



COURT OF APPEAL FOR ONTARIO

CITATION: Babington-Browne v. Canada (Attorney General), 2016
    ONCA 549

DATE: 20160708

DOCKET: C61150

Laskin, Tulloch and Hourigan JJ.A.

BETWEEN

Nina Babington-Browne and Daniel Babington-Browne

Plaintiffs (Appellants)

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 (Respondents)

Todd Burke, for the appellants

Helene Robertson and Sanam Goudarzi, for the respondents

Heard: April 14, 2016

On appeal from the order of Justice Martin S. James of
    the Superior Court of Justice, dated September 18, 2016, with reasons reported
    at 2015 ONSC 6102.

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 Canadas 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 take-off from a base in
    Afghanistan.

[3]

In July 2011, Babington-Brownes 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
    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-Brownes mother and brother appeal the motion judges 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 SCC 17, [2012]
    1 S.C.R. 572. 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 judges 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 Generals 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) of
    the
CLPA

(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:

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.
[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] 1 S.C.R. 695, at p. 700.

[12]

Before the 1992 amendment, jurisdiction over claims against the federal
    Crown resided exclusively with the Federal Court:
Federal Court 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 Courts 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.

[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 courts
    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), 52 O.R. (3d) 348
    (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) of the
CLPA
?

[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
    Court 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 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 courts jurisdiction under the
CLPA
.

[19]

That
Van Breda
does not apply to the resolution of a provincial
    superior courts 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 real and substantial connection test: see, for example,
David S.
    LaFlamme Construction Inc. v. Canada (Attorney General)
, 2014 ONCA 775, 34
    C.L.R. (4th) 187; and
Martell v. Canada (Attorney General)
, 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 courts 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
    provinces 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),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
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
    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
    helicopters 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 take-off 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 judges 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.

Released: July 8, 2016 (M.T.)

John Laskin J.A.

I agree. M. Tulloch J.A.

I agree. C.W. Hourigan J.A.





[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.


