T-1039-75
Canadian Pacific Air Lines, Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Vancouver, September
20, 21 and 22, 1976; Ottawa, November 8, 1976.
Crown liability—Non-feasance--Nature and extent of duty
imposed by Aeronautics Act—Whether de facto legal relation
ship between Crown and commercial airlines—Whether duty
arising out of monopoly Whether Aeronautics Act confers
right of action on users of aerodromes—Whether Minister of
Transport in breach of duty Aeronautics Act, R.S.C. 1970, c.
A-3, s. 3(c).
Plaintiff argues that the Crown has an absolute statutory
duty to maintain its aerodromes, which the plaintiff is obliged
to use, operational for the purposes of commercial airlines. The
plaintiff further alleges that this duty and its right of action
also arise out of a de facto relationship between the Crown and
the Canadian commercial airlines, particularly in view of the
fact that the Crown has a monopoly on the operation and
control of civil aerodromes in Canada.
Held, the action is dismissed. The Crown has a duty to
maintain its aerodromes operational, not for the use of com
mercial airlines, but in the interests of the public at large. The
de facto relationship does not give rise to the legal obligation
asserted or to any right of action. The duty is simply to provide
and maintain aerodromes as needed and no right of action is
conferred by section 3(c) of the Aeronautics Act on users of
aerodromes. The Minister is answerable to Parliament alone for
any default on his part and the remedies are with that body
when the Minister is called to account. Even if there were a
right of action, the duty imposed by the Aeronautics Act is to
the public at large and not primarily to the commercial airlines,
and in view of that fact the Minister acted reasonably in the
circumstances.
The Hamburg American Packet Co. v. The King (1901) 7
Ex.C.R. 150; Norton v. Fulton (1908) 39 S.C.R. 202;
Canadian Federation of Independent Business v. The
Queen [1974] 2 F.C. 443; Orpen v. Roberts [1925] S.C.R.
364; Direct Lumber Co. Ltd. v. Western Plywood Co. Ltd.
[1962] S.C.R. 646 and Phillips v. Britannia Hygienic
Laundry Company, Limited [1923] 2 K.B. 832, applied.
Grossman v. The King [1952] 1 S.C.R. 571; Cleveland-
Cliffs S.S. Co. v. The Queen [1957] S.C.R. 810; Minister
of Justice v. City of Levis [1919] A.C. 505; Cutler v.
Wandsworth Stadium Ld. [1949] A.C. 398; Gentz v.
Dawson (1967) 58 W.W.R. 409 and Galashiels Gas Co.,
Ld. v. O'Donnell [1949] A.C. 275, distinguished.
ACTION.
COUNSEL:
C. R. O. Munro, Q.C., and M. J. Sabia for
plaintiff.
A. M. Garneau and D. Friesen for defendant.
SOLICITORS:
Canadian Pacific Air Lines Ltd. for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff is a Canadian-based
commercial airline company. It operates domestic
and international flights. In so doing, it uses aero-
dromes at major centres in Canada. Those aero-
dromes have been and are owned or operated,
through government departments or ministers, by
the defendant. The plaintiff asserts it sustained
loss and damage when 21 of its scheduled commer
cial flights were disrupted on March 7 and 8,
1975. It is said those disruptions were caused by
the closure, for certain periods of time, of the
aerodrome runways at the defendant's internation
al airports at Toronto and Ottawa.
The plaintiff alleges there is a duty on the
Minister of Transport to maintain the aerodromes
referred to. It is further alleged the Minister failed
in that duty on the days in question, and as a result
the 21 flights were cancelled 'or disrupted. The
exact nature of the allegations is set out in
paragraph 8 of the statement of claim:
Aircraft operated by the Plaintiff which were duly scheduled
to land and take off at the said aerodromes at Montreal,
Toronto and Ottawa on March 7 and 8, 1975, at the said
aerodrome at Montreal on March 9, 1975, and at the said
aerodrome at Toronto on March 10, 1975, in the course of
providing the said commercial air services, as authorized and
required as aforesaid were unable to do so due to the failure of
Her Majesty to perform -the duty imposed by the Aeronautics
Act and otherwise to maintain the said aerodromes, in that Her
Majesty failed to take or cause to be taken all or any reason
able steps to keep the runways at the said aerodromes clear of
snow and ice. In particular Her Majesty or her servants or
agents, acting in the course of their duties or employment,
failed to take reasonable or any steps to ensure that sufficient
personnel were available to keep the said runways clear of snow
and ice.'
