If you live in Ontario, but move to Alberta for work, can you sue for wrongful dismissal in Ontario if you get fired and then move back? That, essentially, was the question posed in the case of Christmas v. Fort McKay, 2014 ONSC 373 (CanLII).
Facts
The case concerned an individual who was initially living in Toronto. As summarized in the Honourable Justice Victoria R. Chiappetta’s reasons for decision, on December 20, 2011, the Plaintiff employee received an offer of employment from the Defendant, which was located in Alberta, via e-mail at his home in Ontario.
The Plaintiff revised some terms of the offer of employment as received. On January 26, 2012, the Plaintiff sent the revised employment agreement to the Defendant via e-mail from Ontario to Alberta. Later that same day, the Plaintiff received an offer of employment signed by the Defendant via e-mail from Alberta to Ontario.
The Plaintiff signed the offer of employment he received on January 26, 2012, from the Defendant while at his home in Toronto, Ontario. Thereafter, he e-mailed the document to the Defendant in Alberta.
The employment agreement, which was executed by both parties, contained a Choice of Law provision that stated the laws of the Province of Ontario were to govern the agreement and any disputes of any kind arising thereunder.
The Plaintiff’s employment was terminated on May 16, 2012 allegedly for just cause. The Plaintiff has since moved back to Ontario to restart his legal practice.
It was undisputed that the Plaintiff moved from Ontario to Alberta to start his employment with Fort McKay First Nation and that the Plaintiff’s duties of employment were carried out in Alberta.
When the Plaintiff commenced his lawsuit for wrongful dismissal in the Ontario Superior Court of Justice the Defendant employer responded by bringing a procedural motion (R. 21.01(3)), in which it argued that the Ontario Superior Court of Justice did not enjoy jurisdiction simpliciter because there was no real and substantial connection between the Plaintiff’s cause of action and the province of Ontario. In the alternative, the Defendant argued that Ontario was forum non conveniens.
Decision
In deciding that the case should not have been brought in Ontario, Justice Chiappetta was required to consider the test for whether an Ontario court should assume jurisdiction over a foreign defendant as set out by the Supreme Court of Canada in the case of Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 SCR 572. That case, decided in 2012, established the rules by which a Canadian court could hear and decide cases where the defendant resided or carried on business in a province (or country) other than that in which the case was started.
In arguing that the Ontario court should hear his case, the Plaintiff pointed out that one of the presumptive connecting factors articulated by Van Breda existed in that the employment agreement in dispute was made in Ontario. The Plaintiff argued that the Defendant originally e-mailed him an offer of employment on December 20, 2011. Since he did not accept the offer of December 20, 2011, but rather responded with a counter-offer on January 26, 2012, he became the offeror and the Defendant became the offeree. It follows, he submitted, that the contract is deemed to be made in Ontario when he, as offeror, received an executed offer of employment in accordance with his revisions by e-mail from the Defendant on January 26, 2012.
In rejecting the Plaintiff’s submissions, and as an important point for all those who send employment agreements by email, Justice Chiappetta wrote the following in her reasons for her decision:
[18] It is well-established that when acceptance of a contract is transmitted electronically and instantaneously, the contract is considered to be made in the jurisdiction where the acceptance is received.
[19] In this case, acceptance was received in Alberta. Whether the Plaintiff’s acceptance was to that of a counter-offer or a revised offer is not relevant in these circumstances. On January 26, 2012, an offer of employment was presented to the Plaintiff. The Plaintiff was within his right not to accept it, to revise it, or to ignore it. At the time the Plaintiff received the offer, it was not a binding agreement. The Plaintiff chose to accept the offer by virtue of his signature under a statement clearly acknowledging acceptance of the terms and conditions therein. The offer, as accepted, was not binding until the Plaintiff’s signed acceptance was sent to the Defendant by e-mail, which was received in Alberta. For these reasons, I conclude that the acceptance of the contract in dispute was received in Alberta and that Alberta is, therefore, the province where the employment contract was made.
