A-163-90
Her Majesty the Queen (Appellant)
v.
Sally Margaret Swanson, Administratrix of the
Estate of Terrance Albert Swanson, also known as
Terry Swanson, deceased, Sally Margaret
Swanson in her capacity as Next Friend of Caitlin
Jessica Swanson, Allison Ann Swanson and
William Terrance Swanson, all infants
(Respondents)
A-162-90
Her Majesty the Queen (Appellant)
v.
Virginia Peever, Administratrix of the Estate of
Gordon Donald Peever, deceased, Virginia Peever
in her personal capacity, and Virginia Peever in
her capacity as Next Friend of Gordon Nathan
Chad Peever and Shirlene Frances Peever, both
infants (Respondents)
INDEXED AS: SWANSON V. CANADA (MINISTER OF TRANSPORT)
(CA.)
Court of Appeal, Heald, MacGuigan and Linden
JJ.A.—Edmonton, February 13 and 14; Ottawa, May
22, 1991.
Crown — Torts — Liability of Crown for harm resulting
from negligence of regulated air carrier — Crown immunity
limited to policy functions — Air safety inspectors not making
policy — Monitoring air safety operational activity — Duty of
care owed to passengers — Standard of care depending on risk
and severity of harm — No reasonably proportionate response
to airline's continued non-compliance with safety norms —
Standard of reasonably competent inspector not met — Multi
ple factors contributing to accident — Test of causation
whether defendant's negligence substantially contributed to
plaintiffs' loss.
Air law — Liability of Crown for damages resulting from
fatal aircrash — Government inspectors aware of repeated
safety standards violations by carrier but merely giving warn
ings — Crown immunized against liability for policy decisions
— Aviation inspectors not high, policy-making government
officials — Not concerned with viability of industry, political
fall-out from enforcement actions — Inspectors owing duty of
care to airline passengers — Standard of care — Matters to be
taken into consideration — Compliance measures to be applied
progressively — Administrative measures not preferred for first
offence where clearly ineffective in promoting air safety —
Inaction of government officials contributing to airline's lax
safety environment, a causa sine qua non of crash.
This was an appeal from a Trial Division judgment finding
the Crown contributorily negligent in a fatal airplane crash,
and apportioning one third of the responsibility to the appel
lant.
Wapiti Aviation was a small commercial carrier serving
Edmonton and towns in northern Alberta. On April 4, 1984, a
government inspector made a report detailing many violations
of the Aeronautics Act and Air Navigation Orders (ANO). This
report was discussed with the airline's chief pilot, who prom
ised they would be put right. They were not. On August 17,
1984, another inspector reported "a total disregard for regula
tions, rights of others and safety of passengers. If they persist
in this manner of operations for a much longer period we are
virtually certain to be faced with a fatality." Wapiti did not
maintain its aircraft properly. It pressured pilots to minimize
expenses even if that meant neglecting safety and compliance
with the Act and ANOs. Even in weather which called for
instrument (IFR) flying, pilots were encouraged to fly visually
(VFR) to save fuel. They were taught to use landing techniques
which were contrary to the regulations and to good practice.
IFR flights, which demand more of pilots, were generally car
ried out without a co-pilot, to free the seat for a paying passen
ger. Pilots who complained were fired-14 pilots had been dis
missed in the six months preceding the crash. Transport
Canada had received reports of irregularities at Wapiti from
current and past employees.
The appellant's Air Carrier Certification Manual for inspec
tors suggests, as warning signs of unsafe operation, inadequate
maintenance of equipment and high pilot turnover. To the
appellant's knowledge, both of these were present at Wapiti.
There are a variety of penalties that the Aviation Regulation
Branch can impose in case of non-compliance by carriers,
including warnings, limiting conditions on operating licences,
licence suspension, prosecution, and licence cancellation.
Warnings were issued for half of the violations detected at
Wapiti; no action was taken in respect of the others. The appel
lant decided to watch Wapiti more closely. No limitation was
placed on the airline's authority to fly visual flights at night
and instrument flights without a co-pilot.
On October 19, 1984, at 19:10, Wapiti flight 402 took off
from Edmonton in bad weather, to fly single-pilot IFR to High
Prairie, Alberta. Only one of the two automatic direction find
ers on board was working. The pilot received clearance to
descend to 7,000 feet but continued below that level in the
hope of making visual contact with the ground. The aircraft
was off course. The pilot did not use the automatic pilot,
assuming that, like three of the four auto-pilots at Wapiti, it
was not operational. He was unable to make radio contact with
ground control at High Prairie. At 20:04, the plane crashed in
the Swan Hills, 20 miles from its destination, killing six of the
nine passengers on board.
The Trial Judge held that the fatal crash was caused by the
negligence of the pilot, the airline, and Transport Canada, and
apportioned responsibility equally. From that finding the
Crown appeals.
Held, the appeal should be dismissed.
Some governmental functions, including legislative and
judicial ones, are immune from liability for negligence as long
as they are carried out in good faith. The Crown must be free
to govern without becoming subject to tort liability for its pol
icy decisions. Tort immunity should, however, be granted spar
ingly to Crown agencies. Only decisions which are truly deci
sions of policy, usually made at higher levels and involving
social, political and economic factors, are exempt. There is no
immunity for actions which are administrative, operational or
in the nature of business.
Operational activities of Crown servants can give rise to a
duty of care. Here, the field staff making the enforcement deci
sions were neither elected representatives nor high officials,
and they did not make policy but implemented it. They should
not be concerned with the economic health of the industry, the
availability of air transportation to the public, or any political
repercussions of their actions. Their profession was safety.
Their duty to apply the regulations, so far as they affected
safety, was a civil duty owed to the passengers of Wapiti.
The standard of care which applies to the discharge of that
duty is the same as for other persons who work in a particular
vocation: that of a reasonable person engaging in that activity.
In determining whether they behaved as would reasonably
competent inspectors in similar circumstances, the Court had
to consider custom and practice, legislation and relevant guide
lines. The risk and severity of harm were to be balanced
against the object and the cost of remedial measures. It was
also necessary that available resources be taken into account.
Compliance measures were meant to be applied in a pro
gressive way, according to the seriousness of non-compliance
and taking into account any repetition of the infraction. There
was a guideline in an ANO which prescribed that no deviation
be permitted from standards essential to safety. The Enforce
ment Manual, while contemplating that administrative mea
sures be preferred for most first infractions, stipulates that they
not be relied on where they "would be clearly ineffective in
promoting flight safety and compliance". The failure to meet
that standard was not brought about by a lack of personnel
resources: there was staff time to inspect the airline and to
meet with Wapiti management. Rather, it was based on the
judgment of field staff. They failed to apply the proportionate
responses of a sound compliance policy. To accept promises of
remedial action after those promises were found to be empty
did not meet the standard of reasonably competent inspection.