At Toronto and Ottawa International Airports
in March of 1975 there were a number of
employees normally engaged in removal of snow
from runways. They, with some immaterial excep
tions, were members of one of two bargaining
units: the General Labour and Trades (non-super
visory) Group and the General Labour and Trades
(supervisory) Group. For purposes of collective
bargaining under the Public Service Staff Rela
tions Act, both groups were represented by the
Public Service Alliance of Canada as bargaining
agent 2 .
The collective agreements covering those groups
expired on November 24, 1974. Notice to bargain
had been given approximately two months earlier.
The parties were unable to reach a new accord. On
December 18 and 19 there were some illegal walk
outs by employees. On December 20 there was a
reference to conciliation. A conciliation board
report was issued on February 6, 1975. The
employees then had the right to strike at any time
after February 13 3 . From February 17-19 there
were rotating strikes at various airports in eastern
and central Canada.
Both the bargaining groups referred to had a
number of "designated employees". Their duties
consisted of
... in whole or in part of duties the performance of which at
any particular time or after any specified period of time is or
will be necessary in the interest of the safety or security of the
public. °
A designated employee is forbidden to participate
in a strike 5 .
' The claim relating to flights affected by runway conditions
at Montreal was withdrawn. The claim in respect of flights
affected by runway conditions at Toronto on March 10, 1975
was, as well, withdrawn.
2 For bargaining purposes, the employer was the Treasury
Board.
3 See the Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, subparagraph 101(2)(b)(î).
° See subsection 79(1) of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35.
5 Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s.
101.
The defendant, through the Ministry of Trans
port, had, because of the failure to negotiate new
collective agreements, earlier foreseen work stop
pages at airports. Two contingency plans had been
worked out (Ex. 3, dated January 30, 1975).
In the case of an illegal strike by General
Labour and Trades personnel, the following policy
was to be pursued (paragraph 12 of Ex. 3):
During an unlawful work stoppage the Ministry has the right
to use every practical and available means to maintain airports
in an operational state. Managerial exclusions in the GL & T
group and other managerial staff having the capability should
be considered along with any outside help that may be available
from DND, other departments and local contractors. The
relocation of available staff from other sites may also be
considered when trying to maintain a key facility. While the
objective would be, "business as usual", the capability would
depend on the availability of voluntary and managerial person
nel, conditions prevailing at the time and priorities established.
However, as a minimum every attempt should be made to
maintain one runway, taxiway and apron as described in Para 3
above.
In the case of a legal strike or work stoppage,
the following policy was laid down 6 :
1. In the event of a rotating or nation-wide lawful work
stoppage at MOT airports and related installations by General
Labour and Trades personnel, the objective of the Ministry
would be to maintain services essential to the safety and
security of the public. The mechanics for such an undertaking
do exist through the use of designated employees under the
terms and conditions of the attached justification as applicable
to each specific trade.
2. Assuming that these designated employees will report for
work in line with established criteria and a snow storm or other
adverse conditions develop, every attempt should be made to
continue operations to cope with emergencies, preserve the
plant, ensure essential resupply of northern sites and provide
for other services fundamental to the safety and security of the
travelling public.
