Date:
20121203
Docket:
T-1577-11
Citation:
2012 FC 1412
Ottawa, Ontario,
December 3, 2012
PRESENT: The
Honourable Madam Justice Mactavish
ADMIRALTY ACTION
IN REM and IN
PERSONAM
BETWEEN:
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ALAN TONEY, YVONNE TONEY, and
COURTENAY TONEY & REBECCA TONEY as represented by their litigation
guardian
ALAN TONEY
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Plaintiffs
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and
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HER MAJESTY THE QUEEN IN RIGHT
OF CANADA IN THE NAME OF THE ROYAL CANADIAN MOUNTED POLICE, and HER MAJESTY
THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA AS REPRESENTED BY
THE MINISTER
OF SUSTAINABLE RESOURCE DEVELOPMENT, and
THE CANADIAN SHIP BEARING
LICENCE NO. AB1275024
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|
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Defendants
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REASONS FOR ORDER
AND ORDER
[1]
In
accordance with an Order made by Prothonotary Lafrenière, the Plaintiffs and
the defendant Her Majesty the Queen in Right of the Province of Alberta as
represented by the Minister of Sustainable Development (“Alberta”) come before
this Court seeking the determination of a question of law in advance of the
trial in this case. The question to be determined is whether this Court has
jurisdiction over Alberta in relation to this action.
[2]
For
the reasons that follow, I have concluded that this Court does indeed have in
personam jurisdiction over Alberta in this matter.
Background
[3]
This
action arises out of the death of five year old Janessa Lynn Toney, the
daughter of the Plaintiffs Alan and Yvonne Toney and the sister of Courtenay
and Rebecca Toney.
[4]
It
is alleged in the Toney’s Statement of Claim that on September 27, 2008, the
Toney family were on a boating trip on Lake Newell in the Province of Alberta
when what had started as a pleasant family outing ended in tragedy. The
family’s boat became disabled and Mr. Toney was unable to repair it, leading
him to call 911 for assistance. It is further alleged that in the course of a
rescue operation, a vessel then owned and operated by Alberta (“the rescue
vessel”) capsized, throwing the members of the Toney family into the water. All
of the Toneys were subsequently rescued, save and except Janessa, who drowned
after she allegedly became trapped under the rescue boat.
[5]
Amongst
other things, the Plaintiffs allege that Alberta failed to assess whether the
rescue vessel was appropriate and safe for the purpose to which it was being
put, having regard to the weather conditions at the time, the vessel’s
characteristics and the weight of the occupants. The Plaintiffs further allege
that Alberta failed to assess and correct the course of the rescue vessel.
[6]
The
Plaintiffs commenced their action on September 26, 2011. There is an issue
between the parties as to when the Plaintiffs’ cause of action was
discoverable, and whether the action was commenced after the expiry of the two
year limitation period contained in section 14 of the Marine Liability Act,
SC 2001, c 6. That issue is not, however, before me at this time.
[7]
Alberta has asserted from the
outset that this Court does not have jurisdiction over it in relation to this
matter. Prior to filing a Statement of Defence, Alberta brought a motion
seeking to have the action struck as against it in personam, and as
against the rescue vessel in rem, for lack of jurisdiction.
[8]
Although
Alberta admitted that the rescue vessel was owned by it on September 27,
2008, it claimed that the boat had been sold prior to the commencement of the
Toney’s action, and that a maritime lien had not been registered against it.
[9]
Justice
Harrington struck out the in rem action against the rescue vessel, on
the basis that the ownership of the vessel had not remained the same between
the time the cause of action arose and the commencement of the action, as
required by subsection 43(3) of the Federal Courts Act, RSC 1985, c F-7:
see Toney v. Canada (Royal Canadian Mounted Police), 2011 FC 1440, [2011]
F.C.J. No. 1740, at para. 5 (Toney FC). However, Justice Harrington
refused to strike the action as against Alberta in personam.
[10]
Insofar
as the subject matter of the action was concerned, he noted that the action was
“as maritime an action as one could have”: Toney FC at para. 5.
