Executive Summary: Key Legal and Evidentiary Issues

• Characterization of the forum selection clause as non-exclusive, triggering a forum non conveniens rather than strong cause analysis
• Determination of whether British Columbia is clearly a more appropriate forum than Ontario for a wrongful dismissal claim involving a B.C.-based position and employer operations across Canada
• Weight to be given to the parties’ express choice of Ontario governing law and a non-exclusive Ontario jurisdiction clause in an employment contract
• Assessment of witness and documentary locations, including alleged harassment/bullying witnesses in British Columbia versus other personnel in Quebec, Alberta, and the United States
• Consideration of procedural and cost efficiencies under Ontario’s Simplified Procedure rules, including virtual steps and mandatory mediation in Ottawa
• Evaluation of alleged loss of juridical advantage and whether BakeMark was forum shopping, in light of its concession that Ontario law governs the contract

Background and facts of the dispute

Paul Boileau, aged 57, brought a wrongful dismissal action against his former employer, BakeMark Ingredients Canada Limited. He currently resides in Alberta but, at the time of his employment, he lived in British Columbia and served as General Manager of BakeMark’s British Columbia warehouse. In that role, he was responsible for overseeing BakeMark’s operations in the province and supervised a staff of approximately 35 employees who also worked in British Columbia. His employment was terminated on June 26, 2024, without cause. The termination letter was received in British Columbia, although it was issued by a BakeMark representative based in California, and the record did not clearly identify who made the termination decision or precisely where it was made. After his dismissal, Mr. Boileau relocated to Alberta.

The employment contract and jurisdiction clause

Mr. Boileau’s employment contract contained an express governing law and jurisdiction provision in section 10.2. That clause provided that the agreement would “in all respects be governed and construed in accordance with the laws of the Province of Ontario” and that each party “irrevocably submits to the non-exclusive jurisdiction of the courts of the Province of Ontario.” The key feature of this language is its designation of Ontario law as the governing law together with a non-exclusive, rather than exclusive, attornment to Ontario courts. This contractual framework became central because it established that Ontario law applied, while leaving open the possibility that another competent forum could also hear the dispute, subject to the court’s discretion.

Procedural history and the motion

On February 12, 2025, Mr. Boileau commenced his wrongful dismissal action in Ottawa, Ontario, under the Simplified Procedure rules, with claimed damages of less than $200,000. Shortly thereafter, on April 11, 2025, BakeMark asserted that British Columbia was the more appropriate forum in which to litigate the claim. It brought a motion seeking to stay or dismiss the Ontario action on the basis of forum non conveniens, arguing that the dispute should proceed in British Columbia rather than Ontario. Mr. Boileau resisted that motion, contending that his action was properly brought in Ontario, consistent with the contractual choice of law and jurisdiction clause, and that the Ontario court should retain jurisdiction to hear the matter.

Competing tests: strong cause versus forum non conveniens

A central legal dispute concerned which analytical framework the court should apply in deciding whether to decline jurisdiction: the strong cause test associated with exclusive forum selection clauses, or the broader forum non conveniens analysis. BakeMark accepted that Ontario had jurisdiction simpliciter over the claim; the question was whether the court should nonetheless decline to exercise that jurisdiction in favour of British Columbia. BakeMark argued that because the clause in section 10.2 was clearly non-exclusive, the applicable test was forum non conveniens. It relied on appellate authority, including the Ontario Court of Appeal’s recent decision in Shirodkar v Coinbase Global, Inc., to submit that the strong cause test is confined to contracts with exclusive forum selection clauses. Mr. Boileau, by contrast, argued that even where the clause is non-exclusive, when a plaintiff sues in the forum named in the contract, the defendant must show strong cause to override the parties’ bargain and displace that chosen forum. He relied on cases such as Expedition Helicopters Inc. v Honeywell Inc., Z.I. Pompey Industrie v. ECU-Line N.V., Forbes Energy Group Inc. v Parsian Energy Rad Gas, and Mackie Research Capital Corporation v Mackie to support the application of the strong cause approach.

