T-855-75
Wilma McGregor and Ralph McGregor
(Plaintiffs)
v.
The Queen, The Calgary Flying Club, the Town of
High River, Robert Hurman and John Hiebert
(Defendants)
Trial Division, Addy J.—Calgary, November 8,
1976; Ottawa, March 23, 1977.
Jurisdiction — Application by second and third named
defendants to dismiss action — Whether statement of claim
discloses reasonable cause of action against them — Whether
Court has jurisdiction — Crown claim for indemnity against
defendants — Criteria for dismissing action previous to trial
— Aeronautics Act, R.S.C. 1970, c. A-3, ss. 3 and 6 — Air
Regulations 102, 104, 300, 305, 515, 516 and 529 Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 23.
The Calgary Flying Club and the Town of High River
applied to be dismissed from this action on the grounds that the
statement of claim discloses no reasonable cause of action
against them and that the Federal Court has no jurisdiction to
hear an action between them and the plaintiffs. The plaintiffs
claim that the Aeronautics Act and Air Regulations create
statutory duties giving rise to a cause of action. The Crown is
claiming indemnity over against the Club and the Town on the
basis of negligence.
Held, the action against the Club and the Town is dismissed.
Although the statement of claim discloses a cause of action in
negligence, the only section of the Federal Court Act on which
jurisdiction in this case might be founded is section 23 and none
of the pertinent provisions of the Aeronautics Act or the Air
Regulations can be construed as part of a scheme to create
rights enforceable between subjects in any court of law. The
Court will only dismiss an action before trial after having
weighed the relative advantages in terms of avoiding any
further useless expenditure of time and money against the
possibility of a successful appeal. The Crown is claiming
indemnity from the Club and the Town and would not have the
right to sue therefor by a separate action in the Federal Court
since the action does not derive from federal law; consequently,
since the test to apply in deciding whether the Court has
jurisdiction is to see whether it would have jurisdiction if the
claim against a particular defendant would stand alone and
since the Crown has no right to sue the Club or the Town in the
Federal Court, there is no validity to the claim that it would be
more convenient and less costly to sue the Club and the Town
in the Federal Court.
Anglophoto Limited v. The "Ikaros" [1973] F.C. 483;
Canadian Fur Co. (NA) Ltd. v. KLM Royal Dutch Air
lines [1974] 2 F.C. 944; Orpen v. Roberts [1925] S.C.R.
364; Canadian Pacific Ltd. v. Quebec North Shore Paper
Company (1976) 9 N.R. 471 (S.C.C.) and McNamara
Construction (Western) Limited v. The Queen (1977) 13
N.R. 181 (S.C.C.), applied.
APPLICATION to dismiss action.
COUNSEL:
L. M. Sali for plaintiffs.
R. N. Dunne for defendant The Queen.
N. C. Wittmann for defendant the Town of
High River.
W. B. Woods for defendant Calgary Flying
Club.
SOLICITORS:
McLaws & Company, Calgary, for plaintiffs.
Deputy Attorney General of Canada for
defendant The Queen.
Code Hunter, Calgary, for defendant the
Town of High River.
Woods, Homme, Baker, Petch & Shea, Cal-
gary, for defendant Calgary Flying Club.
The following are the reasons for order ren
dered in English by
ADDY J.: The plaintiffs instituted an action in
tort against the defendants for damages allegedly
sustained by the female plaintiff while riding a
horse near the end of the runway of the High
River Airport. The claim alleges that while she
was attending a fair and a race meet on the lands
of the airport, the horse was frightened and bolted,
throwing her to the ground and thereby causing
her injuries, and that the occurrence was the result
of the negligent operation of an aircraft owned in
whole or in part by the defendant The Calgary
Flying Club (hereinafter referred to as "The
Flying Club") and piloted by the defendant Hieb-
ert as its employee or, alternatively, with its full
knowledge and consent.
The Town of High River (hereinafter referred to
as "The Town") is sued as the owner and occupier
of the lands constituting the airport as well as for
allowing the lands to be used simultaneously as an
airport and for a fair and race meet, and for
alleged breach of a warranty that the lands would
be safe. Numerous other acts of negligence and
several omissions constituting negligence are
alleged against all of the Defendants as well as
breaches of the Air Regulations, 1960 1 and of the
Aeronautics Act e .
The Flying Club and The Town have applied to
this Court for an order dismissing the action
against them on the grounds that the statement of
claim discloses no reasonable cause of action
against them and on the further ground that this
Court has no jurisdiction to entertain the action as
between them and the plaintiffs.
As to the first ground I have no difficulty in
coming to the conclusion that the statement of
claim does disclose a cause of action. There are
numerous allegations of negligence which, if
proven, would found an action. Before dismissing
the action at this stage of the proceedings, one
must of course assume that all of the allegations of
fact would eventually be established at trial.
The second ground of attack appears to be a
much weightier one and merits full consideration.
The applicable test in deciding whether this
Court has jurisdiction to deal with a claim between
subject and subject has recently been dealt with by
my brother Collier J. in Anglophoto Limited v.
