COURT FILE NO.: 16-1004
DATE: 20161206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tina Hale
Plaintiff
-and-
Royal Bank of Canada and
Margaret Morrison
Defendants
Ethan M. Rogers, Counsel for the Plaintiff
Michael Torrance, Counsel for the Defendants
HEARD: November 2, 2016
Justice Lemon
endorsement
The Issue
[1] The defendants seek an order staying this action. They say that there is no real and substantial connection between Ontario, the defendants, and the subject matter of the case. Further, they submit that British Columbia is the more convenient forum. The defendants plead that the claim alleges a breach of contract concerning an employment relationship at a British Columbia branch of the Royal Bank, along with an allegation that the plaintiff was defamed by Ms. Morrison in British Columbia.
Background
[2] Ms. Hale seeks damages for wrongful termination of employment against Royal Bank. She also seeks damages against both defendants on the basis of defamation by Ms. Morrison, an employee of Royal Bank, and/or negligence, along with aggravated and punitive damages.
[3] Ms. Hale was employed with Royal Bank in various positions at various locations in British Columbia between January 29, 1990 and October 26, 2015. She accepted a position with a Royal Bank branch in Mississauga, Ontario on November 18, 2015.
[4] Ms. Hale alleges that while she was employed with Royal Bank in British Columbia, she received a warning letter regarding an employment related incident. She received a second warning letter for an incident that took place in July of 2014.
[5] In or about May 2015, Ms. Hale’s husband obtained new employment in Ontario. A Royal Bank human resources representative advised Ms. Hale that there was a policy that allowed employees to take a leave of absence in order to pursue being hired in a different branch. Ms. Hale took advantage of that policy, moved to Ontario, and sought out opportunities with Royal Bank in Ontario.
[6] In brief, Ms. Hale alleges that Ms. Morrison then defamed her with other Royal Bank employees in Ontario. Ms. Hale takes the position that Ms. Morrison was in British Columbia when she imparted to Ontario Royal Bank employees false and defamatory information regarding her employment history. She was therefore unable to continue her employment with Royal Bank in Ontario.
[7] As a result, Ms. Hale says that Royal Bank is liable for constructive dismissal since their employee, Ms. Morrison, took steps that were designed to unjustifiably force the triggering of her resignation.
Authorities
[8] Both counsel rely on the principles laid out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572. A court may assume jurisdiction over a tort action where there are “presumptive connecting factors” to that court. At para. 90, those factors are that:
(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.
[9] If there are no such presumptive connecting factors, the court should not assume jurisdiction.
[10] Where a recognized presumptive connecting factor does apply, the court should assume that it is properly seized of the subject matter of the litigation, unless the presumption of jurisdiction is rebutted. However, the burden of rebutting the presumption rests on the party challenging the assumption of jurisdiction. That party must establish facts which demonstrate 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.
[11] 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 occurred in the province.
[12] Further, where a case sounds in both contract and in tort, or in more than one tort, the court must assume jurisdiction over all aspects of the case.
[13] In Banro Corp v. Editions Ecosociete Inc., 2012 SCC 18, [2012] 1 S.C.R. 636, the court dealt with these same principles in terms of a defamation action. There, it was decided that the defendants had not shown that only a minor element of the tort of defamation occurred in Ontario. As a result, the presumption of jurisdiction was applied.
[14] Even if jurisdiction is found on the basis of one or more presumptive connecting factors, the doctrine of forum non conveniens may be considered in the jurisdictional analysis. When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in limited circumstances, in order to assure fairness to the parties and the efficient resolution of the dispute.
[15] A non-exhaustive list of the factors to be considered is found in Van Breda, at para. 105. These include:
(a) The comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
(b) The law to be applied to issues in the proceeding;
(c) The desirability of avoiding multiplicity of legal proceedings;
(d) The desirability of avoiding conflicting decisions in different courts;
(e) The enforcement of an eventual judgment; and
(f) The fair and efficient working of the Canadian legal system as a whole.
Analysis
[16] In my view, Ontario has jurisdiction to hear this case; there is a real and substantial connection to Ontario. Further, the defendants have not met their onus to discharge the presumptive connection to Ontario or to rely on the principle of forum non conveniens.