[11]
On
the question of jurisdiction over the person, Justice Harrington held that:
This action falls within the
federal legislative class of action of navigation and shipping, there is actual
federal law to administer, and the administration of that law has been confided
to this Court pursuant to section 22 of the Federal Courts Act [RSC 1985, c F-7] (ITO-International
Terminal Operators Ltd v Miida Electronics Inc., [1986] 1 S.C.R. 752). The
fact that one of the Defendants is a provincial crown is irrelevant as this is
not an action against the Crown as such under section 17 of the Federal
Courts Act.
[12]
Noting
that an action will not be dismissed on a motion to strike unless it is “plain
and obvious that the case is bereft of a chance of success”, Justice Harrington
dismissed Alberta’s motion.
[13]
Alberta then appealed Justice
Harrington’s decision to the Federal Court of Appeal. The Federal Court of
Appeal observed that it was not
disputed that the claim fell within the subject-matter jurisdiction of the
Federal Court, given that it related to navigation and shipping and came within
the express terms of paragraphs 22(2)(d) and (g) of the Federal Courts Act:
see Toney v. Canada (Royal Canadian Mounted Police), 2012 FCA 167, [2012]
F.C.J. No. 705, at para. 3 [Toney Federal Court of Appeal].
[14]
The
Federal Court of Appeal further noted that that “Canadian Maritime Law” as defined in sections
2 and 42 of the Federal Courts Act would apply, including the Marine
Liability Act. The Court observed that this latter Act expressly deals with
damages for death, and the rights of dependants of deceased persons. Section 3
of the Marine Liability Act further provides that the Act is binding on
her Majesty in Right of Canada or a province: Toney FCA at para. 3.
[15]
With respect
to Alberta’s contention that the Federal Court has no personal jurisdiction
over it, the Federal Court of Appeal noted that none of the Federal Court of
Appeal authorities relied upon by Alberta involved section 22 of the Federal
Courts Act. The cases focused instead on the definition of “the Crown”, as
the term is used in section 17 or 23 of the Act: Toney FCA at para. 5.
[16]
The Federal
Court of Appeal held that section 17 of the Federal Courts Act applied only to
claims made by or against the Federal Crown, and did not apply to a claim made
against a province: Toney
FCA at para. 5. This finding was not, however, dispositive of the
matter. It observed that the Plaintiffs’ arguments based on the wording of
section 22 and subsection 43(7) of the Federal Courts Act had not previously
been considered by the Court. Nor had it had to consider the consequences of the exclusive grants of
jurisdiction to the Federal Court in relation to certain matters.
[17]
As a
consequence, the Federal Court of Appeal agreed with Justice Harrington that it
was not “plain and obvious” that the Federal Court did not have personal
jurisdiction over Alberta in this matter. Alberta’s appeal was therefore
dismissed: Toney FCA at para. 5.
[18]
After the
Federal Court of Appeal rendered its decision in relation to Alberta’s motion
to strike, Alberta and the Plaintiffs were able to come to an agreement through
the case management process that the issue of the Federal Court’s jurisdiction
over Alberta should be decided as a question of law in advance of the trial in
this matter.
Alberta’s Arguments
[19]
Alberta submits that it
enjoys both common-law and statutory Crown immunity. In particular, it relies
on section 14 of the Alberta Interpretation Act, RSA 2000, c I-8, which
provides that “[n]o enactment is binding on Her Majesty or affects Her Majesty
or Her Majesty’s rights or prerogatives in any manner, unless the enactment
expressly states that it binds Her Majesty”.
[20]
Alberta further contends that
it cannot be bound by a federal statute unless it has been expressly named in
the legislation, as is the case with respect to section 19 of the Federal
Courts Act, dealing with inter-governmental disputes. Alberta does,
however, acknowledge that jurisdiction may also lie where a province is bound
by necessary implication, or it has waived its immunity: R. v. Eldorado
Nuclear Ltd., [1983] 2 S.C.R. 551, [1983] S.C.J. No. 87 at para. 9.
[21]
Alberta
recognizes that common-law Crown immunity has, in some cases, been abrogated by
proceedings against the Crown legislation, and that the federal Crown
Liability and Proceedings Act, RSC 1985, c C-50, allows for the federal
Crown to be sued in tort in both the Federal Court and provincial Superior
Courts. However, it contends that although section 5 of the Alberta Proceedings
Against the Crown Act, RSA 2000, c P-25 allows the Province to be sued for
claims based on various causes of action, the legislation does not explicitly
address the jurisdiction of the Federal Court and is silent on the question of
where the Province may be sued.
