Ontario Court of Appeal rejects attempt to broaden provincial courts’ jurisdiction against the federal Crown

Written on August 10, 2016.

Under section 21(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (“CLPA”) plaintiffs who have a claim against the federal Crown for a matter that occurred within Canada have the choice of bringing their proceeding in either the Federal Court or the province in which the claim arose. In Babington-Browne v. Canada (Attorney General), 2016 ONCA 549 the Ontario Court of Appeal rejected a plaintiff’s attempt to broaden this concurrent provincial jurisdiction to include claims against the federal Crown that took place abroad.

The matter arose in 2009 when a British soldier was killed when a Canadian helicopter crashed on take-off from a military base in Afghanistan. Family members of the soldier brought claims before the Ontario Superior Court against the pilot, aircraft captain, flight engineer, and the federal Crown of Canada.

The motion judge struck the federal Crown claim on the ground that the Ontario Superior Court lacked the jurisdiction to hear it. The judge ruled that section 21(1) of the CLPA does not provide the Ontario Superior Court jurisdiction over claims against the federal Crown that arose outside of the province.

Though the motions judge did not mention it, the plaintiffs also would have faced a mirrored result had they tried to take the consolidated action to Federal Court. Under section 101 of the Constitution Act, 1867 the Federal Court is only allowed to hear claims involving the “laws of Canada”, so the claims against the federal Crown would have survived but the claims against the allegedly negligent individuals would have been struck for lack of jurisdiction.

The plaintiffs, likely seeking to avoid the multiplicity of proceedings these two statutes create, appealed the decision, arguing that an interpretation of section 21(1) of the CLPA ought to include an application of Club Resorts Ltd. v. Van Breda 2012 SCC 17. The presumptive connecting factors in Van Breda, particularly “the defendant carries on business in the province” and “the defendant is domiciled or resident in the province” would have easily permitted the Ontario Superior Court to assume jurisdiction over the federal Crown claim if they were accepted.

However, the Ontario Court of Appeal rejected this argument, explaining that an application of the Van Breda presumptive connecting factors to the federal Crown “would lead to impractical results that do not take account of the language of the CLPA”. Indeed, as the Honourable Justice Laskin pointed out, the Crown can be said to carry on business in every province, allowing every province to have jurisdiction over every claim against the federal Crown regardless of where the claim arose.

The decision is hardly surprising, yet illustrates that the section 21 of the CLPA is not meant to address all forms of potential multiplicity of proceedings. Plaintiffs dealing with claims that arose abroad against both the federal Crown and individuals should be prepared to either take the added risk and cost of proceedings at both the provincial and federal court levels, or limit their claims to a single category of defendant.

http://www.ontariocourts.ca/decisions/2016/2016ONCA0549.htm