T-1414-71
Churchill Falls (Labrador) Corporation Limited
and Atlantic Aviation of Canada Limited
(Plaintiffs)
v.
The Queen (Defendant)
and
T-274-72
Churchill Falls (Labrador) Corporation Limited
and Atlantic Aviation of Canada (Plaintiffs)
v.
Herbert Page, Kenneth Charman, L.A. Wort-
man, Gerald Pugh, John Dohaney, Ronald Chase,
John Watson, J.P.M. Malanson and Symond
Byrum (Defendants)
Trial Division, Kerr J.—Ottawa, October 22 to
November 8, 1973 inclusive, July 10, 1974.
Aeronautics—Damages arising from airplane crash—Air
controllers as servants of Crown—Their lack of care not
cause of crash—Cause in negligence of airplane pilots—
Actions against Crown dismissed—Aeronautics Act, R.S.C.
1970, c. A-3, and Air Regulations, ss. 101(12)(56), 504, 505,
546(1)(2), 552 and 553—Air Traffic Control Manual of
Operations (Manops)—Limitation of actions—The Justices
and other Public Authorities (Protection) Act, 1955 (Nfld.) c.
16, ss. 19, 20—Federal Court Act, s. 38(1).
The actions arose from an airplane crash at Wabush,
Labrador, on November 11, 1969, in which all on board
(two pilots and six passengers) lost their lives. The plane
was owned by the first plaintiff and operated by the second
plaintiff. The actions are the claims of the plaintiffs for the
loss of the plane and for indemnity with respect to the
actions commenced by the estates of the passengers. The
nine defendants in the second action were employed at the
Moncton Area Control Centre and at the Wabush Airport
and as such were Crown servants in the course of their
employment in the Air Traffic Control Service operated by
the Department of Transport. Under clearance from the
Moncton Centre, the plane left Churchill Falls, Labrador,
for an evening flight to Wabush, Labrador, in the expected
flight time of 23 minutes and collided with a sheer vertical
rock face in an open pit mine at Wabush, 32 minutes after
take-off.
Held, the defendant Page, and other defendants with
supervisory functions, permitted practices inconsistent with
the requirements of the Air Traffic Control Manual of
Operations (Manops) for the administration of Moncton
Centre and Wabush Tower. The defendant Chase, a con
troller in the Moncton Centre, erred in giving a landing
clearance to the plane, based on a procedure that had been
cancelled. But those faults were not the cause of the acci
dent. The pilots were not obliged to accept the clearance.
Having accepted it, they continued their flight and adopted
an unreasonable method of approach, so that they missed
the runway and crashed into the mine. The accident was
caused by the negligence of the pilots and there was no
negligence by the defendants, causing or contributing to the
accident. As the actions failed, it was unnecessary to consid
er the defence in the second action, under The Justices and
other Public Authorities (Protection) Act, 1955 (Nfld.) c. 16,
ss. 19, 20, that institution of the action February 9, 1972,
over two years after the accident, was barred by the limita
tion of six months in the provincial statute, pleaded as
applicable under section 38(1) of the Federal Court Act.
The Volute [1922] 1 A.C. 129; Sigurdson v. British
Columbia Electric Railway Co. Ltd. [1953] A.C. 291
and Distillers Co. (Bio -Chemicals) Ltd. v. Thompson
[1971] 1 All E.R. 694, considered.
ACTION.
COUNSEL:
E. M. Lane and E. H. Toomath for
plaintiffs .
S. M. Froomkin for defendants.
SOLICITORS:
Manning, Bruce, MacDonald & Macintosh,
Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
delivered in English by
KERR J.: These actions were heard jointly on
common evidence pursuant to consent of the
parties and an order of this Court in action No.
T-274-72, dated July 3, 1973.
The actions arose from a crash of an airplane
at Wabush, Labrador, on November 11, 1969,
in which all on board, namely, two pilots and six
passengers, lost their lives. The airplane was a
small twin-jet executive DH-125 owned by the
plaintiff Churchill Falls (Labrador) Corporation
Limited, with identifying letters CF-CFL. It was
being operated for that plaintiff by the other
plaintiff Atlantic Aviation of Canada Limited,
and the pilots were employees of the latter
company and acting in the ordinary course of
their employment.
