Library:
G. A. Accident and Government Responsibility
Published in the November 2009 issue of Transportation Notes - View Article
In August 2006 three individuals died in a mid-air collision between two Cessna aircraft in the Greater Toronto area. The aircraft were operating in Class C airspace under visual flight rules. There had been a similar accident in 2000 and that resulted in a safety review of VFR operations in the area. Some seventeen risks were identified and recommendations made to address those risks.
Family members of two of the deceased brought negligence actions against Transport Canada which responded with a motion to dismiss the claim on the grounds that it failed to disclose a cause of action. On such motions, the facts plead are to be taken as provable and the motion will only succeed if it can be shown that it is “plain and obvious” that the pleading discloses no cause of action.
Madame Justice Low reviewed the case law which is not controversial. For at least twenty years, since the Supreme Court of Canada decided the case of Just v. British Columbia, it has been clear that when considering the liability of the government for actions or omissions said to be negligent one must distinguish between policy decisions and operational decisions. As Madame Justice Low summarized in the present case: “No action lies against the crown in respect of harm allegedly caused either by the enactment of laws (including regulations, guidelines and policies) or by the failure or refusal to enact”. This immunity from tort liability arising from policy decisions might possibly be subject to qualification in a case in which there is an express plea of bad faith, but there was no such plea in the present case.
Certain paragraphs of the claims examined were indeed allegations of failure to regulate and these were struck as disclosing no possible cause of action.
Transport Canada agreed that the motion should proceed on the assumption that Canada does owe a duty of care to “enforce non-discretionary regulations under the Aeronautics Act” but sought dismissal on the basis that the claimants did not identify a particular regulation which they could allege was negligently enforced.
The learned judge found this an overly narrow reading of the scope of the government’s potential liability. Rather than search for a specific identifiable regulation the enforcement of which was undertaken negligently, one should consider whether there was any governmental act or omission which, negligently undertaken, might foreseeably cause harm to the deceased. If there was, and if there was a sufficient proximity between the governmental actor and the persons who were using this particular airspace, then a duty of care might arise.
Approaching the matter in this fashion, her Honour found that, giving the plaintiffs the benefit of the doubt in construing the Statements of Claim, the allegations could reasonably be understood as raising complaints of operational negligence. As governmental immunity does not extend to the operational sphere the claims were not dismissed.
Justice Low did however go on to comment on the failure of the plaintiffs’ pleadings to properly define the issues. She required particulars of the allegations of negligence and declined to award costs.
Sumere v. Transport Canada
2009 CanLII 55324 (ON S.C.)