3. The intent in this regard would be to maintain one runway
full length and width, one taxiway from each end of the runway
to the apron and as much of the apron and other surfaces as is
deemed necessary. The runway and taxiway selection for such
maintenance is to be determined by the RCCA in consultation
with the AO, operators, (DND where appropriate) and the
Airport Manager at each site. In the interests of safety and due
to wind change or other related conditions, it may be necessary
to select another runway and clear the second, if possible, with
6I have set out only what I consider to be the material
paragraphs of Exhibit 3.
such decision being made in line with available resources,
prevailing conditions and priorities.
4. Indications are that such a work stoppage may be timed to
coincide with poor weather conditions on a rotating basis in
various parts of the country. However, the possibility of a
nation-wide walkout should not be overlooked.
5. With respect to the use of designated employees in the GL
& T Group, management does have the right to use these
people to maintain essential services in the event of a lawful
strike. However, should they refuse to report for work or
perform in accordance with the applicable terms of the justifi
cation and the work plan, as arranged with such employees and
airport manager beforehand, then they would be acting unlaw
fully and should be reported to Region(s) who will advise
Headquarters immediately.
8. In cases where designated employees refuse to carry out
essential work, management may call on outside assistance
from local contractors at their discretion, ie. broken utility
lines, electrical problems, road clearing, heating problems, etc.
Before doing so, however, it should be discussed with
Headquarters.
On February 13, 1975, H. E. A. Devitt, the
general manager of Toronto International Airport
held a briefing for all air carriers using that air
port. The plaintiff was represented. The general
plan set out in Ex. 3 was outlined. Mr. Devitt
testified he advised that if there were 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.
It was contemplated this would be done through
designated employees.
Mr. Devitt has had lengthy and varied experi
ence with the operation of airports and particular
ly the problems encountered with snow and ice. He
described the months of March and April as the
worst for snow storms which cause landing prob
lems on runways in southern Ontario aerodromes.
The snow is heavy and dense, approaching 30 lbs.
per cubic foot in weight. It tends to pack down,
making safe braking of aeroplanes almost impos
sible. That type of snow storm began in the morn
ing of March 7, 1975.
At 10 a.m. the union advised its members were
walking off the job—a "legal" strike.
Attempts, by using some designated employees,
were made to keep runway 05 (Right) open. By
2:00 in the afternoon it was decided landing condi
tions were too hazardous. Devitt directed the air
port be closed to all traffic. Because of a forecast
change in wind direction, the snow removal equip
ment was assigned to runway 1 4 / 3 2 in an attempt
to make it usable. Again, a certain number of
designated employees were assigned. The snow
was very heavy. One machine broke down. A few
minutes before midnight, runway 14/32 was res
tored to service, but with some limitations.
Ottawa International Airport was, about the
same time, or perhaps a little earlier, beset by
similar weather and labour problems. There was a
legal work stoppage by other than designated
employees. Because of the snow and ice (the
unsafe landing conditions), that airport was closed
on the material dates for approximately 15 hours.
The objective had been, as with Toronto, to try
and maintain one runway serviceable.
I now turn to the steps taken at the two airports.
At Toronto the normal strength of snow clearing
personnel (M.D.O.$) was 42. These were equip
ment operators. Personnel in the supervisory union
were not required to operate equipment. Twenty-
four of the M.D.O.s at Toronto were designated
employees. On March 7, seventeen designated
employees worked. The remaining seven did not. It
was their regular day off. On March 8, only 6 of
the designated M.D.O.s worked. Seventeen were
on their regular day off, and one was on annual
leave.
The designated employees whose regular days
off fell on March 7 and 8 were not asked by the
defendant to report and work in order to cope with
the weather problems. That would have been, for
those employees, an overtime situation. Sometime
prior to the work stoppage, Mr. Devitt had discus
sions with the union. The union pointed out there
were strong feelings in the membership about the
difficulties created when some members (desig-
nated employees) could not strike and others
could. It was indicated that if overtime were
demanded of designated employees, resulting in
larger pay cheques for that group, a morale prob
lem would arise; the rank and file members might
take steps to prevent designated employees work
ing at all. The defendant, through Mr. Devitt,
undertook that designated employees would be
asked to work, during the dispute, only their regu
lar shifts. In return, the union apparently agreed
there would be no harassment. The defendant,
according to Mr. Devitt, decided not to take any
steps, by demanding overtime, which might be
construed by the union as strike-breaking.