In due course the estates of the passengers
commenced actions in various courts and juris-
dictions against different defendants, some
against the owner and operator of the airplane,
some against the Crown.
The actions for determination here are the
claims of the plaintiffs for the loss of the air
plane and for indemnity with respect to the
actions commenced by the estates of the pas
sengers. In these actions Churchill Falls (Labra-
dor) and Atlantic Aviation are essentially one,
and it has been agreed between them and the
Crown that Churchill Falls (Labrador) is identi
fied with any act or omission by the pilots that,
in the decision of this Court, caused or con
tributed to the accident, and that the decision of
this Court in T-1414-71 (the claim against the
Crown for loss of the airplane) with respect to
responsibility for the accident will, as between
those parties, be applied in the claim of the
plaintiffs for indemnity and to any final judg
ments obtained in the actions by the estates.
The hearing took 3 weeks, followed by sever
al days of argument, and considerable evidence
of a technical nature was given; and I shall not
try to outline it in full but I will refer to what
seem to me to be the more significant issues and
features.
The airplane's ill-fated trip took place in
"controlled airspace"' from Churchill Falls to
Wabush, both places being in Labrador, in the
Province of Newfoundland. Its pilot received an
Air Traffic Control Clearance (Exhibit P-3) for
the trip from the Department of Transport's
Moncton Area Control Centre, hereinafter
referred to as the "Moncton Centre", which had
1 meaning, as defined in the Air Regulations made under
the authority of the Aeronautics Act "an airspace of defined
dimensions within which air traffic control service is
provided".
responsibility respecting air traffic over an
extensive area, including Churchill Falls and
Wabush. The 9 defendants in the action T-274-
72 were at relevant times employees in the
Moncton Centre or at the Wabush airport, and
as such were servants of the Crown acting in
the ordinary scope of their duties and employ
ment in the Air Traffic Control service operated
by the Department of Transport under the au
thority of the Aeronautics Act. The airplane
departed Churchill Falls on Tuesday, November
11, 1969, at 1800 hours Atlantic Standard Time
(2200 hours GMT) with an expected flight time
of about 23 minutes. It crashed into a sheer
vertical rock face in an open pit mine at Wabush
about 32 or so minutes after take-off from
Churchill Falls.
The Moncton Centre, having responsibility
over a large area, has a number of air traffic
controllers who man individual sectors, each of
which has its particular area to control. Physi
cally, each sector is a booth, and sometimes two
are combined. The sector that controlled the
Churchill Falls and Wabush airfields was "M"
sector, and at the relevant time it was manned
by the defendant Ronald Chase. The air traffic
controller in the Wabush Tower was the defend
ant J.P.M. Malanson. There were conversations
between the airplane and Chase and Malanson
during its flight. They were recorded on tapes at
the Moncton Centre and in the Wabush Tower,
and transcripts of them were received in evi
dence as Exhibits P-6 and P-7.
Airplane flights from one point to another
involve 3 phases. Phase 1 is the take-off and
climb to the flight altitude; Phase 2 is the flight
at that altitude to the destination; and Phase 3 is
the descent from that altitude to the landing
runway on the airfield.
