Court File and Parties

COURT FILE NO.: CV-17-576054

MOTION HEARD: 20180228

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Trindent Consulting International Inc., Plaintiff

AND:

John Logsdon, Defendant

BEFORE: Master Mills

COUNSEL: James Heeney and David Israelsohn, Counsel, for the Plaintiff

Nancy Shapiro and Philip Graham, Counsel, for the Defendant

HEARD: February 28, 2018

REASONS FOR DECISION

[1] This motion by the defendant seeks to stay the action on the basis of forum non conveniens. Jurisdiction simpliciter is conceded.

[2] For the reasons that follow, the motion is dismissed.

[3] The plaintiff is a consulting firm incorporated in the State of Wyoming with its head office located in Toronto. The plaintiff has no physical operations in Wyoming. Its sole purpose is to enter into contractual agreements with US based clients, consultants and business development personnel. The plaintiff is a sister corporation to Trindent Management Consulting Inc., an Ontario corporation which oversees the management, human resources and all administrative functions of the plaintiff from its offices in Toronto.

[4] The defendant is a US citizen and is resident in the state of Texas. He was educated in the United States and has worked in the oil and gas industry, developing an expertise in hydrocarbon measurements. At no time has the defendant held any form of immigration status that would permit him to live or work in Canada.

[5] By letter dated July 24, 2015 (the “Letter”), the plaintiff extended an offer of employment to the defendant. The Letter provides the position offered is as an Engagement Manager in the Toronto office, commencing on August 17, 2015. The salary offered is denominated in US dollars, net of applicable federal and state filings, plus benefits including a 401K investment plan. A signing bonus is offered and the terms of employment are outlined. The Letter further outlines the basis upon which a termination may be effected and the restrictions placed upon the defendant in the event of termination.

[6] The governing law for the employment agreement is stated in the Letter to be, in all respects, the laws of the Province of Ontario and the laws of Canada. There is no forum selection clause contained in the Letter.

[7] It is acknowledged the defendant received independent legal advice prior to signing the Letter and accepting the terms of employment. The Letter includes an entire agreement clause, confirming it cancels and supersedes any and all prior and contemporaneous agreements, representations, discussions and understandings between the parties.

[8] It was never intended by either party that the defendant would actually work from the Toronto office. Rather, as a consultant, the defendant was to provide services to clients of the plaintiff, wherever they were located in the world. This resulted in the defendant working with clients located in the United States, Singapore and Germany. At no time did the defendant provide consulting services to any clients located in Canada.

[9] The defendant did attend in Toronto where he was initially interviewed for the position and then following his hiring, the defendant came to the head office facilities for employee training sessions and meetings with management.

[10] On April 21, 2017, the defendant tendered his resignation.

[11] The defendant commenced proceedings in the state of Texas on May 31, 2017 seeking damages and a declaration voiding the terms and conditions of the Letter on the basis of fraud. The plaintiff has filed a defence to the Texas action.

[12] The plaintiff commenced this action on May 29, 2017 to enforce the terms and conditions of the Letter and to seek damages for alleged breaches of those terms and conditions.

[13] The defendant has brought this motion prior to filing a defence in this action as required by s. 106 of the Courts of Justice Act and Rule 17.06(1)(b) of the Rules of Civil Procedure. The defendant has not attorned to the jurisdiction of this Court and seeks to stay the action pursuant to Rule 17.06(2)(c), claiming that Ontario is not a convenient forum for the hearing of the matters in issue.

[14] The defendant has conceded jurisdiction simpliciter and therefore the only issue to consider is forum non conveniens. The Supreme Court of Canada affirmed the correct test to be applied on a motion to stay is for the defendant to establish the alternative forum is preferred and clearly more appropriate.[^1] In ascertaining which jurisdiction is more appropriate, the court may consider the following, non-exhaustive, list of factors:

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.[^2]

[15] The Ontario Court of Appeal, in Young v. Tyco[^3], set out a convenient list of factors to consider when exercising the judicial discretion to stay a proceeding on the basis of forum non conveniens in breach of contract actions. They are as follows:

a. the location where the contract in dispute was signed;

b. the applicable law of the contract;

c. the location of witnesses, especially key witnesses;

d. the location where the bulk of the evidence will come from;

e. the jurisdiction in which the factual matters arose;

f. the residence or place of business of the parties; and

g. the loss of a legitimate juridical advantage.