The court’s conclusion on the applicable test

The court carefully reviewed the Supreme Court of Canada and appellate authorities cited by both parties. It concluded that the nature of the forum selection clause—exclusive versus non-exclusive—was a driving factor in determining which test applied. In the leading cases where the strong cause test had been applied, such as Pompey, Expedition Helicopters, and Douez, the forum clauses were exclusive, and the courts’ reasoning emphasized the policy of holding parties to an exclusive bargain in favour of contractual certainty. The court noted that in Forbes and subsequent cases, including Shirodkar, appellate courts expressly distinguished non-exclusive clauses, holding that the strong cause test does not govern where the clause is merely non-exclusive. Applying this line of authority, the court found that section 10.2 of the employment agreement was plainly non-exclusive, and therefore the proper framework was the forum non conveniens analysis, not the strong cause test. The court emphasized that while the choice of forum clause remained an important factor in the analysis, it did not carry the determinative weight it would have if it had been drafted as an exclusive jurisdiction clause.

Forum non conveniens framework and guiding principles

Under the forum non conveniens doctrine, the burden lies on the defendant to show that another forum is clearly more appropriate than the one chosen by the plaintiff. The standard to displace the plaintiff’s choice of forum is high, and the court must assess a series of factors holistically, with an eye to efficiency and justice. These factors commonly include the location of the parties, witnesses, and evidence; the place where the underlying events occurred; the applicable law; potential loss of juridical advantage; risk of multiplicity of proceedings or conflicting judgments; and the impact and cost of transferring or declining the stay. The court must resist making premature factual findings on disputed merits issues at this stage.

Location of the parties, witnesses, and evidence

In assessing the location of the parties, the court observed that Mr. Boileau now resided in Alberta, while BakeMark had its head office and a significant facility in British Columbia, along with operations in Ontario, Quebec, Alberta, and Manitoba. This factor was found to slightly favour British Columbia, given the employer’s head office and central operations there. On witnesses and evidence, BakeMark proposed to call eight witnesses at trial, six of whom were said to work at or regularly attend the British Columbia facility, including witnesses expected to testify about alleged harassment and bullying said to underpin the dismissal. Mr. Boileau denied those allegations and argued that they had not formed part of the termination rationale, emphasizing that he had been dismissed without prior discipline. He identified other potential witnesses in Montreal and California and argued that in a national or multinational operation, travel for witnesses should carry limited weight, especially where documents could be produced digitally. The court concluded that, accepting both parties’ evidence at its highest, no material witnesses resided in Ontario and that travel would be necessary whichever forum was chosen. However, because several key witnesses and Mr. Boileau’s employment file were based in British Columbia, while some other witnesses were based elsewhere in Canada or the United States, the location of witnesses and evidence modestly favoured British Columbia, albeit only slightly.

Place where the events occurred

The court gave significant weight to where the factual matters in issue took place. It was undisputed that Mr. Boileau worked exclusively in British Columbia, managed the British Columbia warehouse, and supervised local staff there. Although there was some uncertainty about where the employment contract was formed and who actually decided to terminate his employment, there was no evidence that any relevant factual events occurred in Ontario. By contrast, there was clear evidence that the performance of the employment relationship occurred in British Columbia. As a result, the court held that this factor strongly favoured British Columbia as the natural forum.

Costs, efficiency, and procedural considerations

Turning to the impact and cost of transferring the case, the court recognized that there would be travel and some duplication of expense for Mr. Boileau if he had to retain new counsel and recommence or transfer the action in British Columbia. He pointed out that he regularly visited Ontario, had family there, and considered Ontario to be a more convenient location for him personally. BakeMark, on the other hand, argued that defending the action in Ottawa would generate significant travel costs and lost productivity for its British Columbia-based witnesses, estimating approximately $7,000 in travel expenses and disruption to plant operations. The court acknowledged that travel and related costs would arise whichever forum was chosen but noted that modern litigation practices, such as virtual hearings and remote testimony, could alleviate some of these burdens. Importantly, the action in Ontario was brought under the Simplified Procedure, which limits oral discovery and allows for summary trials with evidence by affidavit. The court saw these procedural efficiencies, together with mandatory mediation for Ottawa actions, as favouring the retention of the Ontario forum, especially given that this was an individual employee’s claim with damages under $200,000.

Multiplicity of proceedings and risk of conflicting judgments

The court considered whether maintaining jurisdiction in Ontario would create a risk of parallel proceedings or inconsistent judgments. No parallel action had been commenced elsewhere, and only one proceeding—the Ontario action—was on foot. Because there was no competing litigation in British Columbia or any other jurisdiction, maintaining the Ontario action did not pose a risk of multiplicity or conflicting decisions. This factor therefore supported keeping the matter in Ontario.

