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Intra-Canada Matters - General . Sanis Health Inc. v. British Columbia
In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].
These passages are quite interesting for the conceptual isolation of the Crown's private 'litigation autonomy' - ie. when it acts as a 'natural person' in civil litigation. This concept encompasses such litigation 'rights' as the "right to appoint counsel of choice, the right to participate in developing litigation strategy, and the right to negotiate a settlement to the action" [para 63]. These rights are held by all litigation parties, but the facts of this case focus on them as held by the Crown. The following extracts consider how Crown litigation autonomy (held by different 'Crowns') is respected by this BC legislation as essentially a form of inter-governmental (and intra-Canada) co-operation to address an international crisis:(2) Does Section 11 Respect the Legislative Sovereignty of Other Canadian Governments?
[95] The appellants argue that s. 11 fails to respect the legislative sovereignty of other Canadian governments by forcing them to either opt out of the proceeding, or else opt in and fetter their sovereignty by giving away their ability to legislate regarding their substantive opioid-related healthcare cost recovery rights or their litigation autonomy over those rights. They say that the support of the other governments for this legislation is irrelevant.
[96] As I have explained, the appellants’ concerns about the binding effects on another province’s litigation autonomy does not undermine its sovereignty. Litigation involves consequences and those consequences may be inescapable, especially when they occur in jurisdictions beyond the control of a government’s legislature. There is no constitutional principle against this. The appellants’ arguments blur the distinction between legislative and executive authority. The legislature of one level of government cannot transfer its primary authority to legislate to another level of government (Reference re Pan-Canadian Securities Regulation, at paras. 75-76). However, no such rule applies to the executive delegation of litigation conduct.
[97] Of course, a government cannot displace existing laws through executive action and the “legislature is entitled to enact legislation inconsistent with the government’s commitments under a prior agreement” (Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63, [2019] 4 S.C.R. 559, at para. 92). Thus, as a general constitutional principle, neither the executive, nor the legislature itself, can bind a future legislature in its exercise of authority (Reference re Pan-Canadian Securities Regulation, at paras. 54-59; Wells v. Newfoundland, 1999 CanLII 657 (SCC), [1999] 3 S.C.R. 199, at para. 37; Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 560).
[98] But this general principle hits its limit when a Crown exercises its civil rights, in its capacity as a natural person, in areas where its legislature has no authority to enact laws. Aside from effects on a Crown’s desire to litigate as they wish in foreign territory, when Crowns act in their capacity as a natural person in other jurisdictions they may also have to accept legal consequences that fall outside their legislative competence, such as the creation of private rights and duties in other provinces. For example, when a Crown enters into a contract in another province, that contract will fall under the legislative competence of that other province’s authority over “Property and Civil Rights in the Province” (s. 92(13) of the Constitution Act, 1867). The contracting Crown’s legislature could not enact a law to cancel those extra-provincial contractual rights, and it will be bound by that contractual obligation in the same way as an individual (see Churchill Falls, at pp. 332-33; see also Bank of Montreal v. Attorney General (Quebec), 1978 CanLII 173 (SCC), [1979] 1 S.C.R. 565, at p. 574).
[99] So when a Crown exercises the same civil rights as an individual, it will be bound by the consequences of its actions undertaken in another province when those actions fall under that other province’s legislative sovereignty. Despite being sovereign in its own territory over these subject matters, a Crown cannot legislate itself out of situations it might have controlled at home. Nothing forces one province to engage in activities elsewhere, but when they do, they must abide by the laws of that other province (see D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1969), 47 Can. Bar Rev. 40, at p. 60; Hogg and Wright, at § 10:20).
[100] This is the case when a Crown exercises its civil rights by participating as a non-representative plaintiff in a class action in another province. It will find itself subject to that province’s procedural rules governing class actions, including procedural rules relating to the binding nature of the court’s judgments or any settlements negotiated by the parties (CPA, ss. 26 and 35).