The "Ikaros" 3 at page 498:
I suggest a proper test to apply in approaching the question
of jurisdiction is to see whether this Court would have jurisdic
tion if the claim advanced against one particular defendant
stood alone and were not joined in an action against other
defendants over whom there properly was jurisdiction.
The allegation contained in the statement of
claim that the defendant Hiebert is a servant of
The Flying Club, followed by an alternative plead
ing that he is a servant of the Crown, cannot in my
view, by any stretch of the imagination, constitute
The Flying Club a servant of the Crown.
The only section of the Federal Court Act 4 on
which the jurisdiction in the case at bar might be
' SOR/61-10.
2 R.S.C. 1970, c. A-3.
3 [1973] F.C. 483.
4 R.S.C. 1970 (2nd Supp.), c. 10.
founded is section 23 which gives to this Court
concurrent original jurisdiction between subject
and subject where "a claim for relief is made or a
remedy is sought under an Act of the Parliament
of Canada or otherwise in relation to any matter
coming within any following class of subjects ...
aeronautics ...."
I dealt with the meaning of the word "aeronau-
tics" in the case of Canadian Fur Co. (NA) Ltd. v.
KLM Royal Dutch Airlines 5 at page 951:
Aeronautics, as used in this section, certainly includes the
control and regulation of air navigation over Canada, the
regulation and control of aerodromes and air stations as well as
the investigation of air accidents, such as used in the Aeronau
tics Act (R.S.C. 1970, c. A-3).
I am not aware of any other decision rendered
on the subject since that time which might per
suade me to change my view as to the meaning of
that word as used in section 23.
The only Act of Parliament on which jurisdic
tion in this area can be founded is the Aeronautics
Act. There are no specific provisions in either the
Aeronautics Act or in the Air Regulations issued
pursuant thereto for the establishing of any claim
for any relief, remedy or on which any right of
recovery as between subject and subject might be
founded. The Act provides only for licensing, con
trol, security and powers of inquiry and also estab
lishes penalties for breach of Regulations.
Counsel for the plaintiffs argues that by virtue
of that Act and of the Air Regulations there are
statutory duties created to refrain from operating
an aircraft in a negligent manner or from creating
any undue hazard to persons or property on the
ground. He argues further that the creation of a
statutory duty gives rise to a cause of action and
that it is not necessary for the legislation to pro
vide specifically for the existence of a remedy or
right of recovery. He relies for that proposition on
the following paragraph in Henzel v. Brussels
Motors Ltd. 6 at page 345:
5 [1974] 2 F.C. 944.
6 [1973] 1 O.R. 339.
If the statute imposes a duty for the protection of particular
citizens or of a particular class of citizen, it prima fade creates
at the same time a correlative right vested in those citizens and
prima facie, therefore, they will have a remedy for the enforce
ment of that right, namely, an action for damages in respect to
any loss occasioned by the violation of it. The law of England is
replete with situations where breaches of statutory duties give
rise to actions being brought by those in a special group of
persons intended to be affected; for example, workers under the
Factories Act, and miners under the Mines and Quarries Act.
In these instances, the Court has, in the main, held for absolute
liability in favour of such workers as a particular class or
classes of persons intended to be protected under the relevant
Act. This liability has been found notwithstanding that there is
a penalty section in the various acts by which the employer may
be prosecuted for failure to take certain safety precautions.
The sections of the Aeronautics Act on which he
relies are sections 3 and 6. As to section 3 of the
Act, this section deals with the duties of the Minis
ter and cannot, in my view, create a right of action
and does not impose any statutory duty on any
body other than the Minister.
As to section 6, which contains many lengthy
provisions, counsel for the plaintiffs has neither in
his pleadings, nor in his written argument, pointed
out the specific provisions of that section on which
he relies or how any part of that section might
apply to the facts pleaded. The only provisions of
that section which appear to me to be remotely
pertinent are paragraphs (d) and (i) of subsection
(1). They read as follows:
6. (1) Subject to the approval of the Governor in Council,
the Minister may make regulations ... with respect to
(d) the conditions under which aircraft may be used or
operated;
(i) the institution and enforcement of such laws, rules and
regulations as may be deemed necessary for the safe and
proper navigation of aircraft in Canada, including the terri
torial sea of Canada and all waters on the landward side
thereof, and of aircraft registered in Canada wherever such
aircraft may be;
It is to be noted that the Act does not specifical
ly, as between subject and subject, provide for the
issuing of Regulations creating remedies or relief
arising from the breach of any provisions of the
Act or of the Regulations. I entertain grave doubts
whether the Aeronautics Act as a whole or the Air
Regulations could in any way be construed a part
of a scheme to create for the benefit of subjects,
rights which might be enforceable between them
selves by this Court or by any court of law. The
principles relied upon in Orpen v. Roberts' and
reiterated in Direct Lumber Company Limited v.
Western Plywood Company Limited 8 would seem
to apply. Be that as it may, as an argument may be
made that the words "or otherwise" in the expres
sion "under an Act of Parliament or otherwise" in
the above-quoted abstract from section 23 of the
Federal Court Act are taken to include any validly
enacted regulation and, since a statutory duty may
be created by regulation, the applicability of the
Air Regulations is worthy of examination.
