T-1039-75
Canadian Pacific Air Lines, Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, November
13 and 14, 1975.
Practice—Motion under Rule 474—Whether s. 3(c) of the
Aeronautics Act creates any rights of plaintiff enforceable
against the Queen—If not, whether reasonable cause of
action—Whether expedient that there should be a preliminary
determination of law—Aeronautics Act, R.S.C. 1970, c. A-3,
s. 3(c)—Federal Court Rule 474.
A motion pursuant to Rule 474 for the determination of two
questions of law is dismissed. The statement of claim alleges a
duty and breach other than the duty imposed by section 3(c) of
the Aeronautics Act. A trial is inevitable. Setting down ques
tions of law for preliminary determination will not materially
facilitate the determination of the matter, or save time and
money, which is the purpose of Rule 474.
MOTION.
COUNSEL:
C. R. O. Munro, Q.C., and Miss M. J. Sabia
for plaintiff.
A. Garneau and D. Friesen for defendant.
SOLICITORS:
C. R. O. Munro, Q.C., Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is a motion by the defend
ant, pursuant to Rule 474 of the Federal Court
Rules, for the determination of two questions of
law, namely:
1. Does paragraph 3(c) of the Aeronautics Act'
create any rights of the plaintiff enforceable by
action against Her Majesty? and
R.S.C. 1970, c. A-3.
2. If question (1) is answered in the negative,
does the statement of claim disclose any reason
able cause of action against Her Majesty?
A prior motion, pursuant to Rule 419 of the
Federal Court Rules, to strike out the statement of
claim herein was dismissed by my brother Heald
and his decision not to do so was confirmed by the
Court of Appeal. In so doing Mr. Justice Heald
said:
The Court will refuse to strike out a statement of claim that
raises substantial issues ....
and he also added:
... or where at such an early stage of the litigation, it cannot be
concluded that the plaintiffs action could not possibly succeed
and that beyond all doubt no reasonable cause of action has
been shown.
He also said:
In the case at bar, the plaintiff has alleged a statutory duty
under sec. 3(c) of the Aeronautics Act, and a breach of that
duty and, at least by implication, that said duty was owed to
the plaintiff. While the statement of claim is not as precise as it
might have been, it does, in my view, raise substantial issues
and at this stage, I am not prepared to say that the plaintiff
could not possibly succeed in the action.
As I conceive Rule 474, there is a discretion
vested in the Court, which discretion must be
exercised on judicial principles, to determine any
question of law that may be relevant to the deci
sion of a matter "if it deems it expedient to do so".
The purpose of Rule 474 is to afford an expedi
tious method of determining a matter in dispute
without the necessity of going to trial or to shorten
or expedite that trial. It is axiomatic that there
must be a pure question of law for determination
and no dispute of fact which must of necessity be
determined at trial.
In Page v. Churchill Falls (Labrador) Corpora
tion Limited' the Chief Justice said at page 1144:
It is, of course, not appropriate in every case to have a
question of law as to the legal position determined as a thresh
old 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 v. British 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
2 [ 1972] F.C. 1141.
appropriate to adopt such a course. It must be determined, in
each case, having regard to all the circumstances of the particu
lar case.
It was agreed between counsel for the parties at
the outset that the question to be determined by
me was whether it is expedient that there should
be a preliminary determination of law, as posed in
the motion, and if I should so conclude then the
question so posed would be fully argued at a
subsequent date. I agreed to that arrangement
because it seemed to me to be eminently sensible
to do so.
The first question raised appears to me to be
solely a question of law predicated as it is upon the
interpretation of section 3(c) of the Aeronautics
Act, which reads:
3. It is the duty of the Minister
(c) to construct and maintain all government aerodromes
and air stations, including all plant, machinery and buildings
necessary for their efficient equipment and upkeep;
I have every expectation that it will be argued
on behalf of Her Majesty that section 3(c) imposes
a duty upon the Minister which is managerial in
nature and that the duty owed by the Minister is
to Parliament only, and that a breach of that duty
does not create actionable rights in a private party.
