A-800-76
Canadian Pacific Air Lines, Limited (Appellant)
(Plaintiff)
v.
The Queen (Respondent) (Defendant)
Court of Appeal, Heald and Le Damn JJ. and Kerr
D.J.—Ottawa, December 6, 1977 and April 7,
1978.
Crown — Torts — Airports — Liability for damages for
lack of maintenance — Respondent's airports closed for sever
al hours, despite contingency plans, because of occurrence of
strike at beginning of snowstorm — Appellant alleging loss
and damages for its disrupted commercial flights — Extent of
duty of Minister of Transport to maintain and construct
airports — Whether or not Minister took reasonable or practi
cal steps to ensure facilities of Government airports would be
operational — Whether or not there was a breach of statutory
duty giving rise to cause of action in the appellant —
Aeronautics Act, R.S.C. 1970, c. A-3, s. 3 — Crown Liability
Act, R.S.C. 1970, c. C-38, s. 3.
' This is an appeal from the judgment of the Trial Division
dismissing the appellant's action against the respondent for
damages. Appellant alleges loss and damage when twenty-one
of its scheduled commercial flights were disrupted through
closures of airport runways at two of respondent's airports.
Employees who normally cleared snow from the runways start
ed a legal strike as a heavy snowstorm began. The airports,
despite contingency plans for operating them, were closed for a
number of hours. The questions raised on this appeal turn on
the statutory duty imposed on the Minister of Transport to
construct and maintain Government airports: did the Minister
fail to take all reasonable or practical steps to ensure the
facilities of Government airports would be operational and
functioning, and if the Minister did fail, was this a breach of a
statutory duty giving rise to a cause of action in the appellant?
Held, the appeal is dismissed.
Per Heald J.: The learned Trial Judge was correct when he
stated that the "Minister's duty was merely to take all reason
able steps in the circumstances, having in mind the overall
interests of the general public." The Trial Judge found that
steps taken by the Minister were reasonable in the circum
stances; there is no basis for interfering with that finding of
fact.
Per Le Dain J.: The appeal is dismissed on the ground that
the Aeronautics Act does not give the appellant or other
commercial airlines a right of action for the economic loss that
may result to them from a failure to perform the duty to
maintain government airports which is imposed by the Act on
the Minister. Dependence or reliance on a public service or
facility is not sufficient to create a private right of action for
breach of statutory duty to provide it. The context in which the
duty is created must be such that it is reasonable to ascribe to
that statute an intention at the time it was created that there
should be a private right of action for breach of the duty. The
legislation was enacted in the interests of the country as a
whole and not for the benefit or protection of any particular
class of persons; it was not Parliament's intention to create
Crown liability for the kind of loss that is claimed here. There
must be a clear indication of an intention to transfer loss of this
kind from the airlines to the public treasury.
Also, per Kerr D.J.: There is no ground upon which to
impugn the Trial Judge's conclusions. The Aeronautics Act,
furthermore, does not create Crown liability for the kind of loss
in respect of which the claim in the present case is made.
R. (Canada) v. R. (P.E.I.) [1978] 1 F.C. 533, distin
guished. Home Office v. Dorset Yacht Co. Ltd. [1970]
A.C. 1004, distinguished. Dutton v. Bognor Regis Urban
District Council [1972] 1 Q.B. 373, distinguished.
O'Rourke v. Schacht [1976] 1 S.C.R. 53, distinguished.
Groves v. Wimborne (Lord) [ 1898] 2 Q.B. 402, considered.
Cutler v. Wandsworth Stadium Ld. [1949] A.C. 398,
'considered.
APPEAL.
COUNSEL:
C. R. O. Munro, Q.C., and T. Maloney for
appellant (plaintiff).
André Garneau and Duff Friesen for respond
ent (defendant).
SOLICITORS:
Canadian Pacific Law Department, Montreal,
for appellant (plaintiff).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from the judgment
of the Trial Division [ [ 1977] 1 F.C. 715] dismiss
ing the appellant's action against the respondent
for damages. The appellant, a Canadian based
commercial airline company, operates domestic
and international flights in the course of which it
uses aerodromes, owned and operated by the
respondent in various Canadian centres. In this
action, the appellant alleges loss and damage when
twenty-one of its scheduled commercial flights
were disrupted on March 7 and 8, 1975 through
closures of the airport runways at the respondent's
International Airports at Toronto and Ottawa.