[16] The Letter was signed by the plaintiff in Toronto and by the defendant in Texas. This factor is therefore neutral between the parties.

[17] It is acknowledged the Letter provides the applicable law of the agreement is Ontario and Canada.

[18] The majority of the relevant witnesses appear to be located in Toronto and perhaps Germany. Initially, the defendant and one other individual were identified as the only potential witnesses located in Texas. Five days prior to the return of this motion and ten weeks after the cross-examination of the defendant, a list of Texas based witnesses was provided to counsel for the plaintiff. These witnesses will purportedly address the defendant’s performance in respect of the US based operations of a client. The allegations raised by the plaintiff however are in respect of the defendant’s conduct while providing services to the client’s Germany based operations. At this time, it would appear therefore, that the key witnesses are located in Toronto and Germany.

[19] The bulk of the evidence for this action is documentary and presently located in Toronto, either physically at the plaintiff’s head office or preserved on a hard drive and held by Telus Digital Forensics. The electronic preservation of the documents means the evidence is easily transferrable to any jurisdiction. In my view, this factor is therefore neutral to the parties.

[20] The defendant tendered his resignation while working for a client in Germany. The plaintiff alleges the various breaches of the terms and conditions of the Letter occurred while the defendant was working in Germany. This factor is neutral.

[21] It is undisputed the plaintiff’s head office and functional operations are located in Toronto. The defendant is resident in Texas. Both are sophisticated and accustomed to travelling the world to pursue business endeavours. The defendant has attended in Toronto on several occasions during the course of his employment. He has participated in training activities and attended meetings in Toronto. He has regularly reported to management in Toronto with respect to the performance of his duties.[^4] It is not unduly onerous nor cost prohibitive to require the defendant to attend in this jurisdiction. On balance, this factor favours the plaintiff.

[22] Although the defendant disputes the validity and enforceability of the governing law provision, the plaintiff may lose a legitimate juridical advantage if this action were to be stayed in favour of the Texas action. The plaintiff cannot be accused of forum shopping by commencing this action in Ontario. Jurisdiction simpliciter has been conceded. As such, the plaintiff will have a legitimate juridical advantage in having Ontario law interpreted and applied by this court, rather than having Ontario law proven before the District Court for Bexar County, Texas. This factor favours the plaintiff.

[23] The defendant sought to file an affidavit from his Texas counsel to address the issues of the duplicity of proceedings and enforceability of an Ontario judgment in Texas. The affiant refused to make herself available for cross-examination in Toronto purportedly due to immigration concerns. As a result, the affidavit was struck and there is no evidence before me from the defendant respecting these issues.

[24] In my view, balancing the above factors, the defendant has failed to demonstrate that Texas would be a clearly more appropriate jurisdiction in which to adjudicate the matters in dispute. As such, I decline to exercise my jurisdiction to stay this action on the basis of forum non conveniens.

[25] Having been successful on this motion, the plaintiff is entitled to its costs on a partial indemnity basis. The parties each submitted Cost Outlines for my consideration. Based on the complexity of the proceeding, the importance of the issues, the reasonable expectations of the parties and the principles of proportionality, costs are awarded to the plaintiff, fixed in the amount of $16,172.45 inclusive of disbursements and HST, payable within 60 days.

Master J. E. Mills

Date: March 13, 2018

[^1]: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at paras. 103 and 108 (emphasis added). [^2]: Ibid., at para. 105. [^3]: 2008 ONCA 709, at para 26. [^4]: Dundee Precious Metals Inc. v. Marsland, 2011 ONCA 594, at para. 10.