Counsel for the plaintiff relies on Regulations
102, 104, 300, 305, 515, 516 and 529.
As to Regulations 102, 104, 305 and 516, coun
sel for the plaintiffs has only pleaded these gener
ally in his statement of claim without referring in
the pleadings or in his written argument as to how
these Regulations might apply. I have read them
and failed to find how they can create a statutory
right of action between subject and subject or how
they might have any bearing on the issue having
regard to the allegations of negligence on the facts
as pleaded.
Regulation 300 is pleaded as being applicable in
so far as The Town is concerned. This Regulation
prohibits land to be used as an airport unless it has
been licensed as such. There is nothing creating a
right of action between subject and subject for
failure to obtain a licence and even if there were I
fail to see how failure to obtain a licence would
constitute a basis for claiming damages for person
al injury.
There remain Regulations 515 and 529. Regula
tion 515 reads as follows:
515. (1) No aircraft shall be operated in such a negligent or
reckless manner as to endanger or be likely to endanger the life
or property of any person.
(2) Subject to subsection (3), no person shall fly an aircraft
in such a manner as to create a shock wave or sonic boom, the
effect of which may imperil the safety of other aircraft, be
injurious to persons or animals or cause damage to property.
7 [1925] S.C.R. 364 at 370.
8 [1962] S.C.R. 646.
(3) The Minister may make orders or directions with respect
to the operation of aircraft in sonic or supersonic flight.
This Regulation imposes no duty on any pilot
which is not imposed on him by the common law
of torts.
Regulation 529 provides for certain minimum
heights for the flying of aircraft over populated
and other areas, except when taking off or landing
and except as specifically authorized by the Minis
ter. This might well create a statutory duty on the
pilot for the breach of which The Flying Club
might be liable if, as argued by counsel for the
plaintiffs, such statutory duty does create a statu
tory right of action in the plaintiffs against the
pilot. However, I cannot accept this proposition as
being of general application. The cases where
statutory duties exist without corresponding rights
of civil action between subject and subject are
innumerable.
Before dismissing an action previous to trial on a
motion of this nature, the Court must weigh the
relative advantages of avoiding further costs and
preventing a useless expenditure of time and effort
occasioned by a trial, against the possibility of a
successful appeal from the granting of the motion
and dismissal of the action, resulting not only in a
double set of costs but in a new trial should the
trial have taken place in the meantime. In weigh
ing these relative advantages and disadvantages,
the judge hearing the motion should not grant the
motion unless he is satisfied that an appeal against
his order could not be successful.
As to recent jurisprudence on the matter, on one
hand there is the recent case of Canadian Pacific
Ltd. v. Quebec North Shore Paper Company 9 . The
action in that case was one based on contract
where the contract specifically made Quebec law
applicable and was not a case based on tort.
However, the language used and the reasoning on
which the decision appears to be based would seem
to lead to sweeping and far reaching conclusions as
to the jurisdiction of this Court, which might have
a considerable bearing on the principles applied in
former cases such as the previous decision of my
9 (1976) 9 N.R. 471 (S.C.C.).
brother Mahoney J. in the case of Okanagan
Helicopters Ltd. v. Canadian Pacific Limited'"
Although the language used by the Supreme Court
of Canada in the Quebec North Shore case
(supra) might have been broader than was actual
ly required to dispose of the appeal as it did, the
more recent unanimous decision of the Supreme
Court in the case of McNamara Construction
(Western) Limited v. The Queen", in my view,
leaves no doubt as to the all-encompassing manner
in which that Court intends to apply the language
of the Quebec North Shore case (supra).
The Crown, as a defendant in the present case,
has served a notice of indemnity on both The
Town and The Flying Club claiming indemnity
over against them on the basis of negligence. Pre
vious to the McNamara decision (supra) were the
action dismissed as against the applicants at this
stage, it might have been presumed that the Crown
would in a separate action be claiming indemnity
against the same defendants on the same grounds,
and that, based on former jurisprudence, this
Court would possess full jurisdiction to hear that
action. It would thus be arguable that the appli
cants in this motion would - be put to the trouble
and expense of a trial in any event and nothing
would be gained from the standpoint of costs. The
McNamara case, however, reversing all former
jurisprudence, lays down quite clearly that even
where the Crown itself is a plaintiff it cannot sue
in contract in the Federal Court merely because it
is a plaintiff. The wording of that judgment does
not purport to limit this principle to contract law.
On the contrary, it extends the principle to all
cases unless the right of the Crown is founded on
existing federal law. As there is no existing federal
law involved on which the action can be based, the
Crown itself would not have the right to sue in this
Court by separate action and the argument as to
convenience and costs has no foundation.
For the above reasons I am granting the applica
tion with costs and judgment will issue dismissing
the action as against the applicants with costs.
10 [1974] 1 F.C. 465.
11 (1977) 13 N.R. 181 (S.C.C.).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.