Finally, on this point as to the persons available
to clear runways on the shifts of March 7 and 8, it
is clear the defendant made no attempt to bring in
non-union workers, the military, or independent
contractors to try and bring the runway clearing
crews up to normal strength'.
Mr. Devitt, based on his experience, estimated
that even with a normal complement of personnel
on March 7, Toronto airport would have been
closed for at least two hours 8 . If that opinion is
correct, then, in retrospect, flight disruptions prob
ably would have been considerably less.
I go now to the situation at Ottawa. There were
designated employees whose duties included
runway snow and ice removal. The evidence did
not disclose how many. There were, in addition,
non-union equipment operators who were hired on
a seasonal basis. On the day shift of March 7 there
were three designated M.D.O.s and two seasonal
employees on runway clearing. On the night shift,
three designated employees worked on runways.
On the day shift of March 8 there were two
designated employees and two seasonal employees
on runways; on the night shift there were five on
duty. In Ottawa, as in Toronto, no designated
employees worked their régular day off (overtime)
' I contrast, as did counsel for the plaintiff, what the defend
ant indicated could be done, and by implication would be done,
in the way of bringing in outside people in the case of an
unlawful strike. See paragraph 12 of Exhibit 3.
8 That evidence was objected to by the defendant on the
grounds it should have been the subject of a pre-trial affidavit
pursuant to Rule 482. I ruled against the objection.
on runways on March 7 or 8. The explanation was
given on discovery as follows.
Q. 120 Why was that? It would appear that they had crews
working, designated employees working, and in manage-
ment's judgment it was not necessary, in the circum
stances of the strike situation.
Q. 121 What were the circumstances which made it unneces
sary? A. Well, it would appear that, for runway mainte
nance, management was reasonable well covered to
undertake the work at hand.
Q. 122 What was the work at hand? The work at hand was a
strike situation. The objective was to maintain one
runway serviceable through a snow storm which com
menced about noon on March 7.
Q. 123 Was the Ministry of Transport able to maintain one
runway serviceable, throughout March 7, 8 and 9? I'm
sorry. That should be, March 7 and 8, at Ottawa.
A. Right. The runway was closed approximately 15
hours on March 7 and 8.
At trial, the defendant admitted that, had it not
been for the work stoppage by the defendant's
employees at Ottawa airport, the plaintiff's Flight
71 of March 8 would not have been disrupted "by
reason of the closure of the airport" 9 . Flight 71
originated daily at 7:00 a.m. from Montreal, trav
elling west to Ottawa, Toronto, Winnipeg, Edmon-
ton, Vancouver and San Francisco.
It is convenient, at this stage, to deal with the
defendant's contention that the plaintiff had not
proved that the other 20 flights, or some of them
at least, were in fact disrupted or cancelled
because of the Toronto closure. That submission
was based, fundamentally, on hindsight. For exam
ple, it was suggested that if Flight 69 from Mont-
real to Toronto had arrived in Toronto at its
scheduled time, it could have left Toronto before
the closure. Another example used was Flight
74 (Vancouver-Edmonton-Winnipeg-Toronto-Ot-
tawa-Montreal). This flight at first (apparently)
returned to Winnipeg in case it could not land in
Toronto; when it went on, it then had to refuel at
Thunder Bay. It was argued the disruption was
unnecessary because Toronto airport, in retrospect,
was still open for the flight's normal time of arrival
there. The evidence at trial indicated that some
9 The quoted words are from my notes. I took the defendant
to mean that if there had not been a work stoppage by
non-designated employees, Ottawa airport would not have been
forced to close.
flights were disrupted because the plaintiff, on its
own account, re-located or marshalled certain air
craft at different cities from the normal pattern, in
anticipation of possible closures.
