Court File and Parties
COURT FILE NO.: CV-21-00655251-0000
DATE: 20210827
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHERRY ROONEY
AND:
PURE EXTRACTION LTD., PURE EXTRACTION CORP. and BALRAJ MANN
BEFORE: VERMETTE J.
COUNSEL: Kevin Fox, for the Plaintiff
N. Joan Kasozi, for the Defendants
HEARD: June 21, 2021
ENDORSEMENT
[1] The Defendants bring a motion to stay the action on the basis that this Court lacks jurisdiction simpliciter or on the basis of forum non conveniens.
Factual background
a. The parties
[2] The Defendant Pure Extraction Ltd. is a corporation incorporated pursuant to the Canada Business Corporations Act, R.S.C. 1985, c. C-44. Its registered office is in Vancouver, and it is registered extra-provincially to do business in British Columbia. It is engaged in the business of researching, designing, developing and manufacturing CO2 extraction systems.
[3] Pure Extraction Ltd. is a wholly owned subsidiary of the Defendant Pure Extraction Corp., a corporation incorporated pursuant to the laws of British Columbia. Pure Extraction Corp. acquired Pure Extraction Ltd. on June 10, 2020.
[4] The Defendant Balraj Mann is a director of both Pure Extraction Ltd. and Pure Extraction Corp. He resides in Vancouver. The record shows that he became a director of Pure Extraction Ltd. on June 10, 2020 and that he was not involved in Pure Extraction Ltd.’s business before 2020.
[5] The Plaintiff resides in Mississauga, Ontario. She alleges that she was an employee of the Defendant Pure Extraction Ltd. from January 1, 2018 to December 17, 2020. This is disputed by the Defendants who take the position that she was an independent contractor. The Plaintiff alleges that she had an annual base salary of $60,000 and that, in addition, she was entitled to commissions on sales made.
[6] On January 20, 2021, the Plaintiff commenced this action for severance/reasonable notice ($37,216), unpaid wages ($3,000), unpaid commissions ($14,432), unpaid vacation pay ($2,076.92), and general/punitive damages ($40,000). She pleads that Pure Extraction Ltd. and Pure Extraction Corp. are common employers and that they function as a single integrated unit. She alleges constructive dismissal and breaches of her employment contract and of the Employment Standards Act, 2000, S.O. 2000, c. 41. She pleads that Mr. Mann, as a director of the corporate Defendants, is personally liable for the payment of unpaid wages, unpaid commissions and unpaid vacation pay in the event the corporate Defendants do not satisfy a judgment for these items.
b. The Plaintiff’s contract with Pure Extraction Ltd.
[7] The Plaintiff gives the following evidence in her affidavit with respect to her alleged contract of employment:
I was hired under a verbal contract of employment in January 2018. I have never been provided with a written employment agreement. My contract of employment was negotiated and formed in Ontario.
I learned of Pure Extraction Ltd. through my nieces’ [sic] husband, Mr. Hardin Jackson. In approximately December 2017 Mr. Jackson contacted me and asked if I wanted to work for Pure Extraction Ltd. as a Salesperson. Mr. Jackson was aware that I had been a Senior Sales Manager with Yellow Pages Inc. for approximately 29 years prior to being terminated on a without cause basis.
At the time I was offered employment, Mr. Jackson advised me that Pure Extraction Ltd. was in the business of designing and manufacturing CO2 Extraction Machines to be used to extract oil from different materials. I was also advised that the focus of the business was going to be on the burgeoning cannabis market where the machines could be used to extract oil from hemp and cannabis. Mr. Jackson also advised me that Pure Extraction Ltd. was owned by himself and Mr. Mark van Sluytman.
At the time I commenced my employment I worked out of Pure Extraction Ltd.’s Oakville, Ontario office located at 461 North Service Road, Oakville, Ontario, L6M 2V5. Over time I began to work at the Oakville office three (3) days per week and out of my home office for two (2) days per week. This continued until November 2019 when the Oakville office was closed. From that point forward I worked out of my home office five (5) days per week.
My title was Senior Sales Manager. My duties included calling upon cannabis cultivators and processors as well as research and development facilities across North America to try and sell them a CO2 Extraction Machine. My focus was on small and medium sized cannabis producers or processors.
I worked exclusively in Ontario. All sales I completed were negotiated and completed in Ontario. As such, all of my wages and commissions were earned in Ontario.