Where multiple factors cause the plaintiff's injury, the test
of causation is whether the defendant's negligence substan
tially contributed to the accident. Had Transport Canada taken
measures against Wapiti's known non-compliance, one or
more of the factors which brought about the accident would
not have been present: there might have been a co-pilot on
board, both direction finders might have been functioning, the
pilot might have had confidence in his auto-pilot, he might not
have been taught by Wapiti's management to violate weather
minima. Most importantly, the appellant's inaction substan
tially contributed to a lax safety environment at Wapiti. That
environment was a causa sine qua non of the fatal crash. While
the appellant was not obligated to take specific action, such as
suspending the right to undertake single-pilot IFR flights, its
failure to take any action reasonably related to the gravity of
Wapiti's contraventions was a cause without which the plain
tiffs' loss would not have occurred.
Unless there is a clear error of principle, the apportionment
of liability should not be interfered with by an appellate court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Aeronautics Act, R.S.C., 1985, c. A-2, ss. 4(a), 21(1),(8).
Aeronautics Act, R.S.C. 1970, c. A-3.
Crown Liability Act, R.S.C., 1985, c. C-50, ss. 3(a), 8.
Crown Liability Act, R.S.C. 1970, c. C-38.
Crown Liability Act, S.C. 1953, c. 30.
Crown Proceedings Act 1947 (U.K.), 1947, c. 44.
Federal Tort Claims Act, 28 U.S.C. §1346 (1982).
Worker's Compensation Act, S.A. 1981, c. W-16, s. 18(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kamloops (City of) v. Nielsen et al., [1984] 2 S.C.R. 2;
(1984), 10 D.L.R. (4th) 641; [1984] 5 W.W.R. 1; 29
C.C.L.T. 97; Just v. British Columbia, [1989] 2 S.C.R.
1228; (1989), 64 D.L.R. (4th) 689; [1990] 1 W.W.R. 385;
103 N.R. 1; Snell v. Farrell, [1990] 2 S.C.R. 311; (1990),
110 N.R. 200.
CONSIDERED:
Welbridge Holdings Ltd. v. Metropolitan Corporation of
Greater Winnipeg, [1971] S.C.R. 957; (1970), 22 D.L.R.
(3d) 470; [1972] 3 W.W.R. 433; Wilsher v. Essex Area
Health Authority, [1988] 2 W.L.R. 557 (H.L.).
REFERRED TO:
The King v. Cliche, [1935] S.C.R. 561; [1936] 1 D.L.R.
195; Anns v London Borough of Merton, [1977] 2 All ER
492 (H.L.); Dalehite v. United States, 346 U.S. 15 (Ct.
App. 1952); Murphy v. Brentwood D C, [1990] 2 All ER
908 (H.L.); Rothfield v. Manolakos, [1989] 2 S.C.R.
1259; (1989), 63 D.L.R. (4th) 449; [1990] 1 W.W.R. 408;
102 N.R. 249; Tock v. St. John's Metropolitan Area
Board, [1989] 2 S.C.R. 1181; (1989), 64 D.L.R. (4th)
620; 104 N.R. 241; Laurentide Motels Ltd. v. Beauport
(City), [1989] 1 S.C.R. 705; 23 Q.A.C. 1; (1989), 45
M.P.L.R. 1; 94 N.R. 1; Barrau v. Corporation of North
Vancouver, [1980] 2 S.C.R. 418; (1980), 114 D.L.R. (3d)
577; 27 B.C.L.R. 182; 14 C.C.L.T. 169; 13 M.P.L.R. 116;
8 M.V.R. 294; 33 N.R. 293; Letnik v. Toronto (Municipal-
ity of Metropolitan), [1988] 2 F.C. 399; (1988), 49 D.L.R.
(4th) 707; 44 C.C.L.T. 69; 82 N.R. 261 (C.A.).
AUTHORS CITED
Bowman, M. J. and Bailey, S. H. "Negligence in the
Realms of Public Law—A Positive Obligation to Res
cue?", [1984] Public Law 277.
Bowman, M. J. and Bailey, S. H. "The Policy/Operational
Dichotomy—A Cuckoo in the Nest", [1986] C.L.J.
430.
Canada, Report of the Commission of Inquiry on Aviation
Safety, Ottawa: Supply & Services, 1981 (Commis-
sioner: Charles L. Dubin).
Canada, Law Reform Commission of Canada, The Legal
Status of the Federal Administration (Working Paper
no. 40) Ottawa: Law Reform Commission of Canada,
1985.
Dussault, Rend and Borgeat, Louis. Administrative Law:
A Treatise, vol. 5, 2nd ed., Toronto: Carswell, 1990.
Feldthusen, Bruce. Economic Negligence, 2nd ed.,
Toronto: Carswell, 1989.
Fleming, J. G. "Probabilistic Causation in Tort Law"
(1989), 68 Can. Bar Rev. 661.
Fleming, J. G. The Law of Torts, 7th ed., Sydney: Law
Book Co. Ltd., 1987.
Hogg, Peter W. Liability of the Crown, 2nd ed., Toronto:
Carswell Co. Ltd., 1989.
Makuch, Stanley M. Canadian Municipal and Planning
Law, Toronto: Carswell Co. Ltd., 1983.
Ontario Law Reform Commission, Report on the Liability
of the Crown, Toronto: Ministry of the Attorney Gen
eral, 1989.
COUNSEL:
D. B. Logan and B. Ritzen for the appellant.
L. Leighton Decore for respondents.
SOLICITORS:
Deputy Attorney General of Canada for appel
lant.
Biamonte, Cairo & Shortreed, Edmonton, for
respondents.
The following are the reasons for judgment ren
dered in English
LINDEN J.A.: On the evening of October 19, 1984,
a Piper Chieftain aircraft, owned by Wapiti Aviation
Ltd., Flight 402, crashed into the Swan Hills near
High Prairie, Alberta, killing six of the nine passen
gers aboard. Terrance Albert Swanson and Gordon
Donald Peever were among the passengers who died
in that tragic crash. Their widows and families sued
the federal Crown for damages, alleging that the neg
ligence of its employees contributed to their loss.
Mr. Justice Walsh, at trial [[1990] 2 F.C. 619], held
in their favour, finding that there was a duty owed to
them by the Crown, that this duty was breached and
that this caused loss to the plaintiffs. He apportioned
liability equally among Wapiti, Eric Vogel, the pilot,
and the Crown. This appeal was launched by counsel
for the Crown, who contended that there was no duty
owed by the administration, that there was no negli
gence and, if there was, that there was no proof that
this conduct caused the crash. In any event, they sub
mitted, the apportionment was erroneous.
The Aeronautics Act, R.S.C., 1985, c. A-2, as
amended, declares that it is, among other things, the
"duty of the Minister ... to supervise all matters
connected with aeronautics" [paragraph 4(a)]. Wide
powers to pass regulations are granted to the Minis
ter. The Canadian Transport Commission is estab
lished. Included in its functions is the issuance of
licences to operate commercial air service (subsec-
tion 21(1)). Notwithstanding the issuance of a
licence, however, "no air carrier shall operate a com
mercial air service unless he holds a valid and sub
sisting certificate issued to him by the Minister certi
fying that the holder is adequately equipped and able
to conduct a safe operation" (subsection 21(8)).
