Djukic c.o.b. as Soko Immigration Consulting Service v. The Attorney General of Canada [Indexed as: Djukic v. Canada (Attorney General)]

52 O.R. (3d) 348

[2000] O.J. No. 4836

Docket No. C34148

Court of Appeal for Ontario

Carthy, Austin and Rosenberg JJ.A.

December 21, 2000

Courts--Jurisdiction--Action against Federal Crown --Jurisdiction--Jurisdiction requirement in s. 21(1)(a) of Crown Liability and Proceedings Act that claim has arisen in province applying equally to s. 21(1)(b) of Act--Superior court of province not having jurisdiction to hear claim against Crown where claim did not arise in province--Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 21(1)(a), (b).

The plaintiff immigration consultant brought an action against the federal Crown for damages for alleged interference with his business in Vienna, Bonn and Sarajevo. The defendant brought a motion to dismiss or stay the action on the ground that the Ontario Superior Court of Justice had no jurisdiction to hear it. Section 21(1) of the Crown Liability and Proceedings Act provides that in all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect thereto, (a) the county or district court of the province in which the claim arises or (b) if there is no such county or district court, the superior court of the province has concurrent jurisdiction with respect to the subject-matter of the claim. The motions judge concluded that s. 21(1)(a) applied to those provinces which still had county or district courts. As Ontario no longer had county or district courts, s. 21(1)(b) applied to Ontario. As the words "in which the claim arises" do not appear in that subsection, the motions judge held that the jurisdiction of the Superior Court of Ontario was not limited to cases "arising" in Ontario. The defendant's motion was dismissed. The defendant appealed.

Held, the appeal should be allowed.

Section 21(1)(b) is not capable of being read alone. Any attempt to do so forces one to go back to the beginning and to include para. (a) in the reading. Accordingly, the clause "the province in which the claim arises" is an integral part of the conferring of jurisdiction, whether it be to the county court, the district court or the superior court.

New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 1982 2951 (NB QB), 137 D.L.R. (3d) 553, 40 N.B.R. (2d) 172, 105 A.P.R. 179 (Q.B.), affd (1982), 1982 3042 (NB CA), 144 D.L.R. (3d) 21, 44 N.B.R. (2d) 201, 116 A.P.R. 201, 7 C.R.R. 46 (C.A.) (sub nom. Wolfe v. R.)

APPEAL from an order of Stinson J. (2000), 2000 22360 (ON SC), 48 O.R. (3d) 207 (S.C.J.) dismissing a motion to stay or dismiss an action for lack of jurisdiction.

Cases referred to Statutes referred to Canadian Charter of Rights and Freedoms, s. 18(1) Courts of Justice Amendment Act, 1989, S.O. 1989, c. 55 Crown Liability Act, S.C. 1952-53, c. 30, s. 8 Crown Liability Act, R.S.C. 1970, c. C-38, s. 8 Crown Liability Act, R.S.C. 1985, c. C-50, s. 21(1) Crown Liability and Proceedings Act (as renamed by S.C. 1990, c. 8, s. 21), R.S.C. 1985, c. C-50, s. 21(1) (as am. S.C. 1990, c. 8, s. 28)

Marianne Zoric, for the appellant. Mark A. Klaiman, for the respondent.

The judgment of the court was delivered by

[1] AUSTIN J.A.:--The defendant the Attorney General of Canada ("the Attorney General") appeals from the order of Stinson J. dated April 10, 2000 dismissing the motion of the Attorney General to dismiss or stay this action for lack of jurisdiction on the part of the Superior Court of Justice of the Province of Ontario.

[2] According to the statement of claim, the plaintiff resides in Brampton, Ontario and in Frankfurt, Germany and carries on the business of advising and consulting in immigration matters. The plaintiff claims damages for alleged interference by or on behalf of the Government of Canada with the plaintiff's business in Vienna, Bonn and Sarajevo.

[3] The Attorney General moved to dismiss or stay the action upon the ground that the Ontario Superior Court of Justice had no jurisdiction to hear it, or in the alternative, to stay the proceeding upon the ground that the action had no "real and substantial connection" with the province of Ontario. Stinson J. found against the Attorney General on both bases and dismissed the motion. In my view, the motions judge erred in his conclusion on the first ground and accordingly, the appeal should be allowed and the action dismissed.

[4] On this ground the case turns upon the interpretation of the Crown Liability Act, R.S.C. 1985, c. C-50 (the "Act"), s. 21(1) as amended. In 1990, by c. 8, s. 21, the name of the Act was changed to the Crown Liability and Proceedings Act. By s. 28 of the same amending Act s. 21(1) was changed to read as follows:

Part II

Proceedings

Jurisdiction

21(1) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect thereto,

(a) the county or district court of the province in which the claim arises that would have jurisdiction under the laws of that province if the claim were against a private person of full age and capacity, or

(b) if there is no such county or district court or the county or district court does not have that jurisdiction, the superior court of the province has concurrent jurisdiction with respect to the subject-matter of the claim.