[8] The Plaintiff states that she reported to Mr. Hardin Jackson throughout her entire employment. The evidence is that Mr. Jackson resides in Ontario. The Plaintiff attaches to her affidavit, among other things, T4’s and T2200’s for 2018 and 2019, and letters of confirmation of employment dated January 23, 2019 and June 6, 2019. The confirmation of employment letters are on the letterhead of Pure Extraction Ltd., which includes both a Toronto/Oakville address and a Vancouver address. The Toronto/Oakville address appears first. Both letters are signed by Mr. Hardin Jackson, whose direct line is a phone number with a 416 area code. The letters confirm the Plaintiff’s employment “at Pure Extraction in the role of Sales Manager at our Oakville location.”
[9] The address included on the T4’s for the employer is Pure Extractions Ltd.’s Vancouver address. The 2018 T4 was sent to the Plaintiff by e-mail by Mr. Jackson. Mr. Jackson’s e-mail signature includes the Pure Extraction logo and the mention “Toronto | Vancouver”. The two T2200 forms were signed by Mr. Jackson as CEO.
[10] The Plaintiff also attaches to her affidavit an exchange of e-mails dated November 19, 2020 with Mr. Mann and others. The exchange shows that the Plaintiff’s e-mail signature is the same as Mr. Jackson’s e-mail signature (with the mention “Toronto | Vancouver”), except for her name and phone number.
[11] The Plaintiff was not cross-examined on her affidavit, and the Defendants did not adduce any evidence of Mr. Jackson in support of their position on this motion, even though Mr. Jackson is still a director of Pure Extraction Ltd. The only evidence adduced on behalf of the Defendants with respect to the issue of the formation of the Plaintiff’s contract is the following hearsay evidence contained in the affidavit of Edward Low, who describes himself as a consultant to Pure Extraction Ltd. and Pure Extraction Corp.:
I have spoken to Mr. Jackson who has informed me and I verily believe that he has not spoken to Sherry Rooney and/or her lawyers regarding this matter. […]
I am informed by Hardin and I verily believe that he never agreed that the acceptance of an alleged employment offer was received in Ontario. When a decision is made by the Defendant Companies to contract with an individual, that decision has to be approved at the defendants’ office in British Columbia. Contracts must be concluded at the British Columbia offices. In the result, I verily believe that the acceptance of any independent contract would have been received in British Columbia. Authority to bind the company rests with the directors in British Columbia.
I am informed by Mr. Jackson and I verily believe that Sherry Rooney knew that she would be working for a company that primarily conducted business in British Columbia. [Emphasis added.]
[12] While Mr. Low does not specify in his affidavit when he started being a consultant to the corporate Defendants, I infer from the evidence before me that he was not involved with the corporate Defendants before Mr. Mann came on the scene at some point in 2020. Thus, Mr. Low was not involved with the corporate Defendants at the time the offer was made to the Plaintiff.
c. The B.C. Action
[13] On April 29, 2021, Pure Extraction Ltd. commenced an action in Vancouver, British Columbia against Wesley Mark Van-Sluytman and the Plaintiff (“B.C. Action”). Mr. Van-Sluytman is alleged to reside in Burnaby, British Columbia. Mr. Van-Sluytman was a director of Pure Extraction Ltd. until it was acquired by Pure Extraction Corp. on June 10, 2020.
[14] The claims in the B.C. Action against Mr. Van-Sluytman are largely based on a share purchase agreement entered into by Pure Extraction Ltd., the predecessor of Pure Extraction Corp. and Mr. Van-Sluytman made effective December 17, 2018 (“SPA”). There is a clause in the SPA that provides that it shall be governed by and construed and interpreted in accordance with the laws of the Province of British Columbia.
[15] In the B.C. Action, Pure Extraction Ltd. alleges that, pursuant to the SPA:
a. Mr. Van-Sluytman agreed to sell, assign and transfer his 4,500 shares in Pure Extraction Ltd. to Pure Extraction Corp. and, in return, he received 1,350,000 shares in Pure Extraction Corp.;
b. Pure Extraction Ltd. and Mr. Van-Sluytman agreed that Pure Extraction Ltd. did not assume and was not liable for any taxes or any other amounts whatsoever which may be or become payable due to actions or omissions of Mr. Van-Sluytman; and
c. Mr. Van-Sluytman agreed to indemnify Pure Extraction Ltd. for any claim by a third party for which Pure Extraction Ltd. was required by applicable law to make payment to any person with respect to such claim. Should Pure Extraction Ltd. make such payment to a third party, Mr. Van-Sluytman agreed to reimburse Pure Extraction Ltd.