Hence there is a two-step procedure for airlines: the
acquisition of a licence to establish a commercial air
service, which is obtained from the CTC, and then
receiving an operating certificate, which is secured
from the Aviation Regulation Branch of Transport
Canada.
Pursuant to this regulatory power, Air Navigation
Orders (ANO) and policy directives were promul
gated setting out the standards of safety which the
Branch and its inspectors must enforce. If there was
non-compliance, they had many powers, including
the authority to suspend permission to fly single-
pilot IFR (Instrument Flight Rules), to fly night VFR
(Visual Flight Rules), to revoke the appointment of
management personnel, to cancel approval of certain
routes, destinations and departure times, to conduct
interviews with pilots to ensure safety, and, if neces
sary, the tough measure of operating licence suspen
sion. In addition, they could refer matters to the
Department of Justice or the RCMP for further inves
tigation and possible prosecution. Compliance mea
sures were meant to be administered in a progressive
way, enforcement measures increasing in severity if
the violations persisted.
There have been difficulties in the past regarding
the safety of commercial air travel, which led to the
establishment of the Dubin inquiry in 1979 [Report
of the Commission of Inquiry on Aviation Safety], fol
lowing another study by Slaughter and Carswell in
1977. Airlines have taken chances they should not
have taken in order to complete flights that should
not have been completed or flown at all. Safety, it
appears, has been sometimes compromised in the
pursuit of profit in this industry, as in others.
The Western Region of the Aviation Regulation
Branch of the Department of Transport is responsible
for administering the Act, the regulations and ANO's
in Alberta, northeastern British Columbia, the Yukon
and the western half of the Northwest Territories. The
Western Regional Director had a staff of 75 people, 9
of whom were air carrier inspectors and 2 of whom
were enforcement officers (1 full-time and l part-
time). In the Western Region there were over 11,000
licensed pilots, 5,000 aircraft, 175 air carriers, 40 fly
ing schools and 40 corporate aviation departments to
administer.
One of these small carriers in the Western Region
was Wapiti Aviation Ltd., which served Edmonton,
High Prairie, Grand Prairie and Peace River. Delbert
Wells and his son, Dale Wells, ran the airline. Delbert
Wells, the father, served as the operations manager,
even though he lacked the proper qualifications for
the job and had not been approved by Transport
Canada. Dale Wells, the son, was chief pilot, chief
flying instructor, designated flight test examiner and
chief maintenance engineer, giving him more respon
sibility than he could properly exercise.
Wapiti was not a model airline. Competition was
fierce. Routine checks on aircraft, which had to be
done at regular intervals, were done infrequently.
Pilots were expected to complete their flights on time
and as cheaply as possible, regardless of weather con
ditions and the state of the aircraft. Pilots were
encouraged to fly under Visual Flight Rules (VFR)
even when the weather was not suitable for this
method of flying. They were allowed to fly under the
more fuel-intensive Instrument Flight Rules (IFR)
only if absolutely necessary, and then they generally
did so without a co-pilot. This put the pilots under a
great deal of pressure. Pilots who complained about
this were fired, usually before they had completed 90
days, so that they were not entitled to two weeks'
notice. This was described as a "revolving door" pol
icy, which is understandable, since, in a six-month
period before the crash, there was a turnover of 14
pilots at Wapiti.
There were many violations of ANO's by Wapiti
and several complaints were made by its pilots to
Transport Canada. This led to a report written by
Inspector Lidstone dated April 4, 1984, which out
lined many violations in operational control. It gave
examples of irregularities based on information given
by Wapiti employees, past and present. This report
was discussed with Dale Wells, who promised the
superintendent that things would improve. He was
trusted, but little was done by him to deserve this
trust.
Another shocking report, dated August 17, 1984,
was written by Inspector Griffiths, following a fur
ther visit to Transport Canada by several Wapiti
pilots, including Mr. Vinderskov. This report warned:
There is a total disregard for regulations, rights of others and
safety of passengers. If they persist in this manner of operation
for a much longer period we are virtually certain to be faced
with a fatality.
A meeting was held following this memo and it was
decided by Mr. Davidson, the Regional Director, to
keep a closer watch on Wapiti and collect more evi
dence, but nothing more was done in terms of addi
tional enforcement.
Eric Vogel, who had joined Wapiti on August 30,
1984, was 24 years old at the time. He took off in bad
weather from Edmonton on the fateful evening of
October 19, 1984 at 19:10, flying alone under Instru
ment Flight Rules (IFR). He requested from
Edmonton Air Traffic Control a routing direct to
High Prairie. One of his two automatic direction find
ers was not working. His flight was cleared to
descend to 7,000 feet. Vogel, intending to see
whether he could land under Visual Flight Rules,
descended further, by "cruise descent" below 5,600
feet, the lowest permissible altitude, hoping to reach
2,800 feet where he might be able to see the land
below. This was the procedure he was shown by Dale
Wells during training which facilitated landings in
situations where they would otherwise be impossible.
He tried to contact ground control at High Prairie, but
the radio operator was not at her post. Vogel did not
use the auto pilot, because he had assumed (mistak-
enly) that it was not operating, like three out of four
of the auto-pilots at Wapiti. He suddenly emerged
from a cloud and, at 20:04, crashed into the Swan
Hills, which he had wrongly assumed were a distance
away. He was then 20 miles from High Prairie air
port. Vogel survived the crash, but six of the nine
passengers were killed.
In order to recover in negligence, there must be a
duty, a breach of that duty and loss caused as a result.
1. The Duty Issue
The first legal issue to consider, therefore, is
whether there was a civil duty to use reasonable care
owed by the Crown to the families of the deceased
men. Historically, there was no liability in tort for the
Crown. Because there was no jurisdiction in any of
the courts to try the King, and because of the princi
ple that "the King can do no wrong", those injured at
the hands of the Crown were without a legal remedy.
Later, upon a petition, the Crown could voluntarily
submit itself to the jurisdiction of the Court. A cus
tom grew up that, if employees of the Crown com-
mitted torts for which they could be held liable, the
Crown would stand behind their servants and volun
tarily pay any damage award that was rendered. (See
Dussault and Borgeat, Administrative Law: A Trea
tise (2d ed. 1990) Volume 5.)
Understandably, this state of affairs came under
attack. Dicey and other scholars, as well as several
royal commissions in the United Kingdom, urged
that the Crown's immunity from tort liability be elim
inated so that the Crown would be subject to the rule
of law in the same way as other citizens were (ibid.,
at page 11). Eventually legislation was enacted in the
United Kingdom and Canada which permitted tort
actions against the Crown in certain circumstances.