For such flights there are official charts and
plates for the use of the air traffic control units
and pilots. One of them, a navigation chart
(Exhibit P-8), has been aptly described as a road
map of the sky. It shows a direct route R29
from Churchill Falls to Wabush, 102 miles, on a
direction heading of 278 degrees, at a minimum
en route altitude of 4,100 feet. The airplane
CFL was cleared by Moncton Centre to fly that
route at an altitude of 14,000 feet. Another is a
plate that shows particulars of the descent or
approach from flight altitude to a landing
runway, a "let-down" procedure for use when
the airplane is being flown on "Instrument
Flight Rules" (IFR) 2 , which was the case on this
night flight, using an airport "Non-Directional
Beacon" (NDB) and "Automatic Direction
Finding" (ADF) radio equipment in the airplane,
which tunes in to the beacon and receives emis
sions from the latter in Morse code indicating
the beacon's identifying letters. Two such plates
for the Wabush airport were put in evidence as
Exhibits P-1 and P-2 3 . They are of particular
significance in these actions, for the plaintiffs
claim that the only current and valid approach
plate for Wabush on the date of the accident,
November 11, 1969, was Exhibit P-2, dated
March 10, 1969, which indicated a let-down
procedure using a Wabush airport NDB desig
nated on the plate as "WZ" (Whisky Zulu); and
that the approach plate that the traffic controller
Chase used in giving the approach clearance for
the airplane CFL was Exhibit P-1, a cancelled
and superseded plate bearing an original issue
date of 15 August 1968 and an amended date of
October (of that year), which indicated a let
down procedure using a Wabush NDB "WK"
(Whisky Kilo). The earlier plate, Exhibit P-1,
shows only one NDB, "WK", situated north of
the runway, and a let-down approach in which
the airplane on its final approach to the runway
flies over that beacon in a southerly direction,
thence down to the runway; whereas the later
plate, Exhibit P-2, shows the same WK beacon
2 IFR—Instrument Flight Rules; NDB—Non-Directional
Beacon; ADF—Automatic Direction Finding.
3 The plates will be reproduced later herein. [Note: the
plates and certain portions of evidence are omitted in the
published reasons for judgment—Ed.]
about 1.7 miles to the north of the runway, as in
the earlier plate, but shows also the other
beacon, "WZ" about 3.3 miles to the south of
the runway, and a let-down approach in which
the airplane flies over the WZ beacon in a
northerly direction, thence down to the runway.
The runway is between the two beacons and is
about 6,000 feet long. The distance between the
two beacons is about 6 miles.
Those plates are published in the Canada Air
Pilot (C.A.P.) under the authority of section 552
of the Air Regulations. The C.A.P. is an official
book, published by the Department of Trans
port, containing IFR approach or descent plates
for airfields in Canada, and it is made available
to be used by air traffic controllers and pilots. It
is in loose-leaf form, convenient for insertion of
new plates and removal of cancelled plates.
A Canadian Flight Information List, dated
March 19, 1969, Exhibit P-10, authorized by the
Department of Transport and published by the
Surveys and Mapping Branch of the Depart
ment of Energy, Mines and Resources, gave
advance information that a new NDB facility
"WZ" would be commissioned at Wabush on or
about March 31, 1969, and that the ADF proce
dure dated October 7, 1968 (which was the WK
procedure), would be cancelled and replaced
with the WZ procedure effective when pub
lished in Canada Air Pilot on or about March
31, 1969.
There was also a routine practice in the
Moncton Centre to provide information to its
controllers in the form of a Staff Memo, and
one such memo C26/69, dated March 25, 1969,
(Exhibit P-21), was issued by the defendant
Page, who was then Chief of the Centre, and it
repeated the advance information contained in
Exhibit P-10.
An amendment to the Canada Air Pilot-East
was issued on May 5, 1969. It is Amendment
E69-8, Exhibit P-18. It reads: "The attached are
new or revised sheets for your Canada Air Pilot.
Please destroy sheets replaced by the revised
sheets contained in this amendment". The WZ
approach plate (Exhibit P-2) was one of the
attached sheets. There was evidence that this
amendment came to the Moncton Centre in due
course of mail in May, 1969.
The Moncton Centre had 2 copies of the
C.A.P.-East, which included the Wabush air
field, and it had facilities to make additional
copies for use in sectors. Sector M had a binder
containing approach plates; and the defendant
Chase, who manned that sector, was still giving
approach clearances based on the WK beacon
up until CFL crashed, although he said he had
also given some clearances on the WZ beacon.
The evidence does not establish with certainty
that CFL had only the WZ plate on board, but
Mr. Peria, who was chief pilot of Atlantic Avia
tion at that time, testified that the pilots of the
CFL had a new subscription to the C.A.P. and
would have had an amended book, and I think it
is reasonable to infer that they had only the WZ
plate.
