Executive Summary: Key Legal and Evidentiary Issues

• The Employment Action was dismissed for long delay as there was no significant advance in the action between July 13, 2019 and September 25, 2022, as required by Alberta Rule 4.33.

• Settlement correspondence between the parties and the filing of the Defamation Action were found not to constitute a significant advance of the Employment Action.

• The court found that the Employment Action and the Defamation Action, while factually related, are not “inextricably linked” for the purpose of advancing the Employment Action.

• Alberta was held to have jurisdiction simpliciter over the Defamation Action, and the defendant did not meet its burden to show that another forum was clearly more appropriate.

• The court rejected the defendant’s argument that the location of most witnesses outside Alberta made it a forum non conveniens, noting the modern ability to question witnesses remotely.

• The Employment Action and the defendant’s Counterclaim were dismissed; the Defamation Action was not dismissed and is allowed to proceed in Alberta.

Facts of the case

Martin Griffith, the plaintiff, began employment with BP Canada Energy Group ULC in February 2012 as a well test supervisor. In or about June 2012, he accepted a three-year assignment with BP Canada in Angola. The contract stated that Griffith remained an employee of BP Canada, was governed by the laws of Canada, and that the parties agreed to submit to the exclusive jurisdiction of the Canadian Courts. Toward the end of the Angola assignment, allegations were made that Griffith had submitted expense claims to which he was not entitled. BP Canada terminated Griffith’s employment effective December 31, 2015.

Background and procedural history

Griffith commenced the Employment Action for wrongful dismissal on October 19, 2018. BP Canada defended and filed a Counterclaim, to which Griffith responded. The last step agreed by the parties to constitute a significant advance in the Employment Action was BP Canada sending its producible documents to Griffith’s counsel on July 13, 2019. BP Canada filed the Long Delay Application on December 13, 2022, with the “drop dead date” being September 25, 2022 (three years and 75 days after July 13, 2019, the 75 days added by Ministerial Order 27/2020). Griffith also commenced a Defamation Action on June 30, 2021.

Discussion of policy terms and relevant clauses

The employment contract specified that Griffith remained an employee of BP Canada, was governed by Canadian law, and that the parties agreed to submit to the exclusive jurisdiction of the Canadian Courts. These terms were central to the court’s consideration of jurisdiction.

Analysis of the long delay application

The court considered whether there was a significant advance in the Employment Action between July 13, 2019 and September 25, 2022. Griffith argued that settlement correspondence and the filing of the Defamation Action constituted significant advances. The court found that the settlement letters—sent by the defendant on November 25, 2020 and March 28, 2022, and by the plaintiff on December 7, 2022—did not constitute a significant advance, as the plaintiff did not respond to the defendant’s letters and the plaintiff’s letter was sent after the drop dead date. The court also found that the filing of the Defamation Action did not significantly advance the Employment Action, as it was a separate cause of action. The court dismissed the Employment Action, including the Counterclaim.

Jurisdictional challenge to the defamation action

BP Canada argued that Alberta was not the appropriate forum for the Defamation Action, as Griffith did not reside or work in Alberta and most witnesses were outside the province. The court applied the two-step analysis: first, confirming that Alberta courts had jurisdiction simpliciter, which BP Canada conceded, and second, considering whether Alberta was forum non conveniens. The court found that Alberta was not a forum non conveniens, noting BP Canada’s significant presence in Alberta and the employment contract’s connection to Alberta. The court also noted that the location of witnesses outside Alberta was not a determining factor, given the possibility of remote questioning.

Outcome and ruling

The court dismissed the Employment Action, including BP Canada’s Counterclaim, for long delay. The Defamation Action was not dismissed on jurisdictional grounds and is allowed to proceed in Alberta. No specific amount was ordered or awarded, as the Employment Action was dismissed for delay and the Defamation Action continues. The successful party for the Employment Action was BP Canada, while Griffith succeeded in keeping the Defamation Action in Alberta.