[101] However, the application of those procedural rules to the foreign, participating Crowns does not determine which substantive laws will apply to those Crowns (see Wilson, at para. 83; Thorpe, at para. 135; Walker, at § 4.03). Here, the harms underlying each Crown’s causes of action occurred in their own jurisdictions and thus are subject to their own substantive law (see Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at pp. 1050 and 1064-65; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at paras. 25 and 80; Van Breda, at para. 37; Walker, at § 1.02[2][e]). That substantive law remains subject to each legislature’s sovereignty, including their own ORA-type legislation to establish their causes of action.
[102] I also do not agree that s. 11 fails to respect the sovereignty of other governments because of the potential for overlap and conflict between their various ORA-type statutes and the litigation they authorize. Multi-jurisdictional legislative overlap is normal in a federation; so long as it occurs within the proper legislative authority of the enacting governments, it is not problematic (see Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 62; Canadian Western Bank, at paras. 36-37). Multi-Crown participation in a national class action, where each is authorized by its own law, represents cooperation between different governments and comity between the courts.
[103] Intergovernmental cooperation in Canada recognizes that some amount of overlap is inevitable regarding national issues like the opioid epidemic, and that “governments should be permitted to legislate for their own valid purposes in these areas of overlap” (PHS Community Services Society, at para. 62). While the courts remain the ultimate arbiters of the constitutionality of governments’ efforts to regulate nationwide issues like these, the day-to-day task of maintaining the balance of powers regarding cooperative legislative schemes “falls primarily to governments” (Canadian Western Bank, at para. 24).
[104] Here, nearly every provincial and territorial government in Canada has chosen to cooperate by enacting virtually identical statutes, by indicating their intent to participate as class members, and by intervening in this appeal supporting B.C. The federal government, which also intervened in support of the respondent, has indicated its intent to participate in the class action as well (House of Commons Debates, vol. 151, No. 216, 1st Sess., 44th Parl., June 19, 2023, at p. 16247 (Hon. Carolyn Bennett)). This multi-Crown participation is in harmony with our Court’s approach to intergovernmental cooperation on national issues, where collaboration between the executives and legislatures of both provincial and federal governments is vital. Especially given the presumption of constitutionality of legislation, a court should exercise considerable caution before it finds that this cooperation between multiple executive and legislative branches is unconstitutional (see Murray-Hall, at paras. 79 and 82; Reference re Impact Assessment Act, at para. 69; Kitkatla, at paras. 72-73; OPSEU, at pp. 19-20).
[105] As for the judicial branch of government, this Court has recognized that “[g]reater comity is required in our modern era when international transactions involve a constant flow of products, wealth and people across the globe” (Hunt, at p. 292). The courts in our federation provide a comparable quality of justice, and so demand the same level of faith in one another’s judgments where jurisdiction has been properly exercised (Morguard, at p. 1099). If overlapping litigation arises, courts acting in respect of one another have the tools to prevent any abuse of process (see, e.g., CPA, ss. 4(3) to 4.1). Comity between our federation’s courts helps with access to justice in a world where people and problems cross borders without heed for which legislature or court has authority over them.
[106] This is true in class actions, whose “purpose is to facilitate access to justice for citizens who share common problems and would otherwise have little incentive to apply to the courts on an individual basis to assert their rights” (Bisaillon, at para. 16). This Court has noted that class actions serve judicial economy, promote access to justice, and modify the behaviour of wrongdoers who might otherwise escape accountability for their actions (Dutton, at paras. 27-29; Hollick, at para. 15). These goals are met where governments cooperate with one another to have their claims litigated efficiently, in one action, before one province’s superior court, whose proceedings and judgment will be respected through the principle of comity in the other courts of our federation.
