JASON C. HUSKA Plaintiff - v. -, 2003 ABQB 278

Huska v. Canada, 2003 ABQB 278 Date: 20030326 Action No. 9901 01948 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: JASON C. HUSKA Plaintiff - and - HER MAJESTY THE QUEEN and LEON J. NOEL Defendants _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MADAM JUSTICE C.L. KENNY _______________________________________________________ APPEARANCES: Keith F. Groves for the Plaintiff Tracy J. King for the Defendants INTRODUCTION

[ 1 ] The plaintiff and the defendant Leon J. Noel (“Noel”) were involved in a motor vehicle accident on February 8 th , 1997. The defendant Noel was operating a motor vehicle that was owned by the defendant Her Majesty the Queen in Right of Canada (the “Crown”). The plaintiff sued for damages suffered in the motor vehicle accident. At the time of the accident, Noel was a Corporal in the Reserves of the Canadian Armed Forces. The defendants apply here for

summary judgment on the basis that the plaintiff’s Statement of Claim is barred by legislative provisions. ISSUES [ 2 ] The issues are: 1. Is the defendant a person acting in pursuance or execution or intended execution or is he neglectful or in default in the execution of the National Defence Act ? 2.

If so, was the alleged neglect or default, being the motor vehicle accident, the result of the defendant’s execution of the National Defence Act ? [ 3 ] In order to address this application, the question to determine is whether there is any merit to the plaintiff’s claim that at the time of the accident the defendant Noel’s actions were of a private, subordinate nature.

LEGISLATION [ 4 ] The relevant legislative provisions are as follows: Rule 159(2) and (3) of the Alberta Rules of Court: 159(2) A defendant may, after delivering a statement of defence, on the ground that there is no merit to a claim or part of a claim or that the only genuine issue is as to amount, apply to the court for a judgment on an affidavit sworn by him or some other person who can swear positively to the facts, stating that there is no merit to the whole or part of the claim or that the only genuine issue is as to amount and that the deponent knows of no facts that would substantiate the claim or any part of it.

(3) On hearing the motion, if the court is satisfied that there is no genuine issue for trial with respect to any claim, the court may give

summary judgment against the plaintiff or a defendant. [ 5 ]

Section 269 of the National Defence Act : 269.

(1) No action, prosecution or other proceeding lies against any person for

an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof. [ 6 ]

Section 32 of the Crown Liability and Proceedings Act :

32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. [ 7 ]

Section 8 of the Crown Liability and Proceedings Act : 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 generality 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. [ 8 ]

Section 11 of the Crown Liability and Proceedings Act : 11. No proceedings lie against the Crown by virtue of

section 4 in respect of damage sustained by any person by reason of a motor vehicle on a highway unless the driver of the motor vehicle or the driver's personal representative or succession is liable for the damage so sustained. POSITION OF THE PARTIES Defendant Applicants [ 9 ] It is the position of the defendants that the defendant Noel was acting in his capacity as a Corporal in the Reserves of the Canadian Armed Forces and was, at the time of the accident, acting within the course and scope of his duties.

Section 269 of the National Defence Act sets forth a six month limitation period within which any action against persons performing military or departmental duties must be commenced. The plaintiff did not commence his action within that six month limitation and it is therefore the position of the defendants that the action is statute barred. They further argue that s. 8 of the Crown Liability and Proceedings Act provides a broad immunity for military activity and therefore the plaintiff would be barred under this

section from pursuing any claim as against the Crown. [ 10 ] In addition, if the defendant Noel is not liable pursuant to s. 269(1) of the National Defence Act , any claims against the Crown are barred pursuant to sections 4 and 11 of the Crown Liability and Proceedings Act . On this basis they seek

summary judgment. Plaintiff Respondent [ 11 ] The position of the plaintiff is that the federal statutory provisions do not protect the defendants in this case. They argue that there is persuasive case authority which has reviewed these provisions or others similar to them. They say that the six month limitation period must be strictly construed against those seeking to engage it and that such limitation period will not apply where the acts complained of fall into managerial, internal or operational matters of a predominantly private nature.

