T-2980-77
Pierre Robitaille (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Montreal, November
6, 1979, April 14 and 15, 1980; Ottawa, May 20,
1980.
Crown — Torts — Negligence — Action for damages for
injuries sustained when skiing on trails open to public —
Military cadets performing training exercises on private prop
erty which they had been authorized to use — Gunfire caused
plaintiff to throw himself on ground, thus injuring himself
Whether organizers of training exercises were guilty of negli
gence pursuant to Crown Liability Act — Crown Liability Act,
R.S.C. 1970, c. C-38, s. 3(6)— Quebec Civil Code, art. 1053.
Action for damages. Plaintiff was cross-country skiing on a
trail open to the public, and had just arrived at a point where
the trail crosses the highway when he heard a burst of gunfire
nearby. He instinctively threw himself to the ground, and, in so
doing, fractured his foot. The plaintiff was hospitalized for
several days and suffers a slight permanent disability. The
gunfire was part of a training session for military cadets, who
were using blank ammunition. Plaintiff alleges that the organ
izers of and participants in the training exercises were careless
and inconsiderate of members of the public who were in the
vicinity, carrying on a sport in foreseeable, normal circum
stances and he brings this action pursuant to the Crown Liabil
ity Act. Defendant alleges that the land used for the exercises
was private, and that the organizers had been authorized to use
it. Furthermore, it is argued that plaintiff had entered unlaw
fully and without colour of right onto a piece of property which
he knew to be private, and was thus responsible for his own
injuries. The issue is whether the defendant is liable to the
plaintiff for damages caused by wrongful acts of the organizers
of the training exercises.
Held, the action is allowed. Certain wrongful acts were
committed by the organizers of the exercise; the burst of
gunfire occurred in connection with this incautious exercise,
and the plaintiff's reaction was occasioned directly, foreseeably
and under normal circumstances by this gunfire. The damage
complained of by plaintiff must accordingly be associated
directly with the wrongful acts of the organizers, and thus with
defendant's liability. Manoeuvres of the type at issue cannot be
organized without regard to the possible reactions of unsuspect
ing civilians, and without taking all the precautionary measures
required to avoid incidents of the type of which plaintiff was
the victim. The most limited inquiry would have indicated that
the area was used frequently in wintertime. As the accident
occurred in the Province of Quebec, the Court must be guided
by the degree of caution which Quebec law requires of any
person with respect to another. The degree of caution imposed
by article 1053 of the Civil Code must always be determined
with regard to the circumstances, and no one would ever think
of requiring of an owner the same consideration with respect to
everyone who may venture onto his property. The plaintiff was
not a trespasser within the meaning of English law. The owners
of the land were aware that the trails maintained and open to
the public crossed their land, and they had consented tacitly
and expressly to this state of affairs.
ACTION.
COUNSEL:
Benoit Rivet for plaintiff.
Yvon Brisson, Normand Petitclerc and Yves
Archambault for defendant.
SOLICITORS:
Paquette, Paquette, Perreault, Rivet & Asso-
ciés, Montreal, for plaintiff.
Guy, Vaillancourt, Mercier, Bertrand, Bour
geois & Laurent, Montreal, for defendant.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: This action for damages results
from an accident which occurred in very singular
circumstances.
At about noon on February 6, 1977, a Sunday,
plaintiff, who is a general physician in Montreal,
left a cottage where he occasionally stayed with his
family at St. Adolphe d'Howard, a municipality
near Montreal, Quebec, to go cross-country skiing
with his wife and three young children. The group
took a cross-country ski trail which passes very
near their cottage, and with which plaintiff was
quite familiar, as he had used it only the day
before. This trail, known as "La Nord", extends
from Lake Capri to Ste. Agathe, at one point
crosses the road into a property owned by a Mon-
treal association, the Unity Boys' and Girls' Club
of Westmount, and is used during the summer by
a youth organization known as Camp Lewis. Plain
tiff, his three-year-old daughter tightly strapped in
an infant carrier on his back, had just arrived at
the point at which the trail crosses the highway,
moving a few thousand feet ahead of his wife and
his two other children, when he heard a burst of
gunfire from the woodland along the highway.
Terrified, he threw himself to the ground in a
sudden motion prompted both by a reflex action of
fear and the desire to protect himself and his
young daughter. This instinctive reaction on his
part was unfortunate, as in falling he fractured his
foot. He was immediately assisted by young mili
tary cadets; it was in fact they who, before they
saw him, had fired the blank cartridges as part of
a training exercise organized by their officers on
the Camp Lewis property.
Plaintiff had to be hospitalized and could not
resume his professional duties until several days
later. He also found that he would always have a
slight permanent disability. He was not prepared
to resign himself to accepting the misfortune as an
accident. In his view, the incident involving him
resulted from the carelessness and lack of con
sideration for the public of the individuals respon
sible for organizing these training exercises for
Army cadets. He therefore claimed compensation,
and when this was refused he felt justified in
bringing the action at bar against Her Majesty the
Queen, in reliance on the provisions of the Crown
Liability Act, R.S.C. 1970, c. C-38.
The allegations made by the parties in the writ
ten pleadings set forth, on the one hand, a whole
series of allegedly wrongful acts, and on the other
an equal number of grounds of objection and
defence supported by allegations of fact. However,
many of these do not stand up to examination in
view of the evidence as I understood it, and I think
that they can be set aside without much difficulty.
