In the 21st Century, employment is increasingly global. Many employment relationships are complicated by the presence of multiple actors that govern the relationship. Some employees in Canada work in one Canadian location, report to or work alongside persons in another location, and work for employers that are owned and/or operated and/or financed by other entities in and outside of Canada.
In complex employment structures, it can be difficult in theory to determine where an employee goes to seek redress for legal wrongs allegedly suffered the hands of their employer. However, rarely do such issues get litigated: an employee will sue in the location where they work or will sue wherever the employer is headquartered and/or doing business.
A new decision by the Superior Court sets out to resolve just such a situation. At the same time, the Court’s reasons are consistent with the reality that, with new courtroom and communication technologies (like ZOOM), fights over “where to sue” may soon be a thing of the past – if not already.
In Barnett, an employee working in Manitoba for Ontario corporations reporting to Manitoba supervisors seconded from the Ontario head office (and now living in Ontario or abroad) sued after her employers terminated her employment. The employee also alleged discrimination and bad faith treatment on the part of those supervisors and others located in Ontario. The employee commenced her claim a 30 minute drive from the main Defendant’s head office at the Chalk River Nuclear facility.
The main Defendant objected, arguing that the case properly belonged in Manitoba; it brought a motion to “stay” the claim so as to move it from Ontario to Manitoba. Such motions for stay in employment cases are very rare in Canada. The motion was dismissed: the Superior Court held that Ontario was a proper forum to adjudicate the issues raised and that there was not enough of a good reason for Manitoba to take on the matter instead.
The main thrust of the decision is two-fold: (1) a clause in a contract requiring litigation in Ontario was applied; and (2) because the main Defendant was up the street from the courthouse, the court in Ontario was a proper venue. Clauses setting out where to sue are very rare in employment agreements, and so the Court’s unsurprising finding applying that clause will have little impact in other cases. Similarly, Defendants sued next door to their head office rarely bring motions to end the litigation nearby. The Court was right not to stay the lawsuit.
What makes the decision particularly interesting for future lawyers and litigants is in the way the Court deals with the main reason to move the case to Manitoba: the presence of some witnesses (including the employee) there. Setting aside the fact that many other witnesses were located in Ontario or elsewhere, the Court concluded that, in the 21st Century, courts can bring in witnesses and documents easily using readily-available technologies. Such a conclusion is entirely reasonable. But it also suggests that the jurisdictional stay motion has very limited use save in clear cases where a truly foreign entity could not be expected to defend itself in a Canadian courtroom. Absent such a clear case, arguing that one easily accessible courtroom in one part of the country is worse or better than another easily accessible courtroom just no longer holds much sway. In 2025, evidence can be delivered electronically, affidavits and documents sworn and signed electronically, testimony transmitted via ZOOM or through other videoconference means, and arguments made over camera, with documents easily shared, swapped, displayed, and analysed.
Currently, courts are grappling with the question of how much – and what – litigation must happen in person and how much – and what – can take place using other methods. Barnett leans heavily on those “other methods” to conjure a procedural world that is responsive to the world of employment in a global village.