The negligence attributed by the plaintiffs to
the defendants Page, Charman, Wortman, Pugh
and Dohaney relates to their duties and respon
sibilities for the procedures, operational stand
ards and practices in the Moncton Centre and
for air traffic control clearances issued by that
Centre; the negligence attributed to the defend
ant Chase relates to the giving by him of the
WK clearance and his failure to advise the
pilots when they told him they were at an alti
tude of 4,100 feet and descending at Wabush;
the negligence attributed to Malanson and
Watson relates to their responsibilities in the
Wabush Tower and passing the WK clearance;
and the negligence attributed to Byram concerns
his conduct at Wabush as a meteorological
observer.
The plaintiffs claim that the use of the WK
beacon by the air traffic controllers created an
extremely confusing situation for the pilots of
the airplane on this, their first flight to Wabush,
and that the result of the confusion was that the
airplane made its let-down approach in a north
erly direction (as required by the WZ plate), but
the approach was made on the WK beacon
(which was 1.7 miles to the north of the
runway), and consequently the runway was
missed and their airplane crashed into the face
of the mine some 5.5 miles north of the WK
beacon.
The defendants claim, inter alia, that the
plaintiffs have failed to establish what caused
the airplane to crash, that the approach given by
Chase was a valid and safe approach, and that
the cause of the accident was due solely to pilot
negligence.
[The learned Judge reviewed the evidence as to
the approach of the airplane to the runway and
then continued:]
With the benefit of hindsight we now know
that the pilot was flying a northerly WZ
approach, but I do not think that CFL's reply
"4,100 feet and descending" should in the cir
cumstances have necessarily alerted Chase to
the fact that the pilot was flying that northerly
WZ approach.
The following among other provisions of the
Air Regulations and the Air Traffic Control
Manual of Operations (Manops), Exhibit P-15,
in reference to duties and obligations of air
traffic controllers and pilots, were referred to
by counsel and witnesses and I shall set them
forth next.
MANOPS
301.1 The objectives of the IFR control service are:
(a) to prevent collisions between IFR flights oper
ating within controlled air space and between all
flights operating within the block airspace.
(b) to maintain a safe, orderly and expeditious flow
of air traffic under the control of an IFR unit.
311.1 The pilot-in-command of an aircraft shall comply
with all air traffic control instructions directed to
and received by him and with all air traffic control
clearances received and accepted by him. (Para.
505 Air Regulations).
311.3 ATC clearances are based solely on the necessity
for safely expediting and separating air traffic, and
- should be issued with the least possible delay.
AIR REGULATIONS
101. ...
(12) "Air traffic control clearance" means authorization
by an air traffic control unit for an aircraft to proceed
under specified conditions;
(56) "Pilot-in-command" means the pilot responsible for
the operation and safety of the aircraft during flight time.
504. Prior to the commencement of any flight, the pilot-
in -command of an aircraft shall familiarize himself with all
available information appropriate to the intended flight.
505. The pilot-in-command of an aircraft shall comply
with all air traffic control instructions directed to and
received by him and with all air traffic control clearances
received and accepted by him.
546. (1) Prior to taking off from any point within and
prior to entering any controlled air space during IFR flight,
or during IFR weather conditions, an air traffic control
clearance based on the flight plan shall be obtained from the
appropriate Air Traffic Control Unit, and the aircraft shall
be flown in accordance with such clearance, and, unless
otherwise authorized by the appropriate air traffic control
unit, shall follow the instrument approach procedures
approved for the airport to be used.
(2) No deviations shall be made from the requirements of
any air traffic control clearance except in an emergency that
necessitates immediate action, in which case, as soon as
possible after any action has been taken in connection with
such emergency, the pilot-in-command of the aircraft shall
inform the appropriate air traffic control unit of the devia
tion and, if necessary, obtain an amended clearance.
552. (1) The Minister may establish standard instrument
approach procedures for use under IFR for specified aero-
dromes, which procedures may be published in a document
entitled the Canada Air Pilot.