[16] Pure Extraction Ltd. pleads that it owes more than $140,000 in taxes for the 2019 tax year as a result of Mr. Van-Sluytman’s negligence or willful blindness. It also pleads that Mr. Van-Sluytman has wrongfully detained and refused to return certain goods that belong to Pure Extraction Ltd.
[17] Pure Extraction Ltd. further alleges that on or before December 3, 2020, Mr. Van-Sluytman and the Plaintiff “combined and conspired with each other with intent to injure [Pure Extraction Ltd.] by entering into an agreement to harm the business of [Pure Extraction Ltd.] by causing customers of [Pure Extraction Ltd.] to boycott the business or otherwise avoid patronizing the business conducted by [Pure Extraction Ltd.].” The allegations of conspiracy in the B.C. Action include statements regarding the status of the Plaintiff as an employee or self-employed consultant:
The sole or predominant intention of the Defendants [i.e. Mr. Van-Sluytman and Ms. Rooney, the Plaintiff in this action] in entering into the conspiracy was to injure the Plaintiff [i.e. Pure Extraction Ltd.]. The Defendants were motivated by a desire to coerce the Plaintiff into treating Rooney, as a permanent employee of the Plaintiff when Rooney was in fact, an agent or servant of Van-Sluytman.
Van-Sluytman, knew or ought to have known that Rooney was at all material times a self-employed consultant and not an employee of the Plaintiff. Rooney performed her work remotely, in Ontario, using her own facilities and equipment with no supervision, and did not provide routinely or otherwise to the Plaintiff any timesheets at the material time, among other indicia, as she was a self-employed consultant.
Pursuant to the conspiracy, the Defendants or one or more of them, carried out or caused to be carried out the following overt acts, which were aimed or directed at the Plaintiff, and which it could reasonably be foreseen to injure the Plaintiff:
a) Rooney, attempted or cause to attempt to sell equipment of the Plaintiff, knowing that the Plaintiff was not able to fully perform those contracts resulting in loss of potential customers;
b) Van-Sluytman aided and abetted Rooney in allowing her to procure contracts of sale to the Plaintiff's customers, knowing or should be reasonably taken to have known that the Plaintiff was not able to perform its obligations on a timely basis as represented by Rooney, or at all.
A direct result of the aforementioned conspiracy is an employment based claim commenced in Ontario by Rooney bearing the Court File Number CV-21-00655251-0000 (the “Ontario Action”) against the Plaintiff and the British Columbia company which acquired the Plaintiff on or about June 12, 2020, alleging none payment of wages and commissions together with an alleged failure that the Plaintiff has not provided appropriate reporting documentation of employment income to CRA.
As a result of the acts carried out by the Defendants, or one or both of them as particularized herein, and in consequence of their conspiracy. the Plaintiff has suffered loss and damage and continues to suffer loss and damage in the form of reduction of revenues from the business, claims by the Plaintiff's customers, and threats of potential claims from the Plaintiff's customers, and exposure to damages as a result of the Ontario Action.
[18] The relief sought by Pure Extraction Ltd. in the B.C. Action includes damages, injunctive relief restraining Mr. Van-Sluytman and the Plaintiff from engaging in the alleged conspiracy, and an anti-suit injunction to stay the action in Ontario (i.e. this action). There is no evidence in the record before me with respect to any steps taken by the Defendants or their intent regarding a potential anti-suit injunction in British Columbia.
Discussion
a. Jurisdiction simpliciter
i. Legal principles
[19] Before a court can assume jurisdiction over a claim, a real and substantial connection must be shown between the circumstances giving rise to the claim and the jurisdiction where the claim is brought.
[20] In determining whether a “real and substantial connection” exists between a chosen forum and the subject matter of the litigation, courts are required to consider two issues: (1) whether the existence of a recognized presumptive connecting factor has been established; and (2) if so, whether the party challenging the assumption of jurisdiction has successfully rebutted the presumption. See Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (“Van Breda”) at paras. 80-81 and Haaretz.com v. Goldhar, 2018 SCC 28 (“Goldhar”) at para. 34.
[21] The Supreme Court of Canada has identified the following presumptive connecting factors grounding a court’s assumption of jurisdiction (Van Breda at para. 90 and Goldhar at para. 36):
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.