(See the Crown Proceedings Act 1947 (U.K.), 1947,
c. 44; Crown Liability Act, S.C. 1953, c. 30, now
R.S.C., 1985, c. C-50.) Quebec, Australia and New
Zealand had earlier done away with the Crown
immunity by virtue of judicial decisions based on
special circumstances. (See, for example, The King v.
Cliche, [1935] S.C.R. 561.) The Americans also
enacted legislation in this area (see Federal Tort
Claims Act, 1946, now 28 U.S.C. §1346 (1982)).
Pursuant to the Canadian Crown Liability Act,
R.S.C. 1970, c. C-38, now R.S.C., 1985, c. C-50,
therefore, an action in tort may now be brought in the
Federal Court of Canada. Paragraph 3(a) of the Act
states that the "Crown is liable in tort for the dam
ages for which, if it were a private person of full age
and capacity, it would be liable ... in respect of a
tort committed by a servant of the Crown." While
there are still problems with this statute which have
evoked calls for further reform, both federally and
provincially, (see Ontario Law Reform Commission,
Report on the Liability of the Crown (1989); Law
Reform Commission of Canada, The Legal Status of
the Federal Administration (1985)), they are not rele
vant in this case. Thus, pursuant to this legislation, if
a servant of the Crown would be liable, the Crown is
liable in tort for any damages caused by him.
There are, however, in addition to Crown liability
'hurdles, principles of tort law that complicate the sit
uation. Courts are reluctant to second-guess decisions
that are made in the political sphere because of their
respect for the separation of powers theory and
because they recognize that theirs is an "awkward
vantage point from which to assess public policy
decisions with multilateral implications." (See
Feldthusen, Economic Negligence (2d ed. 1989) at
page 284.) They have, therefore, created an immunity
for certain types of governmental activities which
cannot be attacked by means of a negligence action
as long as they are done in good faith. Other acts of
government are amenable to negligence actions, how
ever. That there should be a sphere of government
conduct that should be beyond the reach of tort law is
not disputed; what is disputed, however, is the scope
of that immunity. This Court must determine whether
the impugned conduct of the officials of Transport
Canada was subject to negligence law or whether it
was outside its ambit.
One of the early leading cases on this issue is Wel-
bridge Holdings Ltd. v. Metropolitan Corporation of
Greater Winnipeg, [1971] S.C.R. 957, where a
municipality negligently "enacted" a by-law which
was later held invalid. The plaintiff had relied on it
and started to build an apartment building, which
later had to be stopped with consequent financial
losses. In analysing the conduct, Mr. Justice Laskin
(as he then was) at page 970, explained:
... the risk of loss from the exercise of legislative or adjudica-
tive authority is a general public risk and not one for which
compensation can be supported on the basis of a private duty
of care.
Mr. Justice Laskin reminded us, however, that there
could be tort liability for governmental acts which
could be classified as "administrative or ministerial,
or ... business powers" since they were presumably
not the types of things that led to separation of power
conflicts, nor would there be any difficulty in making
judgments about the reasonableness of decisions like
those.
Following Welbridge Holdings, there were several
decisions that grappled with this dichotomy, so well
explained by Mr. Justice Laskin. Different labels
were employed by different courts in an effort to dif
ferentiate between those governmental acts that
would be immune from tort liability and those acts
that would not be. No liability in tort can be imposed
for governmental acts which are done pursuant to
"legislative", "judicial", "quasi-judicial", "planning",
"discretionary" or "policy" functions. (See Anns y
London Borough of Merton, [1977] 2 All ER 492
(H.L.), for example; see also Hogg, Liability of the
Crown, 2d ed. (1989) at page 121.) On the other
hand, liability may be imposed for governmental acts
which are classified as "administrative", "opera-
tional", "routine", "housekeeping", "implementa-
tion", or "business powers". This has prompted one
judge to complain that "the ancient and discredited
doctrine that `The King can do no wrong' has not
been uprooted; it has merely been amended to read,
'the King can do only little wrongs'." (Jackson J. dis
senting in Dalehite v. United States, 346 U.S. 15 (Ct.
App. 1952), at page 60.)
Recently, there has been some clarification and
elaboration by the Supreme Court of Canada of the
principles governing this area. Basing itself on the
Anns y Merton case (which has since been overturned
in the United Kingdom., see Murphy v. Brentwood
D C, [1990] 2 All ER 908 (H.L.)) the Supreme Court
of Canada, by which we are bound, in Kamloops
(City of) v. Nielsen et al., [1984] 2 S.C.R. 2 and Just
v. British Columbia, [1989] 2 S.C.R. 1228, indicated
that there could be no negligence liability for "pol-
icy" decisions made in good faith, but that there
could be for "operational" decisions. Mr. Justice
Cory, for the majority of the Supreme Court in Just,
at page 1239, cast some light on how to approach the
task of distinguishing between these two different
types of government activities:
The early governmental immunity from tortious liability
became intolerable. This led to the enactment of legislation
which in general imposed liability on the Crown for its acts as
though it were a person. However, the Crown is not a person
and must be free to govern and make true policy decisions
without becoming subject to tort liability as a result of these
decisions. On the other hand, complete Crown immunity
should not be restored by having every government decision
designated as one of policy. [Emphasis mine.]
Mr. Justice Cory explained further, at pages 1240-
1241 in Just that:
True policy decisions should be exempt from tortious claims so
that governments are not restricted in making decisions based
upon social, political or economic factors. However, the imple
mentation of those decisions may well be subject to claims in
tort. [Emphasis mine.]
Mr. Justice Cory, at page 1242, continued:
The duty of care should apply to a public authority unless
there is a valid basis for its exclusion. A true policy decision
undertaken by a government agency constitutes such a valid
basis for exclusion. What constitutes a policy decision may
vary infinitely and may be made at different levels, although
usually at a high level. [Emphasis mine.]
Mr. Justice Cory stated further at page 1244, that
even if there is a civil duty owed by the Crown, it is
still necessary, in assessing the standard of care
required of the government actor in question, to bal
ance the "nature and quantity of the risk ... in the
light of all the circumstances ... including budgetary
limits, the personnel and equipment available to
it...."
Thus, tort immunity should be sparingly granted to
Crown agencies; only their "true policy decisions",
generally made at higher levels, involving "social,
political and economic factors" are exempt. If the
conduct is not immunized completely, negligence law
remains applicable, for there is still required a "tradi-
tional torts analysis ... of [the] standard of care
required of the government agency ... in light of all
the surrounding circumstances including, for exam
ple, budgetary restraints and the availability of quali
fied personnel and equipment" (page 1245). Mr. Jus
tice Cory concludes that this is "fair to both the
government agency and the litigant" (page 1247).
(See also Rothfield v. Manolakos, [1989] 2 S.C.R.
1259; Tock v. St. John's Metropolitan Area Board,
[1989] 2 S.C.R. 1181; Laurentide Motels Ltd. v.
Beauport (City), [1989] 1 S.C.R. 705; Barratt v. Cor
poration of North Vancouver, [1980] 2 S.C.R. 418.)