(2) The instrument approach procedures established
under subsection (1) shall specify and authorize
(a) the minimum altitudes to which a pilot-in-command
may descend during an approach to a landing;
(6) the minimum visibility in which any pilot-in-command
may conduct a landing or a take-off;
(c) missed approach procedures to be followed by a pilot-
in -command when a landing cannot be accomplished;
(d) the tracks and altitudes to be followed in the conduct
of the approach and the missed approach procedures; and
(e) such other information as the Minister may direct.
553. In controlled airspace all flights being made in
accordance with the instrument flight rules shall continue in
accordance with the instrument flight rules, regardless of
weather conditions, unless and until such time as the appro
priate air traffic control unit is notified to the contrary.
[The learned Judge reviewed the testimony of
the first seven defendants. and of expert witnesses
and then continued:]
The Crown has taken the position that the
plaintiffs have failed to prove how the crash
took place or its cause. Of course, the pilots and
passengers were all killed in the crash and
consequently could not testify as to its cause,
but a reasonable inference, which I draw, from
the facts proven or admitted is that the cause of
the crash was that the pilots attempted to land
the airplane on the Wabush runway by flying in
a northerly direction, as called for in the WZ
approach plate, but did so with their ADF
equipment tuned in to the WK beacon, which
was 1.7 miles north of the runway, and conse
quently they attempted to descend north of the
WK beacon and north of the runway, and in so
doing missed the runway; and they descended
to an altitude from which they failed to ascend
sufficiently to clear the mine hill, which was
some 5.5 miles north of WK, and crashed into
the face of the mine there at about 2,400 feet
above sea level; also that in using the WK
beacon for their descent the pilots accepted a
landing clearance given to them by the defend
ant Chase 4 . There is no reason to think that
there was any malfunction of the airplane or its
ADF equipment.
Aviation safety requires the efforts of air
traffic controllers and pilots. Their efforts com
plement each other. Also, the public travelling
by airplanes have no alternative but to rely on
the controllers and pilots for safety of flights.
There are the Air Regulations and Manuals,
which have, I would think, as one of their
objectives, and a most important one, the pro
motion and provision of safety of air operations,
although complete safety cannot be guaranteed
and the Crown and the air traffic control service
are not insurers of such safety. The Regulations
and Manuals are not a code governing civil
liability in the event of an airplane accident, but,
in my opinion, they represent a reasonable
standard of care to be observed by air traffic
control units and pilots in the carrying out of the
activities they have undertaken.
The WK approach procedure had been can
celled and superseded some months before
November 1969 and therefore I think that
Chase should not have given an ADF landing
4 At 2207 hours "anticipate an ADF off the Whisky Kilo
to nineteen" and at just prior to 2212 "You are cleared to
the Wabush Airport for an ADF approach on the Whisky
Kilo for runway one nine", to which the airplane replied
"Roger—CFL is cleared for an approach at the Wabush
Airport—ADF on the Whisky Kilo Beacon ...."
clearance to CFL based on the WK beacon. The
WK procedure was a safe procedure before it
was cancelled, and it was safely used frequently
also from the time of its cancellation until
CFL's crash occurred. There was evidence that
some 200 or more flights had safely landed at
Wabush, using that procedure, during the
summer and later months of 1969, and that the
airplane EPA (Eastern Provincial Airways) 103
landed safely, using the WK approach proce
dure, a few minutes before CFL attempted to
land. That procedure was safe for pilots who
had a WK plate or were familiar with its landing
procedure, but the fact that it was safely used
by them does not justify the giving of a WK
clearance to the CFL pilots or the use of that
procedure by air traffic control units for IFR
flights after it had been cancelled and supersed
ed by the WZ plate. I think that in giving a WK
approach clearance to the pilots of CFL Chase
failed to exercise the care reasonably required
of him as controller, and that he and the Crown
would be liable to the plaintiffs in these actions
if the giving of that clearance really caused or
was a part of the cause of CFL's crash. But we
must look also to the actions and responsibilities
of the pilots in order to determine the cause of
the crash and liability.