I am persuaded, on the evidence, any re-routing
or re-marshalling done by the plaintiff was, in the
circumstances, reasonable. I am further satisfied
the plaintiff has proved, on a balance of probabili
ties, the disruption or cancellation of its 21 flights
was attributable to the closure of the Toronto and
Ottawa aerodromes. I am equally satisfied the
closure was effectively caused by the withdrawal
of services by the non-designated members of the
two unions (the "lawful" strike) i°. In coming to
that conclusion, I have taken into consideration
and accepted Mr. Devitt's view that the Toronto
airport might have, in any event, been closed for a
short period"
There remains the most difficult question: the
liability, if any, of the defendant for any damages
or loss incurred by the plaintiff.
The plaintiffs case is as follows:
(1) The federal Crown has a legal obligation to
maintain all its commercial civil aerodromes in
an operational condition. As part of that obliga
tion it must take all reasonable and practical
steps to keep them operating; that includes re
moval of snow and ice from runways.
(2) On March 7 and 8 the Crown did not take
all reasonable or practical steps. It deliberately
did not bring in additional or outside personnel
to augment its depleted runway clearing force.
It should have. The so-called "lawful strike" and
withdrawal of services by employees does not
excuse the breach of duty.
1 0 I put aside for the moment the question of the defendant's
duty in that situation, and whether there was a breach of it.
" The parties agreed that if the Court should find liability on
the defendant, damages should be the subject of a reference
pursuant to Rule 500.
(3) As a result of snow conditions, the runways
in question were unusable for an extended
period of time; twenty-one of the plaintiff's
flights were, as a consequence, disrupted or
cancelled; the plaintiff incurred damage or loss;
the defendant is therefore liable.
As to the legal obligation of the defendant, the
plaintiff founds the duty on three grounds, alterna
tively and cumulatively.
Firstly, reliance is placed on paragraph 3(c) of
the Aeronautics Act 12 . I set it out:
3. It is the duty of the Minister 13
(c) to construct and maintain all government aerodromes
and air stations, including all plant, machinery and buildings
necessary for their efficient equipment and upkeep;
It is urged the paragraph imposes an absolute
duty ' 4 on the Minister to "maintain"; according to
the plaintiff that means, he must, so far as is
practical, keep all aerodromes, at all reasonable
times, in an operational condition.
The history of this statutory duty is said to cast
light on the absolute nature of it, and on the
legislative intention that "maintain" includes keep
ing aerodromes operational or usable. A compa
rable obligation was first allotted to the Air Board
in 1919. That Board had the duty "... to construct
and maintain all Government aerodromes and air
stations ..." 15 . In 1922 the powers, duties and
functions vested in the Air Board were transferred
to or put under the direction of the Minister of
National Defence 16 . At that time the aerodromes
affected were all military aerodromes. The first
civil aerodrome operated by the Government of
Canada was at St. Hubert, Que., in 1927. The first
use by a commercial airline of a government civil
aerodrome was in 1928. In 1936, the responsibility
and duty in respect of civil aerodromes was trans-
12 R.S.C. 1970, c. A-3.
13 In this case the Minister of Transport.
14 Counsel for the defendant relied on such cases as: The
Hamburg American Packet Co. v. The King (1901) 7 Ex.C.R.
150 and Norton v. Fulton (1908) 39 S.C.R. 202, where the
particular duty cast upon a government official or Minister was
held to be absolute, not discretionary.
13 Air Board Act, S.C. 1919, c. 11, para. 3(c).
16 National Defence Act, S.C. 1922, c. 34, subs. 7(2).
ferred from the Minister of National Defence to
the Minister of Transport 17 .
The duty, then, it is contended, has existed for a
long time. Furthermore, the plaintiff argues, C.P.
