Herbert Page, Kenneth Charman, L. A. Wort-
man, Gerald Pugh, John Dohaney, Ronald
Chase, John Watson, J. T. M. Malanson and
Symond Byram (Appellants)
v.
Churchill Falls (Labrador) Corporation Limited
and Atlantic Aviation of Canada Limited
(Respondents)
Court of Appeal, Jackett C.J., Thurlow and
Heald JJ.—Toronto, June 16, 1972.
Practice—Limitation of actions—Whether statement of
claim discloses cause of action—Whether action barred by
provincial limitation statute—Locale of cause of action
unclear from pleadings—Application of limitation statute
unclear from pleadings.
Plaintiffs (respondents) brought an action against
employees of the Department of Transport engaged in sup
plying weather information and with aircraft control in New
Brunswick and Newfoundland, alleging negligence in the
performance of their duties resulting in the crash of an
aircraft in Newfoundland. The defendants (appellants) did
not file a defence but applied to the Trial Division to strike
out the statement of claim on the ground that the action was
not commenced within six months after the accident as
required by section 19 of the Justices and Other Public
Authorities (Protection) Act, 1955, (Nfld.), c. 16. Plaintiffs
(respondents) also brought an action based on the same
accident against the Crown. The Attorney General of
Canada conducted the defence in both actions.
Held, affirming the Trial Division, the application for an
order to strike out the statement of claim should be dis
missed. It was not clear from the allegations in the state
ment of claim (1) that the cause of action arose solely in
Newfoundland so that the Newfoundland statute became
applicable under section 38(1) of the Federal Court Act, or
(2) that the action was, in the words of section 19 of the
Newfoundland Act, for "an act done in discharge or intend
ed discharge of any statutory or other public duty or
authority, or in respect of any alleged neglect or default in
the discharge of any such duty or authority".
Drummond-Jackson v. British Medical Ass'n [1970] 1
W.L.R. 688, referred to.
APPEAL from Trial Division.
S. M. Froomkin for appellants.
E. M. Lane for respondents.
The judgment of the Court was delivered by
JACKETr C.J.—This is an appeal from a deci
sion of the Trial Division dismissing with costs
an application by the appellants for an order
striking out the statement of claim in an action
in the Trial Division on the ground that the
action was not commenced within six months
after the act, neglect or default complained of in
the statement of claim "pursuant to section 19
of the Justices and Other Public Authorities
(Protection) Act, c. 16 of the Statutes of New-
foundland, 1955."
The appellants are officers or employees of
that part of the Ministry of Transport that has
to do with supplying weather information to
aircraft and with the control of the use of
airways by aircraft. The action with which we
are concerned is in relation to the crash of an
aircraft in Newfoundland. In another action in
the Trial Division the same plaintiffs, who are
the respondents in this appeal, claim relief in
respect of the same crash against the Crown.
The appellants, who are the defendants in the
action with which we are concerned, are the
officers or the employees of the Ministry of
Transport on whose alleged negligence the
action against the Crown is founded. In the
action against the appellants, the same relief is,
I assume, claimed against the appellants on the
view that their alleged negligence involves them
in personal liability therefor.
One of the appellants is alleged to have been
guilty of negligence causing the crash of the
aircraft in that, being an air controller in Monc-
ton, New Brunswick, he conveyed by radio a
message (a `.`clearance") to the aircraft in New-
foundland, which message caused the crash
either by virtue of misleading information con
cerning navigation conveyed thereby or by
virtue of a failure to convey accurate informa
tion with regard thereto. Other appellants in
New Brunswick are alleged, by their omissions
leading to such act or omission, to have caused
or contributed to the crash. Still other appel
lants in Newfoundland are alleged to have been
guilty of failing to convey to the aircraft up to
date information concerning weather changes
that they had or should have had and the lack of
which caused or contributed to the crash.'