A similar approach has been urged by Bailey and
Bowman in the United Kingdom, who are critical of
the excessive judicial use of the duty of care issue,
which they contend is a "cruder device", instead of
"leaving the matter to the issue of breach", a more
subtle one. There is "plenty of scope", they say,
"within ordinary tort principles for accommodating
the policy considerations that might militate against
the imposition of a duty of care upon a public author
ity or against holding an authority to be in breach of
duty." ("Negligence in the Realms of Public Law—A
Positive Obligation to Rescue?", [1984] Public Law
277, at pages 301 and 307.) In a further article, the
same authors argue that the "policy/operational
dichotomy has proved inadequate for the purpose of
identifying the allegedly non-justicicable cases at a
preliminary stage, and unhelpful in dealing with them
on the merits. It merely raises an extra dimension of
confusion .... " They conclude by saying that, if it is
to be used, "it should be confined to as narrow a
scope as possible." ("The Policy/Operational
Dichotomy—A Cuckoo in the Nest", [1986] C.L.J.
430, at pages 455-456.)
Other authors have sought to assist in unravelling
the mystery. Professor Stanley Makuch offered two
factors for courts to consider in deciding whether to
intrude: one, if the decision is "polycentric" or multi
faceted, that is, a choice between "efficiency and
thrift", it should be decided through the "ballot box
not the courts" (see Lord Wilberforce in Anns,
supra); second, if there are "commonly accepted
standards"—legislative, custom or other—to guide
the courts, they might be more inclined to intrude.
(See Canadian Municipal and Planning Law (1983)
at page 140.)
Professor Hogg, in his book Liability of the Crown
(2nd ed., 1989) at page 124, prefers the word "plan-
ning", rather than policy, to identify those acts which
need to be protected for it connotes "generality or
complexity", which courts may have difficulty evalu
ating. The word "operational", he suggests, focuses
on the "specific". In other words, we are concerned
here with differentiating between macro-decisions
affecting the welfare of the nation, and micro-
decisions which are more limited in their signifi
cance.
Another way of looking at this is to say that a gov
ernment must be entitled to govern free of the
restraints of tort law, but that when it is merely sup
plying services to citizens it should be subject to
ordinary negligence principles. In the words of Mr.
Justice Cory, "the Crown ... must be free to govern."
(See Just, supra, at page 1239.) "It is not a tort for a
government to govern" (see Jackson J., dissenting in
Dalehite v. United States, supra, at page 57). Such an
immunity, therefore, is necessary, but it must be lim
ited only to those functions of government that are
considered to be "governing" and not available to
those tasks of government that might be styled "ser-
vicing".
In this case, the Trial Judge correctly decided that
the Crown's response to the complaints and reports
was an operational decision, not a policy matter. His
statement to the effect that it "constituted a conscious
decision not to act, on policy grounds" [page 631]
was meant in a more general, non-technical sense, or
else it was a slip, inconsistent with his other state
ments and the entire tenor of his reasons. He later
concluded that it was "more than a matter of policy
but one of operation" [page 634]. The official making
the enforcement decisions was not a high elected
official like a Minister or even a Deputy Minister; he
was only a regional director. His work involved not
policy, planning or governing, but only administer
ing, operations or servicing. The decision had no
"polycentric" aspects, nor was there evidence of any
lack of resources to permit more rigorous enforce
ment of the regulations. There were available numer
ous specific guidelines upon which the Court could
rely in evaluating the conduct of the decision-maker.
This was not a budgetary, macro-exercise.
These people were essentially inspectors of air
lines, aircraft and pilots, who did not make policy,
but rather implemented it, although they certainly had
to exercise some discretion and judgment during the
course of their work, much like other professional
people. I agree with Mr. Justice Walsh when he stated
[at page 634]:
The Aeronautics Act and Regulations made thereunder if not
explicity [sic] imposing a duty of care to the general public, at
least do so by implication in that this is the very reason for
their existence. The flying public has no protection against
avaricious airlines, irresponsible or inadequately trained pilots,
and defective aircraft if not the Department of Transport and
must rely on it for enforcement of the law and regulations in
the interest of public safety. Its expressed policy is, as it must
be, to enforce these Regulations, but when the extent and man
ner of the enforcement is insufficient and inadequate to pro
vide the necessary protection, then it becomes more than a
matter of policy, but one of operation and must not be carried
out negligently or inadequately. While there may be no con
tractual duty of care owed to the public, as plaintiff suggests,
this does not of itself protect defendant from liability in tort.
These officials were not involved in any decisions
involving "social, political or economic factors".
Indeed it was another emanation of the Department
of Transport altogether, the Canadian Transport Com
mission, a quasi-judicial body whose function it was
to take into account such grounds, which granted the
initial licence to Wapiti and other airlines, whereas
this branch concerned itself with operating certifi
cates that focused mainly on the matter of safety.
These officials were not concerned with the health of
the airline industry, with supplying service to remote
areas or with employment for young pilots and, if
such matters were considered by them in making
their decisions, they probably should not have been.
Nor was it their job to worry about airlines "going
political". Their task was to enforce the regulations
and the ANO's as far as safety was concerned to the
best of their ability with the resources at their dispo
sal. This function was clearly operational. Hence, a
civil duty of care was owed to the plaintiffs to exer
cise reasonable care in the circumstances.
Section 8 of the Crown Liability Act, R.S.C., 1985,
c. C-50, it is argued, immunized the defendant from
liability in this case. It reads as follows:
8. Nothing in sections 3 to 7 makes the Crown liable in
respect of anything done or omitted in the exercise of any
power or authority that, if those sections 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 gener
ality of the foregoing, nothing in those sections makes the
Crown liable in respect of anything done or omitted in the
exercise of any power or authority exercisable 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.
It will be recalled that section 3 makes the Crown
"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 ser-
vant of the Crown .... " Section 7 deals with "sal-
vage service rendered to Crown ships or aircraft" and
is not applicable here. In my view, section 8 is only
relevant to non-negligent conduct. If the Crown's ser
vants are negligent, section 3 and ordinary tort prin
ciples govern. If it were otherwise, then section 8
would render section 3 virtually useless, something
Parliament could not have intended when it enacted
this legislation abolishing the ancient immunity and
subjecting the Crown to tort liability.
As for the danger of holding governmental author
ities liable in tort for their negligence in cases such as
these, Madam Justice Wilson has this response:
I do not see it, as do some commentators, as potentially ruin
ous financially to municipalities. I do see it as a useful protec
tion to the citizen whose ever-increasing reliance on public
officials seems to be a feature of our age ... [See Kamloops,
supra, at page 26.]
While governments must certainly be free to gov
ern, it is not acceptable for all bureaucrats who must
exercise professional judgment to clothe themselves
in the vestments of policy-making functions and
thereby seek to avoid any responsibility for their neg
ligence. This is especially so for officials charged
with the duty of maintaining safety. They cannot be
protected by an immunity, but must be encouraged,
just like other professionals, to perform their duties
carefully. They must learn that negligence, like
crime, does not pay.
