T-3168-76
James Laurence Kezar, an infant by his next
friend Ralph Kezar and the said Ralph Kezar
(Plaintiffs)
v.
The Queen and The Commissioner of the North
west Territories, Rufus Graves and Ronald Dodds
and Mrs. Ronald Dodds and Joy Carter
(Defendants)
Trial Division, Primrose D.J.—Yellowknife,
December 3; Edmonton, December 13, 1976.
Procedure—Application for order to strike out statement of
claim as showing no reasonable cause of action—Whether
duty owed to plaintiffs by the Crown—Whether named
defendants servants of the Crown—Jurisdiction of Federal
Court—Crown Liability Act, R.S.C. 1970, c. C-38, s. 3(1)—
Federal Court Act, s. 17—Northwest Territories Act, R.S.C.
1970, c. N-22, s. 13—Public Service Ordinance, R.O. 1974, c.
P-13—School Ordinance, R.O. 1974, c. S-3—Federal Court
Rule 419(1)(a).
Plaintiffs claim that the defendants jointly and severally owe
a duty of care to the infant plaintiff, that the Commissioner of
the Northwest Territories was acting as Chief Executive Offi
cer of the government of the Northwest Territories and employ
er of the named defendants and that the latter were at all
material times acting within the scope and in the course of their
employment. The defendants claim that, under section 17 of
the Federal Court Act, the jurisdiction of the Court is limited
to cases where relief is claimed against the Crown, that the
named defendants herein are excluded from the provisions of
the Crown Liability Act by the definition of "servant" in
section 2 of that Act and that the Crown itself is only liable
when a duty is owed to a particular person.
Held, the application is granted. The named defendants,
although servants of the Crown, are excluded from the provi
sions of the Crown Liability Act. The Crown is therefore not
liable for their negligence and the Federal Court has no juris
diction to hear a claim against them. The Commissioner of the
Northwest Territories is an officer of the Crown and in the
circumstances of the present case owes no duty to private
individuals.
Montreal Transportation Co. Ltd. v. The King [1923]
Ex.C.R. 139; Canadian Federation of Independent Busi
ness v. The Queen [1974] 2 F.C. 443; Canadian Pacific
Air Lines, Limited v. The Queen [1977] 1 F.C. 715;
Cleveland-Cliffs S.S. Co. v. The Queen [1957] S.C.R. 810
and Royal Bank of Canada v. Scott; Commissioner of the
Northwest Territories (1971) 20 D.L.R. (3d) 728, applied.
APPLICATION to strike out statement of claim.
COUNSEL:
M. Sigler for plaintiffs.
C. J. Wilson and G. B. Barrington for
defendants.
SOLICITORS:
Searle, Sigler, Yellowknife, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
PRIMROSE D.J.: This is an application for an
order pursuant to Rule 419(1)(a) of the Federal
Court Rules striking out the statement of claim on
the ground that there is no reasonable cause of
action. The application was heard at Yellowknife,
N.W.T. and since there is no registrar's office for
filing pleadings in the Northwest Territories an
amended statement of claim was submitted and
the application proceeded on the basis that the
amended statement of claim has been filed in
which additional defendants are added including
the defendant Graves, Superintendent of Educa
tion at Fort Providence, the defendant Dodds, the
Principal of the Elizabeth Ward School also an
employee of the government of the Northwest
Territories at Fort Providence, Mrs. Ronald
Dodds, an employee and teacher with the school in
question, and Joy Carter, another employee and
teacher.
The amended statement of claim pleads that the
defendants jointly and severally owe a duty of care
to the infant plaintiff; the teacher Joy Carter was
involved in the care of the children attending the
school and assisted in the improper removal of the
injured plaintiff; that Mrs. Ronald Dodds was the
playground supervisor on duty on the day in ques
tion and did not supervise the children adequately
or at all; that the defendant Graves was present
when the child was injured, and assisted in the
improper removal of the child; and that the
defendant Dodds was the Principal of the School
and owed the duty of care to the plaintiff.
It alleges further that the defendants other than
the Commissioner of the Northwest Territories
were at all times acting within the scope and
within the course of their employment, and further
that the defendant Commissioner acted as Chief
Executive Officer of the government of the North
west Territories, and employer of the other named
defendants.
The defendants' argument is that the Crown is
only liable in tort where there is expressed statu
tory provision or authority, and apart from special
statutory authority an action does not lie against
the Crown. Montreal Transportation Co. Ltd. v.
The King [1923] Ex.C.R. 139; Bouillon v. The
King (1916) 16 Ex.C.R. 443.
