Date: 19990111
Docket: T-2017-96
BETWEEN:
ERNA HOOD, DIANE CAROLYN LAWRENCE,
BECKY LYNN FRENCH, PATRICIA ANN FARSLOW
and LESLIE ALLISON AMSTINE,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER
[Delivered from the Bench at Calgary, Alberta
on Wednesday, December 16, 1998, as edited]
ROTHSTEIN J.:
[1] This is the determination of a preliminary question of law: whether the Federal Crown is bound by subsections 3(3) and 3(4) of the Manitoba Fatal Accidents Act, R.S.M. 1987, c. 50.
[2] The Crown is liable in tort by reason of subsection 3(1) of the
Crown Liability Act, R.S.C. 1985, c. C-38 which provides:
| 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. |
Subsection 3(1) was enacted on May 14, 1953. Subsections 3(3) and 3(4) of The Fatal Accidents Act of Manitoba were enacted after that date. They render tortfeasers liable to certain survivors of a deceased person for funeral expenses and for the loss of guidance, care, and companionship of the deceased person.
[3] The Crown says that it is not liable under subsections 3(3) and 3(4) of The Fatal Accidents Act because these provisions were not in force on May 14, 1953 when subsection 3(1) of the Crown Liability Act was enacted.
[4] On its face, subsection 3(1) renders the Crown liable as if it was a private person. A private person is subject to subsections 3(3) and 3(4) of The Fatal Accidents Act. Therefore, it would seem to follow that the Crown would also be liable under subsections 3(3) and 3(4) of The Fatal Accidents Act of Manitoba. Parliament could have worded subsection 3(1) of the Crown Liability Act in a manner to clearly freeze the Federal Crown's liability according to the statute laws in force on May 14, 1953. It did not do so.
[5] There is some conflicting jurisprudence in this Court and its predecessor, the Exchequer Court, on the issue. The conflict was thoroughly dealt with by Reed J. in Stuart v. The Queen, [1989] 2 F.C. 3 and no useful purpose would be served by a recitation of her reasons here. I agree with her analysis.
[6] I would only note that in Baird v. The Queen, [1984] 2 F.C. 160, Le Dain J.A.
concluded that the common law imposing tortious liability on the Federal Crown was not frozen as of May 14, 1953. It seems to me that an ambiguity not possibly intended by subsection 3(1) of the Crown Liability Act would be created if the Federal Crown was bound by evolving common law but frozen statute law. There is often interplay between statute and common law. Each does not exist in water-tight compartments. In particular, statute law may expand, contract or otherwise alter common law liability. Nothing in subsection 3(1) of the Crown Liability Act suggests that Parliament intended to treat common law and statute law differently; that is, to make the Federal Crown liable under an evolving common law but a frozen statute law.
[7] For these reasons and those in Stuart v. The Queen which I adopt,
the Federal Crown is bound by subsections 3(3) and 3(4) of The Fatal Accidents Act of Manitoba.
Marshall Rothstein
J U D G E
OTTAWA, ONTARIO
JANUARY 11, 1999