the jurisdiction in which the factual matters arose; the residence or place of business of the parties; and the location of witnesses, especially key witnesses.[^9]

[11] Initially, given the large number of witnesses that the plaintiff planned to call to establish the dollar amount that had been spent on training expenses, I was inclined to the view that the forum selected by the plaintiff, namely Ontario, could not be dislodged. However, during the course of the hearing and in post-hearing written submissions, the parties narrowed the issues in the litigation and frankly, changed the forum non conveniens analysis dramatically.

[12] For example, counsel for Mr. Aikman advised that he will not be contesting the $38,000 amount that E+H has spent on training costs and relocation expenses, only the repayment obligation. If quantum is not being contested, E+H in turn agreed that the seven or eight ‘training cost’ witnesses would not be required. E+H also noted, in a supplementary written submission, that it will no longer be pursuing the breach of confidential information claim and on the training cost claim will only be calling one witness, its HR manager who was based in Ontario.

[13] In his supplementary submissions, Mr. Aikman noted that when he files his defence he not only intends to contest the repayment obligation but also intends to allege constructive dismissal and misrepresentation. Aikman says he was hired to work as a field technician but then, to his great disappointment, was required to work as an embedded instrument technician. In support of his constructive dismissal claim, Mr. Aikman will call four other witnesses all of whom are located in Alberta: his direct supervisor; two E+H instrument technicians who worked with Aikman during the relevant time period; and an instrument technician from the Pyramid company who was working in the same location and can speak to Aikman’s reasons for leaving E+H and rejoining Pyramid.

[14] I return to the relevant connecting factors. The employment agreement was signed (by Aikman) in Alberta but was accepted (by E+H) and made in Ontario. The applicable law, as stated in the agreement, is the law of Alberta, and Alberta’s Employment Standards Code[^10] is referred to specifically. The jurisdiction where the factual matters arose that gave rise to the dispute (whether the non-payment of training expenses or the alleged constructive dismissal) is Alberta. Mr. Aikman resides in Alberta, and E+H conducts business in Alberta with offices in Edmonton and Calgary. And, most importantly, five of the six witnesses that will be called by the parties reside in Alberta.

[15] I therefore find that Alberta is a clearly more appropriate forum and in a better position to dispose fairly and efficiently of the litigation.

Disposition

[16] The Ontario action is stayed on the basis of forum non conveniens.

[17] The parties have agreed to a costs order of $3000. Costs are therefore fixed in the amount of $3000, payable by E+H to Mr. Aikman within 30 days.

[18] Order to go accordingly.

Belobaba J.

Date: June 5,2014

[^1]: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572.

[^2]: Directly below Mr. Aikman’s signature is a pre-printed date line that reads: “Dated in ___, Alberta this __ day of __, 2012”. Mr. Aikman added the town (“Grand Prairie”) and the date (“9 ... May”) in his own handwriting.

[^3]: In Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, (1999) 1999 3785 (ON CA), 178 D.L.R. (4^th) 409 (Ont. C.A.), at para. 22, the Ontario Court of Appeal reminded readers that the “general rule” in contract law is that a contract is made “in the location where the offeror receives notification of the offeree's acceptance.” The so-called “postal rule” is an exception to this general rule and deems that acceptance has been communicated to the offeror as soon as the letter is mailed, i.e. dropped into the post box. However, electronic communications (whether faxing, emailing or texting) continue to follow the general rule. See the discussion by the Court of Appeal, infra, at paras. 22 to 29.

[^4]: Christmas v. Fort McKay First Nation, 2014 ONSC 373, 119 O.R. (3d) 21, at para. 18. Also see Eastern Power, supra note 3, at paras. 27-29.

[^5]: Van Breda, supra note 1, at para. 96.

[^6]: Ibid., at para. 97.

[^7]: Ibid., at para. 104.

[^8]: Ibid., at para. 109.

[^9]: Young v. Tyco International of Canada (2008), 2008 ONCA 709, 92 O.R. (3d) 161 (C.A.) at para. 26. See also Van Breda, supra note 1, at para. 110.

[^10]: Employment Standards Code, R.S.A. 2000, c. E-9.