Date: 19990218
Docket: A-319-98
CORAM: DÉCARY J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
BERT MOXHAM
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
SOLICITOR GENERAL OF CANADA and BRIAN KEGLER
Respondents
Heard at Saskatoon, Saskatchewan on Thursday, February 18, 1999.
Judgment delivered from the Bench on Thursday, February 18, 1999.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: LINDEN J.A.
Date: 19990218
Docket: A-319-98
CORAM: DÉCARY J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
BERT MOXHAM
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
SOLICITOR GENERAL OF CANADA and BRIAN KEGLER
Respondents
REASONS FOR JUDGMENT
(Delivered From the Bench at Saskatoon, Saskatchewan,
on February 18, 1999)
[1] While we do not necessarily agree with all of the reasons given by the Trial Judge, we are of the view that the appeal must be dismissed.
[2] Despite the intelligent argument of Mr. MacKay, it is clear to us that The Automobile Accident Insurance Act of Saskatchewan ("AAIA") (as amended in 1994) prevents any auto accident victim in Saskatchewan from suing in tort for damages arising from bodily injuries. Section 102(a) states:
| no person has a right of action respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force. |
The legislation further forbids any action or proceeding "arising out of bodily injuries" (s. 102(b)). For economic losses, however, an action for damages may be brought in the Court of Queen"s Bench. In exchange for the giving up of these rights, accident victims are entitled to certain no-fault benefits instead. Such legislation is within the legislative competence of a province. There is no inconsistency with sections 3 and 4 of the Crown Liability and Proceedings Act , as the Crown is only liable if an ordinary person would be liable and an ordinary person would not be liable in this case.
[3] We can see no reason why a person who is injured by a vehicle operated by a federal public servant should be in any different position. Mr. Justice Pinard, in a similar case seeking to make liable the Federal Crown for an auto accident which occurred in Quebec, where tort actions are also barred, held that the Quebec no-fault regime abolished any recourse against the Federal Crown in the same way as with other potential defendants. (See Rice v. Canada [1992] F.C.J. No. 1142); Dussault and Borgeat, Administrative Law: A Treatise (2nd ed., 1989 at p. 116).
[4] We can see nothing in the AAIA affecting the rights of the Crown, only those of the individuals injured in Saskatchewan. If the rights of the Crown were being interfered with, there might be other considerations. (See Canada v. Quebec Pain Inc. et al (1986), F.T.R. 22), but that is not the case here.
[5] Similarly, as no right of action arises, the Trial Judge was correct in dismissing the action against the individual, Mr. Kegler. The AAIA forecloses a tort action against the individual Crown Servant in the same way as it operates to deny a civil suit against the Crown.
[6] Further, the argument founded on s. 15 of the Charter is not persuasive. The Trial Judge correctly concluded that there is no discrimination based on any of listed grounds or analogous grounds. Residence in Saskatchewan does not give rise to a complaint on the basis of discrimination on the ground of national origin. The AAIA is a provincial law that equally denies tort recovery for personal injuries to all persons injured in auto accidents in Saskatchewan. The plaintiff is not being singled out as a disadvantaged person for discriminatory treatment.
[7] As for the matter of the jurisdiction of this Court in tort actions against the Crown, there is considerable confusion. While there is authority that indicates that an ordinary tort action cannot be prosecuted in this Court because there is no federal law nourishing such an action, (Pacific Western Airlines Ltd. v. Canada [1980] 1 F.C. 86) (F.C.A.), there are many cases where ordinary tort actions have proceeded in this Court. (Baird v. The Queen (1983), 148 D.L.R. (3d) 1 (F.C.A.); Stuart v. The Queen (1988), 19 F.T.R. 59). We do not think it would be worthwhile to engage in a lengthy discussion of that issue in this case in light of our decision that no cause of action lies in any event.
[8] Lastly, we are not persuaded that the analysis of the Trial Judge concerning prescriptions and limitations in s. 32 of the Crown Liability and Proceedings Act (R.S.C. 1985, c. C-50) is accurate, which view does not assist the appellant in light of our views on the other issues.
[9] The appeal will, therefore, be dismissed with costs.
J.A.