[22]
While
accepting that the Alberta Judicature Act, RSA 2000, c J-2, does
grant jurisdiction to the Federal Court in a limited number of cases such as
controversies between the Province and Canada or between Alberta and other
provinces, Alberta submits that none of these exceptions apply in this case.
[23]
Given that the Federal Court is a statutory Court, Alberta says that specific jurisdiction must be found in order for this Court to have
jurisdiction over it in relation to this matter. Alberta points out that
section 2 of the Federal Courts Act defines the “Crown” as meaning Her
Majesty the Queen in Right of Canada, and further submits that a review of the
Act as a whole does not demonstrate the necessary explicit intent that
provincial Crowns are to be bound by the legislation.
[24]
In support of this contention, Alberta relies on the decision of
the Federal Court of Appeal in Union Oil Co. of Canada Ltd. v. The Queen,
[1976] 1 F.C. 74, 72 D.L.R. (3d) 81 (C.A.) aff’d (1977), 72 D.L.R. (3d) 82. In Union
Oil, the Federal Court of Appeal held that while the provisions of the Federal
Court Act (as it was then known) which conferred jurisdiction on the Court
by reference to subject matter were “broadly expressed”, the provisions of the
Ontario Interpretation Act, taken together with the references to the
Crown in right of Canada in the Federal Court Act, were “sufficient to
show that the traditional immunity of the Crown in right of the provinces from
suit in its courts was not intended to be abrogated by the general descriptions
of subject matter of jurisdiction in the Federal Court Act”: at para. 4.
See also Ontario v. Avant Inc., [1986] 2 F.C. 91, 1 F.T.R. 270 at para. 10.
[25]
Alberta further submits that
section 22 of the Federal Courts Act only confers subject-matter
jurisdiction to the Federal Court, making no explicit reference to any Crown.
According to Alberta, this reflects Parliament’s intent that this provision not
be binding on provincial Crowns.
[26]
In support of this argument, Alberta refers to the decision of
this Court in Greeley v. Tami Joan (The), [1996] F.C.J. No. 739,
113 F.T.R. 66 [Greeley 1996], where Justice MacKay noted that whether the Court had
subject-matter jurisdiction was a different question than whether the Court had
jurisdiction over a particular party. In relation to this latter question, Justice
MacKay stated that in his view, Parliament had implicitly precluded the Court from exercising
jurisdiction over Her Majesty in right of a Province. Moreover, he was not
persuaded that the Federal Court had in personam jurisdiction over a Minister or an agent of a Province solely by virtue of its
jurisdiction over maritime law under the Federal Court Act: Greeley 1996 at paras. 20-21.
[27]
Alberta
also relies upon this Court’s decision in Kusugak v. Northern Transportation
Co. et al, [2004] F.C.J. No. 2085, 2004 FC 1696, [Kusugak] which,
the parties agree, is the closest case on facts to this one that either of the
parties has been able to find. Kusugak involved an action against a
number of defendants for damages for wrongful death arising out of the sinking
of a vessel in Hudson’s Bay. Amongst other claims, the Plaintiffs alleged that
various defendants associated with the Government of Nunavut, including Nunavut
Emergency Services, were negligent in their response to the emergency
situation.
[28]
The
Court concluded in Kusugak that the action did not involve a matter of
Canadian maritime law, as the Plaintiffs’ claim was grounded solely in the law
of negligence. As a consequence, the Court found the claim to be beyond the
subject-matter jurisdiction of the Federal Court. To this extent, the decision
is clearly distinguishable, as Alberta has conceded that the Toney’s claim relates to
navigation and shipping and comes within the express provisions of paragraphs
22(2)(d) and (g) of the Federal Courts Act, with the result that this Court has
concurrent jurisdiction with the Alberta Courts over the subject-matter of this
action.
[29]
Insofar as
the Nunavut defendants were concerned, the Court had
regard to the wording of subsection 22(1) of the Federal
Courts Act, which provides, in part, that “[t]he Federal Court has concurrent
original jurisdiction, between subject and subject as well as otherwise,
in all cases in which a claim for relief is made or a remedy is sought under or
by virtue of Canadian maritime law …” [my emphasis]. The Court observed that
each of the Nunavut Defendants played a role in the governance and
administration of the Territory and discharged public functions. Moreover, the
Nunavut Defendants represented institutions of the Government of Nunavut and
enjoyed the status of public authorities. The Court concluded that the Nunavut
Defendants were therefore not “subjects”, with the result that scrutiny of
their actions was beyond the jurisdiction of the Federal Court: Kusugak
at para. 50.
