Aleksic v. Can. (A.G.), (2002) 165 O.A.C. 253 (DC)

• Judge: Blair, R.S.J., deP. Wright and Heeney, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 14, 2002
• Jurisdiction: Ontario
• Citations: (2002), 165 O.A.C. 253 (DC)

Aleksic v. Can. (A.G.) (2002), 165 O.A.C. 253 (DC)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JL.033

Steven Aleksic, Pajo Andic, Milijanko Bojic, Slobodanka Borojevic, Dragan Cabric, Miodrag Cabric, Nesboja Cekrlija, Goran Ciric, Jasna Czaharynski, Alexandar Djordjevich, Biljana Djukic-Uzelac, Ognjen Uzelac, Bora Dragasevich, Borjana Filipov, Dragan Grujic, Vesna Heriban, Zoran Ilijasevic, Dragana Iligasevic, Jela Jakovljevic, Milomir Jakovljevic, Georgina Karalic, Ana Kolesor, Milja Kos, Dragan Kostic, Ana Lekaj, Cvijeta Mrkic, Natasa Mrkic, Slavisa Mrkic, Ratko Mrkic, Tanja Mrkic, Svetlana Neskovic, Milica Oluic Josanovic, Miodrag Perisic, Milka Pesjc, Bojan Petrovic, Rodavan Prodanovic, Milovan Radojevic, Andjelka Radovanovic, Slobodan Ratkovic, Branislav Selic, Momcilo Selic, Sloboda Selic, Dragan Stefanovic, Vlada Stefanovic, Jasminika Stevcic, Milomir Stojanovic, Goran Stojkovic, Mile Temelkovski, Jelica Todorovic, Zoran Todorovic, Gordana Vilimanovich, Jelena Vladikovic, Milanka Vladisavljevic, Nikola Vladisavljevic, Stanko Vuleta, Dragisa Vukovic and Nikola Zegarac (plaintiffs/respondents) v. The Attorney General of Canada (defendant/appellant)

(01-DV-000583)

Indexed As: Aleksic et al. v. Canada (Attorney General)

Court of Ontario

Superior Court of Justice

Divisional Court

Blair, R.S.J., deP. Wright and Heeney, JJ.

July 8, 2002.

Summary:

Plaintiffs sued the Attorney General of Canada, claiming damages in tort and as a remedy under s. 24(1) of the Charter respecting the participation of Canada in the North Atlantic Treaty Organization missile and aerial bombardment of parts of Yugoslavia. The Attorney General moved to strike the statement of claim.

A motions judge dismissed the motion. The Attorney General appealed.

The Ontario Divisional Court, deP. Wright, J., dissenting, allowed the appeal and struck out the statement of claim.

Civil Rights - Topic 5504

Equality and protection of the law - General principles and definitions - Scope of right - Plaintiffs claimed that Canada's participation in a missile and aerial bombardment of Yugoslavia breached their s. 15 Charter rights - The Ontario Divisional Court held that the impugned government activity involved state-to-state activity, not actions directed at any individual protected by the Charter, which gave rise to a strong presumption that the Charter did not apply - Further, the facts as pleaded did not allege the unequal application of the law based on personal differences - Considerations of discrimination did not arise - If s. 15 applied, the most that could be said was that Canada participated in the bombing to exert pressure on the Yugoslavian government to alter their position toward the Kosovo Albanian community - If anything, it amounted to a preference of an Albanian over a Serb, neither of whom fell under the umbrella of the Charter - No facts were pleaded to suggest that a Canadian of Serbian or Albanian or Yugoslavian national or ethnic origin was treated differently than any other Canadian by reason of those personal characteristics - See paragraphs 71 to 75.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - Plaintiffs sued the Attorney General of Canada, claiming that Canada's participation in a missile and aerial bombardment of Yugoslavia breached their s. 7 Charter rights - The Ontario Divisional Court held that the impugned actions of the government involved state-to-state activity, not activity directed at any individual members of the political community of Canada - While the activity might have incidentally subjected some citizens, notably those which chose to sojourn in Yugoslavia, to an increased risk of death or injury, such activity was never intended to be caught by s. 7 - A decision to participate in a bombing campaign was closely analogous to a declaration of war, and could not constitute a violation of the s. 7 rights of those affected - See paragraphs 63 to 70.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - [See Civil Rights - Topic 5504 ].

