SUPERIOR COURT OF JUSTICE - ONTARIO
OTTAWA COURT FILE NO.: CV-11-51773-00
DATE: 2015/09/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nina Babington-Browne and Daniel Babington-Browne, Plaintiffs/Respondents
AND
The Attorney General of Canada, North Atlantic Treaty Organization, John Doe, John Doe #2, (the estate of) John Doe #3 and ABC Inc. Defendants/Moving Parties
BEFORE: Mr. Justice Martin James
COUNSEL: Roberto D. Aburto, for the Plaintiff/Respondents
Helene Robertson, for the Defendants/Moving Parties
HEARD: September 15, 2015
ENDORSEMENT
Introduction
[1] This motion, brought by the defendants, is for summary judgment dismissing the action on the grounds that:
a) it was commenced after the expiration of the applicable limitation period; and,
b) this court has no jurisdiction in relation to the Attorney General of Canada by operation of the Crown Liability and Proceedings Act (“CLPA”).
Facts
[2] The facts are not in issue. This action was brought by the mother and brother of Captain Ben Babington-Browne who was killed on July 6, 2009 while serving as a British soldier in Afghanistan. He died while being transported in a helicopter owned and operated by the Canadian Forces on a mission directed by the Department of National Defence as part of NATO’s Joint Task Force (Afghanistan) Air Wing.
[3] A notice of action was issued in this court in July, 2011 and this was followed a month later by the issuance of a statement of claim. By agreement between the parties, the defendants were not required to deliver a statement of defence until other, related proceedings were completed. The defendants delivered their statement of defence in May, 2014.
Issues
[4] There are two issues:
a) Section 269 of the National Defence Act requires that an action in the circumstances present here be commenced within six months after the act, neglect or default complained of. Is section 269 subject to the discoverability rule such that this time limit can be extended?
b) In relation to the claim against the Crown (but not the other defendants), does this court have jurisdiction to hear the case because the claim did not arise in a province of Canada.
The Limitation Period Issue
[5] The parties agree that for the purposes of this motion, if it is determined that the principle of discoverability applies to the limitation period, the action is not proscribed because it was commenced within six months of discovering sufficient information to support the allegation of neglect or default on the part of the Defendants i.e. it was commenced within six months of the delivery of the Board’s findings to the plaintiffs.
[6] The moving parties say the limitation clause in question here is an absolute limitation and the action had to be started within six months of Captain Babington-Browne’s death. It doesn’t matter when the Plaintiffs acquired sufficient information to allege some neglect or default on the part of some or all the Defendants because the discoverability principle does not apply to section 269.
[7] The discoverability principle is a judge-made rule of construction for interpreting statutory language where the statute purports to put time limits on a person’s ability to sue for damages or other relief. This rule of construction recognizes that a plaintiff should not be compelled to commence proceedings until that person becomes aware of the material facts and has sufficient information to determine whether there is a case to be advanced. The decision of the Supreme Court of Canada in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 SCR 549 is a fresh starting point in this area of the law. It recognized a general rule of discoverability even where the plain language used in a statute would appear to exclude the operation of the rule (para. 38). In my view, it would take clearer language that the wording used here to oust the applicability of the rule.
[8] The action is not statute-barred for having been commenced too late.
The Jurisdiction Issue
[9] The starting point on this issue is to observe that this court has no power at common law to make orders against the Crown. This common law prohibition was first abrogated when Parliament empowered the Federal Court to hear claims against the Crown. More recently, the exclusive jurisdiction of the Federal Court was amended by section 21 of the CLPA when Parliament gave concurrent jurisdiction to the superior courts of the provinces in the following terms:
- 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 court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.
[10] The claim in issue here did not arise in Ontario. It arose in Afganistan because that is where the accident occurred. As a result, there is no jurisdiction in this court, being a superior court of one of the provinces, to hear it. This is not a situation where the court is exercising its broad inherent jurisdiction to hear cases that have an element of extra-territoriality. In those cases, the question is often whether there is a real and substantial connection with Ontario justifying the decision to commence proceedings here. In my view the decision in Club Resorts Ltd v. Van Breda, 2012 SCC 17 and similar cases do not apply to the circumstances here because they deal with the exercise of jurisdiction, not whether it exists.
[11] Where there is no jurisdiction to hear a claim, jurisdiction cannot be conferred by the act of a party attorning to the particular court in question by delivering a statement of defence, especially where the jurisdictional issue is raised in the defence.
Disposition
[12] The motion is allowed in part and the action is dismissed as against the Attorney General of Canada.
[13] On the issue of costs, counsel for the Attorney General indicated that while she has instructions to seek costs, if success is divided then there should be no order as to costs. In my view success was divided and accordingly, no costs are allowed to, or payable by, any party.
Mr. Justice Martin James
Date: September 18, 2015
OTTAWA COURT FILE NO.: CV-11-51773-00
DATE: 2015/09/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nina Babington-Browne and Daniel Babington-Browne, Applicant/Plaintiff/Respondents
AND
The Attorney General of Canada, North Atlantic Treaty Organization, John Doe, John Doe #2, (the estate of) John Doe #3 and ABC Inc., Defendants/Moving Parties
BEFORE: Mr. Justice Martin James
COUNSEL: Roberto D. Aburto, for the Plaintiff/Respondents
Helene Robertson, for the Defendants/Moving Parties
ENDORSEMENT
JAMES J.
Released: September 18, 2015