Applicable law and potential loss of juridical advantage

Although BakeMark contested whether Ontario was the more appropriate forum, it did not dispute that Ontario law governed the employment contract under section 10.2. The court noted that while British Columbia courts are capable of applying Ontario law, it is more practical and convenient for an Ontario court to interpret and apply its own province’s laws, particularly where the parties expressly chose Ontario law in their agreement. This made the governing law factor strongly supportive of an Ontario forum. Mr. Boileau further argued that he would suffer a juridical disadvantage if the case were transferred to British Columbia, contending that Ontario courts and legislation are more favourable to employees in relation to termination clauses and that BakeMark was attempting to forum shop to preserve the enforceability of its contract terms. The court declined to endorse any suggestion that one province’s courts are categorically more employer- or employee-friendly, and it viewed BakeMark’s acceptance that Ontario law governs as undercutting the allegation of forum shopping and potential juridical disadvantage. Nevertheless, differences in procedural regimes, including mandatory mediation and the Ontario Simplified Procedure, provided some procedural benefits to Mr. Boileau, which the court treated as at least neutral to slightly favouring Ontario.

Weight given to the non-exclusive forum selection clause

The court then addressed how much weight to give the non-exclusive choice of forum clause in section 10.2 within the forum non conveniens analysis. BakeMark attempted to argue that the designation of Ontario as a non-exclusive forum was likely a mistake and not its usual practice, but that evidence was hearsay and speculative. The court placed no meaningful weight on the suggestion of error, instead treating the clause as a conscious choice that aligned with the parties’ express selection of Ontario governing law. Drawing guidance from Sugar v Megawheels Technologies Inc., where an Ontario action was maintained despite a non-exclusive Alberta forum clause, the court concluded that non-exclusive clauses are not drafted to give determinative weight to the named forum, but they still remain a significant factor when parties have agreed to attorn there if sued. In this case, section 10.2 obligated each party to submit to the non-exclusive jurisdiction of the Ontario courts, and Mr. Boileau had done exactly that by issuing in Ontario. While not dispositive, this factor weighed in favour of maintaining Ontario’s jurisdiction.

Overall weighing of factors and court’s ruling

After canvassing each factor, the court returned to the governing principles of forum non conveniens: the high standard required to displace the plaintiff’s chosen forum, the need to balance efficiency and justice, and a prudential approach to disputed facts. It observed that most of the individual factors only slightly favoured one jurisdiction or the other. The location of the underlying events—Mr. Boileau’s work and management responsibilities in British Columbia—strongly supported British Columbia as the natural forum. Conversely, two considerations weighed heavily in favour of keeping the matter in Ontario: the parties’ clear contractual choice of Ontario law and non-exclusive Ontario jurisdiction, and the fact that Mr. Boileau had commenced his action in the forum named in the clause under a cost-efficient Simplified Procedure. Taking all the circumstances into account, the court was not persuaded that British Columbia was clearly the more appropriate forum. Because BakeMark had not met the high threshold required to displace the plaintiff’s choice, the motion to stay or dismiss the Ontario action was dismissed.

Costs and outcome in favour of the successful party

On the issue of costs, both parties filed costs outlines in anticipation of the motion’s outcome. BakeMark’s partial-indemnity costs claim, had it succeeded, was approximately $57,725.26, which the court considered disproportionate to a Simplified Procedure case involving less than $200,000 in damages. Mr. Boileau sought costs of $6,027.60 on a partial indemnity basis and argued for substantial indemnity based on a prior offer to settle the motion for $5,000 in costs. Although he technically beat his offer, the court declined to award substantial indemnity, noting that most of the work and expense had already been incurred by the time the offer was made and that substantial indemnity remains reserved for exceptional circumstances. In the result, the court dismissed BakeMark’s motion, found Mr. Boileau to be entirely successful on the jurisdictional issue, and ordered BakeMark to pay him $6,027.60 in partial-indemnity costs of the motion, payable within 30 days. The underlying wrongful dismissal damages remain to be determined at a later stage, but as of this decision, the total quantified monetary award in favour of the successful party, Mr. Boileau, is $6,027.60 in costs, with no other damages yet fixed or ordered.