T-2411-74
Dame Juliette Tremblay (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Quebec City, October 17,
1975; Ottawa, October 24, 1975.
Crown—Torts—Plaintiff claiming damages following death
of son, a member of the Canadian Armed Forces Reserve—
Defendant moving to strike statement of claim—Federal Court
Act, s. 37—National Defence Act, R.S.C. 1970, c. N-4, s. 15(3)
and Queen's Regulations and Orders for the Canadian Forces,
vol. 1 (Admin.) art. 2.01—Crown Liability Act, R.S.C. 1970, c.
C-38, ss. 3, 4—Pension Act, R.S.C. 1970, c. P-7, ss. 12(2), 34,
35, 36—R.S.C. 1970, c. 22 (2nd Supp.) s. 88.
Plaintiff alleged that the death of her son, a member of the
Armed Forces Reserve, was due to the careless operation of the
military truck in which he was a passenger, and claimed
damages for loss of maintenance and funeral expenses. Defend
ant moved to strike the statement of claim as disclosing no
reasonable cause of action.
Held, allowing the motion, the action is dismissed. While
section 3(2) of the Crown Liability Act makes the Crown liable
in respect of damages caused by a motor vehicle in its charge,
section 4 states that no proceedings lie against the Crown if a
pension or other compensation has been paid, or is payable.
Section 88 of the Pension Act also provides that no action lies
against the Crown in any case where a pension is or may be
awarded under that or any other Act. And, by section 12(2) of
the same Act, military service in the reserve force in peacetime
entitles members who have suffered disability, or died, to a
pension. Pensions to relatives are provided for in sections 34, 35
and 36, section 36(6) providing that each unmarried child shall
be deemed to be contributing not less than $10 per month to
parental support. And, a parent, not wholly or substantially
maintained by a Forces member at the time of his death who
may subsequently become dependant, may receive a pension if
incapacitated, and if, in the opinion of the Pension Commission,
such member would have wholly or substantially maintained
the parent (section 36(3)). No action, then, lies against the
Crown where a pension (as defined in section 2 of the Pension
Act) is being paid or is payable, as was here the case.
The King v. Bender [1947] S.C.R. 172; Oakes v. The King
[1951] Ex. C.R. 133; The Queen v. Houle [1958] S.C.R.
387; Dame Rainville-Tellier v. LeCorre [1967] S.C. 704,
applied.
ACTION.
COUNSEL:
B. Lesage for plaintiff.
Y. Brisson for defendant.
SOLICITORS:
Thibaudeau, Lesage, Thibaudeau and
Nepveu, Quebec City, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
DUBS J.: Defendant is submitting a motion to
strike the pleadings in accordance with Rule 419
of the Federal Court on the grounds that the
statement of claim discloses no reasonable cause of
action.
In the said statement, plaintiff is claiming
$20,000 for loss of maintenance and funeral
expenses following a highway accident resulting in
the death cf her son Christian Martineau, in the
Charlevoix, Quebec region on July 19, 1973. At
that time her son was sixteen years old. In a
statement submitted to the Court, plaintiff admits
that at the time of the said accident her son was
duly enlisted in the Reserve Force of the Canadian
Armed Forces. The statement alleges that the
heavy military truck carrying several young cadets
had been carelessly driven and that this careless
ness had caused young Martineau's death.
In fact, nine actions have been brought against
defendant, resulting in two motions to strike the
pleadings on the part of the latter. It has been
agreed between the two parties to the case that
these two motions shall be heard concurrently, and
that this decision applies to both; the other plain
tiff being Jean Rousseau, a young man seventeen
years of age injured in the same accident.
Applicant also submitted the parents' authoriza
tion on enrolment and the consent of Christian
Martineau and Jean Rousseau to enrol in the
Primary Reserve of the Canadian Armed Forces.
In order to determine responsibility in any
action brought against the Crown, section 37 of
the Federal Court Act states that any person who
was at any time a member of the Canadian Forces
shall be deemed to have been at that time a
servant of the Crown.
Section 15(3) of the National Defence Act'
describes the Reserve Force as being a component
of the Canadian Forces. Article 2.01 2 describes the
components of the Canadian Forces as the Regular
Force, the Reserve Force and the Special Force.
