Employment law implications of COVID relocations, Visa expiries, and rapid transfers: Mian v. Expro Group Canada Inc., 2024 NSSC 218

The Mian v. Expro Group case illustrates an increasingly common scenario:  the remote worker who, when a conflict with their employer arises, sues in the place they live rather than in the employer’s home jurisdiction.  Is that allowed?  As is true in many legal claims, the answer is “it depends.”

The case starts off simply enough.  In the fall of 2019, Adam Mian was working for a company in Texas.  He applied for a job in the UK with Expro North and got it. Mian accepted the position, which was conditional on receiving the required immigration approvals to work in the UK.  What happened next is something that most employers can relate to.

While Mian waited for a UK work visa, Expro North’s parent company offered him a temporary employment contract in Newfoundland and, later, another contract that allowed Mian to work from his home in Nova Scotia. In October 2022, Mian was dismissed without cause, and he sued Expro in his home province of Nova Scotia.  Expro North argued that the Nova Scotia Supreme Court had no jurisdiction in the matter, as the company had no offices in Nova Scotia and is not incorporated there.

1. Jurisdictional Challenges

One of the most notorious courses in law school is called “Conflict of Laws”.  It deals with the thorny questions that arise when a person in one place has a legal claim against a person in another place, and the laws of those two places conflict.  In the Mian case, Expro Group operated in multiple jurisdictions across different countries and states; Mian was originally hired to work in the UK and later in Newfoundland; and he ended up working in Nova Scotia. That raised questions regarding the applicable law. 

While Mian asserted that he was allowed to sue Expro in Nova Scotia, the company argued that Nova Scotia was not the proper forum for the claim.  The Court considered a number of key questions, including:

• Where was the employment contract formed? The place of contract formation can influence which jurisdiction governs the employment relationship.

• Where was the work performed? The place where the employment obligations are performed can have substantial implications to a court’s jurisdiction. Employees working in remote or hybrid postures can create relationships to territories outside of an employer’s typical business structure that shift a court’s analysis of proper jurisdiction.  

• Where did the alleged wrongful conduct occur? The place of the alleged legal wrong influences where the victim is allowed to sue.

Forum selection clause in the employment contract: If Mian's employment contract included a forum selection clause specifying which court or jurisdiction would handle disputes, that clause could dictate where the case should be heard, and which laws apply.

2. Choice of Law Clauses

• A common feature in employment contracts for multinational corporations is the inclusion of a Choice of Law clause—a provision that specifies which jurisdiction's laws will govern the employment relationship and potential disputes. In the Mian case, Mian had multiple contracts during his employment with Expro. One contract purported to be expressly governed by the laws of the UK whereas a second contract, by the laws of Newfoundland and Labrador. This highlights the importance of understanding how courts treat Choice of Law clauses. Effectiveness of the Clause: The effectiveness of a choice of law clause depends on whether it adheres to public policy and whether it is enforceable under the chosen jurisdiction. Courts sometimes refuse to enforce choice of law clauses if they violate the public policy of the forum where the case is heard.

Multiple Jurisdictions' Interests: Even with a choice of law clause, courts may have to balance the interests of different jurisdictions. For instance, Mian might argue that the laws of the jurisdiction where he was terminated should apply, while Expro Group might assert that the law of the jurisdiction specified in the contract governs.

3. Application of Local Employment Laws

Depending on where an employee works and where the employment conflict takes place, local employment laws could conflict with the choice of law in the contract. For example:

• Employment Protections: One jurisdiction might have stronger employment law protections while another might be more employer-friendly, allowing for easier terminations.

Discrimination and Retaliation Laws: Jurisdictions may vary in their approach to discrimination and retaliation claims. For instance, Mian may have had stronger protections under Nova Scotia law compared to laws in another country.

4. Public Policy Considerations

Courts may decline to apply foreign laws if doing so would violate the public policy of the forum where the lawsuit is brought. 

For example: If Mian brought the case in the United States and Expro Group sought to enforce a foreign law with fewer protections for employees, the U.S. court might refuse to apply that law on the grounds that it conflicts with U.S. public policy, which tends to favor stronger protections against discrimination and wrongful termination.

5. Extraterritorial Application of Employment Laws

In cases involving multinational companies, there may be questions about whether certain laws apply extraterritorially. 

6. Enforcement of Foreign Judgments

Should Mian prevail in one jurisdiction, there could be additional issues regarding the enforcement of that judgment in another country. 

Conclusion

The Mian v. Expro Group case highlights conflict of laws issues that arise in multinational employment disputes. These issues center around determining the applicable law, balancing the interests of different jurisdictions, enforcing forum selection and choice of law clauses, and addressing public policy concerns. Courts must carefully weigh these factors to ensure that the rights of both employees and employers are respected across borders.

Ultimately, conflict of laws in the employment context underlines the complexity of resolving employment disputes in an increasingly digital and globalized economy, where employees and employers are often subject to multiple, and sometimes conflicting, legal regimes.