Section 19 of the Justices and Other Public
Authorities (Protection) Act, 1955 of New-
foundland, reads as follows:
19. An action shall not be brought against a justice or any
other person for an act done in discharge or intended
discharge of any statutory or other public duty or authority,
or in respect of any alleged neglect or default in the dis
charge of any such duty or authority until
(a) a notice in writing of the intended action clearly and
explicitly stating the cause of action and the court in
which the action is intended to be brought and containing
the name and address of the party intending to sue and
the name and address of his solicitor, if any, has been
delivered to the justice or other person or left for him at
his usual place of abode by the person intending to
commence the action, or by his solicitor or agent; and
until
(b) the expiration of at least thirty clear days from the
date of the service of the notice; and unless
(c) the action is commenced within six months next after
the act, neglect or default complained of, or in case of
continuance of injury or damage, within six months after
the ceasing thereof.
This section should be read with section 20 of
the same statute, which reads as follows:
20. If an action is brought, where by this Act the bringing
of an action is prohibited, or before any condition is ful
filled which is required by this Act to be fulfilled before the
action may be brought, a judge of the court in which the
action is brought may upon application of the defendant and
upon an affidavit of facts set aside the proceedings in the
action with or without costs as to him shall seem meet.
No defence has been filed and the provision
that I have just quoted has not, therefore, been
pleaded by the appellants. I doubt that, where a
statement of claim discloses a cause of action, it
is appropriate to move to strike it out on the
ground that a statute of limitation, as opposed
to a prescription statute, can be pleaded as a
defence, and if pleaded, would be a defence.
Compare Jacques v. Ellis [1925] 4 D.L.R. 782.
It would seem to me that the more appropriate
procedure would be to file a defence and move
to set down for argument before trial the ques
tion of law as to whether the statute of limita
tion defence is a complete bar to the action
assuming the truth of all the allegations in the
statement of claim. Compare Gunn v. The
Queen [1966] Ex.C.R. 118. I need, however,
reach no conclusion on this question in view of
my conclusion on the other aspects of the
matter.
It is, of course, not appropriate in every case
to have a question of law as to the legal position
determined as a threshold matter even though it
can be framed as a question based on an
assumption of the truth of allegations in the
pleadings. Compare Drummond-Jackson y. Brit-
ish Medical Association [1970'] 1 W.L.R. 688.
In my view, it is not possible to lay down any
general rule as to when it is appropriate and
when it is not appropriate to adopt such a
course. It must be determined, in each case,
having regard to all the circumstances of the
particular case. 2
One factor that usually weighs in favour of
deciding a question of law as a preliminary
matter is the fact that, if it results in the plain
tiff's action being dismissed, it avoids the costs
of a trial. That consideration is absent in this
matter because, as the defence of the appellants
is being conducted by the Attorney General of
Canada on their behalf, it follows that, if the
action against them proceeds, it will be tried
with the action against the Crown.
A consideration that weighs against determi
nation of a question of law on the allegations in
the pleadings may be that the facts in the par
ticular case are not alleged in such a way that
the question of law can be determined even
after a long and elaborate argument. This may
be an answer to an attempt to have it deter
mined as a matter of law before trial that a
statute of limitations is a bar to the action
(a) if the statement of claim does not suffi
ciently disclose the cause of action and the
defendant has taken no steps to require the
plaintiff properly to plead his cause of action
before moving to have the limitation of
actions question decided, or
(b) if, having regard to the circumstances, the
plaintiff had pleaded his cause of action as
precisely and fully as he can be expected to
do before discovery but, nevertheless, it does
not disclose the cause of action sufficiently to
determine whether the statute applies.
I have concluded that this case falls in the latter
class and I shall explain why I have reached
that conclusion.
The appellants base their application on sec
tion 38(1) of the Federal Court Act, which reads
as follows:
38. (1) Except as expressly provided by any other Act,
the laws relating to prescription and the limitation of actions
in force in any province between subject and subject apply
to any proceedings in the Court in respect of any cause of
action arising in such province, and a proceeding in the
Court in respect of a cause of action arising otherwise than
in a province shall be taken within and not after six years
after the cause of action arose.
Reading section 38(1) with section 19 of the
Justices and Other Public Authorities (Protec-
tion) Act of Newfoundland, the appellants'
appeal can only succeed if
(a) the cause of actions pleaded by the state
ment of claim is a cause of action arising in
Newfoundland so that section 38(1) of the
Federal Court Act can be read as requiring
that the laws relating to limitation of actions
in force in Newfoundland apply in respect of
that cause of action; and
(b) the action commenced by the statement
of claim is for "an act done in discharge or
intended discharge of any statutory or other
public duty or authority, or in respect of any
alleged neglect or default in the discharge of
any such duty or authority".
