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30 January 2013
Passenger James Ratt was injured in the crash of a King Air 100. The aircraft struck terrain on a short gravel strip in Sandy Bay, Saskatchewan in January 2007, following a go-around. He commenced legal proceedings against a number of parties, including the minister of transport and the Canadian government.
The nub of his claim against the minister and the government was that their implementation of the safety management systems within the regime created by the Canadian Aviation Regulations created a lax regulatory environment that contributed to the circumstances of the crash.
In essence, the safety management systems (implemented in May 2005) amount to a significant transfer of oversight from the Ministry of Transport to air operators, which are now required to establish, maintain and adhere to their own safety protocols. In addition, rather than the traditional inspections carried out by Transport Canada, air operators are now required to self-report safety glitches to the ministry.
The allegations against the minister and the government were that that they were negligent as they had:
The minister and the government moved to strike the claims against them on the basis that they disclosed no cause of action.
In support of their position, the minister and government relied on jurisprudence which distinguishes between operational activities carried out by the government (which may give rise to a duty of care to the public) and policymaking functions (which do not give rise to such a duty of care).
As to the first two allegations, Justice Gabrielson of the Saskatchewan Queen's Bench had no trouble determining that they were not actionable, as they were clearly policymaking functions exercised by the government.
As to the third, the allegation of negligence creates a duty of care only between the government and the air operator - and not between the government and the public at large.
In support of this finding, Gabrielson cited R v Imperial Tobacco Canada Ltd (2011 SCC 42), a case in which Imperial Tobacco sought contribution from the government of Canada for any damages that it had to pay for health complications experienced by smokers. In Imperial the Supreme Court of Canada held that there were no specific interactions between the government and consumers ; therefore, the proximity necessary to give rise to a duty of care in a negligence analysis could come only from the governing statutes.
As was the case in Imperial, the court found no statutorily imposed duty of care sufficient to satisfy the public in the matter at hand. This led to the inevitable conclusion that neither the minister nor the government owed a duty of care to Ratt.
The court also distinguished three other aviation cases in which there were allegations against government defendants. Those cases were allowed to proceed on the basis that the government was alleged to have failed to enforce regulations against air operators (ie, failed to carry out operational functions, as opposed to engaging in faulty policymaking).(1)
Having determined that the allegations of negligence pled by Ratt did not give rise to a duty of care, the court held that it was plain and obvious that Ratt's claims against the minister and government disclosed no reasonable cause of action. The claims against those parties were struck.(2)
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com).
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