2022 ONSC 7061
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Deborah Beedie, Danielle Bisson, Joanne Cerant, Stuart Robb and Malcolm Steven, Plaintiffs
AND:
Lee Hecht Harrison Knightsbridge Corporation, Defendant
BEFORE: W.D. Black J.
COUNSEL: Jessica Nolan, for the Plaintiffs
Connor Campbell, for the Defendant
HEARD: November 14, 2022
ENDORSEMENT
Overview
1The defendant, Lee Hecht Harrison Knightsbridge Corporation (“LHH”) seeks to stay or dismiss the claim of one of the plaintiffs, Danielle Bisson, on the basis that Ontario is not a convenient forum for her claim.
2To be clear, LHH does not contest jurisdiction simpliciter. It has a presence in Ontario.
3Rather, it asserts that Quebec, where Ms. Bisson lives (and lived throughout her employment with LHH), is a more appropriate forum for the hearing of her claim.
The Parties
4LHH is described as a global company based in the United States, specializing in career transition and outplacement services, with operations across Canada.
5The plaintiffs are current and former employees of LHH, all in the role of Vice-President, Business Development. Other than Ms. Bisson, the plaintiffs all live and work in Ontario. As at the time of the hearing of this motion, Ms. Bisson and Mr. Robb no longer work for LHH. The other plaintiffs continue to do so.
Ms. Bisson’s Role with LHH (and that of the Other Plaintiffs)
6Ms. Bisson’s evidence is that, consistent with having the same title, all of the plaintiffs performed the same function and were expected to abide by the same LHH policies. As an example, she deposes that her day-to-day responsibilities in her role would have been identical to and indistinguishable from those of her co-plaintiff Mr. Steven.
7She notes that in the timeframe before her departure, the two of them also reported to the same person, who was situated in Toronto, and that earlier in their respective tenures they had also at times reported to the same person or persons.
8Ms. Bisson says that she attended weekly and monthly meetings together with the Ontario‑based plaintiffs (before she and they were plaintiffs), by telephone or video call, and that when she had to deal with the Human Resources group, she liaised with members of that group in Ontario.
9She also deposes that her salary structure, including base salary, commissions, RRSP matching contributions and participation in LHH’s benefits plan, were identical to those of one or more of her co-plaintiffs.
LHH Emphasizes that Ms. Bisson Based in Quebec
10LHH, in its evidence, does not particularly take issue with Ms. Bisson’s description of the relevant circumstances, but emphasizes that it was a condition of Ms. Bisson’s employment that her role “shall be based out of [LHH’s] Montreal office”.
11It also notes that Ms. Bisson’s clients were primarily located in Quebec, and that as such, her clients were different than those of her co-plaintiffs. This meant, LHH says, that Ms. Bisson functioned independently from the other plaintiffs.
LHH Characterization of Ontario Connections as “Trivial”
12LHH describes Ms. Bisson’s connections to Ontario as “trivial”. It points out, for example, that the meetings that Ms. Bisson referred to, with colleagues from other parts of Canada including Ontario, were by telephone or Zoom (meaning Ms. Bisson joined these meetings without leaving Quebec), and typically lasted only an hour.
13It is fair to observe that while of course the parties place greater or lesser emphasis on aspects of the evidence about Ms. Bisson’s role and function as compared to her Ontario colleagues, there are few significant disagreements about the underlying evidence in that regard.
Origin of Claim
14The matters fundamentally in issue in the lawsuit arise from LHH’s internal review of its vacation pay practices, undertaken in October of 2021, which, it is alleged, revealed that LHH had unintentionally underpaid vacation pay to some of the plaintiffs.
15The premise of the claim is that, once they learned of the underpayment, the plaintiffs brought this action for unpaid vacation pay on commissions dating back to the commencement of their respective terms of employment.
16LHH, in order to avoid attorning to the jurisdiction of the Ontario Courts with respect to Ms. Bisson’s claim, had yet to serve a statement of defence. As such I do not know the details of their response to the stated premise of the claim (though it seems clear they will contest that premise in whole or in part).
17That said, there is a fair bit of consensus between the parties as to the test I am to apply relative to assessing the Forum Non Conveniens issue.
List of (Updated) Van Breda Factors
18LHH starts with the familiar list of factors promulgated in the Supreme Court of Canada’s decision in Van Breda v. Club Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572, and then supplemented in subsequent cases (including Vahle et al. v. Global Work & Travel Co. Inc., 2019 ONSC 3624, 146 O.R. (3d) 511), as follows:
(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 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.