[107] Section 11 of the ORA therefore respects the legislative sovereignty of foreign Crowns. It is an example of the important role that national class actions play in matters which span the country, by providing a mechanism to help multiple governments cooperate while working toward the same goal. . Alberta (Attorney General) v. British Columbia (Attorney General)
In Alberta (Attorney General) v. British Columbia (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered a rare intergovernmental (province-to-province) dispute, where BC sued Alberta and there were suggestions of raw politics afoot (quoting from the minority ruling):[3] In the legislative debates leading to the passage of the Act, members of the Alberta legislature made statements suggesting that the Act’s true purpose was political retaliation. That is, the Act would allow Alberta to restrict the flow of natural resources to British Columbia as a response to the latter’s opposition to the Trans Mountain pipeline expansion. ...
[4] On May 1, 2019, the Attorney General of British Columbia (BC) commenced an action before the Alberta Court of Queen’s Bench (the Alberta Court) seeking a declaration of invalidity in respect of the Act. Alberta responded to BC’s action by filing a motion to dismiss it on the grounds that the Alberta Court had no jurisdiction to entertain the proceedings and that BC lacked standing to bring its action.
[5] Pending the resolution of the above issue, BC commenced an action, pursuant to section 19 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the FCA) in the Federal Court on June 14, 2019, in which it sought a declaration that the Act was unconstitutional. .... The case focussed on this provision of the Federal Court Rules:Intergovernmental disputes
19 If the legislature of a province has passed an Act agreeing that the Federal Court, the Federal Court of Canada or the Exchequer Court of Canada has jurisdiction in cases of controversies between Canada and that province, or between that province and any other province or provinces that have passed a like Act, the Federal Court has jurisdiction to determine the controversies. Quoting from the majority ruling, the case sets out the range of cases that FCA s.19 is meant to address (more than solely Crown rights disputes) - and the fact that Alberta did not dispute that the Federal Court had such jurisdiction per se (the ITO test). The majority reached this first conclusion by reviewing the provision in light of principles of statutory interpretation [paras 115-168].
. R. v. Comeau
In R. v. Comeau (SCC, 2018) the Supreme Court of Canada considered the constitutional provision that holds that "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces." [s.121, Constitution Act, 1867] at paras 44-116.
. Club Resorts Ltd. v. Van Breda
In Club Resorts Ltd. v. Van Breda (SCC, 2012) the Supreme Court of Canada commented on little-discussed constitutional law between provinces:(3) Constitutional Underpinnings of Private International Law
[21] Conflicts rules must fit within Canada’s constitutional structure. Given the nature of private international law, its application inevitably raises constitutional issues. This branch of the law is concerned with the jurisdiction of courts of the Canadian provinces, with whether that jurisdiction should be exercised, with what law should apply to a dispute, and with whether a court should recognize and enforce a judgment rendered by a court of another province or country. The rules of private international law can be found, in the common law provinces, in the common law and in statute law and, in Quebec, in the Civil Code of Québec, S.Q. 1991, c. 64, which contains a well-developed set of rules and principles in this area (see Civil Code of Québec, Book Ten, arts. 3076 to 3168). The interplay between provincial jurisdiction and external legal situations takes place within a constitutional framework which limits the external reach of provincial laws and of a province’s courts. The Constitution assigns powers to the provinces. But these powers are subject to the restriction that they be exercised within the province in question (see P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 1, at pp. 364-65 and 376-77; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th ed. 2008), at p. 569; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at paras. 26-28, per Major J.), and they must be exercised in a manner consistent with the territorial restrictions created by the Constitution (see Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870, at para. 5, per Major J.; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at para. 51, per Binnie J.). . Hamid v. Canadian Centre for Professional Legal Education [jurisdiction]
In Hamid v. Canadian Centre for Professional Legal Education (Ont Divisional Ct, 2024) the Ontario Court of Appeal finds that it lacks jurisdiction to hear a JR, which should have been commenced in Manitoba.
Here the court finds that the Divisional Court lacks the jurisdiction to hear matters "made under the legislation of another province", that such a proposition is constitutionally flawed as a matter of inter-provincial jurisdiction and that the applicant fails to meet the Van Breda venue test:[10] This Court does not have jurisdiction to judicially review a decision made under the legislation of another province.