[30]
Finally,
while recognizing that section 3 of the Federal Marine Liability Act
expressly states that the legislation is binding on the provinces, Alberta submits that there is nothing in the legislation that requires a province to submit
to the jurisdiction of the Federal Court. The Act simply
contemplates that actions be brought before a “court of competent
jurisdiction”. In this case, Alberta says that the court of competent jurisdiction is the Alberta
Court of Queen’s Bench. Given that it would have been open to the Toneys to
commence their action in that Court, it follows that they would not, therefore,
have been left without an avenue of recourse.
Analysis
[31]
I
do not understand there to be any material facts in dispute insofar as the
jurisdictional issue is concerned. I also do not understand Alberta to dispute
that this Court has concurrent jurisdiction with the Alberta Courts over the
subject-matter of this action, given that the claim relates to navigation and shipping and
comes within the express provisions of paragraphs 22(2)(d) and (g) of the Federal
Courts Act.
[32]
However,
for an action to be able to succeed in this
Court, the Court must have jurisdiction over both the asserted cause of action and
over the parties. These are two distinct questions: Kusugak, above at para. 42.
[33]
Thus the question to be
determined is whether this Court has in personam jurisdiction over Alberta in relation to this action.
[34]
Dealing
first with Alberta’s arguments based on section 14 of the Alberta Interpretation
Act, that provision clearly states that no enactment will be binding on Alberta unless the enactment expressly states that it binds the Province. However, this section
must be read in conjunction with section 3 of the Marine Liability Act. As the Federal Court
of Appeal observed in Toney
FCA, the Marine
Liability Act expressly deals with damages for death, and the rights of
dependants of deceased persons. Section 3 of the Marine Liability Act
further provides that the Act is binding on her Majesty in Right of Canada or
a province” [my emphasis]: Toney FCA at para. 3.
[35]
Regard
must also be had to subsection
22(1) of the Federal Courts Act, which provides, in part, that “The Federal Court has concurrent
original jurisdiction, between subject and subject as well as otherwise, in all
cases in which a claim for relief is made or a remedy is sought under or by
virtue of Canadian maritime law”.
[36]
As
the Federal Court of Appeal observed in Siemens Canada Ltd. v. J.D. Irving,
Ltd., 2012 FCA 225, [2012] F.C.J. No. 1120, “[t]he general grant of maritime
jurisdiction to the Federal Court … is very broad, and includes any claim under
or by virtue of Canadian maritime law or any other law of Canada relating to
navigation or shipping”: at para. 34. This would include claims under paragraph 22(2)(d) of the Federal
Courts Act for
damages or loss of life or personal injury caused by a ship. Moreover paragraph 22(2)(g) of
the Act includes claims for
loss of life or personal injury occurring in connection with the operation of a
ship including claims resulting from a defect in a ship, or of the wrongful
act, neglect or default of the owners, charterers or persons in possession or
control of a ship.
[37]
I
acknowledge that in Greeley 1996, this Court removed the Crown in Right of New Brunswick
as a party in relation to a tort claim. However, the claim against the Province of New Brunswick as the mortgagee of the vessel continued to trial: Greeley
v. Tami Joan (The), [1997] F.C.J. No. 1131, 135 FTR
290 (aff’d in 2001 FCA 238, [2001] F.C.J. No. 1162) [Greeley 1997]. As
has been noted by Prothonotary Lafrenière, these cases, when read together,
appear to stand for the proposition that the Federal Court will have
jurisdiction over a claim against a province where that province is the owner or
mortgagee of a vessel, if the claim is a maritime claim: see The
Administrator of the Ship-Source Oil Pollution Fund v. Her Majesty the Queen in
Right of the Province of British Columbia as Represented by the Minister of
Finance et al., 2012 FC 725, at para. 37 [Ship-Source].