Need to Show a Clearly More Appropriate Forum
19Ms. Bisson accepts that list, with the proviso that the starting point (and an interpretive guide) to the analysis of these factors is found in LeBel J.’s decision and reasons in Van Breda, at para. 109 (writing for the unanimous court) in the following passage:
The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgement that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed… . The court should not exercise its discretion in favour of a stay solely because it finds, once all the relevant factors and concerns are weighed, that comparable forums exist in other provinces or states… . 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.
20With that overarching guidance in mind, I turn to the list of factors and the parties’ respective submissions as to each item, noting that this is not to be a mechanical comparison, and that the role and importance of these factors may vary depending on context. The weight to be given to any factor is a discretionary determination, and is to be undertaken remembering that:
The moving party must clearly demonstrate the existence of a more appropriate forum;
The court should consider and balance the efficiency and convenience of a particular forum with the fairness and justice of that choice to the parties; and
The court should adopt a cautious approach to fact-finding (Purolator Canada Inc. v. Canada Council of Teamsters et al., 2022 ONSC 5009; Young v. Tyco International of Canada Ltd., 2008 ONCA 709, 92 O.R. (3d) 161).
Location of Parties and Witnesses
21I start with the location of parties and witnesses, and considerations of convenience and expense related to this item.
22Ms. Bisson argues that this factor (or set of factors) strongly favours Ontario.
23She notes that all of the individuals with relevant knowledge and/or information about the matters in issue are domiciled in Ontario (other than Ms. Bisson herself). She says that this list includes:
(a) the Ontario plaintiffs;
(b) LHH’s HR Manager (Monica Chalas);
(c) Ingrid Palmer, with whom Ms. Bisson and Mr. Steven would consult on HR issues; and
(d) Kim Spurgeon, to whom Ms. Bisson reported and to whom Mr. Steven continues to report.
24Ms. Bisson points out that LHH has not identified any witnesses (again other than Ms. Bisson herself), who would be relevant to this action and who reside in Quebec. She asserts that on the other hand various Ontario-based LHH witnesses will be required to testify in connection with Ms. Bisson’s claim, and suggests that it is telling that LHH’s only evidence on this motion was supplied in an affidavit from Ms. Chalas, who resides in Ontario, and that Ms. Chalas’ affidavit was in part based on information provided by Ms. Spurgeon, who also lives in Ontario.
25Among other issues, Ms. Bisson maintains that evidence from these various Ontario-based witnesses will be required and important in assessing:
(a) how the plaintiffs were compensated;
(b) what policies/procedures were applicable during the relevant periods of employment for the plaintiffs;
(c) what was communicated to the plaintiffs about their entitlements to vacation time and pay;
(d) what led to LHH sending out what are defined in the materials as “Underpayment Letters” to some of the plaintiffs, including what discussions occurred between and among the relevant witnesses identified above;
(e) why LHH paid some vacation pay notwithstanding that Ms. Bisson and two Ontario plaintiffs did not sign the Underpayment Letters;
(f) why two of the Ontario plaintiffs did not receive Underpayment Letters when others in the same role did;
(g) what process did LHH follow in reviewing its vacation pay practices;
(h) the timing of LHH’s realization that it had miscalculated vacation pay for the plaintiffs; and
(i) how vacation pay was calculated for employees in the Vice-President, Business Development role occupied by each of the plaintiffs.
26In its response on this issue, LHH does not suggest that Ms. Bisson’s list and location of witnesses, or the need for their evidence, is misplaced. Rather, in particular in relation to the question of the relevant law to be applied to the claim, it emphasizes that there will be a need for the Court to consider and apply the law of Quebec. Therefore, it says, expert evidence on that topic is predictably necessary, and that the cost and inconvenience to Ms. Bisson of having to restart her claim in Quebec will prove modest in comparison to the cost of each side having to adduce expert evidence on Quebec law.
Potential Need for Expert Evidence
27On the question of the need for expert evidence, Ms. Bisson notes that there is no evidence in the record to establish that expert evidence will be required in this case. She asserts that the only issue of Quebec law arising is “a simple matter of unpaid amounts under an employment contract that need to be calculated in accordance with a straightforward formula set out in Quebec’s Act Respecting Labour Standards (the “LNT”)”. She also points to what she says is a comparable case – GIAO Consultants Ltd. v. 7779534 Canada Inc., 2020 ONCA 778 – a claim by an Ontario plaintiff against multiple Quebec-based defendants relative (in part) to a breach of a contract containing a clause specifying that Quebec law would apply. The Court of Appeal for Ontario upheld the motion judge’s view that “even if expert evidence were necessary on Quebec law, the cost of an expert would not render the proceedings in Ontario unfair.”