Put another way, the section does not create a duty
by Her Majesty to users of the aerodromes. This is
most certainly an arguable point of law. It was
advanced before Mr. Justice Heald and the Court
of Appeal and both must have so agreed. Being a
question of law, and if this were the only cause of
action alleged in the statement of claim, then the
determination of that question would effectively
dispose of the matter in which instance it would be
appropriate to set the matter down for such pre
liminary determination.
On behalf of the plaintiff, however, it was sub
mitted that to effectively interpret section 3(c)
resort must be had to evidence as to practice in the
civil aviation industry. As I understand this sub
mission, it amounts to an invocation of the rule in
Heydon's 3 case. As I understand that rule it is to
be invoked as an aid to interpretation if the words
of the section are ambiguous. In that case resort
3 (1584) 3 Co. Rep. 7a, 76 E.R. 637.
may be had to the law as it previously existed,
what mischief or defect existed in the prior state of
the law, what remedy the statute sought to correct
and the reason for doing so. Put yet another way,
the submission, as I understand it, was that the
object and purpose of the statute must be looked at
and to do so reference should be made to the
circumstances with respect to which the words in
the statute were used to ascertain the remedy
adopted to cure any existing mischief. That, the
plaintiff submitted, necessitates adducing evi
dence. I entertain great doubt as to the validity of
this submission.
However, in my view, the statement of claim
does allege other causes of action than that predi
cated upon section 3(c). In paragraph 8 of the
statement of claim, after first referring to the
breach of duty imposed by the Aeronautics Act the
language continues "and otherwise to maintain the
said aerodromes, in that Her Majesty failed to
take or cause to be taken all or any reasonable
steps to keep the runways at the said aerodrome
clear of snow and ice".
While that allegation is not expressed in as
precise language as I would consider to be desir
able, nevertheless it does allege a duty and breach
of duty other than the duty imposed by section
3(c) of the Aeronautics Act. To me this allegation
might well be an allegation of the duty on an
owner or occupier of property, or in the more
formal category, of the relationship of invitee and
invitor or possibly licensee and licensor. I cannot
refrain from offering the gratuitous suggestion
that counsel for the plaintiff might consider the
propriety of applying for leave to amend the state
ment of claim, since a defence has been filed, to
express the allegations in more precise and
unequivocal language.
Counsel for the plaintiff submitted that, in addi
tion to the breach of a duty imposed on the
Minister by section 3(c) of the Aeronautics Act,
two other causes of action were alleged, one that in
some circumstances there may be a legal duty to
act in a certain manner and two that a person in a
monopolistic position has an obligation to perform
certain duties. I confess to a failure to recognize
the category into which such liabilities might fall
and would much prefer to be able to identify them
by the more formalistic categories or labels.
In any event, if these categories of liability exist,
even if unidentified, then there will be the necessi
ty of establishing facts which can only be done at a
trial.
Furthermore, a defence to the statement of
claim has been filed in which it alleges in answer
to paragraph 8 of the statement of claim that there
was no breach of duty in that the runways were
adequately maintained.
It therefore seems to me that a trial of the
matter is inevitable in that there must be a deter
mination of facts in dispute. That being so, I am
not satisfied that setting down questions of law for
preliminary determination will materially facilitate
the determination of the matter or result in a
saving of time and expense which I conceive to be
the purpose of Rule 474. The costs of a trial will
not be avoided nor are the facts in the pleadings
alleged in such a way that the questions of law
proposed to be answered can be readily
determined.
In the circumstances of the present matter I do
not think that it is appropriate to have the ques
tions of law as posed predetermined, but that it is
more appropriate that the questions be left to be
dealt with at trial.
For the foregoing reasons the motion is dis
missed, the costs thereof to be costs in the cause.
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.