Thus, whatever the statement of claim may say, it
is clearly quite usual for the military authorities of
Canada to hold training sessions, including the use
of blank ammunition, like that used in the case at
bar, and they cannot be required in doing so to
choose only [TRANSLATION] "specially equipped,
prepared, fenced and remote land". On the other
hand, plaintiff did not, as the defence maintained,
fall as a result of the icy condition of the roadway,
or as the result of an unpardonably clumsy ma
noeuvre by him or of any lack of attention on his
part; in my opinion he threw himself to the ground
as a reflex, which was quite normal and under-
standable in the circumstances, and the injury
which he unfortunately inflicted upon himself as
he fell definitely cannot be attributed to any fault
or clumsiness in his manner of skiing or of reacting
to events.
On the basis of these preliminary findings, we
can turn forthwith to the allegations of the written
pleadings, which contain the real issue before the
Court. Plaintiff maintained in his statement of
claim that the behaviour of the persons in charge
of the exercise and of those taking part in it,
behaviour which led to the accident and the
damage, was wrongful because it indicated a sig
nificant lack of consideration for members of the
public who were in the vicinity, carrying on a sport
in entirely foreseeable and normal circumstances.
In her defence, defendant replied that her soldiers
had received authorization from owners of the land
to hold the exercise in question, that they were not
aware that skiers might venture into the area, and
that plaintiff was a victim of his own misconduct,
as he had entered unlawfully and without any
colour of right a piece of land which he knew to be
private.
The issue is thus joined in terms of the facts and
the general principles of liability. Defendant
nowhere sought to rely on an exclusion of liability
to which she might be entitled under subsection
3(6) of the said Crown Liability Act,' and she was
correct in not doing so, despite the submissions
made by her counsel during the verbal argument.
The immunity conferred by that section only
applies inasmuch as the power exercised is exer
cised in a normal and reasonable manner, and the
whole point of the action is that this was not true
' This subsection reads as follows:
3....
(6) Nothing in this section makes the Crown liable in
respect of anything done or omitted in the exercise of any
power or authority that, if this section had not been passed,
would have been exercisable by virtue of the prerogative of
the Crown, or any power or authority conferred on the
Crown by any statute, and, in particular, but without
restricting the generality of the foregoing, nothing in this
section makes the Crown liable in respect of anything done
or omitted in the exercise of any power or authority exercis-
able by the Crown, whether in time of peace or of war, for
the purpose of the defence of Canada or of training, or
maintaining the efficiency of, the Canadian Forces.
in the case at bar.
In my view, this action as defined in the written
pleadings is quite proper, and I feel it must be
allowed.
I think there can be no question that manoeu
vres of the type at issue here, in which young
cadets are called on to react to simulated condi
tions of war and use blank ammunition, cannot be
organized without regard to the possible reactions
of unsuspecting civilians, and without taking all
the precautionary measures required to avoid inci
dents of the type of which plaintiff was the victim.
It is easy to imagine the panic which the holding of
such manoeuvres in a village or on a public square
would cause. The officers organizing the exercise
held at Camp Lewis on the weekend of February
6, 1977 made very light of these precautionary
measures. Indeed, it appears that they relied strict
ly on the fact that the Camp Lewis land was in
theory private and that they had been authorized
to use it. Nonetheless, the most limited inquiry
would have indicated to them that it was an area
used frequently in wintertime, crossed by three
major cross-country skiing trails open to the
public, three trails which were marked and
mapped, and one of them was even maintained by
the municipality out of funds from a federal grant.
Their lack of consideration for the public is made
even more apparent and tangible when we consider
that the sudden volley of machine-gun fire which
caused the reaction in question by plaintiff was set
off a very short distance (barely a thousand feet)
from permanent dwellings served by a municipal
highway.
Defendant maintained that plaintiff had only
himself to blame, since he had ventured without
right into a private property, and her counsel cited
the severity of the common law precedents, which
deny the trespasser who is the victim of an acci
dent any right of recourse in damages against the
owner or occupant. In my opinion, as the accident
occurred in the Province of Quebec, the Court
must be guided by the degree of caution which
Quebec law, under article 1053 of the Civil Code,
requires of any person with respect to another. The
degree of caution imposed by article 1053 of the
Civil Code must of course always be determined
with regard to the circumstances, and no one
would ever think of requiring of an owner the same
consideration with respect to everyone who may
venture onto his property. An intruder whose pres
ence was hard to foresee will have some difficulty
proving fault toward him by the owner, but his
action is not automatically barred. In any case, I
do not think plaintiff can be regarded as a "tres-
passer" within the meaning of English law. The
evidence established that the owners of Camp
Lewis were aware that the trails maintained and
open to the public crossed their land, and that they
had consented not only tacitly but expressly to this
state of affairs, at least with regard to one of them,
when leave was given at the request of the munic
ipal inspector provided that it was properly main
tained. Counsel for the defendant submitted evi
dence of notices which indicated the private nature
of the Camp Lewis property and prohibited entry
to it, but it appeared that such notices were offi
cially addressed only to hunters, fishermen and
skidoo operators; they were in no way directed at
skiers, and plaintiff in fact never saw them.
I consider that certain wrongful acts were com
mitted by the organizers of the exercise, that the
burst of gunfire occurred in connection with this
incautious exercise, and that plaintiff's reaction,
which resulted in his injury, was occasioned direct
ly, foreseeably and under normal circumstances by
this gunfire. The damage complained of by plain
tiff must accordingly be associated directly with
the wrongful acts of the organizers, and thus with
defendant's liability.
As to the quantum, the parties agreed on the
amount of $15,000, and in the circumstances this
sum appears reasonable to me.
Judgment will accordingly be given in favour of
plaintiff in this amount.
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.