(Emphasis added)

[5] Stinson J. concluded that s. 21(1)(a) applied to those provinces which still had county or district courts. By the time this section came into force (February 1, 1992), Ontario no longer had county or district courts. They had been merged with the Supreme Court of Ontario and renamed the Ontario Court of Justice (General Division) by the Courts of Justice Amendment Act, 1989, S.O. 1989, c. 55. Accordingly, only s. 21(1)(b) applied to Ontario. As the words "in which the claim arises" do not appear in that subsection, Stinson J. reasoned that the jurisdiction of the Superior Court of Ontario (formerly the General Division) was not limited to cases "arising" in Ontario. It followed from the language of s. 21(1)(b) that the Superior Court had jurisdiction in all cases except those in which the Federal Court had exclusive jurisdiction. The Attorney General's motion was accordingly dismissed.

[6] With respect, I disagree with that conclusion. In my view, s. 21(1)(b) is not capable of being read alone. Any attempt to do so forces one to go back to the beginning and to include para. (a) in the reading. When one includes para. (a) in the reading, it can be seen that the clause "the province in which the claim arises" becomes an integral part of the conferring of jurisdiction, whether it be to the county court, the district court or the superior court.

[7] This view is confirmed by reference to the French version of the section. It reads as follows:

21(1) Dans les cas de réclamation visant l'État pour lesquels la Cour fédérale n'a pas compétence exclusive, a compétence concurrente en la matière :

a) la cour de comté ou de district de la province où survient la cause d'action qui aurait compétence, aux termes de la législation provinciale, si un particulier majeur et capable faisait l'objet de la réclamation;

b) la cour supérieure de la province où survient la cause d'action, s'il n'existe ni cour de comté ni cour de district dans cette province ou, dans le cas contraire, si elles n'ont pas compétence en la matière aux termes de la législation provinciale.

(Emphasis added)

[8] The verb "survenir" means to take place, occur or arise. The clause "la province où survient la cause d'action" (the province in which the claim arises) appears in both s. 21(1)(a) and s. 21(1)(b) and it is quite clear that that limiting clause applies to superior courts as well as to county and district courts.

[9] The meaning and intention of the French text is clear. The meaning and intention of the English version is less so. The two versions are equally authoritative: Constitution Act, 1982, Schedule B, Canadian Charter of Rights and Freedoms (U.K.) 1982, c. 11, s. 18(1). In circumstances such as these the clearer expression may be of assistance in interpreting the less clear. In New Brunswick v. Estabrooks Pontiac Buick Ltd. (sub nom. Wolf v. R.) (1982), 1982 2951 (NB QB), 137 D.L.R. (3d) 553, 40 N.B.R. (2d) 172 (Q.B.), Leger J. said at p. 556 D.L.R.:

Thus the French version being as much the statute of the Legislature of New Brunswick as is the English version, it may be used to resolve a latent ambiguity in the English version.

After completing the task, Leger J. said, also at p. 556 D.L.R.:

In construing the English version of s. 19(1) by means of its French equivalent all ambiguity is clarified.

The same is true in the instant case.

[10] Further assistance may be found in the legislative history of the section. In 1952, 1970 and 1985, it was as follows:

Crown Liability Act, S.C. 1952-53, c. 30, s. 8

8(1) In this section "provincial court" with respect to any province in which a claim sought to be enforced under this Part arises, means the county or district court that would have jurisdiction if the claim were against a private person of full age and capacity, or, if there is no such county or district court in the province or the county or the district court in the province does not have such jurisdiction, means the superior court of the province.

Crown Liability Act, R.S.C. 1970, c. C-38, s. 8

The section in the 1970 revision is exactly the same as it was in 1952-1953.

Crown Liability Act, R.S.C. 1985, c. C-50

21(1) In this section, "provincial court", with respect to a province in which a claim sought to be enforced under this Part arises, means

(a) in the Province of Quebec, the Provincial Court; and

(b) in any other province, the county or district court that would have jurisdiction if the claim were against a private person of full age and capacity, or if there is no such county or district court in the province or the county or district court in the province does not have that jurisdiction, the superior court of the province.

(Emphasis added)

[11] It is clear that the clause "province in which a claim . . . arises" applies in all three cases, 1952, 1970 and 1985 to county, district and superior courts. No evidence was tendered to indicate any intention on the part of Parliament to alter the requirement that a claim arise within a province in order for that province [to] have jurisdiction to hear it.

[12] Whatever doubt or confusion may arise from the English version of the amendment of 1990, it is clarified by reference to the 1990 French version and to the English versions of 1952, 1970 and 1985. As the claims advanced in this action did not arise in Ontario, the Superior Court of Ontario has no jurisdiction to hear them.

[13] Stinson J. also dealt with the question of real and substantial connection but in the circumstances it is not necessary for this court to deal with that question.

[14] I would allow the appeal, set aside the order below and dismiss the action. The dismissal is without prejudice to the right of the plaintiff to pursue his claims in the Federal Court if so advised. As neither the legislative history nor the French version of the section appears to have been argued below, I would make no disposition of costs either here or below.

Appeal allowed.