[38]
I
further recognize that in Kusugak, this Court held that the Nunavut
Defendants represented institutions of the Government of Nunavut and were not
“subjects” for the purposes of subsection
22(1) of the Federal Courts Act: Kusugak, at para. 50. See also Lubicon Lake Indian
Band v. Canada, [1980] F.C.J. No. 272, at para. 8. However, the concurrent
original jurisdiction conferred on this Court by subsection 22(1) of the Federal
Courts Act is not limited to maritime law actions between subject and subject. The section specifically
confers concurrent
original jurisdiction in this Court in all cases in which a claim for relief is made or a remedy in maritime law actions
“between subject and subject as well as otherwise” [my emphasis]. No consideration
appears to have been given in Kusugak to the implications of the words “as
well as otherwise” as they appear in the provision.
[39]
In
National Association of Broadcast Employees and Technicians (NABET) v.
Canada, [1980] 1 F.C. 820, [1979] F.C.J. No. 228, the Federal Court of
Appeal considered the meaning of similar language appearing in section 23 of
the Federal Court Act. It observed that “as the only
alternative to an action between subject and subject is an action between a
public authority and a subject, the phrase ‘as well between subject and subject
as otherwise’ means ‘between subject and subject as well as between Her Majesty
or the Attorney General or another public authority and a subject’:
at para. 9 [my emphasis].
[40]
Moreover,
section 43 of the Federal Courts Act, provides that “[s]ubject to subsection
(4) [which relates to collisions between ships and has no application to this
case], the jurisdiction conferred on the Federal Court by section 22 may in all
cases be exercised in personam”. Nothing in this provision precludes
the exercise of the Court’s in personam jurisdiction against a province.
[41]
Also
of relevance to the analysis are subsections 43(7)(b) and (c) of the Federal Courts Act. Subsection 43(7)(b)
states that “[n]o action in rem may be commenced in Canada against … any
ship owned or operated by Canada or a province, or any cargo laden
thereon, where the ship is engaged on government service” [my emphasis].
Similarly, subsection 43(7)(c) provides that “[n]o action in rem may be
commenced in Canada against … any ship owned or operated by a sovereign power
other than Canada, or any cargo laden thereon, with respect to any claim where,
at the time the claim arises or the action is commenced, the ship is being used
exclusively for non-commercial governmental purposes”.
[42]
Presumably,
the purpose of these provisions is to prevent the arrest of ships engaged in
government service. The necessary implication of this provision is that an
action in rem may be commenced in the Federal Court against a ship owned
or operated by a province, where the ship is not engaged on government
service. This could not, however, be the case for a ship owned by the Federal
Crown, as a result of the operation of section 14 of the Federal Crown Liability and Proceedings
Act,
which prohibits in rem proceedings against the Federal Crown: see Artificial Reef Society of Nova Scotia v. Canada, 2010 FC 865, [2010] F.C.J. No. 1091, at para. 15.
For the provision to have any meaning, it must, therefore, have been intended
to apply to vessels owned by provinces.
[43]
I
recognize that the in rem action against the Alberta vessel at issue in
this proceeding has been struck out. Although Alberta no longer owns the vessel
in question, this does not change the fact that the wording of subsection 43(7)(b) of
the Federal
Courts Act
supports an interpretation of subsection 22(1) of the Act that the concurrent original
jurisdiction conferred on this Court by section 22 encompasses claims against
vessels owned by provincial Crown defendants.
[44]
Indeed,
as Prothonotary Lafrenière observed in Ship-Source, “[t]he common law doctrine of sovereign immunity is
preserved by section 43(7), but only where the ship is being used exclusively
for non-commercial government service”. I further agree with Prothonotary
Lafrenière that “section 43(7)(c) would be unnecessary and meaningless if a
provincial ship and a province as owner of a ship were generally exempted from
the jurisdiction of the Federal Court”: at para. 39.
[45]
Moreover, a
statutory right in rem, unaccompanied by a maritime lien, does not lie
unless the personal liability of the owner of the ship is engaged: F.C.
Yachts Ltd. v. Splash Holdings Ltd., 2007 FC 1257, [2007] F.C.J. No. 1636, at
para. 5 (citing Westcan Stevedoring Ltd. v. Armar (The), [1973] F.C.J.