It cannot be successfully disputed that there
was negligence on the part of the pilots that at
least contributed to the crash. On this occasion
they were going to the Wabush airfield for the
first time, and were making a night flight under
"Instrument Flight Rules", and they should
have, in advance of take-off, made themselves
completely familiar with the location of the
runway and NDB beacons and the approach and
missed approach procedures; they should have
been aware that the runway was south of the
WK beacon; they should not have accepted an
approach clearance to the runway based on that
beacon if they did not have the approach plate
for that beacon; and they should not have made
an approach that would take them northerly
over the WK beacon for a landing, for there
obviously, as clearly shown on their WZ plate,
was no airfield north of the WK beacon. Each
NDB gives out its own identifying letters in
Morse code on a certain frequency, which is
shown on the IFR approach plate for such
beacon. The WK frequency was 400; the WZ
was 218. Both these beacons and their frequen
cies and Morse code letters are clearly shown
on the WZ plate. ADF radio equipment in an
airplane is designed to be tuned in to such
beacons, and the pilot can hear the Morse sig
nals of a beacon to which he has tuned in his
radio if the airplane is within range of the
beacon and if there is nothing otherwise pre
venting him from hearing them. The ADF radio
in the airplane CFL was of a type that also
shows visually to the pilot the frequency
number of the beacon to which his radio is
tuned in. Thus the CFL pilots had both the
sound of the Morse signals and the sight of the
digital number of the beacon on their radio to
indicate to what beacon it was tuned in. This
equipment also has a needle which points to the
beacon to which the pilot has tuned it, and the
pilot can fly directly toward the beacon by
lining up the airplane's direction with the needle
pointing. There is nothing to suggest that the
ADF equipment in CFL on the fatal flight was
not functioning properly, and the pilots should
have been aware that they were flying a course
that would take them past both the WZ and WK
beacons to an area north of WK where there
was no runway.
CFL crashed at an altitude 200 feet below the
minimum altitude indicated on their WZ plate
for an ADF approach to the runway at night;
that plate calls for a "missed approach" proce
dure and ascent when upon flying 3.3 miles past
the beacon, upon final approach to the runway,
the runway is not visible to the pilots at the
minimum altitude of 2,606 feet shown on the
plate; and the crash occurred 2.2 miles north of
the point at which the missed approach proce
dure and ascent were called for. Those facts are
strong evidence that the airplane was flying
below the said minimum altitude and that the
pilots had not properly executed the missed
approach procedure called for on their WZ
plate.
The pilots had sufficient time in which to
reach a decision whether to accept the clearance
or reject it or seek further directions (and those
choices were open to them), for they were told
at about 2207 hours to anticipate an ADF off
the WK beacon, and again just prior to 2212
hours they were told that they were cleared for
an ADF approach to runway 19 off that beacon,
which they accepted by answering "roger".
They were then not in any situation of emergen
cy or difficulty. They continued their flight for
upwards of 20 minutes after they accepted the
clearance. I think that upon and after accept
ance of the clearance they were directly respon
sible for the operation and safety of the airplane
and its passengers, and, in my opinion, Chase's
prior act of giving a clearance on the WK
beacon (which the pilots were riot obliged to
accept, and which was not a clearance to fly a
WZ or northerly approach on the WK beacon),
was not so mixed up with the subsequent opera
tion of the airplane flying an unreasonable and
indefensible northerly approach on the WK
beacon as to enable the plaintiffs to invoke
Chase's act as being part of the cause of the
crashs, or, to use words found in other leading
negligence cases, a real, substantive or effective
cause or contributing cause of the crash. It was,
moreover, in my opinion, beyond the range of
reasonable forseeability for Chase or any
s Cf. the dictum of Viscount Birkenhead in The Volute
[1922] 1 A.C. 129, 144, approved in Sigurdson v. British
Columbia Electric Railway Co. Ld. [1953] A.C. 291, 299, as
follows:
Upon the whole I think that the question of contributory
negligence must be dealt with somewhat broadly and upon
common-sense principles as a jury would probably deal
with it. And while no doubt, where a clear line can be
drawn, the subsequent negligence is the only one to look
to, there are cases in which the two acts come so closely
together, and the second act of negligence is so much
mixed up with the state of things brought about by the
first act, that the party secondly negligent, while not [held]
free from blame under the Bywell Castle rule, might, on
the other hand, invoke the prior negligence as being part
of the cause of the collision so as to make it a case of
contribution.
reasonable controller to have anticipated that a
pilot flying at night under "Instrument Flight
Rules" would fly a northerly landing course on
the WK beacon, or that it was reasonably prob
able that a crash might be a natural result of
giving such a pilot a WK approach.