2. The Negligence Issue
Having decided that Transport Canada owed a civil
duty to the passengers of Wapiti and was not immune
from negligence liability, it is now necessary to
decide whether the servants of the Crown were negli
gent in their supervision of Wapiti and its pilots.
The government is not an insurer; it is not strictly
liable for all air crashes, only for those caused by the
negligence of its servants. The standard of care
required of these inspectors, like every other individ
ual engaged in an activity, is that of a reasonable per
son in their position. What is required of them is that
they perform their duties in a reasonably competent
way, to behave as would reasonably competent
inspectors in similar circumstances, no more and no
less. In evaluating their conduct, courts will consider
custom and practice, any legislative provisions and
any other guidelines that are relevant. The risk of
harm and its severity will be balanced against the
object and the cost of the remedial measures. In the
end, the Court must determine whether the employ
ees of the defendant lived up to or departed from the
standard of care demanded of them, in the same way
as in other negligence cases. (See, generally, Flem-
ing, The Law of Torts (7th ed., 1987), at page 96.)
In accordance with the directions of the Supreme
Court of Canada in Just, it is necessary to consider, in
assessing the conduct of the defendant, matters such
as resources available. Surgeons who stop at the side
of the road to help injured motorists, cannot, of
course, be expected to perform at the same level as
they could in an operating theatre of a major hospital.
Similarly, an inspection staff of a few cannot be
expected to deliver the same quality of service that a
larger team could. What is expected of both is rea
sonable care in the circumstances, including the
resources available to them. An underfunded govern
ment inspection staff is no different than a surgeon
operating on an accident victim at the side of a road.
Neither is responsible for circumstances beyond their
control, but each must use their resources as would
fellow professionals of reasonable competence in the
same circumstances.
The Trial Judge clearly understood that the plain
tiff had to [at page 637] "establish that Transport
Canada was negligent with respect to the steps it did
not take before the crash." He held that there was
negligence by the defendant's employees in [at page
635] "allowing Wapiti to continue single-pilot IFR
operation despite previous infractions," there being
"plenty of time to remedy this by withdrawing per
mission". He found that the [at page 638] "pressure
put on pilots to undertake flights in contravention of
regulations despite some defects in equipment was
known to the defendant some time before the crash."
He also held that the plane "had only one ... direc
tion finder or if it had two the other was not work
ing" as it was required to be. He decided also that
there "was plenty of time to take stronger action in
May and again in August before the crash took place
in October." I am of the view that these findings of
negligence are amply supported by the evidence
presented at the trial.
The regulations and the Air Navigation Orders pre
scribe the procedures to be followed, the purpose for
which those procedures existed and the duties of
those who performed them. A general description of
an Inspector's job is found in ANO series 7, from
which Inspector Lidstone of Transport Canada
quoted in evidence:
It is the civil aviation inspector's duty to be familiar with all
statutory requirements and to check during the course of his
inspections that they are complied with in full. No deviation
from essential safety standards can be permitted. [Emphasis
mine.]
The need for strict compliance with safety stan
dards underscores the obvious importance of passen
ger safety. The defendant is responsible for the certi
fication of each carrier and their inspection,
airworthiness of the equipment and its maintenance.
Not only is the granting of the licence the job of this
department, but also the need to monitor the airlines
to ensure that they remain qualified. One of the warn
ing signs which may alert an inspector that an air car
rier is not operating safely, as set out in the Air Car
rier Certification Manual, is high pilot turnover.
Another is inadequate maintenance. Both of these
danger signals were abundantly apparent to Transport
Canada as they observed Wapiti.
There were also standards set out for enforcement.
Four official enforcement techniques were available
to Transport Canada: warning, suspension, prosecu
tion and cancellation of a licence. Warnings were
used in the case of most first offences. These enforce
ment techniques could be carried out through four
different types of action: referral, administrative,
judicial, and joint administrative and judicial. While
administrative action was to be used in most cases,
the Transport Canada Enforcement Manual stated
that it was not to be employed in cases "where it
would be clearly ineffective in promoting flight
safety and compliance." The Regional Director had
the power to suspend operating certificates, permits,
licences and other flight authorization documents.
Contained in ANO series 7 is a guideline of sanc
tions appropriate to various violations. A first offence
of failing to maintain log books could attract a range
of punishment varying from a warning to a $1,000
fine or a 14-day suspension. For the second offence,
a 30-60 day suspension or a $2,500 fine was recom
mended. This progressive punishment was part of the
policy of the Department in treating repeat offences.
It is clear that the Department had the responsibility
to enforce compliance with the rules as well as per
forming inspections.
In the case at bar, the evidence does not indicate
that Regional Director Davidson and his staff were in
any way limited in their functions by considerations
of finances or resources. The decision not to act more
decisively against Wapiti was one of professional
judgment, not departmental budget. Transport
Canada had the time and resources to examine com
plaints regarding Wapiti and to meet with Dale Wells
to discuss Wapiti's problems. They had enough
officers to prepare detailed reports about the airline,
to receive complaints from its pilots and to record its
suspected weather infractions.
Among the incidents of Transport Canada's negli
gence, the following emerge from the evidence and
findings of the Trial Judge as the most significant.
Transport Canada knew of the pressure which Wapiti
placed on pilots to fly regardless of weather condi
tions and equipment maintenance. They knew that
pilots who objected to unsafe conditions were gener
ally fired, leading to a turnover of as many as 14
pilots in 6 months. They knew that planes were not
always in operating order, that the necessary manu
facturer's checks were not performed on schedule,
and sometimes not done at all. They knew that such
maintenance deficiencies as were discovered were
often not logged. Transport Canada suspected that
Wapiti planes had broken weather minima on 43
occasions prior to the crash, despite their lack of
equipment to handle even satisfactory weather condi
tions properly. Under Transport Canada's own guide
lines, approval for night VFR was supposed to be
based on making sure there was adequate communi
cation and weather reporting. No such communica
tion existed at High Prairie. They knew that, when
Wapiti did employ a co-pilot, that person might be
unqualified for the job. Wapiti did not like to use co
pilots because the co-pilot's seat could be occupied
by a paying passenger. At least four Wapiti pilots had
complained to Transport Canada about safety condi
tions before the crash. Transport Canada must, or
should, under its own guidelines, have been aware
that Delbert Wells was unqualified to hold the posi
tion of Operations Manager, as his knowledge of fly
ing was minimal and he did not seem to comprehend
the danger he was courting in cutting every possible
corner. Transport Canada was well aware that Wells
was willing to trade safety for profit. All of the above
unsafe practices were violations of ANO series 7.
In a report prepared by Inspector Lidstone on April
4, 1984, for the Superintendent, Air Carrier Opera
tions, as indicated above, most of these deficiencies
were noted. This report led to a meeting between
Dale Wells and Transport Canada in which Wells
assured them that Wapiti would improve. No other
official action was taken. Another report, as men
tioned above, was prepared by Inspector Griffiths on
August 17, 1984 which warned that there was "a total
disregard for regulations, rights of others and safety."
