COURT OF APPEAL FOR ONTARIO

CITATION: David S. LaFlamme Construction Inc. v. Canada (Attorney General), 2014 ONCA 775

DATE: 20141106

DOCKET: C58608

Strathy C.J.O, Feldman and Lauwers JJ.A.

BETWEEN

David S. LaFlamme Construction Inc.

Plaintiff (Appellant)

and

Attorney General of Canada

Defendant (Respondent)

Ronald W. Price and Chris Merrick, for the appellant

Andrew Gibbs and Leah Garvin, for the respondent

Heard: October 30, 2014

On appeal from the order of Regional Senior Justice Charles T. Hackland of the Superior Court of Justice, dated March 7, 2014, with reasons reported at 2014 ONSC 1379.

ENDORSEMENT

[1] The appellant, the successful bidder on a federal contract for a dam to be built in northern Quebec, seeks damages from the respondent for negligent misstatement and breach of contract on the basis that there were material misrepresentations in the tender documents.

[2] The appellant started lawsuits in Ontario and Quebec. The Quebec action has been stayed pending the outcome of this appeal.

[3] The Attorney General of Canada moved for an order striking this action on two bases. First, it was plain and obvious that General Conditions (“GC”) 6 and 35 of the contract extinguished the appellant’s right to claim in tort against the respondent. Second, the Ontario court did not have subject-matter jurisdiction over the Crown under s. 21(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (“CLPA”), because the claim “arose” in Quebec.

[4] Section 21(1) of the CLPA provides for concurrent subject-matter jurisdiction over claims against Her Majesty in right of Canada in either the Federal Court or in the superior court of the province in which the claim arises.

[5] The motion judge struck the action for lack of subject-matter jurisdiction. He found that the claim in tort would have arisen in Ontario, where the tort is alleged to have occurred, but that it was plain and obvious that the appellant had contracted out of any right to claim in tort. After applying the correct test for determining where the contract claim arose, as set out in the leading case of Rowe v. Canada (Attorney General) (2004), 2004 CanLII 18898 (ON CA), 186 O.A.C. 106 (C.A.), he determined that the claim arose in Quebec and not Ontario. As a result, the court did not have jurisdiction to hear the action.

[6] The appellant submits that the motion judge erred in law by failing to find that, for the purposes of s. 21(1) of the CLPA, the appellant’s claim in contract against the respondent “arose” in Ontario, so that the Ontario court had subject-matter jurisdiction over the appellant’s claim.

[7] We disagree. Whether a court has jurisdiction over a matter under the CLPA is a question of law on which the judge must be correct. In Rowe, in order to determine jurisdiction under s. 21(1) of the CLPA, this court examined where the substance of the claim occurred and found that the motion judge erred in his conclusion on that issue. The court is required to examine the facts surrounding the claim in the light of the elements of the alleged cause of action in order to decide where the substance of the claim arose.

[8] In this case, the motion judge found, at para 4:

I think it is quite clear that the contractual claim arises in Quebec. This is the only conclusion that can be reasonably drawn from a fact-specific analysis of the substance of the claim, see Rowe v. Canada (Attorney-General), (2004) 2004 CanLII 18898 (ON CA), 186 O.A.C. 106 (C.A.). This was a major construction project to build a dam in Northern Quebec. [The appellant’s] project manager was on site directing the work over the course of the project. Although [the appellant’s] offices were situated in Stittsville, a suburb of Ottawa, the contract was administered out of the offices of [Public Works and Government Services Canada] in Gatineau, Quebec.

[9] He applied the correct test and did not err in his conclusion.

[10] The appellant also argues that the motion judge erred in law in finding, pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that it was plain and obvious that GCs 6 and 35 of the contract extinguished the appellant’s right to assert a claim in tort. If he has a valid claim in tort that arose in Ontario, then the court in Ontario would have jurisdiction over that claim.

[11] We agree with the motion judge on the effect of GC 35, which merges the Crown’s concurrent tort liability into the contract by providing an exclusive contractual mechanism for resolving the appellant’s claims, including a claim for negligent misstatement.

[12] As the appellant therefore cannot assert a claim in tort, that claim does not assist to give the court subject-matter jurisdiction over this action.

[13] The appeal is therefore dismissed, with costs fixed in the agreed amount of $17,500 inclusive of disbursements and HST.

“G.R. Strathy C.J.O.”

“K. Feldman J.A.”

“P. Lauwers J.A.”