I also do not think that Chase was under a
duty to monitor CFL's descent to the runway or
its course after the pilots accepted the clearance
to land, other than for purposes of providing
separation between airplanes. Proper separation
of aircraft is, of course, essential to safety.
Take-offs and landings must be so timed as not
to lead to collision of aircraft, and aircraft must
be separated at various altitudes so that they
will not be in danger of collision. In the present
instance Sector M, manned by Chase, had more
than 40 approach plates under its control, and
an airplane was landing at Wabush just ahead of
CFL and another was wanting to land just after
wards. Separation of airplanes was Chase's pri
mary concern and responsibility, and he was
giving altitudes to keep them separated. I do not
think that when at 2223 hours he asked CFL for
its altitude and in reply at 2224 hours was given
its altitude as "4,100 feet and descending" it
was or should have been apparent to him that
the pilots were attempting a northerly WZ
approach on the WK beacon. However, if that
was or should have been apparent to him at that
time I would think that in the circumstances of
having given a WK approach he would have
been under a duty to inform the pilots of their
wrong course, if he had an opportunity to do so,
and if he failed to do so and if his failure
materially contributed to the crash of the air
plane he and the Crown would by reason there
of have incurred liability to the plaintiffs in
these actions.
As to the negligence charged in respect of the
practices followed in the Moncton Centre and
the Wabush Tower in the matter of com
municating necessary information to controllers
and supervising their work, keeping copies of
the Canada Air Pilot' up-to-date, and generally
in relation to compliance, or otherwise, with the
requirements of Manops for the administration
and operation of the Centre and Tower, set
forth in Part 10 of Manops, considerable evi
dence was given. I am satisfied that Page and
the other defendants who had supervisory func
tions and responsibilities in those places permit
ted practices inconsistent with the requirements
of Manops which, inter alia, enabled the WK
approach to be frequently and routinely used in
Sector M after it had been cancelled. But I do
not think that their said laxity or failure to meet
the requirements of Manops was so directly
associated with the crash of CFL as to be
causally connected with it. Nor do I think that it
was reasonably forseeable when these practices
were in effect that they would be likely to lead
to the use by any pilot of a WZ approach
procedure on the WK beacon or that it should
occur to the mind of persons engaged in or
responsible for air traffic control that there was
a real risk that any pilot would do so.
[The learned Judge then considered the evi
dence as to the weather conditions and
continued:]
As I understand those exhibits the ceiling and
visibility during CFL's flight remained above
the IFR minima shown on the WK and WZ
approach plates, namely, a ceiling of 800 feet
and visibility of 11 miles.
I think that there is a duty on air traffic
controllers and weather observers to exercise
reasonable care to provide, within the scope of
their functions, weather information to pilots
that is accurate and information also as to
known changes in the weather that are impor
tant for the safety of flights. But I am not
satisfied that it has been shown that any inaccu
rate weather information was given to the pilots
of CFL or that there was any failure to give
them weather information that they needed for
safe operation of their airplane, or that by
reason of the weather information given to them
they were misled into flying the course they did
or any course at the altitude to which they
descended in the circumstances.
There was evidence that shortly before the
hearing test flights to Wabush were made by
pilots using the WZ procedure on the WK
beacon, and they did not crash, or have any
difficulty avoiding a crash. But they followed
the missed approach procedure called for on the
WZ plate. Of course, they did not land on the
runway. Those flights fall short, in my opinion,
of simulating the situation as it was on the CFL
flight, for, at the very least, the pilots on the test
flights were conscious at all times that they
would have to use the missed approach proce
dure and they were not unexpectedly faced with
an emergency to do so, as the pilots of CFL
may have been faced.
