Babington-Browne et al. v. The Attorney General of Canada et al.

[Indexed as: Babington-Browne v. Canada (Attorney General)]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Tulloch and Hourigan JJ.A.

July 8, 2016

132 O.R. (3d) 690 | 2016 ONCA 549

Case Summary

Crown — Actions against Crown — British soldier dying in helicopter crash in Afghanistan while deployed on mission directed by Canada's Department of National Defence — Soldier's parents bringing action in Ontario Superior Court against federal Crown and others for damages for negligence — Most of alleged negligent acts occurring in Afghanistan — Ontario Superior Court lacking jurisdiction to hear claim against federal Crown under s. 21(1) of Crown Liability and Proceedings Act as claim arose in Afghanistan and not in Ontario — "Real and substantial connection" test for jurisdiction not applying to determination of provincial court's jurisdiction under Crown Liability and [page691] Proceedings Act — Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 21(1).

The plaintiffs' son, a British soldier, was killed in a helicopter crash in Afghanistan while deployed on a mission directed by Canada's Department of National Defence. The plaintiffs brought a negligence action in the Ontario Superior Court against the federal Crown and others. The Attorney General of Canada moved successfully to strike the claim against the federal Crown on the ground that the Ontario court had no jurisdiction over that claim. Under s. 21(1) of the Crown Liability and Proceedings Act ("CLPA"), the Ontario Superior Court would have jurisdiction only if the claim against the federal Crown arose in Ontario. The motion judge ruled that the claim arose in Afghanistan, not in Ontario. The plaintiffs appealed, arguing that the motion judge erred in failing to apply the "real and substantial connection" test for jurisdiction.

Held, the appeal should be dismissed.

The "real and substantial connection" test does not apply to the interpretation of s. 21(1) of the CLPA.

Under s. 21(1), 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. In this case, the bulk of the alleged negligent acts that caused the helicopter crash occurred in Afghanistan. The motion judge did not err in finding that the claim arose in Afghanistan and that the Ontario court did not have jurisdiction over the claim under s. 21(1) of the CLPA.

David S. Laflamme Construction Inc. v. Canada (Attorney General), [2014] O.J. No. 5303, 2014 ONCA 775, 34 C.L.R. (4th) 187, apld

Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712, consd

Cases referred to

Djukic v. Canada (Attorney General) (2000), 2000 16993 (ON CA), 52 O.R. (3d) 348, [2000] O.J. No. 4836, 4 C.P.C. (5th) 205, 101 A.C.W.S. (3d) 1116 (C.A.); Martell v. Canada (Attorney General), [2016] P.E.I.J. No. 22, 2016 PECA 8, 376 Nfld. & P.E.I.R. 91, 265 L.A.C. (4th) 347, 265 A.C.W.S. (3d) 469; Rowe v. Canada (Attorney General), 2004 18898 (ON CA), [2004] O.J. No. 1878, 186 O.A.C. 106, 130 A.C.W.S. (3d) 947 (C.A.); Rudolph Wolff & Co. v. Canada, 1990 139 (SCC), [1990] 1 S.C.R. 695, [1990] S.C.J. No. 28, 69 D.L.R. (4th) 392, 106 N.R. 1, 39 O.A.C. 1, 43 Admin. L.R. 1, 41 C.P.C. (2d) 1, 46 C.R.R. 263, 20 A.C.W.S. (3d) 204

Statutes referred to

Constitution Act, 1867, 30 & 31 Vict., c. 3, s. 101

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 21(1) [as am.], 23(1) [as am.]

Family Law Act, R.S.O. 1990, c. F.3, s. 61 [as am.]

Federal Courts Act, R.S.C. 1985, c. F-7, s. 17 [as am.], (5)(b)

Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4

National Defence Act, R.S.C. 1985, c. N-5, s. 269

Authorities referred to

Hogg, Peter W., Patrick J. Monahan and Wade K. Wright, Liability of the Crown, 4th ed. (Toronto: Carswell, 2011) [page692]

APPEAL from the order of M.S. James J., [2015] O.J. No. 5353, 2015 ONSC 6102 (S.C.J.) striking a claim against the federal Crown.

Todd Burke, for appellants.

Helene Robertson and Sanam Goudarzi, for respondents.

The judgment of the court was delivered by

LASKIN J.A.: —

A. Overview

[1] The general question on this appeal is whether the Ontario Superior Court has jurisdiction over the appellants' negligence action against the federal Crown.