The Crown Liability Act, R.S.C. 1970, c. C-38,
respecting the liability of the Crown in tort pro
vides in section 3(1):
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the Crown,
or
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
Section 4(2) provides:
4. (2) No proceedings lie against the Crown by virtue of
paragraph 3(1)(a) in respect of any act or omission of a servant
of the Crown unless the act or omission would apart from the
provisions of this act have given rise to a cause of action in tort
against that servant or his personal representative.
Servant is defined in section 2 of the Act as
follows:
2....
"servant" includes agent, but does not include any person
appointed or employed by or under the authority of an
ordinance of the Yukon Territory or the Northwest
Territories.
The defendants contend that while the action is
based in tort because of the neglect to provide
supervision in the school yard at a recess break in
the playground of the school in question, the action
cannot be proceeded with against the defendants
since they are employees pursuant to an ordinance
and under the authority of the statutes of the
Northwest Territories.
Under the Public Service Ordinance, R.O. 1974,
c. P-13 the Commissioner has the management
and the direction of the Public Service and is
responsible for the organization of the Public Ser
vice. The ordinance provides for pay and allow
ances, establishments, and appointments and
under section 15(1) the Commissioner has the
exclusive right and authority to appoint persons to
positions in the Public Service.
The defendants submit that the jurisdiction of
this Court is limited by virtue of section 17 of the
Federal Court Act to cases where relief is claimed
against the Crown, and the Crown is not liable for
the negligence of its servants except under the
limited provisions set out in the Crown Liability
Act, and that while possibly the individual defend
ants named now i.e., Graves, Dodds et ux. and
Carter, in the amended statement of claim may be
personally liable for an action for damages if
negligence can be shown, they do not qualify as
defendants in the present action, and that no
action lies against Her Majesty or the Commis
sioner in any event.
The Northwest Territories Act, R.S.C. 1970, c.
N-22, provides for a Commissioner. Under section
13 of the Act the Commissioner in Council may
make ordinances for the government of the Terri
tories, and section 13(r) provides:
13....
(r) education in the Territories, subject to the conditions
that any ordinance respecting education shall always provide
that a majority of the ratepayers of any district or portion of
the Territories or of any less portion or subdivision thereof,
by whatever name it is known, may establish such schools
therein as they think fit etc.
Consequently, it is clear that the Commissioner in
Council has the authority to make ordinances in
the Territories in relation to education.
The School Ordinance, R.O. 1974, c. S-3 sets
out the powers of the Commissioner and gives him
the authority to make regulations for the purpose
of carrying out the provisions of the ordinance:
3. The Commissioner may make such regulations as he
considers necessary for the purpose of more effectually carrying
out the provisions of this Ordinance and without limiting the
generality of the foregoing may make regulations for
(a) the organization, operation and discipline of schools;
(b) the arrangement and order of school premises;
(c) school equipment and furnishings;
(d) classification of schools and teachers;
(e) prescribing the textbooks and apparatus for use in
schools;
(J) prescribing the duties and powers of school inspectors
and of attendance officers appointed by the Commissioner;
(g) prescribing books for school libraries;
(h) prescribing plans for the construction and furnishing of
school houses;
(i) prescribing standards of instruction and study for
schools;
(j) prescribing the length of the academic year, hours during
which school shall be held, recesses, vacations and holidays;
and
(k) prescribing the duties of teachers and principals.
The defendants take the position that these
powers are regulatory and that no duty is owed to
any particular person and refer to Canadian Fed
eration of Independent Business v. The Queen
[1974] 2 F.C. 443. That was an application to
strike out the statement of claim as disclosing no
cause of action based on the alleged mishandling
of an illegal strike as against the Crown and the
Postmaster General, where, at page 450, Mahoney
J. said:
The decisions taken by the defendants and the acts and
omissions complained of were, in the context of the statute,
clearly decisions of policy and acts and omissions in the carry
ing out of managerial or operating functions. The Postmaster
General and other officers of the Crown are answerable only to
Parliament for the consequences thereof and, in particular, the
defendants are not accountable to the plaintiffs in this Court in
respect thereof.
The defendants also rely on Canadian Pacific
Air Lines, Limited v. The Queen [1977] 1 F.C.
715, in which the reasons for judgment were
handed down by Collier J. on November 8, 1976.
The claim of Canadian Pacific Air Lines who uses
aerodromes at major centres in Canada, operated
through government departments or Ministers by
the defendant, alleged it sustained loss and
damage when 21 of its scheduled commercial
flights were disrupted in March 1975 because of
the closure for certain periods of time of the
aerodrome runways at the defendant's Internation
al Airports at Toronto and Ottawa. The plaintiff
alleged there was a duty on the Minister of Trans
port to maintain the aerodromes referred to and
that he failed in that duty on the days in question.
