



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 appellants 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), 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 th
at, for the purposes of
    s. 21(1) of the
CLPA
, the appellants claim in contract against the
respondent

arose
    in Ontario, so that the Ontario court had subject-matter jurisdiction over the

appellants
    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) 186 O.A.C. 106 (C.A.). This was a major
    construction project to build a dam in Northern Quebec. [The appellants]
    project manager was on site directing the work over the course of the project.
    Although [the appellants] 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 appellants 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]

W
e agree with the motion judge on the effect of GC 35, which merges the
    Crowns concurrent tort liability into the contract by providing an exclusive contractual
    mechanism for resolving the appellants 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.