Air and other domestic airlines are required to
provide certain scheduled services to and from
certain centres; the airlines are required to use the
defendant's aerodromes; they are totally dependent
on the availability of them in order to provide the
authorized services and to warrant the huge capi
tal investment for airline equipment and operation;
fees are demanded and paid for the use of the
aerodromes; there is, it is said, a notional commer
cial partnership of the airlines and the Crown,
with a reciprocal obligation on the part of the
defendant to keep the designated aerodromes
operational.
I shall assume the duty cast on the Minister is
an absolute one; that once having constructed an
aerodrome he must "maintain" it; that whatever it
is the statute imposes on him, it does not give him
a managerial discretion not to "maintain" at all 18 .
I do not, however, subscribe to the plaintiff's posi
tion that the statutory duty prescribed is to main
tain or keep, by all practical means, the aero-
dromes and their runways operational for or
usable by commercial airlines.
The word "maintain" can have many meanings,
depending on the circumstances in which it is used.
I note here the legislators placed it in connotation
with "construct". In Gentz v. Dawson 19 a number
17 Department of Transport Act, S.C. 1936, c. 34. I note that
in the following year, 1937, Trans-Canada Air Lines (now Air
Canada) was created: Trans-Canada Air Lines Act, S.C. 1937,
c. 43.
18 Compare, for example, the position of the Postmaster-Gen
eral presiding over the Post Office and the remarks of Mahoney
J. in Canadian Federation of Independent Business v. The
Queen [1974] 2 F.C. 443 particularly at 447 and 450.
19 (1967) 58 W.W.R. 409, a decision of Smith J. of the
Manitoba Queen's Bench.
of definitions and meanings of "maintain" were
helpfully reviewed. The facts of the case were
admittedly quite dissimiliar; the word itself was in
a lease, not in a statutory context as here. Never
theless some of the meanings reviewed there are, to
my mind, applicable in this case in arriving at
what is embraced in the Minister's duty to main
tain aerodromes. In my view, the obligation is, in
the interests of the public at large, to preserve,
keep up, "keep in existence or continuance" 20 , or
keep in repair. I do not purport to try and set out
an all inclusive definition of the term as found in
paragraph 3(c). I am convinced, however, the duty
does not extend beyond the general limits I have
suggested. It particularly, to my mind, does not
flow into the area propounded by the plaintiff: to
ensure, within practical bounds, the facilities of
aerodromes are operational or functioning (as
compared with the upkeep, repair or continuance
of the facilities) at all reasonable times. I say the
obligation to maintain, when fairly construed, does
not go that far.
Secondly, the plaintiff attempts to base the duty
(and the scope it asserts), as well as its cause of
action, on what it says is a de facto relationship
between the Canadian commercial airlines 21 and
the defendant. The plaintiff says it relies on the
aerodrome facilities; it is indeed bound to use
them; the Crown has a responsibility to build and
maintain them; this creates a legal relationship on
which a cause of action can be embedded. I am
unable to see how that factual situation gives rise
to the legal obligation asserted, which in turn is
said to confer a right of action for alleged breach
on commercial airlines, or anyone else using aero-
drome facilities. In my opinion, the cases relied
20 Ibid., p. 414. See also the similar meanings given in The
Shorter Oxford Dictionary, 3rd ed. 1968 reprint p. 1190, and
in The Living Webster Encyclopedic Dictionary 1971. There is
a useful discussion by Jessel M.R. in Sevenoaks v. London,
Chatham and Dover Rly. (1879) 11 Ch. D. 625 at 634-635 of
"maintain" and "works of maintenance".
21 The plaintiff excludes foreign airlines as recipients of any
duty at all.
upon, Grossman v. The King 22 and Cleveland-
Cliffs S.S. Co. v. The Queen 23 , are distinguishable
both on their facts and in principle.
Thirdly, the duty is said to arise because the
defendant has a monopoly on the operation and
control of civil aerodromes in Canada; if one has
the sole right, then there is a duty to keep the
monopolistic service available to potential users.