In further rejecting the Plaintiff’s second submission, that the employment agreement clearly said that the choice of laws was that of Ontario, Justice Chiappetta wrote that:
[21] In my view, a Choice of Law provision should not be a new presumptive connecting factor for assuming jurisdiction in the circumstances of this case. Presumptive factors are those which connect the Defendant to the jurisdiction chosen by the Plaintiff in a real and substantial way. In this case, the Defendant agreed with the Plaintiff that Ontario law would apply to any dispute under the contract. Imposing jurisdiction on the Defendant solely as a result of its agreement on choice of law would unfairly broaden the scope of its contractual agreement to choice of forum in addition to choice of law. The parties themselves limited their agreement to choice of law.
Finally, Her Honour rejected the argument that because the Plaintiff employee had suffered damages in Ontario, Ontario was an appropriate place for him to commence his lawsuit. Her Honour wrote the following with respect to that point:
[26] Where damages are sustained, however, was not given presumptive effect for jurisdiction by the Supreme Court of Canada or the Ontario Court of Appeal: see Van Breda, at paras. 55, 89. Both the courts found that damages sustained in Ontario would not serve as a reliable indicator of a real and substantial connection: see Van Breda, at paras. 55, 89. While the list of presumptive factors articulated in Van Breda is non-exhaustive, jurisprudence indicates it would be inappropriate to expand the list to include where damages occurred
Commentary and Takeaways
The case is interesting because the facts of the situation are not uncommon in this highly mobile and globalized economy; people looking for work frequently pick-up and move across the country. However, it is also not uncommon for people to lose their jobs in those foreign jurisdictions and then return to the province from whence they came. When that happens it is obviously desirable for the dismissed employee to be able to sue in the province in which they are now located rather than the province where the employee used to work. For example, it was likely far more convenient for Mr. Christmas to sue in Toronto, where he lived, rather than to try to commence and prosecute a lawsuit in Alberta.
Cases of this sort have previously been considered on this blog. In the post “Hotel Employee Gets Early Check-out from Ontario Lawsuit”, this blog looked at the case of Sullivan v. Four Seasons Hotels Limited , 2013 ONSC 4622 (CanLII), which was about an employee who had worked in the United States for a multinational corporation with its corporate head office in Ontario, and then attempted to sue that employer in the Ontario courts for wrongful dismissal and violations of the Ontario Human Rights Code when she was fired. In that case the Ontario court again refused to assume jurisdiction and hear the case.
So what does this mean for those who may be considering a move out of province? On one level I suppose it means that closer attention should be paid to which party is making the offer, which party is accepting the offer, and where acceptance of the offer will be received. Reading paragraphs 18 and 19 of Justice Chiappetta’s decision I am certainly left with the impression that had the employee made, signed, and sent the offer of employment to his employer, and then had the employer signed the acceptance and returned it to the employee at his home in Ontario, the decision would have been that the contract was “made in Ontario.” What counts, it would appear, is: (a) who signs the agreement last, and (b) where the fully signed contract is received. (Of course, as wifi becomes more common on airplanes this issue will only become more complicated.)
Further complicating the matter and, I am sure, serving as a source of frustration for those who draft employment contract, was Justice Chiappetta’s decision that it was not enough that the contract provided for a choice of laws, the agreement also had to provide for a choice of forum to consider those laws. The takeaway for those who draft such agreements is that the agreement must provide not only that the laws of Ontario will prevail, but that the courts of Ontario will be the appropriate arena to resolve the dispute. Employees who may be concerned about their ability to sue in Ontario in the event that they get fired might wish to pay extra attention to the drafting of any such contractual provisions.
Frankly, I do not believe that the case stands for the proposition that the province in which the employee actually works determines the province in which the employee can sue. That goes too far and as location of work becomes more and more ambiguous – think telecommuting – these questions will only become more complicated.
The solution, if there is one, appears to be clear, well-written employment agreements. If you are an employer considering hiring employees in or from other provinces, or if you are an employee considering moving to another province for work, you should probably consider having your employment agreement drawn up by, or at least reviewed by, a professional employment lawyer. The professional, experienced and cost-effective employment lawyer at Ottawa's Kelly Santini LLP would be happy to be of service to you, yourr business or organization.
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
Do you agree with the decision in Christmas v. Fort McKay?
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
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