No. 152, [1973] F.C. 1232, Mount Royal/Walsh Inc. v. Jensen Star (The),
[1990] 1 F.C. 199, 99 N.R. 42 (F.C.A.), and Maritima De Ecologia, S.A. de
C.V. v. Maersk Defender (The), [2007] F.C.J. No. 709, 366 N.R. 162)).
[46]
This
Court’s maritime law jurisdiction over the provinces, including Alberta, is further confirmed when regard is had to section 79(3)(b) of the Marine Liability Act, which contains a similar
prohibition on in rem actions against provincially or federally-owned
government ships engaged in government service. As counsel for the Toneys
points out, if this Court did not have personal jurisdiction over a province as
owner of a vessel, the section
79(3)(b) bar on in rem proceedings against provincially-owned vessels
would be meaningless.
[47]
Moreover,
the Federal Court clearly has exclusive in personam jurisdiction over
provincial Crowns in relation to maritime claims in cases where a limitation
fund is constituted, in accordance with the provisions of section 32 of the Marine Liability Act. Although this is not such a
case, I agree with the Toneys that it does not make sense that a provincial
Crown could be subject to the jurisdiction of this Court for damages resulting
from one marine accident and not for another, based upon the size of the claim.
The Federal Court either has in
personam jurisdiction
over provincial Crowns or it does not. In my view, it does.
[48]
My
conclusion on the jurisdictional question is further confirmed when regard is
had to section 22 of the Alberta Proceedings Against the Crown Act. This section
provides that “[n]othing
in this Act authorizes proceedings in rem in respect of any claim
against the Crown or the seizure, attachment, arrest, detention or sale of any
property of the Crown.”
[49]
I do
not understand Alberta to dispute the fact that Alberta law does not provide
for in rem proceedings to be brought in the Province’s courts. However,
it is a generally accepted principle of statutory interpretation that every legislative provision is
intended to have meaning: R v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at
para 28. In light of the absence
of in rem proceedings in Alberta, the only way that section 22 of the Alberta
Proceedings
Against the Crown Act could
have any meaning would be if it related to proceedings taken against the
provincial Crown in this Court.
[50]
Also
relevant is section 4 of the Alberta Proceedings Against the Crown Act,
which addresses the rights of citizens to sue the Provincial Crown. This
provision states that “[a] claim against the Crown that, if this Act had not
been passed, might be enforced by petition of right … may be enforced as of
right by proceedings against the Crown in accordance with this Act, without the
grant of a fiat by the Lieutenant Governor”. Section 5 of the Act expressly
allows the Province to be sued for claims based on a variety of causes of
action which would arguably include claims asserted in this case.
[51]
Regard
must also be had to section 8 of the Proceedings Against the Crown Act which
provides that “[e]xcept as otherwise provided in this Act, all proceedings
against the Crown in any court shall be instituted and proceeded with in
accordance with the relevant law governing the practice in that court.” [my
emphasis] No attempt is made in the legislation to define the term “Court” or
to limit the bringing of claims against the Province to the Courts of Alberta.
[52]
This
language should be contrasted with comparable provisions in the proceedings
against the Crown legislation of other provinces. For example, section 10 of
Nova Scotia’s Proceedings against the Crown Act, RSNS 1989, c 360
provides that “[n]othing in this Act authorizes proceedings against the Crown except
in the Supreme Court or a county court” [my emphasis]. Similarly,
subsection 4(1) of the British Columbia Crown Proceedings Act, RSBC
1996, c 89, has been interpreted as requiring that actions against the
Province of British Columbia be instituted in the British Columbia Supreme
Court: see Athabasca
Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern
Development),
2001 ABCA 112; [2001] A.J. No. 609 at para. 15.
Conclusion
[53]
As
a consequence, I have concluded that this Court has in personam jurisdiction
over Alberta in this matter.
[54]
I
am further satisfied that the Toneys should have their costs of this motion. Having
regard to the novelty and complexity of the issues raised by this matter, their
costs should be assessed at the upper end of Column IV of the table to Tariff B,
together with their reasonable disbursements.
ORDER
THIS
COURT DECLARES that:
1. This Court has in
personam jurisdiction over Alberta in this matter; and
2. The Toneys shall have
their costs of this motion, assessed at the upper end of Column IV of the table to Tariff B,
together with their reasonable disbursements.
“Anne Mactavish”