Noel was driving senior Armed Forces personnel between Harvey Barracks and the Mewata Armouries on the day of the accident. It is the position of the plaintiff that the act of driving back and forth was subordinate and incidental to the functions of the defendant Noel. It is not appropriate for

summary judgment to be granted as it is a question of fact or fact and law as to whether Noel was acting within the scope of his duties. Even if the evidence indicates that he was, it is necessary then to determine whether his driving on that day was

an act of a public nature or

an act of a private nature which could not in any way have had a statutory or public connotation. ANALYSIS [ 12 ] On February 8 th , 1997 the plaintiff, Mr. Huska, came to a stop in his vehicle at red traffic lights. While stopped, he was

struck in the rear by a van driven by the defendant Noel and owned by the defendant Her Majesty the Queen. It was a typical rear end accident with no distinguishing characteristics. [ 13 ] The Statement of Claim was filed on January 24 th , 1999. In their joint Statement of Defence the defendants raised the limitation period set out in s. 269 of the National Defence Act . [ 14 ] The defendant Noel filed an affidavit in support of this application. That affidavit indicated that he was acting in his capacity as a Corporal in the Reserves of the Canadian Armed Forces.

On that day he was assigned to transport military personnel between two different venues in the City of Calgary. At the time of the accident he was not actually transporting personnel from one venue to the other but was, instead, on his way to the Armouries to await further instructions.

Attached to his affidavit is a letter from his superior indicating: ... at the time of the accident, was acting honestly and without malice within the scope of his duties and met reasonable departmental expectations. [ 15 ] Before reviewing the case law put forward by each of the parties it is, in my view, important to make note, as counsel for the plaintiff Mr. Huska did during argument of the origin and facts, of the authorities relied on. The defendants set forth nine different decisions for the review of this Court. All involve the same or parallel provisions to s. 269(1) of the National Defence Act .

All nine decisions are from trial level judges, two of the nine from judges of the Alberta Court of Queen’s Bench. The plaintiff referred to a number of decisions where the application of two Supreme Court of Canada decisions Berardinelli v. Ontario Housing Corp. , 1978 CanLII 42 (SCC) , [1979] 1 S.C.R. 275 and Des Champs v. Conseil des ecoles separees catholiques de langue francaise de Prescott- Russell , [1999] 3 S.C.R. are engaged. As pointed out by the plaintiff, none of the nine decisions cited by the defendants refer at all to Berardinelli supra and Pelley Enterprises Ltd. v.

Brazil and Her Majesty the Queen in Right of Newfoundland (1983), 1983 CanLII 3017 (NL CA) , 143 D.L.R. (3d) 555 (Nfld. C.A.) although these two decisions were both decided before the other nine. Further, three of the four decisions decided after the Supreme Court of Canada decision in Des Champs supra make no reference to Des Champs . It is the position of the plaintiff that the one decision that does mention the Supreme Court of Canada decision of Des Champs in their view did not fully comprehend the significance of the decision .

I find it odd that the defendants would not even refer to these very relevant decisions from Superior Courts. [ 16 ] Having said that, I will focus my analysis on the decisions of Berardinelli , Pelley supra and Des Champs as, in my view, they are clear and definitive on this issue. [ 17 ] Berardinelli was decided by the Supreme Court of Canada in February of 1978. Very briefly, it involved a situation whereby a person was injured when they slipped on an icy sidewalk. The property where they slipped was owned by a housing authority which was a Crown agent. The person who slipped was a tenant in the building.

The Court indicated that there are really two questions that need to be answered. Formatting these questions using the legislation in Alberta they would be as follows: 1. Is the defendant a person acting in pursuance or execution or intended execution or is he neglectful or in default in the execution of the National Defence Act ? 2.