[2] In July 2009, Captain Ben Babington-Browne, a British soldier, was killed in a helicopter crash in Afghanistan. He had been deployed there for a coalition mission directed by Canada's Department of National Defence and coordinated by NATO. The Canadian Forces helicopter in which Babington-Browne had been a passenger crashed into a security wall on takeoff from a base in Afghanistan.

[3] In July 2011, Babington-Browne's mother and brother brought an action under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3[^1] against the federal Crown, represented by the Attorney General of Canada,[^2] and against the pilot, aircraft captain and flight engineer who operated the helicopter on the day of the crash. These three individuals are named as John Doe defendants as the appellants do not know their identities.[^3] The appellants claimed that Babington-Browne died because of the negligence of all the defendants. They brought their action not in the Federal Court but in the Ontario Superior Court.

[4] The Attorney General of Canada moved to strike the claim on either of two grounds: the action was started beyond the six-month limitation period in s. 269 of the National Defence Act, R.S.C. 1985, c. N-5; and the Ontario Superior Court has no [page693] jurisdiction over the claim against the federal Crown. The motion judge ruled that the limitation period did not bar the action because the claim was not discoverable until the Canadian Forces Board of Inquiry investigating the accident reported its findings in April 2011. That ruling is not under appeal.

[5] The motion judge, however, struck the claim against the federal Crown on the ground that the Ontario Superior Court lacked jurisdiction to hear it. Under s. 21(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 ("CLPA"), the Ontario Superior Court would have jurisdiction only if the claim against the federal Crown arose in Ontario. The motion judge ruled that the claim arose in Afghanistan, not in Ontario.

[6] Babington-Browne's mother and brother appeal the motion judge's ruling on jurisdiction. The issue on the appeal is did the motion judge err in his interpretation and application of s. 21(1) of the CLPA. The appellants make two submissions. First, in interpreting s. 21(1), the motion judge erred because he failed to apply the test for jurisdiction established by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17. Second, if that test applies, the Ontario Superior Court has jurisdiction over the claim against the federal Crown.

[7] The Attorney General of Canada submits that the motion judge's ruling on jurisdiction is correct. Van Breda does not apply to the interpretation of s. 21(1) of the CLPA and the appellants' claim arose in Afghanistan. Only the Federal Court has jurisdiction over the claim against the federal Crown.

[8] I agree with the Attorney General's submissions and therefore would dismiss the appeal. My decision, however, does not affect the claim against the three John Doe defendants. That claim will continue in the Ontario Superior Court, and the Attorney General has agreed that it will honour any judgments against these defendants.

B. The Interpretation of [Section 21(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-50/latest/rsc-1985-c-c-50.html) of the [CLPA](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-50/latest/rsc-1985-c-c-50.html)

(1) The rationale for s. 21(1)

[9] Section 21(1) came into effect by amendment to the CLPA in 1992. By the amendment, for claims against the federal Crown, a court of the province "in which the claim arises" has concurrent jurisdiction with the federal court. The wording of s. 21(1) has changed since it was introduced, but the effect of the provision is the same. Section 21(1) now states:

21(1) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior [page694] court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.[^4]

[10] The rationale for the addition of s. 21(1) has some significance for this appeal. At common law, the federal Crown could not be sued in tort, or indeed in any court. Thus, the provincial superior court could not assert an inherent jurisdiction over claims against the federal Crown.

[11] Moreover, because of s. 101 of the Constitution Act, 1867,[^5] only Parliament can enact laws authorizing claims against the federal Crown. A provincial superior court will have jurisdiction over claims against the federal Crown only where a federal statute expressly confers that jurisdiction on the court: Rudolph Wolff & Co. v. Canada, 1990 139 (SCC), [1990] 1 S.C.R. 695, [1990] S.C.J. No. 28, at p. 700 S.C.R.

[12] Before the 1992 amendment, jurisdiction over claims against the federal Crown resided exclusively with the Federal Court: Federal Courts Act, R.S.C. 1985, c. F-7, s. 17; Peter W. Hogg, Patrick J. Monahan and Wade K. Wright, Liability of the Crown, 4th ed. (Toronto: Carswell, 2011), at p. 488. The Federal Court's exclusive jurisdiction created a problem for plaintiffs who wanted to sue the federal Crown and individuals for claims arising out of the same or a related set of facts. Under s. 101 of the Constitution Act, 1867, the federal court can hear only claims involving the "laws of Canada". A plaintiff suing the federal Crown and other defendants would have to sue the federal Crown in the federal court, and the other defendants in a provincial superior court, unless the claims against those other defendants were governed by federal law.