During the relevant period, the employees of the
respondent at Toronto and Ottawa, who are nor
mally engaged in runway snow removal, were
members of the P.S.A.C., the bargaining agent
certified under the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35. Their collective agree
ment expired on November 24, 1974. There was a
reference to conciliation, the Conciliation Board
reporting on February 6, 1975. Under the Public
Service Staff Relations Act, the employees had
the right to strike at any time after February 13,
1975. The respondent, through the Ministry of
Transport, had foreseen work stoppages at airports
because new collective agreements had not been
negotiated and had, accordingly, developed a con
tingency plan to be implemented in the event of a
legal strike. This plan envisaged the use by the
Ministry of "designated employees" (those
employees whose duties are essential in the interest
of the safety or security of the public and who are
forbidden to participate in a strike) to maintain
essential services. In the event of a snowstorm, the
plan was designated to maintain one runway full
length and width, one taxi-way from each end of
the runway to the apron and other surfaces as was
deemed necessary. On February 13, 1975, the
General Manager of Toronto International Airport
held a briefing for all carriers using that Airport
and the appellant was represented at that briefing.
The contingency plan was explained to the carri
ers. They were told that in the event of a lawful
strike during adverse weather conditions at the
Toronto Airport, the objective would be to restore
to service a single runway with connecting services,
through the use of designated employees.
On the morning of March 7, 1975, a heavy
snowstorm began in both the Toronto and Ottawa
areas. At 10.00 a.m. Monday, March 7, the Union
advised that its members were walking off the job
in a legal strike. At Toronto, attempts were made
to keep runway 05R open. By 2.00 p.m., landing
conditions were so hazardous that the airport was
closed to all traffic. Later in the day attempts were
made to open runway 14/32 because of a forecast
change in wind direction. For this purpose a
number of designated employees were again
assigned. The snow was very heavy. One machine
broke down. A few minutes before midnight,
runway 14/32 was restored to service, but with
some limitations. At Ottawa, the airport was beset
by similar weather and labour problems. There
was a legal work stoppage by other than desig
nated employees. Because of the snow and ice
resulting in unsafe landing conditions, the airport
was closed on the material dates for about 15
hours. The objective, as in Toronto, had been to
attempt to maintain one runway as serviceable.
At Toronto, the normal strength of the snow
clearing personnel was forty-two (equipment oper
ators). Twenty-four of these were designated
employees. On March 7, seventeen designated
employees worked, the remaining seven did not
since it was their regular day off. On March 8,
only six of the designated employees worked.
Seventeen were on their regular day off, and one
was on annual leave. The designated employees on
days off on March 7 and 8 were not asked by the
respondent to work in order to cope with the
weather problem. For those employees, this would
have been an overtime situation. Prior to the work
stoppage, respondent's management at the airport
had agreed with the Union that designated
employees would only be asked to work their regu
lar shifts during the dispute. In return, the Union
agreed there would be no harassment. The reason
advanced by management for not demanding over
time was that it might be construed as strike-
breaking. Further, the Union advised that there
would be a morale problem with the employees if
the designated employees earned more than the
striking members through overtime. Additionally,
the learned Trial Judge found as a fact that the
respondent made no attempt to bring in non-union
workers, the military or independent contractors to
restore the runway clearing crews to normal
strength.
At Ottawa, on the day shift of March 7, there
were three designated employees and two seasonal
employees (non-union equipment operators) on
runway clearance. On the night shift of March 7,
there were three designated employees—on the
day shift of March 8, two designated employees
and two seasonal employees—on the night shift of
March 8, five employees. As in Toronto, no desig
nated employees worked their regular day off on
March 7 or 8.
On the above evidence, the learned Trial Judge
held that the appellants had proved, on a balance
of probabilities, that the disruption or cancellation
of its twenty-one flights were attributable to the
closure of the Toronto and Ottawa Airports and
that said closures were effectively caused by the
withdrawal of services by the non-designated union
employees.