[22] The presumption of jurisdiction that arises where a recognized connecting factor applies is not irrebuttable, and a defendant can argue that a given connection is inappropriate in the circumstances of the case. In such a case, the defendant will bear the burden of negating the presumptive effect of the connecting factor and convincing the court that the proposed assumption of jurisdiction would be inappropriate. For the defendant to be successful, the circumstances must demonstrate that the relationship between the forum and the subject matter of the litigation is such that it would not be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction. The defendant 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. See Van Breda at paras. 81 and 95 and Goldhar at paras. 42-43.
[23] Where the party resisting jurisdiction has failed to rebut the presumption that results from a presumptive connecting factor, the court must acknowledge that it has jurisdiction and hold that the action is properly before it: see Van Breda at para. 98.
ii. Application to this case
[24] In this case, the existence of a presumptive connecting factor has been established, i.e. a contract connected with the dispute was made in Ontario.
[25] A contract is made where the offeror receives notification of the offeree’s acceptance of the offer: see Eastern Power Ltd. v. Azienda Communale Energia and Ambiente, 1999 3785 at para. 22, 125 O.A.C. 54 (C.A.) and Jacubovich v. Israel (State), 2021 ONSC 3558 at para. 113.
[26] The evidence on this motion discloses that the Plaintiff received an offer of employment (or an offer to be an independent contractor, according to the Defendants) from Pure Extraction Ltd. via Mr. Hardin Jackson in Ontario, and that she communicated her acceptance of the offer to Mr. Jackson in Ontario. I reject the Defendants’ argument that, somehow, the Plaintiff’s acceptance needed to be accepted by Pure Extraction Ltd. in British Columbia. At the time the offer was made, Pure Extraction Ltd. had an office in Oakville, Ontario. Further, and in any event, once the offer was accepted and the acceptance was communicated, a contract was formed. Pure Extraction Ltd. only had to be advised of the acceptance and no steps were required on its part to “accept the acceptance”.
[27] Mr. Jackson was a director of Pure Extraction Ltd. at the time of the offer and still is. Pure Extraction Ltd. has not adduced evidence that Mr. Jackson did not have the authority to make the offer to the Plaintiff and/or receive her acceptance on behalf of Pure Extraction Ltd. at the relevant time. I draw an adverse inference from the Defendants’ failure to file an affidavit of Mr. Jackson on this motion and conclude that his evidence would not have supported the Defendants’ position.
[28] Further, and in any event, I find that the statements in the affidavit of Mr. Low regarding the corporate Defendants’ “policies” with respect to contracts – “[w]hen a decision is made by the Defendant Companies to contract with an individual, that decision has to be approved at the defendants’ office in British Columbia” and “[c]ontracts must be concluded at the British Columbia offices” – are of no moment. The current “policies” of Pure Extraction Ltd. are irrelevant. The policies that matter are those that were in place when the contract was concluded with the Plaintiff, and there is no evidence about those. Neither Mr. Mann nor Mr. Low were involved with Pure Extraction Ltd. at the relevant time.
[29] Having found that the existence of a recognized presumptive connecting factor has been established, I now turn to the issue of whether the Defendants have rebutted the presumption of jurisdiction. I do not need to determine whether the existence of other presumptive connecting factors has been established, such as whether Pure Extraction Ltd. carried on business in Ontario and at what time. I note, however, that until approximately one month before this action was commenced, Pure Extraction Ltd. had had a continuous and active sales presence in Ontario for at least 3 years (with a physical office for part of that time) since the Plaintiff worked exclusively in Ontario: see Van Breda at para. 87.
[30] In my view, the Defendants have not rebutted the presumption of jurisdiction. The Plaintiff’s contract was concluded in Ontario. She did work for Pure Extraction Ltd. in Ontario for almost 3 years, until approximately one month before this action was commenced. For almost two years, she worked out of Pure Extraction Ltd.’s Ontario office. These are not tenuous, passing or weak factors. Based on the circumstances of this case, the Defendants should have reasonably expected that they could be called to answer proceedings in Ontario with respect to their relationship with the Plaintiff and the work that she did for Pure Extraction Ltd. in Ontario.
[31] Given that the Defendants have failed to rebut the presumption that results from a presumptive connecting factor, I conclude that this Court has jurisdiction and that this action is properly before it. I now turn to the issue of forum non conveniens.
b. Forum non conveniens
i. Legal principles
[32] A party asking for a stay on the basis of forum non conveniens must show that the alternative forum is clearly more appropriate by establishing that it would be fairer and more efficient to proceed in that forum: Van Breda at paras. 108-109, and Goldhar at para. 46.
[33] The Supreme Court of Canada stated the following in Van Breda at para. 109 with respect to the general approach to the doctrine of forum non conveniens:
The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.