[13] This problem for plaintiffs was largely solved by the 1992 amendment to the CLPA. By s. 21(1), Parliament gave provincial superior courts concurrent jurisdiction with the federal court over claims against the federal Crown so long as the claim arose in their province. Other claims against the federal Crown remain within the exclusive jurisdiction of the federal court. [page695]

[14] The purpose of s. 21(1) was to limit or eliminate multiple proceedings arising out of the same set of facts and to facilitate citizens' access to justice. But -- to repeat -- under s. 21(1) a provincial superior court's jurisdiction over claims against the federal Crown is not open-ended. A provincial superior court will have jurisdiction only if the claim arose in its province: Djukic v. Canada (Attorney General) (2000), 2000 16993 (ON CA), 52 O.R. (3d) 348, [2000] O.J. No. 4836 (C.A.), at para. 6. Against this background, I turn to the appellants' first submission.

(2) Does Van Breda apply to the interpretation of [s. 21(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-50/latest/rsc-1985-c-c-50.html) of the [CLPA](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-50/latest/rsc-1985-c-c-50.html)?

[15] In Van Breda, the Supreme Court of Canada discussed -- in the context of private international law -- when a provincial court can assume jurisdiction over a claim. The Supreme Court reaffirmed that the governing test for the assumption of jurisdiction is the "real and substantial connection" test. Plaintiffs must show a real and substantial connection between the subject matter of their claim and the province in which they seek to litigate that claim. LeBel J., writing for the court, said that in a tort claim four factors can be considered presumptive connecting factors, which, unless rebutted, entitle a provincial court to assume jurisdiction over a dispute:

-- the defendant is domiciled or resident in the province;

-- the defendant carries on business in the province;

-- the tort was committed in the province; and

-- a contract connected with the dispute was made in the province.

[16] The appellants submit that Van Breda should be applied to determine whether the Ontario Superior Court has jurisdiction under s. 21(1) over their tort claim against the federal Crown. Doing so, they contend, would give effect to the very purposes of s. 21(1): to limit or eliminate multiple proceedings and promote access to justice.

[17] I do not accept the appellants' submission. It is arguable that the appellants could have sued all defendants, including the three John Doe defendants, in the federal court in the light of s. 17(5)(b) of the Federal Courts Act. Section 17(5)(b) gives the federal court concurrent original jurisdiction "in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown". But even if [page696] s. 17(5)(b) does not apply, the appellants' claim may be one of those cases where, despite s. 21(1) of the CLPA, the federal Crown must be sued in the Federal Court and the three John Doe defendants in the Ontario Superior Court.

[18] Even in Van Breda itself, LeBel J. was careful to note, at para. 68, that his "comments about the development of the common law principles of the law of conflicts" -- that is, the development of the real and substantial connection test -- "are subject to provisions of specific statutes . . .". Section 21(1) of the CLPA is a specific statutory provision that sets out a different test from Van Breda's real and substantial connection test. In short, the words of s. 21(1) and not Van Breda should be used to decide a provincial superior court's jurisdiction under the CLPA.

[19] That Van Breda does not apply to the resolution of a provincial superior court's jurisdiction under s. 21(1) is evident from considering Van Breda's presumptive connecting factors. The first connecting factor is whether the defendant is domiciled or resident in the province. The "head office" of the federal Crown is in Ottawa and so it is domiciled in Ontario. If Van Breda applies, the Ontario Superior Court presumptively would have jurisdiction over every claim against the federal Crown. The second connecting factor is whether the defendant carries on business in the province. The federal Crown has a presence and numerous offices in every province in Canada. It can thus be said to carry on business in every province. Again, if Van Breda applies, presumptively every province in Canada would have jurisdiction over every claim against the federal Crown, no matter where that claim arose. These results would be inconsistent with the language and intent of s. 21(1).

[20] The only Van Breda connecting factor that parallels s. 21(1) is the third -- whether the tort was committed in the province. Whether the tort was committed in the province is similar to "the province in which the claim arises". Under s. 21(1) of the CLPA, "the province in which the claim arises" is the sole criterion or connecting factor that gives a provincial superior court jurisdiction over claims against the federal Crown. If we were to give effect to the appellants' submission, we would have to add words to s. 21(1) that are not there.

