DATE: 20040507

DOCKET: C40644

COURT OF APPEAL FOR ONTARIO

RE: KENNETH ROWE (Plaintiff/Respondent) – and – THE ATTORNEY GENERAL OF CANADA (Defendant/Appellant)

BEFORE: McMURTRY C.J.O., ABELLA and ROSENBERG JJ.A.

COUNSEL: Jacqueline Dais-Visca for the appellant

Thomas J. Gorsky for the respondent

HEARD: April 23, 2004

E N D O R S E M E N T

[1] The issue in this appeal is whether Ontario has jurisdiction to hear a wrongful dismissal action brought by a federal employee.

[2] Kenneth Rowe was employed by the Department of National Defence as a facilities manager for the Canadian Forces Personnel Support Agency in Moose Jaw, Saskatchewan. He complained of harassment by his supervisor. Despite an investigation in Saskatchewan confirming the harassment, Mr. Rowe’s employer decided not to terminate the supervisor. Mr. Rowe grieved this decision and requested a transfer. When the response to his grievance from the labour relations manager in Ottawa appeared to be delayed, he resigned and moved back to Ontario, where he brought this action against the Crown alleging that he had been constructively dismissed.

[3] The Crown brought a motion objecting to the jurisdiction of the Ontario Superior Court. The motions judge concluded that Ontario had jurisdiction.

[4] Jurisdiction for claims against the Crown derives from the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. Section 21(1) of this Act states:

In all cases where claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim [emphasis added].

[5] Both parties agree that the facts of this case are sufficient to grant Saskatchewan jurisdiction. Mr. Rowe performed all his employment duties in Saskatchewan. He experienced harassment at his workplace in Saskatchewan. The harassment investigation and discipline proceedings took place in Saskatchewan. Saskatchewan is, therefore, a “province in which the claim arises” in accordance with s. 21(1) of the Act.

[6] The motions judge held that Ontario too has jurisdiction, since the claim also arose out of events in Ontario. The basis for this jurisdiction was his finding that the Ottawa labour relations manager’s failure to respond to Mr. Rowe’s grievance “may be alleged to be one of the facts that give rise to his claim.”

[7] With great respect, we disagree. It cannot be said that this claim arose in Ontario simply because one of its underlying facts took place here, although the delay in getting a response from Ottawa may have been a factor that prompted Mr. Rowe’s resignation. The delay followed the events at Mr. Rowe’s Saskatchewan workplace that constitute the substance of his claim, which was related to his harassment in Saskatchewan by his supervisor and the manner in which it was handled there.

[8] Since Mr. Rowe’s claim did not arise in Ontario, the Ontario Superior Court of Justice has no jurisdiction to hear it.

[9] Accordingly, we would allow the appeal, set aside the motions judge’s order and dismiss the action, with costs fixed in the total amount of $2,000.

“Roy McMurtry C.J.O.”

“R.S. Abella J.A.”

“M. Rosenberg J.A.”