[34] The factors to be considered by a court in determining whether an alternative forum is clearly more appropriate are numerous and variable and will vary depending on the context of each case: see Breeden v. Black, 2012 SCC 19 (“Breeden”) at paras. 23, 28. Several non-exhaustive factors were set out in Van Breda at para. 110 as being relevant to determining whether forum non conveniens should be applied: the location of the parties and the witnesses; the cost of transferring the case to another jurisdiction or of declining the stay; the impact of declining jurisdiction on the conduct of litigation or on related parallel proceedings; the possibility of conflicting judgments; problems related to the recognition and enforcement of judgments; and the relative strengths of the connections of the two parties.
[35] In Breeden at paras. 23 and 28, the Supreme Court stated that the following factors served as a “helpful reference” when conducting a forum non conveniens analysis: comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in the court or in any alternative forum; the law to be applied to the issues in the proceeding; the desirability of avoiding multiplicity of legal proceedings; the desirability of avoiding conflicting decisions in different courts; the enforcement of an eventual judgment; and the fair and efficient working of the Canadian legal system as a whole.
ii. Application to this case
[36] After considering the factors set out above and the evidence in this case, I have come to the conclusion that the Defendants have failed to demonstrate that British Columbia is a clearly more appropriate forum in which to litigate the parties’ dispute. I discuss the most relevant factors and the factors raised by the parties below.
[37] Comparative convenience and expense for parties and witnesses: The Plaintiff is in Ontario and the Defendants are in British Columbia. The Plaintiff states in her factum that she intends to call two witnesses: Mr. Hardin Jackson and herself. Both are domiciled in Ontario. Aside from the Plaintiff and Mr. Jackson, the Defendants identify 5 other “key witnesses” who all reside in British Columbia. One of them is Mr. Mann, the individual Defendant. The other four are Mr. Van-Sluytman, Mr. Low, Ms. Nancy Zhao (current CFO of the corporate Defendants) and Ms. Alice Milne (a director of the corporate Defendants since June 10, 2020).
[38] I do not accept that, aside from Mr. Mann, all of the other four witnesses identified by the Defendants would be key witnesses for the trial of the issues raised in the Plaintiff’s action for wrongful dismissal. No evidence has been adduced on this point: neither Mr. Mann nor Mr. Low discuss the issue of witnesses in their respective affidavits. Further, the statements in the Defendants’ Factum as to why all of these witnesses are key and would be required at trial are very vague and general (and silent with respect to Ms. Zhao and Ms. Milne) and, ultimately, unconvincing: see Young v. Tyco International of Canada Ltd., 2008 ONCA 709 at para. 51. With respect to Mr. Van-Sluytman, the Defendants appear to rely on the fact that he executed the SPA. The SPA is irrelevant to the issues raised in this action. The Plaintiff is not a party to the SPA and while Mr. Van-Sluytman may owe indemnity obligations to the Defendants with respect to the Plaintiff’s claim, this is a matter between Mr. Van-Sluytman and the Defendants which does not impact any rights that the Plaintiff may have vis-à-vis the Defendants.
[39] The Defendants argue in their Factum that “[a]ll documents related to the dispute in this case are located in British Columbia. Specifically, any documents related to the work performed, if any, by the Plaintiff, would be located in British Columbia.” There is no evidence supporting these statements and, in any event, they do not make sense. (In fairness to the Defendants, their counsel indicated at the hearing that not too much emphasis was put on the location of the documents as a factor in the analysis.) The Plaintiff would certainly have documents relevant to her work for the Defendants in her possession in Ontario. Mr. Jackson may very well have relevant documents in Ontario given his involvement over the years. Further, there is no evidence as to how and where the corporate Defendants maintain their documents. If documents are stored online and in cloud-operating systems, as argued by the Plaintiff (again, without evidence), they are accessible anywhere.
[40] Ultimately, I find that this factor is neutral. It is particularly so given that some “secondary” witnesses in British Columbia may be able to testify via videoconference, which is something that the Plaintiff is agreeable to.
[41] Applicable law: As stated above, the oral contract between the Plaintiff and Pure Extraction Ltd. was formed in Ontario. As a result, the applicable law is Ontario law. Given that the SPA is irrelevant to the issues in this action, the fact that it is governed by British Columbia law is also irrelevant.
[42] Avoidance of a multiplicity of proceedings and conflicting decisions: The bringing of the B.C. Action raises concerns about a multiplicity of legal proceedings and conflicting decisions.