Counsel for the parties agreed that the questions
raised by this appeal turn on the statutory duty
imposed on the Minister of Transport to construct
and maintain Government aerodromes, and may
be summarized as follows:
(a) did the Minister fail to take all reasonable
or practical steps to ensure that the facilities of
Government aerodromes would be operational
or functioning at all reasonable times?
and
(b) if the Minister did so fail, was this a breach
of statutory duty giving rise to a cause of action
in the appellant?
Dealing with the first question as above stated,
the learned Trial Judge dealt with that issue at
page 731 of the case as follows:
... it is my view the Minister's duty was merely to take all
reasonable steps in the circumstances, having in mind the
overall interests of the general public. The various duties set out
in section 3 of the Aeronautics Act are, at the very least, owed
to the State and to its citizens. Those duties are concerned with
the interests (including safety and security) of all who use
aeronautical services. They are not primarily concerned with
the welfare of commercial airlines. The general public and
aerodrome users have an interest in reasonably harmonious
labour relations between employees and their employer, the
Ministry of Transport. The bringing in of outside personnel, no
matter whom, to keep all runways open in inclement weather
must be balanced against the possible inflammatory effects on
employees carrying on apeaceful, lawful strike. The striving for
that balance is, to my mind, a consideration which the Minister
must weigh, in deciding what steps are reasonable (keeping in
mind overall public safety and security) in carrying out a duty
to maintain runways serviceable in complicated and volatile
situations of labor and weather. On the facts in this case, it is
my view the steps the Minister took on March 7 and 8 were, in
the circumstances, reasonable. His decision not to reach beyond
designated employees on regular shift in the ways suggested by
the plaintiff was equally reasonable.
The statutory duty imposed upon the Minister is
to be found in section 3(c) of the Aeronautics Act'
which reads as follows:
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;
In his judgment, the learned Trial Judge held
that the duty imposed upon the Minister by section
3(c) supra, to "maintain" does not go so far as to
include the ensuring that the airport facilities are
operational or functioning at all reasonable times
as compared with the upkeep, repair or continu
ance of the facilities.
However, at the hearing of the appeal, counsel
for the respondent did not pursue this position and
in effect conceded that the responsibility to main
tain imposed on the Minister by section 3(c) would
include the responsibility to keep them operational
at all reasonable times. Thus, the only remaining
issue on this first branch of the case was whether
the steps taken by the Minister fulfilled the duty
imposed on him to take all reasonable or practical
steps.
Counsel for the appellant relied on a recent
decision of this Court in the case of The Queen
' R.S.C. 1970, c. A-3. •
(Canada) v. The Queen (P.E.I.) 2 . In that case, the
term being construed by the Court was one of the
terms upon which Prince Edward Island was
admitted into Confederation on June 26, 1873. In
my view, that case can have no application to the
case at bar involving, as it does, the construction
and application of a statutory provision. In dealing
with the provisions under review in that case, the
Chief Justice said in Appendix "A" to his judg
ment at page 567:
In my opinion, it would be unrealistic to put these provisions,
which were obviously the result of hard bargaining, in the same
class as either
(a) a limitation on legislative power—e.g., the provision in
question in Attorney General for Saskatchewan v. Canadian
Pacific Railway Co.—which operates of its own force, or
(b) a provision imposing on government service agencies a
legal duty to provide services to the public, where, at least
until recently, the sanction for failure has been political
action alone.
It seems to me that item (b) as above quoted
covers the factual situation in the case at bar. I
therefore do not consider that the Prince Edward
Island case (supra) assists the appellant. The
learned Trial Judge was, in my view, correct when
he stated [at page 731] that the "Minister's duty
was merely to take all reasonable steps in the
circumstances, having in mind the overall interests
of the general public." I agree with him also that
the steps taken by the Minister on March 7 and 8,
1975 were, in the circumstances, reasonable.
The duty imposed upon the Minister by section
3(c) of the Aeronautics Act must be looked at in
the wider context of his other duties and respon
sibilities as a Minister of the Government of
Canada. He must, at all times, have regard to the
wider public interest, which, in the circumstances
of this case, would most certainly include a balanc
ing of the following relevant factors:
(a) the right of Government employees to bar
gain collectively, and strike, if considered advis
able, for better terms and conditions in accord
ance with the Public Service Staff Relations
Act;
2 [1978] 1 F.C. 533.