As it seems to me, it is impossible to answer
either of these questions in the affirmative, at
least on the information contained in the state
ment of claim 4
Neither party has put forward any statute as
imposing on the defendants a duty, a breach of
which is the foundation of the cause of action in
the statement of claim. On the other hand, with
I reference to the question whether any duty
alleged is a "public duty", the duties alleged in
the statement of claim are alleged in very gener
al terms and without supporting facts. It may
well be that, until after discovery, the respond
ents cannot state more precisely the factual
background, which may be in the exclusive
possession of the Crown and the appellants.
Until such information is crystallized, however,
it is premature to attempt to decide whether any
such duty is a "public duty" such as is contem
plated by those words in the Newfoundland
statute and, as the "duty" is the first element in
the respondents' negligence cause of action
against the appellants, until it becomes crystal
lized and clarified, it is premature to attempt to
decide, for the purposes of section 38(1) of the
Federal Court Act, in which "province", if any,
such cause of action arose. It follows that I am
in agreement with the learned Trial Judge where
he said:
On the material before the Court, it is impossible to say
unequivocally that the cause of action in the proceedings
arose solely in Newfoundland and nowhere else.
Before leaving the case, I deem it important
to refer to the very interesting argument of
counsel for the appellants concerning the effect
of section 38(1) of the Federal Court Act, in
which the recent decision of the Privy Council
in Distillers Co (Bio -Chemicals) Ltd v. Thomp-
son [1971] 1 All E.R. 694 was thoroughly can
vassed. As appears from that decision, different
meanings have been given at different times to
words speaking of a cause of action arising,
when such words are used in conferring juris
diction on courts, and still a different meaning
has to be given to such words when they are
used to define the commencement of a period
of limitation in connection with the bringing of
actions. In section 38(1), however, we have still
a different problem. There the statute sets out a
more or less arbitrary rule for selection of a
provincial limitations statute for an action in the
Federal Court. While it is tempting to seize on
this recent Privy Council case for guidance, I
have doubts as to whether it guides us to the
most rational interpretation of section 38. That
question does not have to be decided on this
appeal and it may be that the correct way of
interpreting section 38 will appear clear before
the matter arises again.
In my view, the appeal should be dismissed
with costs.
I This description of the allegations in the statement of
claim is not precise or accurate but, I think that it conveys a
sufficient idea of the various types of causes of action set
up to enable one to appraise the problems raised by the
application to strike.
2 A very helpful summation of the matter is to be found in
the Drummond-Jackson case in the judgment of Lord Pear-
son at pages 695-96, which reads in part as follows:
Over a long period of years it has been firmly estab
lished by many authorities that the power to strike out a
statement of claim as disclosing no reasonable cause of
action is a summary power which should be exercised
only in plain and obvious cases.... Reference has been
made to four recent cases: Rondel v. Worsley [1969] 1
A.C. 191; Wiseman v. Borneman [1969] 3 W.L.R. 706;
Roy v. Prior [1970] 1 Q.B. 283; and Schmidt v. Home
Office [1969] 2 Ch. 149. In each of these cases there was
an important question of principle involved, and the hear
ing of the application ... was much longer and more
elaborate than is usual, but the final decision was that the
alleged cause of action was clearly unsustainable, and so
the statement of claim disclosed no reasonable cause of
action and was ordered to be struck out. There was no
departure from the principle that the order for striking out
should only be made if it becomes plain and obvious that
the claim or defence cannot succeed, but the procedural
method was unusual in that there was a relatively long
and elaborate instead of a short and summary hearing. It
must be within the discretion of the courts to adopt this
unusual procedural method in special cases where it is
seen to be advantageous. But I do not think that there has
been or should be any general change in the practice with
regard to applications under the rule.
3 I use "cause of action" hereafter to include "causes of
action".
4 Even if section 20 of the Newfoundland Act has
application in this Court, by virtue of section 38 of the
Federal Court Act, which I doubt, the appellants have not
taken advantage of that section to put any further facts
before the Court.
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.