28To similar effect, Ms. Bisson cites Myers J.’s recent decision in Fifteen Prince Arthur Corporation v. Desjardins Gestion Internationale D’Actifis Inc., 2021 ONSC 1335. Justice Myers dismissed a motion brought by a Quebec-based defendant to dismiss or stay an action brought in Ontario. He said, at paras. 17, 18 and 20:
The law of the contract is not known. The defendant says there is no contract. But either court is equally adept at applying the law of the other should the need arise. There is no “choice of forum” clause. There is no likelihood of multiplicity. There will be no issues enforcing any judgment against the defendant. There is no issue affecting the national legal system as a whole. The facts concerning the meeting that led to the alleged contract occurred in Quebec. But that has little to do which forum is more convenient to hear the dispute. Both courts are equally capable and equally convenient in this case. Therefore, the defendants cannot meet their burden to show that Quebec is clearly the more appropriate forum.
29LHH referred in its responding submissions on this topic to the recent decision of Dow J. in Black & McDonald v. Eiffage Innovative Canada Inc., 2022 ONSC 1855. His Honour was dealing in that case with a dispute as to whether Ontario or British Columbia was the preferred forum. In considering a submission from the plaintiff that the (enhanced post-pandemic) ability of witnesses outside Ontario to attend court virtually undermined the defendants’ position that British Columbia was the more appropriate forum, Dow J. said:
I do not agree with the plaintiff’s submission that the availability of witnesses outside Ontario to attend virtually somehow undermines the defendants’ position that British Columbia is the more appropriate forum. I do agree this new alternative method of hearing evidence significantly reduces the weight to be given to this factor… .
30Likewise, LHH submits, implicitly conceding the preponderance of Ontario-based witnessed required, in the post-pandemic Zoom-friendly era this factor should be given “significantly reduced weight.”
31Counsel for Ms. Bisson fairly concedes that the weight of this factor is somewhat reduced with the advent of ubiquitous technology facilitating virtual attendance, but notes that in the case before Dow J. there were a number of witnesses in each of British Columbia and Ontario whereas in the case before me the “vast majority” of key witnesses are in Ontario.
Conclusion re Location of Witnesses and Parties
32On this set of factors, I find that there is a slight tilting of the balance in favour of Ms. Bisson. Albeit that some or all of them may be able to testify virtually, it seems clear that a considerable majority of key witnesses – excepting only Ms. Bisson – are Ontario-based. In my view, particularly given the preference that some parties and counsel have for testimony in person, that is a factor to be given some weight. I accept, however, relying on Dow J.’s recent decision, that the amount of weight must be modest.
The Law to be Applied
33On the topic of the law to be applied, in addition to the need, or potential need for expert evidence discussed above, LHH agrees that Ms. Bisson’s entitlements fall to be determined under the Act Respecting Labour Standards, CQLR c. N-1.1 (the “LNT”). LHH points out that the mandate of Quebec’s Commission des norms de l’equite de la sante et de la securite du travail (the “Commission”) includes hearing claims regarding vacation pay for Quebec workers.
34The LNT provides that the Commission has authority to “receive complaints from employees” and to “institute proceedings in its own name and on behalf of an employee”. In addition, LHH notes, Chapter V, Division I of the LNT grants the Commission authority to hear complaints; to commence proceedings to enforce labour standards in Quebec; to determine amounts due to an employee; and to take appropriate actions to seek enforcement of such determinations.
35In oral argument, counsel for Ms. Bisson accepted that putting the matter in the hands of the Commission may be an option, but pointed out that there is no evidence that Ms. Bisson would be required to do so, no evidence to confirm what the advantages and disadvantages of going that route might be, and no evidence to suggest that she would in fact make that choice.
Multiplicity of Proceedings
36In addition, and turning to the consideration of the possibility of multiple proceedings and conflicting judgments, Ms. Bisson argues that if she is compelled to proceed in Quebec there would be multiple proceedings and a risk of conflicting judgments arising from identical facts.
37She says that there are numerous issues regarding when LHH identified the vacation pay issue in its internal audit and how vacation pay was calculated on commissions for employees in the Vice-President, Business Development role, all of whom have the same compensation structure. She asserts that “siloing” her in Quebec creates a real risk of conflicting judgments on these identical issues.