If so, was the alleged neglect or default being the motor vehicle accident the result of the defendant’s execution of the National Defence Act ? [ 18 ] Estey, J. writing for the Court distinguished, in answer to question number 2, between actions having a public connotation and actions undertaken on a private execution or administrative application or which are subordinate to the primary obligations. He stated at pp.280-81: The Court is here confronted with at least two possible, but quite different,

interpretations of s. 11. The one would impose on all actions involving the execution of the powers undertaken pursuant to s. 6(2) of The Housing Development Act, however minor or minuscule, the protection of the limitation period established by s. 11. The imposition of this limited period for this special class would have the direct

result of producing two categories of housing units in the community; the one operated by persons having a statutory mandate to which a six month limitation period would extend; and the other operated by a person without statutory authority to which the general limitation period would apply. Of course both housing projects would appear identical in fact to the attending public whose rights are directly affected by the distinction. The other

interpretation of s. 11 open to the Court would limit the imposition of the six months limitation period to those aspects of the powers carried out under s. 6(2) having a public connotation and impact in contrast to the great volume of such actions undertaken on a private basis or with something less than a public connotation and impact.

Section 11, being a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attracts a strict

interpretation and any ambiguity found upon the application of the proper principles of statutory

interpretation should be resolved in favour of the person whose right of action is being truncated. There is little doubt about the presence of ambiguity and uncertainty of meaning in the section.

This provision is found in a provincial statute which deals with a number of public officials including justices of the peace, constables, bailiffs, provincial judges and persons responding to a mandamus or mandatory order as well as other persons acting with reference to public order. [ 19 ] Even assuming that the defendant was acting within his duties, the second question must be addressed and that is whether or not his act of driving a motor vehicle in the City of Calgary is a duty directly necessary or linked to his execution of the Act or whether it is an action which is more in the realm of private administration or subordinate to his primary duties. [ 20 ] In Pelley the facts are almost identical to this case.

A government employee was driving a vehicle owned by the government, and in the course of his employment, when he was involved in an accident. He was on his way to a site which he was to inspect as part of his duties. Gushue, J.A. writing for the Court referred directly to the principles set out in Berardinelli and again asked the question to be resolved: “whether the act or failure to act from which the injury and damages allegedly arose, resulted from the exercise or failure to exercise a public or statutory duty ” (emphasis added).

The Court found at p. 559 that: The driving of a vehicle to get to and from construction or other projects for environment inspection purposes can only be said to be subordinate and incidental to the functions of the first defendant-respondent and the Department by which he was employed. Even though, in the course of his employment, it was

an act of a strictly private nature and, as clearly stated in Berardinelli , cannot be construed to have had a statutory or public connotation. [ 21 ] In Des Champs the facts are different but the principles, in my view, are the same. In this case a School Board Superintendent was found to be redundant and transferred to a position as a principal of a school. He was no longer a full time administrator. Again, the legislation provided for a limitation period of six months. Eight months after the event the Superintendent started an action claiming certain entitlements.

The Board brought a motion to have the action dismissed based on the six month limitation period, in that case under the Public Authorities Protection Act . The Court found that the School Board was in the process of implementing a reorganization and therefor their actions vis a vis the employee were subordinate or incidental to the Board’s responsibility of delivering an educational program.

The Court determined that the losses suffered by the Superintendent came about when the Board implemented the reorganization in order to deliver their educational program and that it therefore raised only labour issues between an employee and an employer. [ 22 ] The principles in Berardinelli and Des Champs , as relied on by the Newfoundland Court of Appeal in Pelley , clearly apply here. The fact situation set out in Pelley as indicated earlier is almost identical to the case here.

DECISION [ 23 ] It follows therefore that even if the defendant Noel is found to be performing his duties in the course of his employment, there is still the issue as to whether or not the duties which he was performing at the time of the motor vehicle accident were such that he is protected by s. 269(1) of the National Defence Act or whether they are actions that fall outside of that protection and would be of a private or subordinate nature. This is clearly a triable issue. Rule 159(2) of the Alberta Rules of Court provides that the Court may grant

summary judgment if convinced by the applicant that there is no merit to a claim or part of a claim. I do not find that to be the case here and, as such, the application by the applicant defendants is dismissed.

HEARD on the 16 th day of December, 2002. DATED at Calgary, Alberta this 26 th day of March, 2003. __________________________ J.C.Q.B.A.