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Intra-Canada Matters - General. 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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