38On this score, Ms. Bisson relies on this Court’s decision in Silveira v. FY International Auditing & Consulting Corp., 2015 ONSC 338, 37 B.L.R. (5th) 308. The case involved competing claims in relation to the same contract by parties in British Columbia and Ontario. Master Graham (as he then was) wrote, at para. 22:
The issues in both Silveira’s action in Ontario and FYI Canada’s action in British Columbia are virtually identical and can be summarized as follows: What representations were made leading to the formation of the April 7, 2011 Agreement and what did the parties do or fail to do in relation to their obligations under that agreement? The adjudication of these issues will require the testimony of the same witnesses and review of the same documents. The two actions cannot be tried separately without creating a significant and unacceptable risk of inconsistent judgments. In addition, two separate actions to resolve identical issues would result in an unacceptable waste of legal and judicial resources.
39Ms. Bisson argues that the same holds true in this case. The issues in Ms. Bisson’s claim and that of the Ontario plaintiffs are identical and will involve the same witnesses, policies/procedures, disclosure and evidence being submitted to the Court.
40In response, LHH maintains that the claims of the Ontario plaintiffs are distinct and severable from Ms. Bisson’s claim. It says that a concern about multiplicity of proceedings and risk of inconsistent findings does not arise here because:
The plaintiff’s claims do not arise from the same subject matter. Rather, says LHH, they target a common defendant, but arise from (inherently) individual employment relationships, in respect of which the governing statutory scheme will determine which findings of fact will be relevant to the plaintiff’s claim;
There would be few witnesses in common. LHH maintains that there is no basis in the pleading or the evidentiary record to this point to suggest that Ms. Bisson is a necessary witness for the determination of the Ontario-based plaintiffs’ claims, and no reason to believe that the Ontario plaintiffs would be necessary witnesses for Ms. Bisson’s claims. LHH does concede that “the only witnesses in common might be those from LHH”; and
A comparison of Quebec employment law entitlements and Ontario entitlements is an “apples-to-oranges” comparison that does not raise concerns about inconsistent judgments.
Conclusion re Multiplicity of Proceedings
41I must say that on this issue, I find Ms. Bisson’s position considerably more compelling than that of LHH. Even allowing for the notion that there will be statutory differences between the provinces relative to the assessment of vacation pay entitlements, in my view it is inescapable that there would be extensive evidence in common between the two proceedings if they were allowed to advance in parallel.
42LHH fairly concedes that at least the evidence of the LHH witnesses might be required in both such proceedings. In my view there is also every reason to think that the evidence of more than one of the plaintiffs (Ms. Bisson and the Ontario plaintiffs) would on balance be required in both proceedings.
43I find that it is self-evident that if I grant LHH’s motion there will be two proceedings whereas currently there is only one.
44I also find that in the hypothetical scenario of two parallel proceedings there is at least a risk of inconsistent findings.
45Accordingly, with respect to this factor, I find that the balance tilts strongly in favour of Ms. Bisson’s position.
46In discussing the factors to this point I have largely covered the arguments that LHH makes. It does make submissions under the heading of “the fair and efficient working of the Canadian legal system” but in essence its submissions on that topic replicate aspects of its submissions within the areas canvassed above.
Overall Conclusion
47Taking these various factors, and my conclusions on them, into account, I find that LHH has fallen short of demonstrating that Quebec is a clearly more appropriate forum for Ms. Bisson’s claim.
48As such I dismiss LHH’s motion.
Costs
49Ms. Bisson is entitled to her costs of this motion.
50In her costs outline, Ms. Bisson seeks $7,047.81 (excluding HST) on a partial indemnity basis or $10,571.72 (again excluding HST) on a substantial indemnity basis. She emphasizes the importance of the proceeding to her (given that LHH seeks to dismiss her claim in its entirety in Ontario) and argues that the issues are of medium complexity.
51In my view the time claimed spent by Ms. Bisson’s counsel, and the rates for that work, are reasonable and appropriate.
52My impression in that regard is reinforced by the fact that in its costs outline, LHH seeks costs for the same motion in an amount of $48,716.95, (I believe, though I am not certain, that this is on a partial indemnity basis, but given that in the circumstances I am using this figure for comparison purposes I need only be satisfied that, whatever the scale, the amount considerably exceeds the costs claimed by Ms. Bisson).
53I do not see any reason why Ms. Bisson’s costs ought to be on a scale higher than partial indemnity.
54Therefore, I award costs of the motion to Ms. Bisson in the amount of $7,047.81, payable within 30 days of the date of release of this decision.
W.D. Black J.
Date: December 13, 2022