Focus On

JURISDICTION - Determination of - Forum conveniens - Procedure for determining

Wednesday, October 25, 2017 @ 8:32 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiff, Fernandes, from dismissal of his action against the defendant, Wal-Mart for lack of jurisdiction. The plaintiff was employed by a Wal-Mart store in Ontario for six weeks as a part-time store standards associate. None of his employment duties were performed in Manitoba or otherwise connected to Wal-Mart's Manitoba operations. The plaintiff listed an Ontario address at the time of his employment. Following his resignation, the plaintiff relocated to Manitoba. The plaintiff commenced an action in Manitoba seeking general, punitive and exemplary damages for constructive dismissal, breach of fiduciary duty, unjust enrichment, quantum meruit, infliction of mental suffering, intimidation and negligent misrepresentation. Wal-Mart moved to dismiss or stay the action on jurisdictional grounds. The motion judge ruled that the Manitoba courts did not have jurisdiction simpliciter. The judge declined to rule on Wal-Mart's position seeking a stay on the basis of forum non conveniens. The plaintiff appealed. The parties agreed that in the event the Court of Appeal found jurisdiction simpliciter existed in Manitoba, then Wal-Mart's motion for a stay should be determined.

HELD: Appeal allowed with underlying action stayed. The motion judge erred in law by deciding the motion regarding the Court’s jurisdiction on the ground of a real and substantial connection rather than considering whether there was jurisdiction on the traditional ground of presence within the jurisdiction. It was uncontested that the plaintiff served Wal-Mart in juris in compliance with the Rules on the basis Wal-Mart carried on business in Manitoba. The Manitoba courts thus had jurisdiction simpliciter to hear the action on its merits. Any arguments regarding the tenuous nature of the connection between the action and Manitoba were best determined in the context of the doctrine of forum non conveniens. Having regard to the factors relevant to the issues of forum non conveniens, it was appropriate to stay the action in Manitoba in its entirety, as Ontario was clearly the most convenient forum for hearing the action.

Fernandes v. Wal-Mart Canada Corp., [2017] M.J. No. 272, Manitoba Court of Appeal, F.M. Steel, H.C. Beard and J. leMaistre JJ.A., October 3, 2017. Digest No. TLD-October232017005