[43] The B.C. Action was commenced several months after this action. The Defendants have adduced very limited evidence about the B.C. Action and the reasons for suing the Plaintiff in British Columbia. The claim for conspiracy against the Plaintiff in the B.C. Action is an adjunct to the main dispute in that action, which is the dispute between Pure Extraction Ltd. and Mr. Van-Sluytman. While I am not in a position to assess the merits of the allegations for conspiracy made against the Plaintiff in the B.C. Action, I wish to note something that is obvious on the face of the record before me: while Pure Extraction Ltd. alleges that Mr. Van-Sluytman and the Plaintiff entered into an agreement in December 2020 to injure the Plaintiff with the desire to coerce Pure Extraction Ltd. into treating the Plaintiff as an employee of Pure Extraction Ltd. while she was not, these allegations are seriously undermined by tax documents and letters that were prepared and signed by Mr. Hardin Jackson for Pure Extraction Ltd. with respect to the years 2018 and 2019 (discussed above). There is a distinct possibility, in my view, that the Plaintiff was included in the B.C. Action for tactical reasons related to the Ontario action.
[44] Because of this, I decline to give a lot of weight to this factor in the forum non conveniens analysis. Further, I find that it would be unfair to force the Plaintiff to wait until all the issues in the B.C. Action are resolved to get a determination of the limited employment issues raised in her action which seeks relatively modest amounts. In contrast, given that it was Pure Extraction Ltd.’s decision to commence another action in a different jurisdiction, it can hardly complain about having to deal with two proceedings in two jurisdictions.
[45] I note that while it is alleged in the B.C. Action that the motivation for the conspiracy was to coerce Pure Extraction Ltd. into treating the Plaintiff as a permanent employee, motivation is not an essential element of the tort of conspiracy and does not need to be proven. What Pure Extraction Ltd. will need to prove to establish the tort of conspiracy to injure is that Mr. Van-Sluytman and the Plaintiff made an agreement to injure Pure Extraction Ltd. and that their conduct caused harm to Pure Extraction Ltd. The fact that the Plaintiff’s employment status does not need to be determined in order to dispose of the allegations of conspiracy reduces, but does not eliminate, the concern regarding potentially conflicting decisions.
[46] I also note that it is pleaded in the B.C. Action that the Ontario action is a “direct result” of the conspiracy. Whether the Ontario action constitutes a wrongful source of harm to Pure Extraction Ltd. will depend on whether the Defendants are successful in this action – i.e. if Pure Extraction Ltd. is found to have been the Plaintiff’s employer, then requiring that it comply with its legal obligations as an employer cannot constitute actionable harm. Thus, the allegations about the Ontario action depend on its determination and do not, in themselves, create a risk of conflicting decisions. They militate for a determination of the Ontario action first.
[47] Given that the allegations in the B.C. Action are premised on the assumption that the Plaintiff was not an employee of Pure Extraction Ltd., i.e. the very issue in this action, it would be more efficient to stay the conspiracy part of the B.C. Action until the employment issues, which are governed by Ontario law, are determined in Ontario.
[48] While the avoidance of a multiplicity of proceedings and conflicting decisions is a factor in this case, I do not think, for the reasons set out above, that staying the action in Ontario is the fairest and most efficient way to deal with these concerns.
[49] Enforcement of judgment: Enforcement considerations slightly favour British Columbia given that all the Defendants are located in British Columbia. However, an Ontario judgment could be enforced in British Columbia.
[50] Fairness to the parties: In addition to seeking to assure the efficacy of the litigation process, the doctrine of forum non conveniens seeks to assure fairness to both parties: Breeden at para. 36. Here, in light of the relationship between the parties, the nature of the allegations and the relief sought in this action, and the factors discussed above, I find that this factor favours the Plaintiff and allowing her to pursue her claim in Ontario.
[51] Conclusion: In the end, some factors are neutral, some factors favour Ontario and some favour British Columbia. Considering the combined effect of the relevant facts and factors, I conclude, as stated above, that the Defendants have failed to demonstrate that British Columbia is a clearly more appropriate forum in which to litigate the parties’ dispute. In my view, British Columbia is not in a better position to dispose fairly and efficiently of the issues in the Ontario action.
Disposition
[52] In light of the foregoing, the Defendants’ motion is dismissed.
[53] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this endorsement. The Defendants shall deliver their submissions (with the same page limit) within 10 days of their receipt of the Plaintiff’s submissions.
Vermette J.
Date: August 27, 2021