Joseph Raynald Alexandre Bouchard v. 0935079 BC Ltd., 2021 BCSC 457

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bouchard v. Facility Condition Assessment Portfolio Experts Ontario Ltd., 2021 BCSC 457 Date: 20210315 Docket: S38308 Registry: Chilliwack Between: Joseph Raynald Alexandre Bouchard and 0935079 BC Ltd. Plaintiffs And Facility Condition Assessment Portfolio Experts Ontario Ltd. also known as Roth IAMS Ltd. Defendant Before: The Honourable Justice Shergill Reasons for Judgment In Chambers Counsel for the Plaintiffs: A. Taghizadeh, appearing as agent for L.S. Smith Counsel for the Defendant: K. Armstrong, Q.C. Place and Date of Hearing: New Westminster, B.C.

February 02, 2021 Place and Date of Judgment: Chilliwack, B.C. March 15, 2021 Overview [ 1 ] This application is brought under Rule 21-8 of the Supreme Court Civil Rules , B.C. Reg. 168/2009 [ Rules ] for a stay of this action on jurisdictional grounds.

The defendant argues that this Court lacks jurisdiction in this matter, or alternatively, this Court should decline jurisdiction on the basis that it is forum non conveniens . [ 2 ] The plaintiffs resist the application, on the grounds that the defendant has failed to meet its burden to establish that this Court is forum non conveniens . [ 3 ] At the heart of the dispute is the defendant’s assertion that this matter should have been commenced in Ontario, where the defendant maintains its ordinary place of business. Issues [ 4 ] The following issues are raised in this application:

a) Does this Court have jurisdiction simpliciter ?

b) Is there a real and substantial connection between British Columbia and the facts on which the proceeding against the defendant is based?

c) If it is found that this Court has jurisdiction simpliciter , should this Court decline to exercise jurisdiction on the basis that it is forum non conveniens ? Background Facts [ 5 ] The central facts relevant to this application are not in dispute.

[ 6 ] The plaintiff, Joseph Bouchard, is a consultant and registered professional engineer. He lives in Chilliwack, B.C. The plaintiff, 0935079 B.C. Ltd., previously known as Ally Engineering Ltd. (“Ally”), is a company incorporated under the laws of British Columbia. At all material times, Mr. Bouchard was the principal owner of Ally. [ 7 ] The defendant, Facility Condition Assessment Portfolio Experts Ontario Ltd. (“FCAPX”), also known as Roth IAMS Ltd., provides engineering and management consulting services.

FCAPX is incorporated under the laws of Canada and registered as an extra- provincial company under the laws of British Columbia. FCAPX has a head office in Ontario, and an “Attorney Office” in Vancouver, B.C. The defendant does not have any physical office locations outside of Ontario. [ 8 ] Around August 31, 2018, Ally and FCAPX entered into a written agreement whereby FCAPX purchased specific assets of Ally (the “Asset Purchase Agreement”). The Asset Purchase Agreement was signed in counterparts, with Mr.

Bouchard signing it in British Columbia on behalf of Ally, and a representative of FCAPX signed the agreement on the company’s behalf in Ontario. [ 9 ] The Asset Purchase Agreement is silent with respect to choice of forum. It addresses the choice of law, as follows: 15.9 This agreement shall be construed in accordance with the laws of Canada, with any federal laws taking precedence over that of the provincial laws. [ 10 ] One of the terms of the Asset Purchase Agreement was an agreement by Mr.

Bouchard to enter into an employment contract with the defendant. [ 11 ] The parties entered into a written employment agreement on August 17, 2018 (the “Employment Contract”), whereby Mr. Bouchard was offered a regular full-time position as a project engineer. The Employment Contract was to take effect on September 4, 2018, upon the fulfillment of certain conditions. Mr. Bouchard signed the Employment Agreement in the presence of William Roth in Whitehorse, Yukon. Mr.

Roth is the president of FCAPX and resides in Ontario. [ 12 ] The Employment Contract is also silent on the choice of forum, though it explicitly provides for Ontario as the parties’ choice of law, as follows: …This letter, along with the enclosed schedules, outlines the obligations of both FCAPX and yourself with respect to your employment conditions, and is governed by the laws of the Province of Ontario. It details the terms and conditions of your employment with FCAPX and will form our agreed upon employment contract with you once signed. [ 13 ] The Employment Contract also has an attached

Schedule A, which states that: Any conditions included in the [Asset] Purchase Agreement between Ally Engineering and FCAPX will supersede any related/relevant clause within this agreement. [ 14 ] During his tenure with the defendant, Mr. Bouchard performed his duties working out of his home office in Chilliwack, B.C. Though there is some dispute as to whether Mr. Bouchard reported to Mr. Roth for the first year or so of his employment, both parties agree that he was eventually supervised by Curtis Loblick, who was based out of Edmonton, Alberta. [ 15 ] The uncontroverted evidence of Mr.

Bouchard is that he conducted all of his contractual obligations under the Employment Contract in B.C. Specifically, he fulfilled his job duties and provided services to clients that were all located in B.C. [ 16 ] The Employment Contract was terminated around July 14, 2020.

The circumstances surrounding the termination are in dispute. [ 17 ] On November 6, 2020, the plaintiffs commenced this action seeking damages for, among others: wrongful dismissal; breach of contract relating to the Asset Purchase Agreement; and conversion of documents related to Ally. [ 18 ] On December 16, 2020, the defendant filed its Jurisdictional Response, disputing this Court’s jurisdiction over the defendant, and submitting that, in the event that the Court does have jurisdiction, this Court ought not to exercise it. [ 19 ] This Notice of Application was filed on January 6, 2021.