It also predicted that it was "virtually certain" that a
fatal accident would occur unless some action was
taken to curb Wapiti's violations. Surprisingly, and
tragically, the only response to this was the decision
to undertake further investigations and surveillance.
Of the fourteen instances, starting on July 2, 1982,
where Transport Canada considered action against
the airline, seven resulted in letters of warning or
allegation and seven attracted no action at all. There
was no hint of the progressive discipline which the
Department was supposed to apply to ensure compli
ance with safety standards.
Despite more than a year's worth of warning sig
nals, Transport Canada allowed Wapiti to continue its
clearly dangerous single-pilot IFR and night VFR
operations. These operations were performed without
adequate staff, equipment, maintenance, supervision,
communication or training. Transport Canada was
aware of the scope of the problems at Wapiti from its
own investigations and from the complaints of pilots.
As Justice Walsh found, there was plenty of time for
them to come to the conclusion that their permission
to continue these practices should be withdrawn.
Wapiti failed to respond to repeated warnings with
anything more than unfulfilled promises to comply
with the specifications of their operating certificates.
Transport Canada's acceptance of these repeated
assurances was entirely inconsistent with its function
of promoting passenger safety.
The Dubin Report concluded that:
The practice of reinstating an operational certificate solely on
the basis of an undertaking to comply with safety standards in
the future is an inadequate method of ensuring future compli
ance with safety standards.
In my view, to accept an undertaking to comply is
just as inadequate prior to the cancellation of an oper
ating certificate as it is afterwards.
Further, there was expert evidence, accepted by the
Trial Judge, of Dr. Michael Enzle who stated that
when Wapiti's orders and Transport Canada's rules
were in conflict, a pilot would comply with Wapiti's
orders and disregard Transport Canada's rules, even
if it endangered his life and the lives of his passen
gers.
Had Transport Canada taken further investigative
steps, they would have discovered that Dale Wells,
Delbert's son, virtually coached new pilots on how to
make fuel-saving, illegal approaches into High Prai
rie. Wells showed new pilots how it was possible to
fly without an expensive co-pilot or auto-pilot by
coming out of the clouds and landing visually, even
at night. It was just such a game of chance which
Vogel was playing when he crashed into the side of
the mountain, killing six passengers.
Sadly, although Transport Canada threatened Wap
iti with more severe enforcement measures, these
threats turned out to be hollow ones, until after the
crash, when Wapiti's authority to fly IFR flights was
revoked, night VFR operations were strictly con
trolled, the management was changed, and other mea
sures were taken.
This state of affairs was summed up in the Report
prepared by Inspector Walter Gadzos for the Ministry
of Transportation after the crash, which was quoted
by the Trial Judge [at (1990), 32 F.T.R. 129, at pages
141-142]*:
Transport Canada was aware of serious deficiencies in the car
rier's flight operations and maintenance practices and knew
that Wapiti Aviation Ltd. had been repeatedly violating safety
standards for at least a year and one half prior to the accident
date. Although Transport Canada had reasonable grounds to
believe that Wapiti's operations were unsafe and that vigorous
enforcement action was warranted, no effective action was
taken until after the accident....
Transport Canada's failure to take any meaningful
steps to correct the explosive situation which it knew
existed at Wapiti amounted to a breach of the duty of
care it owed the passengers. Transport Canada offi
cials negligently performed the job they were hired to
do; they did not achieve the reasonable standard of
safety inspection and enforcement which the law
requires of professional persons similarly situated. It
was not reasonable to accept empty promises to
improve where no improvement was forthcoming. It
is incomprehensible that a professional inspector of
reasonable competence and skill would choose not to
intervene in a situation which one of his own senior
staff predicted was virtually certain to produce a fatal
accident. The Trial Judge summarized Transport
Canada's attitude to Wapiti as follows [at pages 143
and 147 F.T.R.]:
In most instances where infractions of the regulations were
called to Wapiti's attention, or threats of suspension were
made, Dale Wells was able to persuade the Department that
notice had been taken of the complaints and that the airline
would do better in the future. Evidently this was believed.
In the present case it is true that action was contemplated
against Wapiti and a few steps had been taken during the pre
ceding year but in the place of decisive action the defendant's
employees had been satisfied with Wapiti's promises to do bet
ter.
* Editor's note: The passages in this quotation and the next
one do not appear in the abridged reasons published in the
Federal Court Reports.
Such was Regional Inspector Davidson's response to
the situation at Wapiti. It is not possible to reconcile
this approach with that of a professional person of
reasonable care and skill whose duty it was to protect
passenger safety.
3. The Causation Issue
In addition to a duty and a breach of duty, the
plaintiffs, in order to recover, must establish that the
defendant caused their loss. Normally the test
employed to decide the causation issue is the "but
for" test. If the accident would not have occurred but
for the conduct of the defendant, there was causation.
If the accident would have occurred in any event,
there was no causation. Where multiple forces con
tribute to an accident, the test is modified; if a per
son's negligence substantially contributed to an acci
dent, it is also a cause of the accident. It is, therefore,
possible to be a cause of an accident by acting along
with others or by failing to prevent it.
In this case, it is clear that Vogel was a cause of the
crash. It is equally obvious that Wapiti contributed to
the accident by its preference for profit over safety
and by its failure to operate its airline in a careful
fashion. What must be demonstrated by the plaintiff
in order to succeed, however, is that Transport
Canada's negligence in failing to take sterner mea
sures contributed to this crash; that but for its sub
standard conduct this crash would not have occurred.
Historically, specific evidence of causation was
required by the courts. Often scientific proof was
needed to establish a linkage between the defendant's
act and the plaintiff's loss. This was a difficult task.
Sometimes seemingly meritorious claims foundered
on the causation shoal. The courts modified some of
the causation rules, shifting the onus of proving cau
sation to the defendant in limited circumstances. (See
Fleming "Probabilistic Causation in Tort Law"
(1989), 68 Can. Bar Rev. 661.) Occasionally, less
stringent tests of linkage were employed by courts.
Madam Justice Wilson in Kamloops (supra), for
example, with a fact pattern very similar to this one,
found that causation had been proven against a
municipality that failed to enforce its by-laws. She
explained [at page 15]:
The city's responsibility as set out in the By-law was to vet the
work of the builder and protect the plaintiff against the conse
quences of any negligence in the performance of it. In those
circumstances it cannot, in my view, be argued that the city's
breach of duty was not causative.
A significant breakthrough in clarifying and mod
ernizing causation doctrine was achieved by Mr. Jus
tice Sopinka in Snell v. Farrell, [1990] 2 S.C.R. 311,
at pages 328-330, a malpractice case, where he
stated:
I am of the opinion that the dissatisfaction with the tradi
tional approach to causation stems to a large extent from its too
rigid application by the courts in many cases. Causation need
not be determined by scientific precision. It is, as stated by
Lord Salmon in Alphacell Ltd. v. Woodward, [ 1972] 2 All E.R.