[21] The test under s. 21(1) is simply different from the test in Van Breda. The application of the real and substantial connection test to the federal Crown would lead to impractical results that do not take account of the language of the CLPA. I add that since Van Breda was decided in 2012, courts have considered jurisdiction under s. 21(1) and have not applied the [page697] real and substantial connection test: see, for example, David S. LaFlamme Construction Inc. v. Canada (Attorney General), [2014] O.J. No. 5303, 2014 ONCA 775, 34 C.L.R. (4th) 187; and Martell v. Canada (Attorney General), [2016] P.E.I.J. No. 22, 2016 PECA 8. Therefore, I would reject the appellants' submission that Van Breda applies to decide jurisdiction under s. 21(1) of the CLPA.

(3) The proper interpretation of s. 21(1)

[22] This court's decision in David S. LaFlamme, at para. 7, sets out the proper approach to deciding whether a provincial superior court has jurisdiction over a claim against the federal Crown:

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.

[23] The focus on the "substance of the claim" means that, in a tort action, a province's superior court will not necessarily have jurisdiction over the claim simply because one of the alleged acts of negligence or one of the underlying facts took place in that province: Rowe v. Canada (Attorney General), 2004 18898 (ON CA), [2004] O.J. No. 1878, 186 O.A.C. 106 (C.A.), at para. 7. One has to look at where the accident and the main acts of negligence and damages occurred.

C. Application of s. 21(1) of the [CLPA](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-50/latest/rsc-1985-c-c-50.html) to this Case

[24] I do not think there can be any doubt that the substance of the appellants' claim against the federal Crown arose in Afghanistan and not in Ontario.

[25] For a cause of action in tort, there must be an accident, a negligent act and an injury. Here, the accident took place in Afghanistan and Captain Babington-Browne died tragically in Afghanistan.

[26] Admittedly, the appellants did plead some negligent acts by the federal Crown that could have taken place in Ontario: failing to retain, engage and use pilots with sufficient or appropriate expertise; failing to train employees and independent contractors appropriately; and failing to provide employees with appropriate first aid and first response training.

[27] But the bulk of the alleged negligent acts that caused the helicopter crash took place in Afghanistan. They include failing to maintain the landing zone; failing to ensure that the landing zone was in proper condition; failing to ensure that the landing zone was a proper dimension and surfaced with [page698] appropriate material; failing to implement appropriate procedures for the use, operation, maintenance and emergency landing of the helicopter; failing to ensure that the appropriate equipment, including fire extinguishers and communication devices, was located in the landing zone; failure to ensure that the helicopter's communication devices were in good and proper working condition; failure to ensure that the helicopter had sufficient, appropriate or well-maintained crashworthy seats; failing to ensure that the employees and/or independent contractors were equipped with appropriate equipment, including eye protection; failing to ensure that the emergency equipment was in good and proper working condition; operating or assisting in the operation of the helicopter without appropriate communication devices for all passengers on board; becoming distracted during the operation of the helicopter; failing to use the proper and/or appropriate techniques in light of the environmental conditions and physical structure of the landing zone during the takeoff of the helicopter; failing to take all appropriate steps to extricate the passengers from the helicopter, and so forth.

[28] As this summary shows, the substance of the appellants' claim did not arise in Ontario. Thus, I agree with the motion judge's ruling that the Ontario Superior Court has no jurisdiction over the appellants' claim against the federal Crown.

D. Conclusion

[29] The appellants' claim against the federal Crown did not arise in Ontario; it arose in Afghanistan. Under s. 21(1) of the CLPA, the Ontario Superior Court has no jurisdiction over this claim. I would dismiss the appeal with costs of $7,500 (inclusive of disbursements and applicable taxes), if demanded.

Appeal dismissed.

Notes

[^1]: This provision allows dependents to sue in court for damages where a person is injured or killed because of the fault or neglect of another.

[^2]: Under s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.

[^3]: The appellants have also sued ABC Inc., as a corporation that employed the three John Doe defendants in case they are not Crown employees, and NATO. Neither ABC Inc. nor NATO have been served with the claim.

[^4]: The original amendment gave concurrent jurisdiction to county, district and superior courts. In 2001, s. 21(1) was changed to its current wording by the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, which gives concurrent jurisdiction only to provincial superior courts.

[^5]: Section 101 states: "The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada."

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