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Case Comment: Sara Burgess v. Canadian National Railway Company, SCC Docket 31698, February 9, 2007
Mallais v. D.A. Campbell Amusements Limited,
O.C.A. Docket: C43676, February 8, 2007.
Published in the Mar 2007 issue of Transportation Notes - View Article
In our October, 2006, edition we reported on an important decision of the Ontario Court of Appeal which affirms that certain statutory duties owed, in this case by Transport Canada, are owed to the public at large and do not create private law duties actionable by an injured individual. The Supreme Court of Canada refused leave to appeal in the case of Burgess v. CNR on February 8, 2007, which brings an end to this case.
The Ontario Court of Appeal recently released another decision which we believe also marks the end of the line. It held that an amusement ride owner/operator is not a common carrier for tort purposes. The appellant bought tickets for a ride called the “Sky Master”, set up and operated by the respondent at a portable carnival held at a local mall. She was allegedly injured as a result of not being properly restrained in the seat of the ride, causing her to be tossed about during the ride, and brought an action along with her husband and child against the ride’s operator/owner.
The action was tried over 16 days in front of Justice McIsaac and a jury of five jurors. The appellants submitted that the law governing common carriers should be applied to amusement rides and that the jury be instructed accordingly. The trial judge rejected this submission and held that the law of negligence and the Occupier’s Liability Act applied, imposing a duty on the defendant to take such care as to make the premises reasonably safe for the plaintiff. The jury found that the plaintiff’s injury was not caused by the failure of the defendant to take such reasonable care as to ensure the plaintiff was reasonably safe.
The crux of the appeal was whether an amusement ride is a common carrier for the purposes of Canadian tort law, thereby attracting the higher standard of care and reverse onus required of a common carrier. The Court of Appeal held that in light of the lack of Canadian jurisprudence on point and the sharp division in U.S. jurisprudence, the focus should be on the natural and ordinary meaning of the term “common carrier”. To that end, the Court of Appeal noted that the New Oxford Dictionary of English defines “common carrier” as a “person or company undertaking to transport any goods or passengers on regular routes at agreed rates.” Transport is further defined as “to take or carry (people or goods) from one place to another by means of a vehicle, aircraft, or ship”. Similar definitions were found in other dictionaries. The Court of Appeal noted that the use and definition of the word “transport” in the definition of “common carrier” strongly suggests movement from one geographic location to another, and the Sky Master did not involve such activity.
There is one particularly interesting passage in the Court of Appeal’s reasons. In rejecting the appellant’s argument that the imposition of the “common carrier” duty of care on amusement rides should be done for policy reasons, the Court of Appeal noted the distinction in passengers’ expectations of common carriers versus amusement rides. While passengers place themselves in the care and control of a common carrier in the expectation that they will be conveyed safely to their destination, the patron of an amusement ride expects a “thrill” from the extremely unusual movement produced by the device – a safe thrill, no doubt, but the Court noted that a “safe thrill is inherently more risky than a safe ride.”