(b) the right and duty of the Government, as
employer and guardian of the public purse to
resist employees' demands if, in its view, such
demands are inconsistent with the public inter
est; and
(c) the safety and security of the public in their
use of Canada's airports.
As indicated in the reasons of the Trial Judge
quoted supra, it was his view that the Minister
acted reasonably. I can see no basis for interfering
with that finding of fact, since I consider that he
properly applied the correct legal principles to the
facts here present.
Since it is my conclusion that this first question
must be answered in the negative, it is not neces
sary for the disposition of this case to deal with the
second question.
Accordingly, and for the foregoing reasons, I
would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the appeal should be
dismissed but I would rest that conclusion on the
ground that the Aeronautics Act does not give the
appellant or other commercial airlines a right of
action for the economic loss that may result to
them from a failure to perform the duty to main
tain government aerodromes which is imposed on
the Minister by section 3(c) of the Act. While I
have had the advantage of reading the reasons of
my brother Heald I prefer to reserve my opinion as
to the effect of a lawful strike on a duty of this
nature, assuming it were a duty to the appellant.
Although the appellant's statement of claim
alleges that the government aerodromes were at all
material times "owned, occupied, possessed and
controlled by Her Majesty within the meaning of
the Crown Liability Act" 3 , the action, as I under
stand it, is not based on the Crown Liability Act
but on a direct liability for breach of statutory
duty allegedly created by the Aeronautics Act 4 .
The duty imposed on the Minister by section 3(c)
of the latter Act is treated as a duty imposed on
the Crowns.
Whether a breach of statutory duty gives rise to
a civil right of action in persons injured by it has
been said to be a question of statutory construction
that depends on "a consideration of the whole Act
and the circumstances, including the pre-existing
law, in which it was enacted": Cutler v. Wands-
worth Stadium Ld. [1949] A.C. 398 at page 407.
There would appear to be two questions involved:
(a) Was the duty imposed, at least in part, for the
benefit or protection of the particular class of
persons of which the appellant forms part 6 ? (b) If
this be the case, is a right of action excluded by the
existence of other sanction or remedy for a breach
of the duty, or on general grounds of policy? It
would appear to be, in the final analysis, a ques-
3 Section 3(1)(b) of the Crown Liability Act, R.S.C. 1970, c.
C-38, provides:
3. (1) The Crown is liable in tort for the damages for
which, if it were a private person of full age and capacity, it
would be liable
(b) in respect of a breach of duty attaching to the owner
ship, occupation, possession or control of property.
4 While the Crown Liability Act does not contain a general
provision respecting liability for breach of statutory duty such
as is found in section 2(2) of the Crown Proceedings Act, 1947,
11 & 12 Geo. 6, c. 44 (U.K.), it obviously does not exclude, as
a matter of statutory construction, the possibility of such
liability under another Act of Parliament.
5 Since the distinction between a direct and a vicarious
liability for breach of statutory duty was not raised in argument
I do not propose here to consider whether the Minister could be
regarded as a servant of the Crown in the exercise of the duty
imposed by section 3(c) of the Aeronautics Act, nor what would
be the legal basis of a vicarious liability of the Crown for
breach of statutory duty, which is thought to be provided in the
Crown Proceedings Act, 1947, by section 2(3) thereof. See
Street, The Law of Torts, 6th ed., 1976, pp. 433-434.
6 Groves v. Wimborne (Lord) [1898] 2 Q.B. 402 at 407-408,
413-414, 415; Cutler v. Wandsworth Stadium Ld. [1949] A.C.
398 at 408-409, 413, 414, 416-417.
tion of policy', particularly where the liability of
the Crown is involved. A distinction is to be drawn
between legislation very clearly directed to the
benefit or protection of a particular class of per
sons, such as that which imposes safety standards
for the benefit of workmen, of which the case of
Groves v. Wimborne (see note 6 below) is an
example, and legislation which imposes a general
duty to provide a public service or facility. The
opinion has been expressed that in the latter case
the courts will be more reluctant to recognize a
private right of action 8 .