Another submission by the defendants was
that CFL was equipped with only one service
able ADF radio, and that it was required to have
2 such radios on the flight. I find nothing to
suggest that the absence of the second radio
was an influential factor in the flight or crash of
the airplane.
I am satisfied, also, that if the pilots, having
accepted to make their landing approach on the
WK beacon, had not descended below the mini
mum authorized altitude set forth clearly on
their WZ plate (and also on the WK plate) and
had followed and complied with the missed
approach procedure indicated on their WZ plate
(which called for the airplane to climb if the
runway was not visible to the pilot at the said
minimum altitude of 2,606 feet after it had gone
3.3 miles past the beacon), they very probably
would not have crashed, and that the fault of
not so complying was their fault and theirs
alone.
In the result, I have concluded that the crash
of the airplane CFL was caused by negligence
on the part of its pilots, and that there was no
negligence on the part of any of the defendants
that was the cause or a partial cause of the
crash.
One other issue should be mentioned. The
defendants in T-274-72 have pleaded that that
action is barred by the effluxion of time as
provided by section 19 of The Justices and
Other Public Authorities (Protection) Act, 1955,
Statutes of Newfoundland, c. 16.
Sections 19 and 20 of that Act read 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 deliv
ered to the justice or other person or left for him at his
usual place of abode by the person intending to com
mence 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.
20. If an action is brought, where by this Act the bringing
of an action is prohibited, or before any condition is fulfilled
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.
This action T-274-72 was not brought until
February 9, 1972, which was more than 6
months after the crash of CFL.
On March 22, 1972, the Deputy Attorney
General for Canada, acting on behalf of the
defendants, applied in this Court for an order to
strike out the statement of claim on the ground
that the action was not commenced within the
said 6 months, and on that application Mr. Jus
tice Gibson pronounced the following:
On the material before this Court, it is impossible to say
unequivocally that the cause of action in these proceedings
arose solely in Newfoundland and nowhere else. It is there
fore not necessary to consider whether or not section 19 of
The Justices and Other Public Authorities (Protection) Act,
1955, Statutes of Newfoundland, c. 16, applies to the
defendants herein.
Application dismissed with costs.
An appeal against the said judgment was
taken to the Federal Court of Appeal and the
Court, consisting of Jackett C.J., and Justices
Thurlow and Heald, dismissed the appeal, stat
ing in part as follows [[1972] F.C. 1141 at pages
1145-6]:
The appellants base their application on section 38(1) of
the Federal Court Act, [R.S.C. 1970, c. 10 (2nd Supp.)]
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 (Protection) Act of Newfoundland,
the appellants' appeal can only succeed if
(a) the cause of action (I use "cause of action" hereafter
to include "causes of action") pleaded by the statement 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 statement of claim. (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.)
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 reference to the question whether any duty
alleged is a "public duty", the duties alleged in the statement
of claim are alleged in very general terms and without
supporting facts. It may well be that, until after discovery,
the respondents 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
crystallized 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. Thompson [1971] 1
All E.R. 694, was thoroughly canvassed. As appears from
that decision, different meanings have been given at differ
ent times to words speaking of a cause of action arising,
when such words are used in conferring jurisdiction 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.
As appears from these somewhat lengthy
Reasons I have given primary and extensive
consideration to the merits with a view to deter
mining the cause of the crash of the airplane. I
left the question of the effect and interpretation,
in relation to these actions, of the Newfound-
land statute and section 38 of the Federal Court
Act for secondary consideration. Now, having
concluded that no fault on the part of any of the
defendants was a contributing cause of the
crash of CFL, I consider that it is not necessary,
for the determination of the actions, for me to
pursue the question of the Newfoundland stat
ute and section 38 of the Federal Court Act to a
final conclusion in my own mind and give a
definitive and final ruling on it. Therefore I
express no opinion on it.
In the result, both actions are dismissed, with
costs to be taxed, with one set of costs for the
hearing; and a judgment will go accordingly in
each action.
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.