The forum in which to litigate is a difficult decision in any
case that crosses provincial or national borders. It is even more
complicated in claims against the federal government. The Federal
Court has exclusive jurisdiction in some cases; in others, the
Federal Court and the provincial Superior Court in which the claim
"arises" have concurrent jurisdiction. Where the
jurisdiction is concurrent and the plaintiff elects to sue in
Superior rather than Federal Court, the question becomes: in which
province does the claim "arise"?
The question is further complicated where there are multiple
causes of action asserted. One claim may be said to
"arise" in one province and another claim somewhere else,
even where the claims are related and stem from the same facts. The
Ontario Court of Appeal's decision in David S. LaFlamme Construction Inc. v.
Canada demonstrates the jurisdictional jockeying that can
result from electing to sue the federal Crown in Superior
David S. LaFlamme Construction Inc. ("LaFlamme") was a
successful bidder on a federal contract for a dam to be built in
northern Quebec. It sued the federal government for negligent
misstatement and breach of contract on the basis that there were
material misrepresentations in the tender documents. LaFlamme sued
in both Ontario and Quebec. The Attorney General of Canada moved to
strike the Ontario action on two grounds: (1) the contract
documents extinguished the right to claim in tort; and (2) the
Ontario court did not have subject-matter jurisdiction over the
Crown because the claim "arose" in Quebec.
The Ontario Court of Appeal upheld the motion judge's
decision to strike the Ontario action. The Court of Appeal agreed
with the motion judge that it was plain and obvious that LaFlamme
had contracted out of any right to claim in tort through the tender
documents . However, had the tort not been extinguished by the
tender documents, it would have arisen in Ontario, according to the
motion judge. LaFlamme allegedly incurred costs and damages in
Ontario. The tender documents were put out in Ontario and relied
upon by LaFlamme in preparing its bid in Ontario.
However, the Court of Appeal agreed with the motion judge that
LaFlamme's contract claim arose not in Ontario, but in Quebec,
relying on the leading case of Rowe v. Canada (Attorney) General.
Rowe teaches that one must determine where "substance
of the claim occurred" based on a "fact-specific
analysis". The fact-specific analysis led to a different
conclusion on the contract claim than the tort claim. In concluding
that the contract claim arose in Quebec, the motion judge had noted
that the dam project was in Northern Quebec, LaFlamme's project
manager was on site in Quebec directing the project and the
contract was administered out of the Public Works and Government
Services Canada office in Gatineau, Quebec.
LaFlamme illustrates the jurisdictional issues arising
from suits against the federal Crown in Superior Court. It is
difficult to predict in advance in which province certain claims
will be said to "arise" and there may be more than one
jurisdiction for various claims in the same action. Litigants suing
the federal Crown may consider proceeding in Federal Court, which
has concurrent jurisdiction over most claims. If the Superior Court
system is preferred, the plaintiff may have to sue in multiple
provinces and litigate over where the claim(s) arose.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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