Minister of Justice v. City of Levis 24 was relied
upon for that general proposition. Again, I think
that case is distinguishable on its facts and in
principle. There, certain rights and obligations
were held to be derived from the circumstances
and the relative positions of the parties. Here, the
circumstances and relative positions are consider
ably different. The Crown may, for practical pur
poses, have a monopoly. The duty, as I see it, is to
provide aerodromes as needed, and to keep them
up so they do not fall into disuse, because of safety
or other reasons. In my opinion, it stops there.
I now turn to the next major issue between the
parties. Does paragraph 3(c) of the legislation
confer a right of action on the plaintiff and other
Canadian users of aerodromes who say they have
been aggrieved by breach of the duty? On this
issue, I shall assume the scope of the duty is as
formulated by the plaintiff. Duff J., in Orpen v.
Roberts, formulated the test this way 25 :
But the object and provisions of the statute as a whole must be
examined with a view to determining whether it is a part of the
scheme of the legislation to create, for the benefit of individu
als, rights enforceable by action; or whether the remedies
provided by the statute are intended to be the sole remedies
available by way of guarantees to the public for the observance
of the statutory duty, or by way of compensation to individuals
who have suffered by reason of the non-performance of that
duty.
22 [1 952] 1 S.C.R. 571.
23 [1957] S.C.R. 810. There, Rand J., in discussing the
Grossman case used the phrase relied on by the plaintiff: "... a
de facto relation of reliance and responsibility ...".
24 [1919] A.C. 505.
25 [1925] S.C.R. 364 at 370.
In Direct Lumber Co. Ltd. v. Western Plywood
Co. Ltd., Judson J., speaking for the Supreme
Court of Canada, endorsed the extract just
quoted 26:
I am satisfied, as was Johnson J.A. in the Court of Appeal
after a full review of the cases culminating in Cutler v. Wands-
worth Stadium Ld., that this criminal legislation gives no civil
cause of action for its breach and I would affirm the judgment
under appeal for the reasons given by Johnson J.A. that this
legislation creating a new crime was enacted solely for the
protection of the public interest and that it does not create a
civil cause of action. There is no new principle involved and in
spite of repeated consideration of the problem, nothing has
been added to what was said about it by Duff J. in Orpen v.
Roberts ... .
In the Cutler case 27 , cited by Judson J., Lord
Simonds said 28:
For instance, if a statutory duty is prescribed but no remedy by
way of penalty or otherwise for its breach is imposed, it can be
assumed that a right of civil action accrues to the person who is
damnified by the breach. For, if it were not so, the statute
would be but a pious aspiration.
There are no penalties or other remedies specified,
so far as I can see, in the Aeronautics Act against
the Minister of Transport, if he is in breach of any
duty. Nevertheless, I do not think Lord Simonds's
words assist the plaintiff here. In the Cutler case
the person against whom the breach of duty was
asserted was a private company operating a stadi
um where dog-racing was carried on. Here, the
body sought to be sued is the Crown, through a
Minister. It seems to me it would be inappropriate
for Parliament to impose penalties on a Minister of
the Crown for any breach by that Minister. He is
answerable generally to Parliament for default; the
remedies, if that term can be used, are with the
law-making branch when the Minister is called to
account.
26 [1962] S.C.R. 646 at 648. See also Estey J. in Toronto-St.
Catharines Transport Ltd. v. City of Toronto [1954] S.C.R. 61
at 76-77. In Commerford v. Board of School Commissioners of
Halifax [1950] 2 D.L.R. 207 Isley J. reviewed a number of
English authorities preceeding the Cutler case. He held that an
ordinance requiring owners of premises to remove snow from
sidewalks in front of their premises did not confer a right of
action on a pedestrian injured by failure to comply with the
duty.
27 [1949] A.C. 398.
28 At p. 407.
Paragraph 3(c) cannot be viewed in isolation.
After considering all the other duties imposed in
section 3, the Act as a whole, as well as all the
surrounding circumstances which the plaintiff says
point to a litigable duty, I conclude the statute
does not confer a right of action such as the one
asserted in this case. Atkin L.J. in Phillips v.
