Canada: Jurisdiction Of An Ontario Court To Hear A Wrongful Dismissal Claim Related To Employment In The United States

We recently came across a decision by the Ontario Superior Court which is particularly relevant to global and multinational employers with employees who may transfer between related companies in different geographic locations. The Court considered the issue of whether it had jurisdiction to hear the wrongful dismissal claim of a plaintiff employee who was originally employed in Ontario, but who, at the time her employment was terminated, was working in New York. In her claim, the employee claimed against both the Ontario entity and the entity in New York that had employed her.


The defendant employers brought a motion to have the proceeding stayed or dismissed on the grounds that the Ontario Superior Court did not have jurisdiction to hear the matter or that an Ontario court was not the most appropriate forum.

The employee was employed for five years as a director of sales for Four Seasons Hotel in Toronto (Four Seasons). In 2007, she applied for and accepted a transfer to Nevis Resort (Nevis), a resort which used the Four Seasons Hotel and Resorts trademark. The transfer was structured as an assignment or transfer of her existing employment contract with Four Seasons in Ontario. Following the transfer, the employee worked out of an office in New York as the director of sales for Nevis. She continued in that role until her employment was terminated in 2011.


In the context of a jurisdictional challenge, a court will first consider whether it has jurisdiction simpliciter to hear the matter. If jurisdiction simpliciter exists, the court will then consider whether there is a more appropriate forum, considering the principles of forum non conveniens. Put more simply, a court will first consider whether it has jurisdiction to hear a matter and then consider whether it should exercise its jurisdiction to do so.


A court can assume jurisdiction where there is a "real and substantial connection" between the dispute and the court being asked to assert its jurisdiction.  In this case, one of the defendants, Four Seasons, is an Ontario resident and carries on business in the Province and the contract connected with the dispute was made in Ontario. Based on the foregoing, the Court was satisfied that a real and substantial connection existed with Ontario and therefore it had jurisdictionto hear the plaintiff's case. The Court then considered whether there was a more appropriate forum in which the matter should be heard.

2.Exercise of Jurisdiction

Once jurisdictionis established, it is up to the defendant to show that there is clearly a more appropriate forum than the one chosen by the plaintiff. In doing so, a court will typically consider:

  1. the location where the contract in dispute was signed;
  2. the applicable law of the contract;
  3. the location of witnesses, especially key witnesses;
  4. the location where the bulk of the evidence will come fro
  5. the jurisdiction in which the factual matters aros
  6. the residence or place of business of the parties; a
  7. the loss of a legitimate juridical advantage.

The Court considered each of the foregoing in turn. Its findings, in brief, are below:

  1. The employee's original contract of employment was signed in Ontario and governed by Ontario law. Further, the new contract pursuant to which her employment was transferred was prepared by Four Seasons in Toronto and signed by the employee in Ontario. 
  2. The applicable law of the contract governing the employee's employment in New York was not clear. Although the contract governed the employee's employment with Nevis in New York, the employee argued that the contract she signed prior to moving to New York was merely an extension of the original contract, which was governed by Ontario law.
  3. The location of witnesses weighed in favour of New York, rather than Ontario, as the more appropriate forum, although the employee claimed that several witnesses were located in Ontario. The Court only discussed one such witness, the Director of Corporate Human Resources & Administration. However, that individual was only given information on the employee's employment and performance; she was not directly involved in her performance management or the termination of her employment.
  4. New York is where most of the evidence would be located, since the termination was ostensibly performance-based.
  5. New York is clearly where the factual matters at the core of the dispute arose.
  6. The residence or place of business of the parties did not clearly point to either Ontario or New York. The employee tried to argue that she experienced difficulty crossing the border into the United States and that the witnesses could travel more easily to Ontario than she could to the United States; however, she did not provide any evidence that she had been denied entry to the country or that she would have difficulty entering the United States in the future.
  7. The employee also argued that, due to the difference between the laws of Ontario and the laws of New York, she would be significantly disadvantaged if the case were to proceed in New York. In particular, she would not be entitled to any notice or payment in lieu of notice of termination under the laws of New York. Notwithstanding this difference, the Court cited other case law which suggested that juridical advantage should not be overemphasized in the forum non conveniens analysis.

On balance, the Court determined that the defendants successfully established that New York is the clearly more appropriate forum.

Our Views

For employers who have offices in different legal jurisdictions and whose employees may work for the employer or an affiliate in different locations, the main take-away from this case is that, when transferring an employee between locations, the transfer should be made conditional upon the employee signing an agreement to effect the transfer. If a particular legal jurisdiction is preferred by the employer in the event of a dispute, that agreement should contain a governing law and a choice of law provision and should be clear with respect to which legal entity will be the employer. To the extent possible, the administration of the employee's employment and material employment-related decisions should be made by that entity alone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions