T-2489-74
Canadian Fur Company (NA) Ltd. (Plaintiff)
v.
KLM Royal Dutch Airlines and Mendelsohn
Brothers (Canada) Ltd. (Defendants)
Trial Division, Addy J.—Montreal, September
9; Ottawa, December 18, 1974.
Jurisdiction—Action against airlines corporation—Losing
goods carried from Europe—Stored at Montreal airport—
Claim of gross negligence—Breach of Bills of Lading Act,
R.S.C. 1970, c. B-6 and Carriage by Air Act, R.S.C. 1970, c.
C-14—No jurisdiction in Federal Court—Federal Court Act,
ss. 14, 22, 23, 25—Aeronautics Act, R.S.C. 1970, c. A-3, s.
14—B.N.A. Act, s. 91(10).
The plaintiff sued for damages caused by the defendant
KLM in releasing to unauthorized persons a shipment of
furs belonging to the plaintiff and transported from Europe
to the premises of KLM at Dorval airport, Montreal. The
plaintiff pleaded gross negligence on the part of the defend
ant KLM and breach by the latter of the Bills of Lading Act
and the Carriage by Air Act. The defendant KLM moved to
dismiss the action for want of jurisdiction.
Held, granting the motion and dismissing the action for
want of jurisdiction, section 22(2) of the Federal Court Act
limited claims in respect of aircraft to the circumstances set
out in paragraphs (I), (k) and (1). This was made abundantly
clear in section 22(3)(b). The phrase "navigation and ship
ping" in section 22(1) could not be taken to include naviga
tion and shipping by air. In section 23 of the Act, the word
"aeronautics" certainly included the control of air naviga
tion over Canada, the regulation of aerodromes and air
stations and the investigation of air accidents. Nowhere has
"aeronautics" been used to describe a body of laws govern
ing the right of a citizen to claim against an air carrier for
negligence or pursuant to a contract of carriage. Neither the
Federal Court Act nor any other federal statute had granted
this Court jurisdiction. The Superior Court of Quebec pos
sessed jurisdiction to deal with this matter.
The Robert Simpson Montreal Limited v. Hamburg-
Amerika Linie Norddeutscher [1973] F.C. 1356;
Johannesson v. Rural Municipality of West St. Paul
[1952] 1 S.C.R. 292; Okanagan Helicopters Ltd. v.
Canadian Pacific Limited [1974] 1 F.C. 465; In re The
Regulation and Control of Aeronautics in Canada
[1932] A.C. 54, and A-G. Can. v. A-G. Ont. [1937] A.C.
326, considered.
MOTION.
COUNSEL:
D. H. Wood for plaintiff.
M. Polak for defendant KLM Royal Dutch
Airlines.
SOLICITORS:
Du Vernet, Carruthers, Toronto, for
plaintiff.
Shriar, Polak & Cooperstone, Montreal, for
defendant KLM Royal Dutch Airlines.
Gadbois & Joannette, Montreal, for defend
ant Mendelsohn Brothers (Canada) Ltd.
The following are the reason for judgment
delivered in English by
ADDY J.: This is a motion by the applicant
(defendant) KLM Royal Dutch Airlines (herein-
after referred to as "KLM") to dismiss the
action of the plaintiff (the respondent herein)
for want of jurisdiction. The motion is based on
the argument that the sole forum for trying the
action is the Superior Court of the Province of
Quebec, there allegedly being no statute giving
jurisdiction in the matter to the Federal Court of
Canada.
The action was instituted by the respondent
(plaintiff) for damages allegedly caused by the
negligence of the defendant KLM in releasing to
an unauthorized person or persons a shipment
of furs belonging to the respondent, the furs
having been transported from Ireland, off-load
ed from the aircraft and placed in the appli
cant's premises at Dorval. The respondent, in
addition to alleging gross negligence on the part
of the applicant also alleges that the latter is in
breach of the Bills of Lading Act' as well as of
the Carriage by Air Act 2 .
Isis now settled law that, normally speaking,
in s6 far as carriage by water is concerned, the
off-loading and the handling until final delivery
to the consignee form an integral part of the
carriage of goods to such an extent that, in
' R.S.C. 1970, c. B-6.
2 R.S.C. 1970, c. C-14.
admiralty cases for instance, this Court still has
jurisdiction even when the act complained of
occurred after the goods had been actually put
ashore, providing the damage occurred while
the carrier was still performing what would nor
mally be its duties, as a carrier by sea, previous
to actual delivery to the consignee. In any
event, the issue in the case before me does not
turn on this point and the motion was argued
throughout on the basis that this Court would
not have had jurisdiction even if the negligent
acts complained of had occurred when the
goods were still in the air.
As in most cases involving the jurisdiction of
this Court, there are two main areas to consider:
first, whether Parliament has actually purported
to grant jurisdiction to the Court and then, if it
did, the further question arises whether under
the British North America Act it was within the
power of Parliament to do so.
In order for the Court to have jurisdiction,
both these questions obviously must be
answered in the affirmative.
Turning to the first question, an enactment
granting this Court jurisdiction may be found in
the Federal Court Act itself or in any other
statute of Canada dealing with the subject-
matter of the action. The respondent alleges that
section 22 of the Federal Court Act grants this
Court jurisdiction. That section reads in part as
follows:
22. (1) The Trial Division has concurrent original juris
diction as well between subject and subject as otherwise, in
all cases in which a claim for relief is made or a remedy is
sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within
the class of subject of navigation and shipping, except to the
extent that jurisdiction has been otherwise specially
assigned.
(2) Without limiting the generality of subsection (1), it is
hereby declared for greater certainty that the Trial Division
has jurisdiction with respect to any claim or question arising
out of one or more of the following:
(j) any claim for salvage including, without restricting the
generality of the foregoing, claims for salvage of life,
cargo, equipment or other property of, from or by an
aircraft to the same extent and in the same manner as if
such aircraft were a ship;
(k) any claim for towage in respect of a ship or of an
aircraft while such aircraft is waterborne;
(1) any claim for pilotage in respect of a ship or of an
aircraft while such aircraft is waterborne;
(3) For greater certainty it is hereby declared that the
jurisdiction conferred on the Court by this section is
applicable
(a) in relation to all ships whether Canadian or not and
wherever the residence or domicile of the owners may be;
(b) in relation to all aircraft where the cause of action
arises out of paragraphs (2)(j), (k) and (I) whether those
aircraft are Canadian or not and wherever the residence
or domicile of the owners may be;
It must be noted here that all other para
graphs of section 22(2), except paragraphs (q),
(r) and (s), specifically refer to the word "ship"
and all claims provided for therein are restricted
to those occurring in or with respect to a ship
and cannot, in my view, by any stretch of the
imagination be held to include aircraft. Para
graph (q) refers to claims in respect of general
average contribution made and (r) refers to
marine insurance and (s) refers to dock charges,
harbour and canal tolls. It is evident, therefore,
that none of the paragraphs of subsection (2) of
section 22 can be held to refer to aircraft except
for paragraphs (j), (k) and (1) and in these para
graphs both the word "ship" and the word "air-
craft" are used. The fact that no other part of
section 22 is applicable to aircraft is made all
the more abundantly clear by the wording of
subsection (3)(b) above quoted which specifical
ly limits the jurisdiction of this Court in the case
of aircraft to cases where the cause of action
arises out of paragraphs (j), (k) and (1).
This would seem to be conclusive, in so far as
section 22 is concerned, but counsel for the
respondent forcibly argued that, because of the
opening words of subsection (2) of section 22,
that subsection must not be construed in any
way as being restrictive of subsection (1) and
that, therefore, subsection (2) cannot in any way
be taken as limiting the true meaning of "navi-
gation and shipping" in subsection (1) which he
alleges must be taken to include navigation and
shipping by air as well as navigation and ship
ping by water.
In support of this argument, he purports to
rely on statements made by Jackett C.J. and
Thurlow J. in The Robert Simpson Montreal
Limited v. Hamburg-Amerika Linie Nord-
deutscher 3 and more specifically on the judges'
notes annexed to that report. In that case,
which was obviously a maritime case, it was
stated that section 22(1) applied not only to
Canadian maritime law but also to any other law
of Canada coming within the class of matters
relating to navigation and shipping, and, in his
judgment, the learned Chief Justice further
stated [at page 1361] that the latter category
would certainly extend to any statute
enacted by the Parliament of Canada under the
powers vested in it by section 91(10) of the
British North America Act, 1867." I fail to see
how this statement can be of any help to the
respondent in interpreting the meaning of the
words "navigation and shipping" in section
22(1) of the Federal Court Act. Surely, if "navi-
gation and shipping" are to be given the mean
ing that those words had in the British North
America Act they could not possibly be taken to
include navigation and shipping by air, for any
legislator who in 1867 would have intended to
include navigation and shipping by air in any
enactment would, at that time, have been con
sidered a prime candidate for incarceration as a
person of unsound mind. The concept of travel
and shipping by air did not exist and could not
have been remotely dreamed of except in the
context of a fairy tale involving flying carpets.
It must be remembered that it was only some
thirty years later, that is in 1897, that Eder,
sometimes referred to as the father of aviation,
first succeeded in getting a few inches off the
ground with a motor-driven flying machine and
it was only in 1903 that the Wright brothers
made their first historic flight in which they
managed to keep aloft for twelve seconds fol
lowed immediately by another flight which
lasted, to the amazement of all, for a full
3 [1973] F.C. 1356.
minute.
It would therefore constitute legal fiction of
the wildest kind as well as a gross offence to
reason to find that the members of the Parlia
ment of the United Kingdom might have intend
ed in 1867 to include navigation and shipping by
air when those words were used in section
91(10) of the British North America Act. By the
same token, since the concept itself did not
exist, it would be equally illogical to hold that
the legislators intended to specifically reserve
jurisdiction in that matter to the provinces
under subsection (2) or under any other subsec
tion of section 92 of that Act.
It follows therefore that any argument to the
effect that "navigation and shipping" as used in
section 22(1) of the Federal Court Act would
have the same meaning as "navigation and ship
ping" as used in the British North America Act,
far from being of any help to the respondent,
would be contrary to the concept that the words
as used in the Federal Court Act include naviga
tion and shipping by air. Conversely, the Feder
al Court Act having been enacted in 1970, it is
at least possible that, when taken alone, the
words "navigation and shipping" might well be
taken to include navigation and shipping by air.
It is trite law, however, to state that the
meaning of any word in a statute cannot be
divorced from its context and must be read in
the light of all of the provisions of the statute
itself in order to determine its meaning. When
looking at section 22, if the words "navigation
and shipping" in subsection (1) are to be taken
to include navigation and shipping by air, there
can be no reason or justification whatsoever for
the specific provisions and limitations relating
to aircraft in paragraphs (j), (k) and (1) of sub
section (2) or in paragraph (b) of subsection (3).
Although, as stated in The Robert Simpson
case, supra, subsection (2) cannot be taken to
limit subsection (1), this does not mean that, in
order to determine the meaning of a word in
subsection (1), one cannot and must not consid
er the meaning of that word or of related words
in subsection (2). Although where a provision in
any statute is expressly declared to be subordi
nate to and not in any way restrictive of another
provision, it may not be read in such a way as to
limit the effect of the governing section, it does
not follow that, where some doubt arises in the
actual meaning of a word in the governing sec
tion, one must blindly attempt to attribute a
meaning to it in complete disregard of the words
used by the legislators in the subordinate sec
tion. At the very least, in interpreting a word,
one must consider whether any particular inter
pretation would have the effect of rendering
absurd, redundant or meaningless any other
provisions of the Act, and if the word or words
can fairly be endowed with a meaning which
gives full effect and sense to the other provi
sions of the Act as opposed to a meaning which
would not, then, obviously the first interpreta
tion must prevail.
If the words "navigation and shipping" were
taken to include navigation and shipping by air
in section 22(1), then most of the provisions of
section 22(2) and (3) would either be redundant,
meaningless or absurd, or prove incapable of
any logical interpretation while, on the other
hand, if restricted to ships and shipping the
whole section makes sense. I therefore conclude
that section 22 does not by its terms give juris
diction to this Court to determine the rights of
the parties involved in the case before me.