The duty of the Minister to maintain aero-
dromes is set out in section 3 of the Aeronautics
Act in a detailed statement of the Minister's
responsibilities as follows:
3. It is the duty of the Minister
(a) to supervise all matters connected with aeronautics;
(b) to undertake, and to cooperate with persons undertaking,
such projects, technical research, study or investigation as in
his opinion will promote the development of aeronautics in
Canada;
(c) to construct and maintain all government aerodromes
and air stations, including all plant, machinery and buildings
necessary for their efficient equipment and upkeep;
' Compare O'Connor v. S.P. Bray Ltd. (1937) 56 C.L.R. 464
at 477-478 and O'Rourke v. Schacht [1976] 1 S.C.R. 53 at 64.
s See Hogg, Liability of the Crown, 1971, pp. 99-100; Wade,
Administrative Law, 3rd ed., 1971, pp. 157-158. Section 2(2)
of the Crown Proceedings Act, 1947, which provides, "Where
the Crown is bound by a statutory duty which is binding also
upon persons other than the Crown and its officers, then,
subject to the provisions of this Act, the Crown shall, in respect
of a failure to comply with that duty, be subject to all those
liabilities in tort (if any) to which it would be so subject if it
were a private person of full age and capacity", is an expression
of legislative policy that the Crown should not be liable for
breach of a statutory duty such as that which exists in the
present case. For commentary on this provision, including
expressions of opinion that it was unnecessary in view of what
would otherwise have been the position, see Barnes, "The
Crown Proceedings Act, 1947", (1948) 26 Can. Bar Rev. 387
at pp. 390-391; Williams, Crown Proceedings, 1948, pp. 47-48;
Street, Governmental Liability, 1953, pp. 39-40, Hogg, op. cit.,
pp. 101-102; Griffith & Street, Principles of Administrative
Law, 5th ed., 1973, p. 257.
(d) to control and manage all aircraft and equipment neces
sary for the conduct of any of Her Majesty's services;
(e) to operate such services as the Governor in Council may
approve;
(J) to prescribe aerial routes;
(g) to cooperate with other officers of Her Majesty, and to
assist in the carrying out of any services under their jurisdic
tion that may require aerial work of any nature, and to
collaborate with the officers employed in existing air services
of Her Majesty in such extension of their present work as the
development of aeronautics may require;
(h) to take such action as may be necessary to secure, by
international regulation or otherwise, the rights of Her
Majesty in respect of Her Government of Canada, in interna
tional air traffic;
(i) to cooperate with the officers of his Department on all
questions relating to the air defence of Canada;
(j) to cooperate with the air staffs or authorities of other
governments or countries for any purposes pertaining to air
services;
(k) to investigate, examine and report on the operation and
development of commercial air services within or partly
within Canada, including the territorial sea of Canada and
all waters on the landward side thereof;
(1) to consider, draft and prepare for approval by the Gover
nor in Council such regulations as may be considered neces
sary for the control or operation of aeronautics in Canada,
including the territorial sea of Canada and all waters on the
landward side thereof, and for the control or operation of
aircraft registered in Canada wherever such aircraft may be;
and
(m) to perform such other duties as the Governor in Council
may from time to time impose.
These duties were first imposed in 1919 on the
Air Board by section 3 of The Air Board Act, S.C.
1919, c. 11. In 1922 they were transferred to the
Minister of National Defence by section 7(2) of
The National Defence Act, 1922, S.C. 1922, c. 34.
Finally, in 1936 they were transferred to the Min
ister of Transport by section 6 of The Department
of Transport Act, 1936, S.C. 1936, c. 34. Accord
ing to the evidence in the present case the first
government aerodrome came into operation in
1927 and was first used by a commercial airline in
1928. The government commenced operation of a
civil aerodrome in Ottawa in 1938 and in Toronto
in 1939. The establishment of Air Canada was
provided for in 1937 by The Trans-Canada Air
Lines Act, 1937, S.C. 1937, c. 43. The appellant
was incorporated in 1942.