[11] As a statutory court created by s. 18 of the Courts of Justice Act, RSO 1990, c C.43 ("CJA"), the Divisional Court only has jurisdiction, power, and authority in Ontario. As a constitutional matter, provinces cannot legislate beyond their territorial boundaries, and the statutes of one province do not have the force of law in another province. This constitutional limit grounds an interpretive presumption that provincial statutes are not intended to apply extra-territorially.
[12] The Divisional Court also has jurisdiction to perform judicial review, as set out in the Judicial Review and Procedures Act, R.S.O. 1990, c.J.1 ("JRPA"), and specifically, with respect to the exercise or purported exercise of defined "statutory powers." The exercise of "statutory powers" referred to in the JRPA, does not include powers exercised by extra-provincial bodies under other provincial statutes. Ontario courts do not have the authority to grant administrative law remedies with respect to extra-provincial officials carrying out duties under extra-provincial statutes.
[13] In Re Anaskan and The Queen (1977), 1977 CanLII 1199 (ON CA), 15 OR (2d) 515 (C.A.), the Ontario Court of Appeal held that the Court does not have any power to grant administrative law remedies with respect to a Saskatchewan official carrying out duties and responsibilities under Saskatchewan statutes, even if the appellant was physically present in Ontario. The Court cannot quash the orders or decisions made by courts or tribunals in other Provinces, whose powers come from their provincially enacted statutes.
[14] In Dr. Rashidan v. The National Dental Examining Board of Canada, 2020 ONSC 4174, the Divisional Court found that it did not have jurisdiction to hear the matter. The applicant was seeking to qualify as a dentist in British Columbia and had no intention of qualifying in Ontario. The Board's authority arose in British Columbia. The authority to deal with judicial review would therefore be found in British Columbia's legislation, and not Ontario's.
[15] The Applicant seeks qualification in Manitoba. Neither CPLED nor the LSM are regulated by Ontario legislation. The "statutory powers" exercised by CPLED and LSM that the Applicant refers to stem from Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act.
[16] While the Applicant also raises the issue of breach of contract, it is outside this Court's authority on an Application for Judicial Review. However, even if the issue was within jurisdiction, I find no real and substantial connection to Ontario.
[17] When considering whether this Court has jurisdiction under the common law, both parties submitted that the test to be applied is whether there is a real and substantial connection between the issue and the place (as between nations see: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 and as between provinces see: Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 DLR (4th) 467, and College of Optometrists of Ontario v. Essilor Group, 2019 ONCA 265, 145 OR (3d) 561 (C.A.): also see Dr. Rashidan, at para. 14).
[18] Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation to the forum: see Club Resorts, at para. 82. However, in determining whether there is a real and substantial connection, the court must first consider whether there is a presumptive connecting factor.
[19] The only connection to Ontario is that the Applicant lives here. However, the physical presence of one party in the jurisdiction is not, on its own, a sufficient presumptive factor: Club Resorts, at para. 86. Once a presumption is established, it can still be rebutted, which is easily done in this case. The presumption of jurisdiction in this case would be inappropriate.
[20] The Applicant was not attempting to qualify as a lawyer in Ontario. Neither CPLED nor the LSM carry on business, or purport to carry on business in Ontario. CPLED does not provide training or exams for law societies outside of Alberta, Manitoba, Nova Scotia, and Saskatchewan. The LSM does not and cannot qualify lawyers outside of Manitoba. A judicial review of their decisions could only be a review regarding the laws in Manitoba. As the Applicant properly identifies, their decisions would be subject to review under Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act. Neither of their decisions would be subject to judicial review under the JRPA.
[21] I find that this Court does not have jurisdiction to hear this application. I find that there is no real and substantial connection between the issues at stake and Ontario. Manitoba is the proper forum for the Applicant's application. . Cardtronics Canada ATM Management Partnership v. Dawson
In Cardtronics Canada ATM Management Partnership v. Dawson (Div Court, 2024) the Ontario Divisional Court dismissed an defendant's appeal, this from a successful Small Claims invoice action.