Civil Rights - Topic 8351

Canadian Charter of Rights and Freedoms - Application - Exceptions - Crown immunity - Plaintiffs sued the Attorney General of Canada, claiming damages in tort and as a remedy under the Charter respecting Canada's participation in a missile and aerial bombardment of Yugoslavia - The Ontario Divisional Court struck out the tort claims - The decision to participate in the bombing was a matter of "high policy" - Matters of "high policy", apart from the Charter claims, were not justiciable - Alternatively, the Crown was immune from tort liability arising from decisions of pure policy and there was no reasonable cause of action against the Crown in tort - Further, the alleged property damage and personal injury occurred during the course of military hostilities and the Crown and their agents were under no duty of care to avoid causing injury or damage to private individuals - See paragraphs 20 to 56.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See first Civil Rights - Topic 8305 ].

Crown - Topic 1569

Torts by and against Crown - Negligence by Crown - Military operations - [See Civil Rights - Topic 8351 ].

Crown - Topic 1569

Torts by and against Crown - Negligence by Crown - Military operations - Plaintiffs sued the Attorney General of Canada, claiming damages in tort and as a remedy under the Charter respecting Canada's participation in a missile and aerial bombardment of Yugoslavia - Section 8 of the Crown Liability and Proceedings Acts exempted the Crown from tortious liability "... in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces." - The Ontario Divisional Court opined that s. 8 might not apply where the bombing arguably had nothing to do with the "defence of Canada" - Canada was not in any immediate peril at any time and the actions were not defensive, but were a proactive attempt to influence the policy of the Yugoslavian government - Equally, the actions appeared to have had nothing to do with "training, or maintaining the efficiency of the Canadian Forces" - See paragraphs 57 and 58.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or exclusions - Policies or "policy decisions" - [See Civil Rights - Topic 8351 ].

Crown - Topic 2804

Crown immunity - General - Immunity under federal legislation - [See second Crown - Topic 1569 ].

Crown - Topic 2887

Crown immunity - Exceptions - Denial of Charter rights - [See Civil Rights - Topic 8351 ].

Cases Noticed:

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481, refd to. [para. 18].

Nash v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), refd to. [para. 18].

Black v. Canada - see Black v. Chrétien et al.

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [paras. 22, 84].

Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142 (H.L.), refd to. [para. 34].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 39].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (Aust. H.C.), refd to. [para. 40].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001), 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 206 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 43].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Mulcahy v. Ministry of Defence, [1996] Q.B. 732 (C.A.), refd to. [para. 48].

Shaw Savill & Albion Co. v. Commonwealth (The) (1940), 66 C.L.R. 344 (Aust. H.C.), refd to. [para. 49].

Burma Oil Co. v. Lord Advocate, [1964] 2 All E.R. 348 (H.L.), refd to. [para. 51].

R. v. Anthony, [1946] S.C.R. 569, refd to. [para. 55].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1; 164 D.L.R.(4th) 1, refd to. [para. 61].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 61].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1, refd to. [para. 72].

Authors and Works Noticed:

Bingham, The Business of Judging (2000), p. 208 [para. 81].

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 1 [para. 32].

Hogg, Peter W., and Monahan, Patrick, Liability of the Crown (3rd Ed. 2000), generally [para. 57].

Hogg, Peter W., Constitutional Law in Canada (1995), generally [para. 22].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), p. 621 [para. 42].

Mann, F.A., Foreign Affairs in English Courts (1986), p. 188 [para. 47].

Wade, William, Administrative Law (5th Ed. 1982), p. 718 [para. 47].

Counsel:

Emilio S. Binavince, for the plaintiffs/respondents;

Edward R. Sojonky, Q.C., for the defendant/appellant.

This appeal was heard on February 14, 2002, at Ottawa, Ontario, by Blair, R.S.J., deP. Wright, and Heeney, JJ., of the Ontario Divisional Court. The decision of the court was released on July 8, 2002, including the following opinions:

Heeney, J. (Blair, R.S.J., concurring) - see paragraphs 1 to 77;

deP. Wright, J., dissenting - see paragraphs 78 to 92.