The plaintiff argued further that the word
"aeronautics" in section 23 of the Federal Court
Act gives jurisdiction to entertain the present
claim. Section 23 reads as follows:
23. The Trial Division has concurrent original jurisdiction
as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is
sought under an Act of the Parliament of Canada or other
wise in relation to any matter coming within any following
class of subjects, namely bills of exchange and promissory
notes where the Crown is a party to the proceedings,
aeronautics, and works and undertakings connecting a prov
ince with any other province or extending beyond the limits
of a province, except to the extent that jurisdiction has been
otherwise specially assigned.
Aeronautics, as used in this section, certainly
includes the control and regulation of air naviga
tion over Canada, the regulation and control of
aerodromes and air stations as well as the inves
tigation of air accidents, such as used in the
Aeronautics Act 4 .
The question is whether the meaning is to be
extended to include a claim for loss of cargo
arising from the negligence of the carrier. In
support of this proposition, counsel for the
plaintiff cited and referred to the following
cases: Johannesson v. The Rural Municipality of
West St. Pauls; Okanagan Helicopters Ltd. v.
Canadian Pacific Limited 6 ; In re The Regulation
and Control of Aeronautics in Canada'; and
A.-G. Can. v. A.-G. Ont. 8 .
I have read these cases carefully and can find
no support for this contention. On the contrary,
it seems clear that the word is used throughout
in one of the above-mentioned meanings. The
dictionary definitions of the word are of no help
to the plaintiff. Webster defines "aeronautics"
as:
The science, art, or business of designing, manufacturing,
and operating aircraft.
and the Shorter Oxford defines it as:
The science, art, or practice of aerial navigation.
° R.S.C. 1970, c. A-3.
3 [1952] 1 S.C.R. 292.
6 [1974] 1 F.C.465.
7 [1932] A.C. 54.
8 [1937] 1 D.L.R. 673 and [1937] A.C. 326 at 351.
The French text of section 23 is of little help
to the plaintiff and the word "aéronautique,"
which is used in the French text, has the same
meaning in French as in the English language.
The petit Larousse defines "aéronautique" as
follows:
Science de la navigation aérienne. Technique de la construc
tion des avions et des engins aériens: ingénieur de l'aéronau-
tique. Aéronautique navale, forces aériennes de la marine
militaire.
The grand Larousse merely adds:
Secteur industriel qui s'occupe de cette construction.
The petit Robert defines it as:
Science de la navigation aérienne, technique de la construc
tion des appareils de locomotion aérienne. V. Aviation.
Ecole nationale supérieure de l'Aéronautique.
Nowhere can I find the word "aeronautics"
used to describe, even remotely, a body of laws,
rules or jurisprudence governing the right of a
citizen to claim against an air carrier for negli
gence or pursuant to a contract of carriage.
Before extending to a word in a statute, a mean
ing which is not to be found in a dictionary and
which is not of common usage, an extremely
cogent and compelling reason to do so must
exist, a much more compelling one than would
be required to restrict the meaning of a word.
No reason whatsoever was advanced as to why
such an extended meaning should be given
except to point to section 14(1)(i) of the
Aeronaûtics Act wherein, among the many
other powers given to the Commission by sec
tion 14, it is given the power to make regula
tions providing for uniform bills of lading and
other documentation. The mere fact that in the
Aeronautics Act such a power to make regula
tions concerning bills of lading is included
among the numerous matters in the Act, all of
which concern the control of air navigation and
airports generally, is certainly not sufficient
grounds to interpret the word "aeronautics" as
used in section 23 of the Federal Court Act as
including the jurisdiction to deal with claims
between subjects arising out of an air bill. In
order to justify such an extended interpretation,
the effect of not interpreting the section in that
manner would have to render it inoperative or,
at least, very seriously and glaringly incomplete.
Parliament may well grant a remedy or create
a right but the Federal Court of Canada does
not, by such enactment alone, acquire jurisdic
tion if other courts in the land possess the
required jurisdiction to decide the matter (ref.
Federal Court Act, section 25) and, there is no
doubt that the Superior Court of Quebec pos
sesses jurisdiction to deal with this matter.
Since this Court is not given jurisdiction
under the Federal Court Act to deal with this
subject and since such jurisdiction has not been
granted this Court by any other federal statute,
the action will be dismissed with costs on the
grounds of lack of jurisdiction and it therefore
becomes unnecessary for me to deal with the
second question, namely, whether the Parlia
ment of Canada would have the right, under the
British North America Act, to grant such
jurisdiction.
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.