The forum in which to litigate is a difficult decision in any case that crosses provincial or national borders. It is even more complicated in claims against the federal government. The Federal Court has exclusive jurisdiction in some cases; in others, the Federal Court and the provincial Superior Court in which the claim “arises” have concurrent jurisdiction. Where the jurisdiction is concurrent and the plaintiff elects to sue in Superior rather than Federal Court, the question becomes: in which province does the claim “arise”?
The question is further complicated where there are multiple causes of action asserted. One claim may be said to “arise” in one province and another claim somewhere else, even where the claims are related and stem from the same facts. The Ontario Court of Appeal’s decision in David S. LaFlamme Construction Inc. v. Canada demonstrates the jurisdictional jockeying that can result from electing to sue the federal Crown in Superior Court.
David S. LaFlamme Construction Inc. (“LaFlamme”) was a successful bidder on a federal contract for a dam to be built in northern Quebec. It sued the federal government for negligent misstatement and breach of contract on the basis that there were material misrepresentations in the tender documents. LaFlamme sued in both Ontario and Quebec. The Attorney General of Canada moved to strike the Ontario action on two grounds: (1) the contract documents extinguished the right to claim in tort; and (2) the Ontario court did not have subject-matter jurisdiction over the Crown because the claim “arose” in Quebec.
The Ontario Court of Appeal upheld the motion judge’s decision to strike the Ontario action. The Court of Appeal agreed with the motion judge that it was plain and obvious that LaFlamme had contracted out of any right to claim in tort through the tender documents . However, had the tort not been extinguished by the tender documents, it would have arisen in Ontario, according to the motion judge. LaFlamme allegedly incurred costs and damages in Ontario. The tender documents were put out in Ontario and relied upon by LaFlamme in preparing its bid in Ontario.
However, the Court of Appeal agreed with the motion judge that LaFlamme’s contract claim arose not in Ontario, but in Quebec, relying on the leading case of Rowe v. Canada (Attorney) General. Rowe teaches that one must determine where “substance of the claim occurred” based on a “fact-specific analysis”. The fact-specific analysis led to a different conclusion on the contract claim than the tort claim. In concluding that the contract claim arose in Quebec, the motion judge had noted that the dam project was in Northern Quebec, LaFlamme’s project manager was on site in Quebec directing the project and the contract was administered out of the Public Works and Government Services Canada office in Gatineau, Quebec.
LaFlamme illustrates the jurisdictional issues arising from suits against the federal Crown in Superior Court. It is difficult to predict in advance in which province certain claims will be said to “arise” and there may be more than one jurisdiction for various claims in the same action. Litigants suing the federal Crown may consider proceeding in Federal Court, which has concurrent jurisdiction over most claims. If the Superior Court system is preferred, the plaintiff may have to sue in multiple provinces and litigate over where the claim(s) arose.