Under the Aeronautics Act it is the duty of the
Minister pursuant to section 3(c) "to construct and
maintain all government aerodromes and air sta
tions, including all plant, machinery and buildings
necessary for their efficient equipment and
upkeep." In discussing the duty the learned Judge
says at page 726:
In my view, the obligation is, in the interests of the public at
large, to preserve, keep up, "keep in existence or continuance",
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.
At pages 727-28 the learned Judge says:
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 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
[[1925] S.C.R. 364 at 370]:
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
individuals, 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-perfor
mance of that duty. [The underlining is mine.]
In Direct Lumber Co. Ltd. v. Western Plywood Co. Ltd. [an
action I tried 15 years ago], [on appeal] Judson J., speaking for
the Supreme Court of Canada, endorsed the extract just quoted
[[1962] S.C.R. 646 at 6481:
I am satisfied, as was Johnson J.A. in the Court of Appeal
after a full review of the cases culminating in Cutler v.
Wandsworth Stadium Ld. [[1949] A.C. 398], 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 ... .
And again at page 728:
Here, the body sought to be sued is the Crown, through a
Minister. It seems to me it would be inappropriate for Parlia
ment to impose penalties on a Minister of the Crown for any
breach by that Minister. He is answerable generally to Parlia
ment for default; the remedies, if that term can be used, are
with the law-making branch when the Minister is called to
account.
The defendants argue that there must not only
be a duty provided, but also a breach of that duty,
and more importantly, responsibility to some
person who may have been affected thereby, and
refer to The Queen in right of the Province of
Prince Edward Island v. The Queen in right of
Canada [1976] 2 F.C. 712. This was a case where
it was alleged the government failed to operate
continuously a ferry service to Prince Edward
Island in breach of an obligation to do so by virtue
of section 146 of The British North America Act
and it was held that no action lies for damage
caused to the Province by the breach. At page 734
Cattanach J. held, referring to Canadian Federa
tion of Independent Business v. The Queen
(supra):
In granting the application to strike out the statement of
claim Mahoney J. said at page 450:
The decisions taken by the defendants and the acts and
omissions complained of were, in the context of the statute,
clearly decisions of policy and acts and omissions in the
carrying out of managerial or operating functions. The Post
master General and other officers of the Crown are answer
able only to Parliament for the consequences thereof and in
particular, the defendants are not accountable to the plain
tiffs in this Court in respect thereof.
In the result where there is an obligation created by the
statute for the general public good and where there is a breach
of that obligation, there is no right of action in a particular
person injured by the breach. That has been held to be the case
in a breach by the Dominion to provide uninterrupted postal
service. There is no fundamental difference between a strike
affecting the postal service and a strike affecting a ferry
service.
The defendants referred to Cleveland- Cliffs
S.S. Co. v. The Queen [1957] S.C.R. 810 where a
ship grounded when approaching a port and the
owners and charterers filed a petition of right
claiming damages for negligence in buoying, in
charting the channel. The learned Judge dismissed
the action on the grounds that: 1. the grounding
occurred outside the limits of the channel and 2. if
the grounding was inside the limits of the channel
that there was no liability in law on the Crown. On
appeal Kirwin C.J. said at page 813:
In view of the appellants' contention that they were at least
entitled to a new trial so that they might take the necessary
steps for that purpose or in order to secure the names of anyone
against whom, within the meaning of the Crown Liability Act,
the appellants could show that they would have a cause of
action in tort, I have considered the matter anxiously and have
come to the conclusion that that relief should not be granted on
any terms. There was no duty owing to the appellants on the
part of the Dominion Hydrographer to take soundings in the
East Entrance Channel and in the circumstances of this case, I
am unable to envisage any possible duty to the appellants
resting upon any other servant of the Crown, the breach of
which could form the basis of a cause of action against him.
And at page 814 Rand J. held:
The administration of navigation aids depends on the action by
Parliament in voting money. But apart from that, the condi
tions under which a Crown servant can be held personally liable
to a third person for failure to act in the course of duty to the
Crown require that there be intended to be created, as a
deduction from the facts, a direct relation between the servant
and the third person. The primary duty of the Crown servants
is to the Crown; and the circumstances in which the servant
can, at the same time, come under a duty to a third person are
extremely rare.
