Were this Court to retain this action, the burden would not be very significant. The terms of the non-compete agreement are to be construed in accordance with New York law. While the remaining causes of action may be subject to Ontario law, since the activities occurred in Ontario, this would not constitute a substantial burden. New York is often called upon to construe the law of foreign jurisdictions. The potential for hardship for defendant, however, is significant.
Defendant is a Canadian resident, who has been employed in Canada.
His conduct, out of which this action arose, occurred in Canada. Further, any non-party witnesses, e.g., the customers or employees whom plaintiffs contend are being improperly approached, are all in Canada. Plaintiffs contend that they will be inconvenienced by having to send documents and witnesses from New York to Canada. However, the only potential New York witnesses are employees of plaintiffs, over whom plaintiffs have control, and will therefore appear if needed. Defendant's potential witnesses, on the other hand, are non-party witnesses located in Canada, over whom he has no control.