The appellant contended that the duty to main
tain aerodromes should be construed as a duty to
the commercial airlines because they are obliged
as a matter of practical necessity to use the gov
ernment aerodromes and they have made large
investments in reliance on the duty to maintain the
aerodromes in operational condition. This argu
ment was put as follows in the appellant's
memorandum:
5. The statutory duty to maintain the civil aerodromes of the
federal government was first imposed upon the Minister of
Transport at the time when it became public policy to promote
commercial aviation in Canada. It was not and is not practical
for airlines to provide their own airports and the federal
government therefore embarked upon the construction and
acquisition of civil aerodromes to enable commercial aviation to
develop.
On the strength of the Crown's undertaking (as contained in
section 3(c)) to maintain the government aerodromes, commer
cial enterprises have invested heavily to provide commercial air
services in Canada, and that is precisely what was intended by
the legislation. It was designed to assure commercial airlines
that government aerodromes would be maintained in operation
al condition, in the absence of which assurance commercial
aviation would not be developed. The legal obligation of the
government in this respect is the obverse of the legal obligation
imposed under the Aeronautics Act upon licensed commercial
airlines such as the Appellant to use the government airports to
provide commercial air services.
6. The relationship between the commercial airlines and the
government in these circumstances is analogous to the relation
ship of reliance and responsibility which in other contexts has
been held to give rise to a legal obligation on the part of the
person upon whom reliance is placed. It is also analogous
(because the government is in a virtual monopoly position in
respect of airports useable by the airlines) to other monopolistic
situations where the monopolist is under a duty to provide his
goods or services to those who require them.
While reliance may be the foundation of a
common law duty, as in the case of negligent
statement, I do not think that dependence or reli
ance on a public service or facility is sufficient to
create a private right of action for breach of a
statutory duty to provide it. The context in which
the duty is created must be such that it is reason
able to ascribe to the statute an intention at the
time it was enacted that there should be a private
right of action for breach of the duty. The legisla
tive intention at the time the duty is created
cannot logically be affected by subsequent depend
ence or reliance on it. Nor do I think that the
concept of control or monopoly is a sufficient
reason for inferring such an intention. Control or
monopoly is inherent in most governmental func
tions. It begs the question to argue that because
they are functions of this nature there must be a
right of action for breach of a statutory duty to
carry them out.
The duty imposed by section 3(c) of the
Aeronautics Act is part of a general assignment of
ministerial responsibilities with respect to aeronau
tics. When the duty was first imposed, and even at
the time it was transferred to the Minister of
Transport in 1936, it undoubtedly reflected a legis
lative concern for the development of civil
aviation 9 , but it appears to me to be legislation
that was enacted in the interests of the country as
a whole and not for the benefit or protection of any
particular class of persons. The airlines which
might be affected were not yet in existence. But
even assuming that the duty must in some measure
be considered to be a duty for the benefit of the
airlines that were expected to make use of the
aerodromes, I cannot conceive that it was the
intention of Parliament to create Crown liability
for the kind of loss that is claimed in the present
case. To ascribe to Parliament an intention to give
the commercial airlines a right of action for eco
nomic loss resulting from a failure to keep an
airport open would be to ascribe to it an intention
to create a category of Crown liability extending in
nature and scope far beyond that for injury to
person or property then existing under federal
legislation 10 . There would have to be a clear indi
cation of an intention to transfer loss of this kind
from the airlines to the public treasury.
9 It should be observed, however, that section 3 is not con
cerned exclusively with civil aviation, and that by section 2, in
any matter relating to defence, "Minister" means the Minister
of National Defence.
10 Section 16(a) of an Act to amend "The Supreme Court
and Exchequer Courts Act," and to make better provision for
the Trial of Claims against the Crown, S.C. 1887, c. 16, as
amended by S.C. 1917, c. 23, s. 2.
The cases cited by the appellant, in particular,
Home Office v. Dorset Yacht Co. Ltd. [1970] A.C.
1004; Dutton v. Bognor Regis Urban District
Council [1972] 1 Q.B. 373; and O'Rourke v.