Reliance was also placed on Laberge v. The
Queen [1951] Ex. C.R. 369 and The Queen
v. Nord-Deutsche Versicherungs-Gesellschaft
[1971] S.C.R. 849. In dealing with the duty and
pointing out that to come within the ambit of
actionable negligence against the Crown, there
must be circumstances giving rise to a duty to take
care owing to the suppliant; failure to maintain the
standard of care prescribed by law; and responsi
bility to the person aggrieved. In the latter case it
was held that liability should be apportioned 50%
against the Crown, and the principles on which
liability is based are set out in that judgment.
For the plaintiffs it is argued that this is a tort
action, that the Commissioner was acting within
the scope of his authority, and any employees of
his or appointed by him pursuant to the ordinances
are servants of the Crown.
In Royal Bank of Canada v. Scott; Commis
sioner of the Northwest Territories (1971) 20
D.L.R. (3d) 728, Morrow J. in the Northwest
Territorial Court dealt exhaustively with the legis
lative and judicial history of the Northwest Terri
tories. This case dealt with the question of garni
shee and it was held that the salary of a teacher
employed by the Government of the Northwest
Territories could not be attached by garnishee.
In discussing the status of the Commissioner
and employees in the Territories in the above
judgment Morrow J. at page 739 held:
It seems to me that this control exercised in the manner and
under the authority of the Northwest Territories Act, particu
larly under ss. 4 and 19 [rep. & sub. 1966-67, c. 22, s. 5]
thereof, places the Commissioner in the position where he is
required by law to handle these moneys as from the "Royal
Purse". It may be that in actual practice his instructions from
the Governor in Council or from the Queen's Minister as set
forth in s. 4 may be very broad and lacking in specific details so
as to make his own decision-making very flexible and appear to
be his own but this does not affect the legal position. Such
expenditures as he shall make under these powers are as if
made on direct instruction from the Crown in the right of the
federal or Canadian Government.
The governing legislation makes it clear that the employees
or servants of the Territorial Government are not the employees
or servants of the Commissioner, although he may hire them
and must pay them, but of Her Majesty: the Commissioner as
executive officer is not the head of a State or Government
independent of Her Majesty but the instrument only (albeit a
most important and effective instrument) for relaying or carry
ing out the instructions that may come down from Her Majes
ty, the Canadian Government) (sic) or to him through the
Ordinances passed by the Territorial Council. See also Duff J.
at pp. 677-8 in Lake Champlain & St. Lawrence Ship Canal
Co. v. The King (1916), 35 D.L.R. 670, 54 S.C.R. 461, for a
discussion of "whether the powers are vested in the Crown to be
exercised through the instrumentality of the minister" and my
reference to Dicey infra, p. 744.
I am unable to find any distinction in the fact
that in the Northwest Territories the authority is
constituted by virtue of the Ordinances passed
pursuant to the powers given in the Northwest
Territories Act and for practical purposes the state
is the same as in an action against the Crown in
any of the Provinces of Canada.
The plaintiffs say that this School Ordinance
applies only to organized school districts estab
lished in the Territories and the statement of claim
in the action does not indicate that the school
administration in Fort Providence is in a school
district under the Ordinance. In examining the
amended statement of claim, it is clear that there
is no allegation that the Elizabeth Ward School
located at Fort Providence is established under the
Ordinance and the plaintiffs' contention is that
while there is a general delegation to the Commis
sioner under section 13(r) of the Northwest Terri
tories Act it does not follow that this action is
based on the authority given to the Commissioner
under that particular section i.e. that the school is
not necessarily one established under that given
section. However, it does allege that the defendant
Commissioner is Chief Executive, that the defend
ant Graves, the Superintendent of Education, is an
employee of the Government as well as Ronald
Dodds, the Principal of the school, and his wife
Mrs. Dodds, one of the teachers, and the other
teacher Joy Carter. The whole scheme for educa
tion in the Territories is premised on the powers
given to the Commissioner under the Northwest
Territories Act and the School Ordinance and I
cannot conclude that the basis of this statement of
claim is any other than on the assumption that the
school is one established under the School Ordi
nance or that the defendants mentioned are
employees other than pursuant to the School
Ordinance and in my view the only conclusion one
can reach is that those employees mentioned and
the school are constituted and directed under the
general delegation to the Commissioner contained
in the School Ordinance. It may be that there is a
good cause of action against the teachers con
cerned in the Supreme Court of the Northwest
Territories if the acts of negligence alleged can be
substantiated but having regard to the legislation I
have reviewed and on the authorities cited I must
conclude that no action lies in the Federal Court
either against Her Majesty or the Commissioner
or any of the other defendants. For these reasons,
the application to strike out the pleadings is
granted.
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.