Section 3 of the Crown Liability Act a makes the
Crown liable in tort for the damages for which it
would be liable if it were a private person of full
age and capacity, in respect of a tort, a breach of
duty and, at subsection (2) in particular, in respect
of damages caused by a motor vehicle in its
charge.
However, section 4 of the same Act states an
exception, namely that no proceedings lie against
the Crown in respect of death, injury, damage or
other loss if a pension or compensation has been
paid or is payable.
Section 88 of the Pension Act 4 also states that
no action lies against Her Majesty in respect of
any injury or death in any case where a pension is
or may be awarded under this or any other Act.
According to section 12(2) 5 of the same Act,
military service in the reserve army in peacetime
entitles members of the forces to a pension. Pen
sions are awarded to members of the forces who
have suffered a disability, in accordance with the
rates set out in Schedule A, and to those who have
died, in accordance with the rates set out in
Schedule B.
In cases of death, sections 34 4,5 and 35 5 provide
pensions for widows, section 36 45 covers pensions
to the father or mother, and section 37 5 deals with
pensions to the brother or sister.
' R.S.C. 1970, c. N-4.
z Queen's Regulations and Orders for the Canadian Forces,
Volume 1 (Administrative).
3 R.S.C. 1970, c. C-38.
4 R.S.C. 1970, c. 22 (2nd Supp.).
R.S.C. 1970, c. P-7.
Section 36(6) 5 provides that each unmarried
child shall be deemed to be contributing not less
than ten dollars a month toward support of
parents.
Section 36(3) 5 provides that a parent, who was
not wholly or to a substantial extent maintained by
a member of the Armed Forces at the time of his
death, and who subsequently falls into a dependant
condition may receive a pension if he or she is
incapacitated by mental or physical infirmity from
earning a livelihood, and in the opinion of the
Commission such member would have wholly or to
a substantial extent maintained such parent.
In her statement of claim, plaintiff stresses that
the loss of her son was a heavy one in particular
because he was her last son, he was single and
living with her, he was very attached to his mother
and helped out as much as he could, he did very
well in his studies and he was destined for a
rewarding career which on retirement would have
provided him with automatic support, independ
ently of any physical or mental infirmity that
might occur.
It appears, therefore, that no action lies against
the Crown where a pension is being paid or is
payable and that in the present circumstances a
pension is payable. In section 2 of the Pension
Act 4 , the word "pension" is defined as follows:
"pension" means a pension payable under this Act on account
of the death or disability of a member of the forces and
includes an additional pension, temporary pension or final
payment payable under this Act to or in respect of a member
of the forces;
The situation was otherwise prior to the intro
duction of the amendments cancelling the double
action, as can be seen from the case law: The King
v. Bender 6 , Oakes v. The King', The Queen v.
Houle 8 .
A more recent decision of the Superior Court of
Quebec reflects the present situation. In Dame
6 [1947] S.C.R. 172.
[1951] Ex.C.R. 133.
s [1958] S.C.R. 387.
Rainville-Tellier v. LeCorre 9 , an action instituted
by the dependants of an employee of the Govern
ment of Canada as a result of his death was
dismissed as having no legal basis because it was
one for which the common law action was rejected
by the Workmen's Compensation Act of Quebec 10
and the Government Employees Compensation
Act". The judgment noted the aforementioned
The King v. Bender decision, and made the neces
sary distinction at page 707:
[TRANSLATION] Counsel for the plaintiff has cited several
cases, His Majesty the King v. Bender among others, where the
Supreme Court upheld a judgment of the Exchequer Court
holding that, although an employee was subject to the work-
men's compensation statute of a province, it was possible to
bring an action against the Crown.
This ruling would not be applied to the present case, since
the Government Employees Compensation Act referred to by
the Supreme Court was that which is found at c. 30 of the 1927
Revised Statutes of Canada. Section 8(5) of the present Act,
which includes a clause similar to the Workmen's Compensa
tion Act and denies the action, did not exist in the Government
Employees Compensation Act at that time.
It is obvious, according to the allegations in the statement,
that the issue concerns an accident for which the common law
action does not lie.
For these reasons the motion to strike the plead-
ings must therefore be allowed.
ORDER
The motion is allowed and the statement of
claim is dismissed with costs.
9 [1967] S.C. 704.
10 R.S.Q. 1964, c. 159.
n R.S.C. 1952, c. 134.
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.