Schacht, supra, as reflecting what Spence J. in the
O'Rourke case spoke of as the "modern view of
liability", do not, in my respectful opinion, apply
to the issue in the present case. The Dorset Yacht
and Dutton cases were based on negligence in the
exercise of statutory duties or powers, and not on
breach of statutory duty ", as such, and they
involved application of the principles enunciated in
Geddis v. Proprietors of the Bann Reservoir
(1878) 3 App. Cas. 430 per Lord Blackburn at
455-456 and in M'Alister (or Donoghue) (Pauper)
v. Stevenson [ 1932] A.C. 562 per Lord Atkin at
580. They were based on a duty of care owing to
particular individuals. The present case is based on
breach of statutory duty by a deliberate act of
policy during the course of a strike. The reasons of,
the majority of the Supreme Court of Canada in
the O'Rourke case suggest that it was regarded as
a case of breach of statutory duty' 2 , but I do not
think there is any analogy between the statutory
basis on which the Court found a duty of care
owing by the police officers to the plaintiff in that
case and the statutory provision that is involved in
the present case. In the O'Rourke case the Court
found a statutory duty to maintain a traffic patrol
of the highway for the protection of users. For the
reasons I have indicated, there is no suggestion in
section 3 of the Aeronautics Act that protection of
the commercial airlines from loss of the kind suf
fered in the present case is a concern of the
section. O'Rourke was cited, chiefly, as I under
stood the appellant's argument, to show that statu
tory provisions which are concerned with a general
assignment or division of administrative responsi
bility may at the same time embody legally
enforceable duties. It is not disputed that section
3(c) imposes a duty. The question is whether it is a
duty to the appellant. I have indicated why I do
not think it can be construed to be such a duty.
"Home Office v. Dorset Yacht Co. Ltd. [1970] A.C. 1004
per Lord Pearson at 1055; Dutton v. Bognor Regis Urban
District Council [1972] 1 Q.B. 373 per Sachs L.J. at 408 and
Stamp L.J. at pp. 412 and 415.
12 [1976] 1 S.C.R. 53 at 65, 71.
In the result I am in respectful agreement with
the conclusion of the learned Trial Judge [at page
729] on this branch of the case as follows:
I conclude the Minister's duty prescribed by paragraph 3(c) of
the statute is not a duty enforceable by persons, including the
plaintiff, injured or aggrieved by a default. It is a public duty
only. For breach, the Minister answers to Parliament alone.
I do not wish, however, to be understood by that to
mean that whenever a duty is imposed on a minis
ter of the Crown to provide a public service the
existence of the principle of ministerial responsibil
ity necessarily or by itself excludes the possibility
of civil liability for a breach of the duty.
The appellant relied on the judgment of this
Court in the case of Prince Edward Island v.
Canada 13 , in which a majority of the Court held
that the Government of Prince Edward Island was
entitled to be compensated by the Government of
Canada for damage caused to it by the interrup
tion, as a ` result of a strike, of the ferry service
between the Island and the mainland. That case
was quite different. What was involved there was a
constitutional enactment, pursuant to an inter-gov
ernmental agreement, by which a duty was
imposed on one government in favour of another.
It was a controversy between Canada and a prov
ince that fell to be determined under section 19 of
the Federal Court Act and not a question involving
the liability of the Crown to a subject. Because of
what was decided there, however, I prefer not to
express an opinion, as I have already indicated, as
to the effect of a lawful strike on the statutory
duty to maintain aerodromes if the duty were one
owing to the appellant.
13 The Queen (Canada) v. The Queen (P.E.I.) [1978] 1 F.C.
533.
The following are the reasons for judgment
rendered in English by
KERR D.J.: The relevant facts and issues are set
out in the reasons of Heald J. and Le Dain J.,
which I have had the advantage of reading, and
they do not require repetition by me.
The learned Trial Judge concluded that the
Minister's duty was merely to take all reasonable
steps in the circumstances, having in mind the
overall interests of the general public; that the
steps taken by him on March 7 and 8, 1975, were,
in the circumstances, reasonable; and that his deci
sion not to reach beyond designated employees on
regular shift in the ways suggested by the appel
lant was also reasonable.
I see no ground upon which to impugn those
conclusions.
Additionally, I am of the view that the
Aeronautics Act does not create Crown liability
for the kind of loss in respect of which the claim in
the present case is made.
Therefore, I agree that the appeal should be
dismissed.
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.