A-284-79
Pacific Western Airlines Ltd. and Canadian
Acceptance Corporation Limited (Plaintiffs)
(Appellants)
v.
The Queen in right of Canada, The Honourable
Otto E. Lang, Walter M. McLeish, P. E. Arpin, J.
P. Cadieux, J. P. Vaillancourt, R. L. Bolduc, H.
R. Merritt, J. M. Belcher, P. P. Bowes, T. C.
Calow, R. A. Harley, M. D. Jelenick, K. D. J.
Owen, D. F. Heakes, Donald J. Dewar, Frederick
G. Lowe, Douglas Ellis, Allan Bach, Ernest
Hanover, Harry Allan Fooks, the Corporation of
the City of Cranbrook, C. W. Purdy, George
Stanley Swirski, Terry George, The Boeing Com
pany, E. H. Bouillioun, Benjamin Wheat, C. E.
Dillon, James L. Copenhaver, Frederick D. Frajo-
la, Gary Soffe, Max Witters, John Doe I, John
Doe II, John Doe III, Rohr Industries Inc.,
Kenneth W. Goebel, Garrett Arthur Brummett
Jr., Herman O. Light Jr., John Doe IV, John Doe
V and John Doe VI (Defendants) (Respondents)
Court of Appeal, Pratte, Heald and Le Dain JJ.—
Vancouver, June 14; Ottawa, August 10, 1979.
Jurisdiction — Practice — Appeal from order made pursu
ant to Rule 419(1)(a) dismissing action against twenty servants
of the Crown, the City of Cranbrook and some of its employees
and The Boeing Company and some of its employees on the
ground that the statement of claim did not disclose any
reasonable cause of action falling within the Court's jurisdic
tion — Whether or not the action founded on existing federal
law because (1) it was founded on a breach of statutory duties
existing under Canadian law, (2) it was founded on aviation
law and (3) the Court, which had exclusive jurisdiction to hear
and determine the action against the Crown, had ancillary
jurisdiction with respect to the other defendants — Federal
Court Rule 419(1)(a).
APPEAL.
COUNSEL:
E. M. Lane and D. B. Garrow for plaintiffs
(appellants).
J. R. Haig and G. Heinmiller for defendants
(respondents) the Queen et al.
H. J. Grey, Q.C. for defendants (respondents)
the Corporation bf the City of Cranbrook et
al.
D. I. Brenner for defendants (respondents)
The Boeing Company and Rohr Industries
Inc.
SOLICITORS:
Lane, Breck, Toronto, for plaintiffs (appel-
lants).
Deputy Attorney General of Canada for
defendants (respondents) the Queen et al.
Harper, Grey, Easton & Co., Vancouver, for
defendants (respondents) the Corporation of
the City of Cranbrook et al.
Brenner & Co., Vancouver, for defendants
(respondents) The Boeing Company and Rohr
Industries Inc.
The following are the reasons for judgmem
rendered in English by
PRATTE J.: The appellants were the owner and
the lessee of a Boeing 737/275 aircraft which was
completely destroyed, on February 11, 1978, when
it crashed while attempting to land at the airport
at Cranbrook, B.C. They sued forty-three defend
ants whom they held responsible for that accident.
Among those defendants, there were: (a) twenty
servants of Her Majesty the Queen in right of
Canada, (b) the City of Cranbrook (which oper
ated the airport where the crash took place) and
some of its employees, and (c) The Boeing Com
pany, which had built the aircraft, and some of its
employees. Each one of these three groups of
defendants applied separately under Rule
419(1)(a) for an order dismissing the action on the
ground that the statement of claim did not disclose
any reasonable cause of action which would fall
within the jurisdiction of the Court. The Trial
Division granted those applications [[1979] 2 F.C.
476] and, by three judgments, dismissed the action
against each one of these three groups of defend
ants on the ground that the statement of claim did
not disclose any reasonable cause of action found
ed on existing Canadian federal law.
Counsel for the appellants made three main
submissions in support of the appeal. He said
(a) that the action was founded on existing
federal law inasmuch as it was founded on the
breach of statutory duties existing under
Canadian law;
(b) that the action was founded on federal law
because it was founded on a separate body of
law called aviation law; and
(c) that, in any event, the Court, which had the
exclusive jurisdiction to hear and decide the
action against the Crown, would also have ancil
lary jurisdiction to hear and decide the claim
put forward against the other defendants.
These three submissions must, in my view, be
rejected.
Contrary to the appellants' submissions, the
statement of claim does not disclose any reason
able cause of action founded on the breach by the
respondents of statutory duties imposed by existing
Canadian federal law.
The duties that The Boeing Company and its
employees are alleged to have breached are duties
imposed by various American air regulations.
Those regulations are not part of the laws of
Canada notwithstanding the allegation to the con
trary contained in paragraph 87 of the statement
of claim. That allegation must be ignored since the
question whether a law is part of Canadian federal
law is, in my view, a pure question of law.
As to the claims based on breach of statutory
duties advanced against the servants of the Crown
and the Cranbrook respondents, they are founded
on certain provisions of the Aeronautics Act,
R.S.C. 1970, c. A-3 and the Air Regulations,
SOR/61-10 as amended.' Those provisions are
obviously part of the existing federal law but that
does not help the appellants because the causes of
action disclosed by the statement of claim, in so
far as they are founded on those provisions, are not
reasonable causes of action. In my opinion, the
Trial Division was right in holding that the provi
sions of the Aeronautics Act and of the Air Regu
lations invoked by the appellants, when they
create duties, create public duties only and do not
confer any direct right of action on any individual
citizen who may suffer damage by reason of their
' More precisely, on paragraphs 3(a),(c),(d),(e) and
6(1)(b),(c),(h),(i),(j) of the Aeronautics Act and on Regula
tions 104(c) and (1), 305, 313(a) and 314.
breach. 2
The appellants' action is not, however, merely
founded on breach of statutory duty. It is founded,
as well, on negligence and, in the case of the City
of Cranbrook, also on contract. The laws of negli
gence and of contract are clearly provincial laws.
However, the appellants' counsel argued that the
law applicable to the decision of the action in this
case was a distinct body of law called "aviation
law" which, like "Canadian maritime law" was
federal law. I have difficulty in understanding that
argument. There does not exist any federal law
governing the liability of the respondents in this
case. That situation is not changed by the fact that
Parliament might have legislated in that field or
that the problems raised by the action may be
related in some way to some existing federal
legislation.
As to the appellants' counsel's last argument
based on the "ancillary jurisdiction" of the Court,
suffice it to say that he was unable to refer us to
any law or precedent which would, for pure reason
of convenience, authorize the Court to extend its
jurisdiction beyond its statutory limits.
For these reasons, I would dismiss the appeal
with costs.
* * *
HEALD J.: I agree.
* * *
LE DAIN J.: I agree.
2 See Canadian Pacific Air Lines, Limited v. The Queen
[1979] 1 F.C. 39.
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.