Presumptive Connection
[17] I find that there is a presumptive connection to Ontario by way of the tort of defamation. Following Banro Corp., the alleged defamation may have been spoken in British Columbia, but the harm and remedy will be in Ontario. While damages suffered in Ontario are not sufficient to determine jurisdiction, the tort of defamation occurred in Ontario, to a resident of Ontario. See: Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666.
[18] Looking at the rest of the Van Breda factors, I find as follows.
[19] Neither defendant is domiciled or resident in Ontario.
[20] While Royal Bank carries on business in both Ontario and British Columbia, the location of the contract is an interesting issue. The defendants say that the contract was in British Columbia because the damages claimed are consistent with that long term contract. Ms. Hale says that the contract was in Ontario, since she accepted a new contract with Royal Bank in Mississauga, which was later withdrawn. While damages may be affected by this issue, “a contract connected with the dispute was made” in Ontario. Without the tort of defamation as above, I am not certain that the contract in Ontario alone would have determined jurisdiction; combined, however, I am satisfied that Ms. Hale has shown that there is presumptive jurisdiction in Ontario.
[21] Even if the defendants are correct that the operable contract was in British Columbia, the case would sound in both tort and contract. Accordingly, Ontario may take jurisdiction of the tort claim and then assume jurisdiction over the breach of contract aspect of the case. See: Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, 117 O.R. (3d) 313.
[22] The defendants have not rebutted the presumption that Ontario should take jurisdiction. There is nothing to suggest that only a minor element of the tort was committed in Ontario. Ms. Hale is a resident of Ontario. If the allegations are proved, the statements were heard and acted upon in Ontario, her reputation was damaged in Ontario and she lost her employment in Ontario.
Forum Non Conveniens
[23] With respect to forum non conveniens, the following should be considered.
[24] There is a high onus on the moving party to move the jurisdiction on the basis of forum non conveniens. The defendants must show that British Columbia is a “clearly more appropriate forum”. See: Black.
[25] Either Ms. Hale or Ms. Morrison is going to have to travel for the trial. While I have no evidence on the point, one presumes that Ms. Morrison’s employer, Royal Bank, would not have her bear the financial cost of that travel. Regardless, this factor is, at least, evenly balanced.
[26] Three or four Royal Bank employees in both Ontario and British Columbia are involved. As such, the inconvenience to Royal Bank is the same; only the names change.
[27] The defendants point to a large number of documents and employment files in issue. They can be easily dealt with in either jurisdiction.
[28] The plaintiff expects to call three Ontario doctors with respect to damages.
[29] All other factors in Van Breda, as argued before me, are evenly balanced or irrelevant. The location of the litigation will not impact on the efficient conduct of the litigation or the principles of law that are to be applied. There is no argument that there will be a multiplicity of proceedings or a risk of conflicting decisions. Neither party raises any concerns with respect to enforcement of any judgment.
[30] Accordingly, the balance has not been shifted and the trial should occur in Ontario.
Service
[31] Ms. Morrison also requested an order to set aside service of the Statement of Claim upon her in British Columbia. Given my ruling above, it follows that service was valid pursuant to Rule 17.02 (g).
Result
[32] For those reasons, the defendants’ motion is dismissed.
Costs
[33] If the parties cannot agree on costs, written submissions may be made to me. Ms. Hale shall provide her costs submissions within the next 15 days, and the defendants shall respond within 15 days thereafter. Each submission shall be no more than three pages, not including any bills of costs or offers to settle. Those submissions shall be forwarded to me by mail to the Guelph Superior Court house at 74 Woolwich St. Guelph, Ontario N1H 3T9.
“Justice Lemon”
Justice Lemon
Released: December 6, 2016
COURT FILE NO.: 16-1004
DATE: 20161206
ONTARIO
SUPERIOR COURT OF JUSTICE
Tina Hale
Plaintiff
-and-
Royal Bank of Canada and
Margaret Morrison
Defendants
endorsement
Lemon J.
Released: December 6, 2016