Zolotow v. Canada et al., 2008 ONCA 163

• Judge: O'Connor, A.C.J.O., Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 22, 2008
• Jurisdiction: Ontario
• Citations: 2008 ONCA 163;(2008), 234 O.A.C. 125 (CA)

Zolotow v. Can. (2008), 234 O.A.C. 125 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MR.030

Stephen Zolotow (appellant/plaintiff) v. Her Majesty the Queen in Right of Canada, The Minister of Public Safety and Emergency Preparedness and the Minister of Finance (respondents/defendants)

(C47248; 2008 ONCA 163)

Indexed As: Zolotow v. Canada et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Watt and Epstein, JJ.A.

March 6, 2008.

Summary:

Zolotow sued for the return of 20 diamonds that were seized from him by Customs authorities on April 13, 2000, on the basis that he had failed to declare the diamonds when he brought them into the country.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. 1117, exercised its discretion to stay the action under s. 106 of the Courts of Justice Act, based on its determination that the Federal Court was the court of preferred jurisdiction to advance the claim. Zolotow appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 5609

Provincial courts - Concurrent and conflicting jurisdiction - Assumption of jurisdiction - Refusal of - Zolotow sued for the return of diamonds that were seized from him by Customs authorities - A motions judge exercised his discretion to stay the action under s. 106 of the Courts of Justice Act, based on his determination that the Federal Court was the court of preferred jurisdiction to advance the claim - Zolotow appealed, asserting that his claim was a common law property claim and that his recourse was to pursue an action in detinue and that the Superior Court had jurisdiction to determine his action - Zolotow asserted that his claim was not subject to the Customs Act, because the seizure occurred outside of the period prescribed by the Act - The Ontario Court of Appeal dismissed the appeal - Even if the action constituted a common law property claim, and not a claim subject to the Customs Act, both the Superior Court and the Federal Court would have jurisdiction - In circumstances of concurrent jurisdiction, s. 106 of the Courts of Justice Act gave the motions judge the discretion to determine the preferred forum - The motions judge exercised this discretion upon proper principles - He correctly recognized that the determination of the pivotal issue of the jurisdiction of the Customs Act would involve some examination of the Act and related jurisprudence - The Federal Court had more experience than the Superior Court in matters concerning the Customs Act and related issues.

Courts - Topic 7402

Provincial courts - Ontario - General Division/Superior Court - Jurisdiction - General - [See Courts - Topic 5609 ].

Counsel:

David W. Stratas and Brad Elberg, for the appellant;

Christopher Parke and Maria Vujnovic, for the respondents.

This appeal was heard on February 22, 2008, by O'Connor, A.C.J.O., Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following endorsement of the court was delivered on March 6, 2008.