Britannia Hygienic Laundry Company, Limited
put the question this way 29 :
Was it intended to make the duty one which was owed to the
party aggrieved as well as to the State, or was it a public duty
only? That depends on the construction of the Act and the
circumstances in which it was made and to which it relates.
I conclude the Minister's duty prescribed by para
graph 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.
Although the above is sufficient to dispose of
this action, I feel I should deal with the final issue
argued at trial: whether the Minister was in breach
of his duty. I shall therefore assume there was (a)
an obligation to keep the aerodrome runways oper
ational (b) enforceable by action at the suit of the
plaintiff if there were a breach.
The plaintiff says the duty is, by the legislation,
imposed in absolute terms. It was possible, counsel
contended, to assert that proof of the mere fact of
closure of the runways because of snow conditions
was sufficient proof of breach of the duty to
maintain them operational. Authorities such as
Galashiels Gas Co., Ld. v. O'Donnell 30 were relied
on. In that case a worker was killed when the
brake on a lift apparently failed. The relevant
statute cast this duty on the defendant employers:
"Every ... lift shall be ... properly maintained
...." Maintained was defined as follows: " 'Main-
tained' means maintained in an efficient state, in
29 [1923] 2 K.B. 832 at 841.
30 [1949] A.C. 275. I note that Lord McDermott, at pp.
286-7 discussed various meanings of the word "maintain".
efficient working order, and in good repair". The
trial court had found:
I am satisfied that the defenders took every practical step to
ensure that the lift mechanism worked properly and was safe to
use. I am equally satisfied that the failure of the brake was one
which, apparently, nobody could have anticipated or, after the
event, explain ....
The House of Lords concluded that the statutory
duty imposed was an absolute one, and the taking
of every practical step was therefore no answer to
the mechanism failure which occurred.
In this case, Mr. Munro for the plaintiff stated
he did not intend to put the Minister's obligation
so high. He was content to adopt the position the
Minister discharged the duty imposed if he took all
practical steps to maintain the aerodromes and
their runways operational.
The plaintiff points out the Minister probably
intended to take certain steps in the case of an
unlawful strike but much lesser steps in the case of
a lawful strike. That is undeniable (see Exhibit 3).
The plaintiff contends there was no justification, in
the statute or by general law, for this dichotomous
scheme.
The duty was (I put the plaintiff's view baldly)
to maintain, come what may. The Minister is
attacked for not, when the runway clearing force
was depleted at Toronto and Ottawa, attempting
(a) to enlist supervisory or managerial
personnel;
(b) to obtain the services of National Defence
personnel;
(c) to bring in other Department of Transport
staff from other locations;
(d) to call in local contractors or personnel.
In Toronto the Minister eschewed these, what
the plaintiff classifies as, practical steps; he chose,
it is said, to rely on a limited number of designated
employees; in effect, instead of attempting to
maintain the aerodrome operational by practical
means, his actions forced its closure. At Ottawa, it
is contended, he took no steps (practical or other
wise) to augment the work force; he apparently
felt additional assistance was unnecessary; he was
wrong. Counsel for the plaintiff pointed out the
bringing in of strike-breakers was a practical step
envisaged by the Minister in the case of an unlaw
ful strike. Mr. Munro frankly stated, in answer to
questions by me, the plaintiff's position to be that
the bringing in of strike-breakers in the case of the
lawful strike at Toronto and Ottawa on March 7
and 8, was equally a practical step that (vis-Ã -vis
the commercial airlines and other users of the
facilities) should have been taken.
On the assumptions I have proceeded on in
dealing with this issue, 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 incle
ment weather must be balanced against the possi
ble inflammatory effects on employees carrying on
a peaceful, 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 desig
nated employees on regular shift in the ways sug
gested by the plaintiff was equally reasonable.
The action is dismissed, with costs to the
defendant.
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