Legal Framework [ 20 ] Rule 21-8(1)(

b) of the Rules permits a party to seek a stay of a proceeding “on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding”. [ 21 ] The issue of choice of forum is addressed in the common law as well as by statute. [ 22 ] The Court Jurisdictions and Proceedings Transfer Act , S.B.C. 2003, c. 28 [ CJPTA ] sets out the circumstances in which a British Columbia court has territorial competence over a proceeding: Proceedings against a person 3 A court has territorial competence in a proceeding that is brought against a person only if (

a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim, (

b) during the course of the proceeding that person submits to the court's jurisdiction,

(

c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding, (

d) that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or (

e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. [ 23 ]

Section 7 of the CJPTA provides that a corporation is ordinarily resident in British Columbia only if: Ordinary residence — corporations 7 A corporation is ordinarily resident in British Columbia, for the purposes of this Part, only if (

a) the corporation has or is required by law to have a registered office in British Columbia, (

b) pursuant to law, it (

i) has registered an address in British Columbia at which process may be served generally, or (ii) has nominated an agent in British Columbia upon whom process may be served generally, (

c) it has a place of business in British Columbia, or (

d) its central management is exercised in British Columbia. [ 24 ]

Section 10 of the CJPTA sets out a non-exhaustive list of factors that will lead to a presumption of a real and substantial connection between British Columbia and the facts on which a proceeding is based, as follows: Real and substantial connection 10 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding … (

e) concerns contractual obligations, and (

i) the contractual obligations, to a substantial extent, were to be performed in British Columbia, (ii) by its express terms, the contract is governed by the law of British Columbia, or (iii) the contract (

A) is for the purchase of property, services or both, for use other than in the course of the purchaser's trade or profession, and (

B) resulted from a solicitation of business in British Columbia by or on behalf of the seller, [ 25 ] Where a court concludes that it has jurisdiction simpliciter , it may still decline to exercise jurisdiction, on the basis that the court is forum non conveniens : Jin v. Cheng , 2018 BCSC 763 at paras. 110–111 . [ 26 ] In that regard, s. 11 of the CJPTA provides as follows: Discretion as to the exercise of territorial competence 11

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (

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 legal 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. [ 27 ] The central principle underlying jurisdictional questions was articulated by the Court in Club Resorts Ltd. v. Van Breda , 2012

SCC 17 . At para. 82, the Court held that, irrespective of the question of forum of necessity, jurisdiction must be established “primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum”. [ 28 ] The Court in Club Resorts Ltd. went on to consider circumstances which would lead the court to conclude that a “real and substantial connection” to the jurisdiction has been made out. In the case of a tort, the Court at para. 90 sets out factors which will be considered “presumptive connecting factors that, prima facie , entitle a court to assume jurisdiction over a dispute”, as follows: (

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. [ 29 ] However, the presumption of jurisdiction where a recognized connecting factor applies is not irrebuttable. It is open to a party challenging the court’s jurisdiction to 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”: Club Resorts Ltd. at para. 95 . Analysis [ 30 ] The evidence leads me to conclude that this Court has jurisdiction simpliciter .

First, I note that the defendants have an Attorney Office in Vancouver, such that they would be considered, by virtue of ss. 3 (

d) and 7 (

b) of the CJPTA , to be ordinarily resident in British Columbia at the time of the commencement of the proceeding. In addition, there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. Notably, as per s. 10 (

e) of the CJPTA , the contractual obligations were to have been performed, to a substantial extent, in British Columbia. That parts of the Asset Purchase Agreement and Employment Contract were signed outside B.C. is outweighed by the fact that Mr. Bouchard conducted nearly all of his obligations in B.C., as was reasonably expected by the circumstances of the contract’s formation: Snow v. R.D.E. Transport Inc., 2019 BCSC 2072 at paras. 20–23 . [ 31 ] I turn now to whether this Court should decline to exercise jurisdiction on the basis that it is forum non conveniens .

I conclude that it should not. [ 32 ] First, the convenience and expense to the parties and their witnesses weighs in favour of B.C. as the choice of forum. The parties have already gone to some expense in retaining counsel in B.C., and both sides will face added costs if the plaintiff is required to commence new proceedings in Ontario. I note also that Alberta, where Mr. Loblick resides, is closer to B.C. than Ontario.

This may prove to be particularly important if the trial proceeds during the pandemic, since travel to B.C. from Alberta may still be possible by car, in the event that airplane travel is not feasible due to pandemic related travel restrictions or pandemic health concerns. [ 33 ] Second, while the parties may have chosen Ontario as the choice of law for addressing any disputes flowing from the Employment Contract, it is by no means certain that the court will ultimately decide that Ontario laws apply to all or part of the dispute before it.

There is no choice of law made by the parties with respect to the Asset Purchase Agreement, which would supersede any related clauses in the Employment Contract, and the plaintiffs may be successful in establishing that Mr. Bouchard’s termination should be governed by B.C. laws. In the event that the court concludes that Ontario laws should apply, proving Ontario laws is not an insurmountable hurdle, nor should it pose a great inconvenience or expense to the parties. [ 34 ] Further, choice of law is not the same as choice of forum. As noted by the Court in Christmas v.

Fort McKay , 2014 ONSC 373 at para. 21 , imposing jurisdiction on a party solely as a result of its agreement on choice of law can unfairly broaden the scope of the terms agreed to by the parties. In this case, the parties limited their agreement to choice of law. [ 35 ] Finally, in regards to the enforcement of any eventual judgment, I agree with the plaintiffs that this is a neutral factor, as both B.C. and Ontario have legislation that allows for judgments from Canadian provinces and territories to be registered in each province.

Order [ 36 ] The defendant’s application for a stay of this action is dismissed. “Shergill J.”