The Supreme Court of British Columbia has ruled that a court in Hong Kong is a more appropriate venue for a wrongful dismissal case against the Royal Bank of Canada.
David Tims was dismissed from a management position from RBC in Hong Kong. It alleged he had inappropriate physical contact with three female colleagues, amounting to sexual misconduct and sexual harassment.
Tims alleged he was wrongfully dismissed. He claimed damages for wrongful dismissal, breach of contract, and unjust enrichment, seeking common and aggravated damages in an amount of at least $3.9 million.
RBC asked the court to “decline to exercise its territorial competence over this proceeding on the grounds that Hong Kong is clearly the more appropriate forum.” It agreed.
Background
Tims was employed with RBC in Canada from 1989 to 1998. He then worked in Canada for another financial institution before returning to RBC in July 2009 to work in a management position in Vancouver.
In 2018, Tims took a position with RBC in Hong Kong. It was a management position with a three-year term. At the end of that period, he was to return to Vancouver and continue working for RBC in a management position.
The assignment letter from RBC provides for the application of Canadian law in the following terms: “Unless superseded by the application of host country laws, your employment relationship during the assignment will remain with RBC Capital Markets, Canada and will be subject to the laws of the home country.”
In May 2018, he moved to Hong Kong and assumed his new duties. He was terminated on July 31, 2019, and all of the alleged inappropriate conduct took place in Hong Kong.
During his employment in Hong Kong, Tims’ compensation was administered according to the compensation guidelines and practices for Hong Kong. He was paid by RBC Hong Kong in Hong Kong dollars, and his pay was processed through RBC Hong Kong’s internal human resources team.
The court said that the plaintiff (Tims) presumptively ought to benefit from his choice of a competent forum, and the onus is on the defendants (RBC) to demonstrate that another forum is clearly more appropriate.
Factors the court considered
Residence: Residence favoured B.C., as both Tims and RBC are resident in B.C. There would be significantly greater inconvenience to Tims than RBC in litigating this case in Hong Kong, the court said.
Witnesses: RBC said the majority of its witnesses were located in Hong Kong and there would be significant unfairness and inconvenience in having the matter proceed in B.C.
In April 2019, RBC received reports of the plaintiff’s inappropriate physical contact with female colleagues. A formal workplace investigation was completed involving interviews with eight individuals in addition to the plaintiff.
In total, RBC said it anticipated calling in the range of 15 witnesses, the majority of whom reside in Hong Kong. None of them live in B.C.
Tims said he intended to call 22 witnesses – six in Hong Kong, seven in B.C., five in Ontario and additional ones located in London, U.K.; New York; and Singapore.
“The plaintiff says his witnesses will adduce evidence as to his character, the negotiation of the employment agreement, and the investigation. As noted by the defendants, the plaintiff does not elaborate further on the evidence to be given by any particular witness,” the court said.
Most of the witnesses (apart from one in Toronto, one in London and two in Hong Kong) for Tim do not appear to have been involved in the investigative process, the decision to terminate or the post-termination conduct at issue.
Hong Kong witnesses: The court said witnesses from Hong Kong would face significant expenses, as well as professional and personal inconvenience, if they were asked to testify at a trial in B.C.
RBC also raised a concern about whether witnesses from Hong Kong could be compelled to testify in B.C.
“Neither this Court nor the Hong Kong courts have the power to compel a witness to travel abroad to testify in foreign proceedings,” the court said.
Video testimony?
Tims suggested that testimony could be done via videolink, but the court dismissed that notion – citing the time difference.
The usual B.C. court hours of 10 a.m. to 4 p.m. equate to 1 a.m. to 7 a.m. in Hong Kong.
“Even if some evidence could be introduced virtually, it would require witnesses in Hong Kong and Singapore to give evidence at unusual hours or for this Court to sit outside of normal court hours for many witnesses. While this might be an option for a limited number of witnesses, is not practical where large numbers of witnesses are involved,” the court said.
The law
The uncontradicted evidence from RBC shows that Hong Kong courts are more than capable of applying Canadian law with the assistance of expert testimony.
Although the monetary claims are significant, the underlying issues are not particularly novel or complex, the court said.
“I accept that the similarities in the common law between the two jurisdictions would facilitate the ability of the Hong Kong courts to apply Canadian law. Therefore, while the courts of this province are better equipped to apply the laws of Canada without the complications that can arise if there are conflicting opinions from experts on Canadian law, I do not consider this an insurmountable obstacle in the circumstances.”
The ruling
The court said, simply, that the connections to Hong Kong in the underlying facts of the case are “overwhelming.”
“(Tims) was living and working in Hong Kong in the time leading up to the dismissal, which took place in Hong Kong. The impugned behaviour took place entirely in Hong Kong and the individuals allegedly subjected to that behaviour are all in Hong Kong,” the court said.
“The vast majority of the key witnesses are in Hong Kong and are not compellable by this Court. Even assuming the witnesses were made available by video, a virtual trial in British Columbia would present significant problems. All of the evidence before me indicates that the courts of Hong Kong are both territorially competent and more than capable of fairly deciding this matter applying the law chosen by the parties.”
For more information see Tims v. Royal Bank of Canada, 2022 BCSC 1181 (CanLII)