Here the court consider a venue issue, here were the contract attorned to the Alberta courts:Jurisdiction
[6] The Defendant argued that para. 9 of the original agreement – the ISO Transaction Processing Agreement dated June 15, 2015 - provided that “all disputes shall be resolved in the Courts of Alberta”. As such, the Ontario courts had no jurisdiction over the claim.
[7] The trial judge applied the law as set out in the Supreme Court of Canada’s decision in Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, which held that the courts may refuse to enforce a forum selection clause where there is a “strong cause” to do so. The trial judge found that there was strong cause in this case. He stated:In the initial Statement of Defence filed September 21, 2020 by the defendants, there is no objection to the jurisdiction of this court and no invocation of the terms of the ISO Transaction Processing Agreement paragraph 9, dated June 15, 2015. It was only when it filed the Amended Defence July 29, 2021 that the defence raised the issue. In addition, there are compelling reasons for the case to be heard by this court. The defendant is here, the defendant’s business is locate here, the transaction took place here, the ATMs were shipped here, the salesperson for Cardtronics is located here. Almost all the evidence is here. It is for all intents and purposes, an Ontario matter.
In addition, the Sales of Goods Act in Ontario and Alberta are virtually the same…
The delay by the defence, in raising the jurisdictional issue, suggests that the issue of jurisdiction was raised merely for seeking a procedural advantage, as there is no legal difference between the jurisdiction of Ontario and Alberta on this issue. ....
[15] First, the Appellant argue that the trial judge erred in law in failing to find that Ontario did not have jurisdiction as the parties contractually selected Alberta as the forum for any dispute.
[16] As indicated above, the trial judge correctly identified the “strong cause” test from Pompey as the applicable legal test.
[17] Pompey set out the two-part “strong cause” test, which was summarized by the Ontario Court of Appeal in Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432, at para. 21:Courts apply a two-step approach in determining whether to enforce a forum selection clause and stay an action brought contrary to it:1. At the first step, the party seeking a stay must establish that the forum selection clause is valid, clear, and enforceable, and that it applies to the cause of action before the court. The court makes this determination based on the principles of contract law. The plaintiff may resist the enforcement of the forum selection clause by raising defences such as, for example, unconscionability, undue influence, or fraud. If the party seeking the stay establishes the validity of the forum selection clause, the onus shifts to the plaintiff: Douez, at paras. 28-29; Pompey, at para. 39.
2. At the second step, the plaintiff must establish “strong cause” not to enforce the forum selection clause. A court exercising its discretion at this step must consider all the circumstances, including the convenience of the parties, fairness between the parties, the interests of justice, and public policy. The list of “strong cause” factors is not closed and provides a court with some flexibility in exercising its discretion. In the commercial context, the “strong cause” factors have been interpreted and applied restrictively. Forum selection clauses are encouraged and generally enforced because they promote order and fairness by providing stability and foreseeability to international commercial relations: Douez, at paras. 29-31; Pompey, at paras. 19, 30-31; and GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 22. [18] In my view, the trial judge appropriately considered all of the relevant circumstances in exercising his discretion not to enforce the forum selection clause in this case. There was absolutely no prejudice to the Defendant in having this Small Claims Court case heard in Ontario, where the Defendant resides and his business is located. Indeed, the Defendant would be prejudiced by having this action proceed in Alberta. The trial judge considered that the law in Ontario and Alberta was virtually the same. I see no basis to interfere with the trial judge’s exercise of discretion in this matter. . 778938 Ontario Limited v. EllisDon Corporation
In 778938 Ontario Limited v. EllisDon Corporation (Ont CA, 2023) the Court of Appeal allowed a venue appeal, here between Ontario and Nova Scotia, even though the Ontario court had 'jurisdiction simpliciter'. The case is also notable for considering venue, jurisdiction simplicter and forum non conveniens in an inter-provincial context, not an international one - as the venue principles that apply to inter-provincial cases are the same.
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