Case information

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Crown law - Crown liability - Administrative law - Judicial review - Courts - Jurisdiction - Respondent commencing action against federal Crown in the Ontario Superior Court of Justice for damages for misfeasance in public office - Whether the Court of Appeal erred in determining that the amended statement of claim did not attack a federal administrative decision banning the export of PCBs, or constitute a collateral attack on the orders - Whether the Court of Appeal erred in determining that the action could proceed in the Ontario Superior Court - Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.

The Respondent commenced a proceeding against the federal Crown in the Ontario Superior Court of Justice. Generally, the claim was for damages for the tort of misfeasance in public office. It arose from a series of orders issued by the Government of Canada banning the export of toxic waste to the United States. The claim did not seek to impugn the orders. Rather, the Respondent alleged that the orders had been issued for the purpose of protecting the Canadian waste disposal industry, and not for the purpose of protecting the environment and human health, as required by the applicable legislation, and that the government officials who had authorized or approved them had engaged in misfeasance in public office. The Appellant brought a motion pursuant to rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action for lack of jurisdiction. Relying on Grenier v. Canada (Attorney General) 2005, 262 D.L.R. (4th) 337 (F.C.A.), and s. 18 of the Federal Courts Act (“FCA”), the Appellant asserted that since an essential element of the claim involved an attack on a decision of a “federal board, commission or tribunal” within the meaning of the FCA, jurisdiction lay in the Federal Court. The motion was dismissed on the ground that the Appellant had not established that it was plain and obvious that the Ontario court did not have jurisdiction. The Court of Appeal dismissed the appeal, holding that the claim clearly fell within the jurisdiction of the Superior Court, since it did not seek the type of relief outlined in s. 18 of the FCA. Also, it did not constitute a collateral attack of an administrative decision, since it did not seek to impugn the underlying orders.