475, at p. 490:
... essentially a practical question of fact which can best be
answered by ordinary common sense rather than abstract
metaphysical theory.
In many malpractice cases, the facts lie particularly within
the knowledge of the defendant. In these circumstances, very
little affirmative evidence on the part of the plaintiff will jus
tify the drawing of an inference of causation in the absence of
evidence to the contrary.
The legal or ultimate burden remains with the plaintiff, but
in the absence of evidence to the contrary adduced by the
defendant, an inference of causation may be drawn although
positive or scientific proof of causation has not been adduced.
This statement echoed the view of the House of
Lords in Wilsher v. Essex Area Health Authority,
[1988] 2 W.L.R. 557, at page 569 that a "robust and
pragmatic" approach to fact-finding in the causation
area was to be employed. It is also consistent with the
decision of this Court in Letnik v. Toronto (Munici-
pality of Metropolitan), [1988] 2 F.C. 399, at page
417, where Mr. Justice MacGuigan advocated a
"more practical, common sense approach" to evi
dence of causation.
It is clear, therefore, that the Trial Judge was cor
rect when he concluded, somewhat indirectly, that
Transport Canada's negligence was a cause of the
crash. There was sufficient evidence of causation to
permit him and this Court (as was done by the
Supreme Court of Canada in Snell), to infer, on the
basis of the "ordinary common sense" approach now
favoured, that the negligence of Transport Canada
contributed to the crash. There was certainly no evi
dence advanced to the contrary.
While Transport Canada cannot prevent a pilot
from flying negligently or from endangering the lives
of passengers, if he or she so chooses, it can reduce
the risk that this will occur. They can stop an airline
from using shoddy equipment. They can minimize,
through inspection and enforcement, the occasions
when such negligence will occur. Transport Canada
cannot prevent airlines from trying to run their busi
nesses as cheaply and profitably as possible, but they
can seek to enforce compliance with the safety rules.
The desire to promote passenger safety led to legisla
tion and regulations under which the Crown was
given the duty to ensure that certain safety standards
were established and maintained. The Aeronautics
Act obviously presumes a connection between the
fulfilment of these duties and the maintenance of safe
air travel.
Had Transport Canada taken the vigorous enforce
ment measures warranted by its knowledge of the
danger, Vogel might have had a co-pilot on the night
of the crash, or felt confident that there would be an
operating auto-pilot. He might have had two direction
finders. Wapiti might not have encouraged Vogel to
break weather minima. Vogel might have been taught
a way of approaching High Prairie which was consis
tent with passenger safety. When he tried to contact
High Prairie, better communication with the ground
might have existed. Better management personnel
might have been in place. Or, if none of the above
was possible, perhaps Wapiti might not have been
flying the Edmonton-High Prairie route at all, due to
their stubborn and repeated failure to comply with
safety standards. Perhaps most importantly, however,
as the Trial Judge found, the failure to inspect and
enforce regulations contributed to the development of
a lax safety environment at Wapiti. An unsafe envi
ronment existed at Wapiti because Transport Canada
failed to act upon the complaints it received from
pilots and the other warning signals evident in
Wapiti's sloppy maintenance and single-pilot IFR
practices. A practice of careless flying was allowed to
develop and was condoned by the defendant.
Although it was the Wells family which adopted the
airline's unsafe practices, it was Transport Canada
which initially gave them government approval to
operate and which later failed to take steps which its
own governing Act and regulations required when
these problems were brought to its attention. Pilots at
Wapiti who were concerned about safety conditions
had nowhere to turn: if they went to Wells they
would be fired, and if they went to Transport Canada
they were met with inaction. Small wonder that they
became careless and took the dangerous short cuts
they were pressured to take.
Commenting on the pre-crash situation at Wapiti,
the Trial Judge stated [at pages 638-639]:
The pressure put on pilots to undertake flights in contravention
of the regulations despite some defects in equipment was
known to the defendant some time before the crash.... This
pressure as it affected Vogel would be a contributing causal
link.
I conclude therefore that, on the facts, and on the basis of the
most recent interpretations of the law, the defendant must be
held partially to blame for what took place.
Evidence was offered by the plaintiff to show how
pilots would act in the pressurized situation at Wapiti.
The incidents of negligence of the defendant are so
numerous that they provide more than ample evi
dence to ground an inference that this negligence
caused much of the unsafe environment at Wapiti
before the crash. Such a conclusion is consistent with
the "ordinary common sense" approach recom
mended by Sopinka J. and with the "practical"
approach suggested by Mr. Justice MacGuigan. That
this environment was a sine qua non of the fatal crash
cannot be disputed. But for it, the accident would not
have occurred. There is adequate evidence here to
satisfy the demand for a link between the negligent
conduct of the defendant and the fatal crash. The
Trial Judge was correct, therefore, when he inferred
that Transport Canada was a contributing cause of the
crash that took the lives of Peever and Swanson.
4. The Apportionment Issue
The Trial Judge apportioned the blame for the
accident equally, holding that the Crown bore one-
third of the responsibility, as did Vogel and Wapiti.
This division was challenged by counsel for the
appellants, who argued that Vogel and Wapiti were
the primary culprits, with Transport Canada playing
only a minor role. While individual members of this
Court might, as trial judges, apportion liability some
what differently, it is not our function to second-
guess these decisions. Unless there is clear error of
principle or a serious misunderstanding of the facts,
the apportionment of negligence should not be inter
fered with by an appellate court. The governing statu
tory material is the Worker's Compensation Act, S.A.
1981, c. W-16, subsection 18(2) which reads in part:
18....
(2) ... if the court is of the opinion that that employee or
worker, by his fault or negligence, contributed to the damage
or loss of the plaintiff, it shall hold the defendant liable only
for that portion of the damage or loss occasioned by the
defendant's own fault or negligence.
The Trial Judge relied on the suggestion of counsel
for the plaintiffs that one-third of the damages be
borne by Transport Canada. The learned Trial Judge
called it a [at page 639] "concession" by counsel for
the plaintiff, but that was not what it was. Counsel for
the plaintiff later suggested that a higher proportion
of the damages be borne by the defendant, based on
the Rothfield case, (supra) where 70 per cent of the
blame was placed on a municipality for negligent
inspection. He felt, however, that this would be
"punitive" and concluded that one-third would be
"justified on the facts of this case" because of the
"general attitude of delay apparent in the Department
and use of persuasion rather than draconian measures
in enforcement of the regulations still remains.
Clearly too much reliance is placed on promises by
airlines ... "
I can see no basis upon which this Court can inter
fere with this apportionment, nor is there any reason
to interfere with the disposition of the costs by the
Trial Judge.
In the result, this appeal is dismissed with costs,
but, because the Swanson and Peever appeals were
argued together, there will be only one set of counsel
fees, divided equally between the two appeals.
HEALD J.A.: I concur.
MACGUIGAN J.A.: I concur.
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