St Germain v Cripps, 2023 ABKB 255

Court of King’s Bench of Alberta Citation: St Germain v Cripps, 2023 ABKB 255 Date: 20230427 Docket: 1603 15693 Registry: Edmonton Between: Cameron St. Germain and Ronnie Dion Plaintiffs - and - Shayne Cripps Defendant _______________________________________________________ Memorandum of Decision of the Honourable Applications Judge B.W.

Summers _______________________________________________________ [ 1 ] The singular issue for consideration on these cross applications in Special Chambers is whether the defendant Shayne Cripps (“Defendant”) was a “servant of the Crown”, within the meaning of s 9 of the Crown Liability and Proceedings Act, RSC 1985, c C-50 (“ CLPA ”) , when his motor vehicle struck the Plaintiffs. This action will be dismissed if the Defendant was a servant of the Crown when his vehicle struck the Plaintiffs. [ 2 ] The Defendant was a member of the Canadian Armed Forces (“CAF”).

He resided and worked at Canadian Forces Base Edmonton (“CFB Edmonton”). He held the rank of Warrant Officer and held the title of Construction Superintendent. His work responsibilities included maintaining, repairing and replacing infrastructure on the base. [ 3 ] On the morning of September 15, 2014 the Defendant was driving his personal vehicle from his residence on the base to his office, also on the base, when he was apparently blinded by the sun and his vehicle struck the Plaintiffs. At the time, the Defendant was in uniform.

He was not provided with a vehicle by the CAF but used his own vehicle for work related travel. [ 4 ] The Plaintiffs were also members of the CAF. They were marching when they were struck by the Defendant’s vehicle. [ 5 ] The Plaintiffs received compensation for injuries they sustained from a fund under the Canadian Forces Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21 . [ 6 ] The Defendant contends that the Plaintiffs’ action cannot succeed because s 9 of the CLPA is a complete bar. That

section states:

No proceedings lie where pension payable 9 No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or ispayable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death,injury, damage or loss in respect of which the claim is made. [7] The Plaintiffs do not dispute that they received compensation out of a fund administered by an agency of the Crown inrespect of the injuries for which their claims are made. But they dispute that the Defendant was a servant of the Crown when his vehiclestruck them. [8]

Section 36 of the CLPA states: Status of Canadian Forces and R.C.M.P. 36 For the purposes of determining liability in any proceedings by or against the Crown, a person who was at any time a member of theCanadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown. [9] The Plaintiffs contend that s 36 of the CLPA has no application in this case because the action they commenced is notagainst the Crown. [10] At the hearing of this matter, I asked counsel for the Defendant whether there is any principle of statutory construction that Ishould be considering with respect to the application of s 36 of the CLPA.

More specifically, I was thinking of expressio unius estalterius which means “the expression of one thing means the exclusion of others”. [11] In a subsequent written submission on this point, (invited by me), counsel for the Defendant admitted that I cannot rely on s36 in this case, but suggested that counsel for the Plaintiffs intentionally chose not to name the Crown as a defendant, even though theCrown would have been vicariously liable for the negligence of the Defendant and the sole reason for not suing the Crown was to avoidthe application of s 36 of the CLPA. [12] In my view, there is nothing wrong with the Plaintiffs not naming the Crown as a defendant in this action, even if it was forthe strategic reason of avoiding the consequences of ss 9 and 36 of the CLPA.

The Defendant was driving his personal vehicle for whichhe had personal insurance coverage. The Defendant’s insurer is seeking to take advantage of the statutory protection avoided to theCrown. Nor is there anything wrong with the Defendant’s insurer attempting to do that. [13] The supplemental written submission received from counsel for the Plaintiffs (again requested by me) provided a historicalperspective on s 36 of the CLPA as well as House of Commons Debates on an analogous provision under the Royal Canadian MountedPolice Act.

The Plaintiffs’ submission also put forward the primary rule of statutory construction set out by Elmer Driedger which wasendorsed by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 : “Today thereis only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinarysense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” [14] Counsel for the Defendant referred to Sarvanis v Canada, 2002 SCC 28 , [2002] 1 SCR 921 which provides helpfulcommentary on the

interpretation of s 9 of the CLPA. In that case the Court ruled that the plaintiff’s receipt of a disability pension fromCanada Pension Plan was not compensation “in respect of” the injury for which the plaintiff brought his action.

The Court noted (atparagraph 28) that the purpose of s 9 of the CLPA “...reflects the sensible desire of Parliament to prevent double recovery for the sameclaim where the government is liable for misconduct but has already made payment in respect thereof.” [15] Counsel for the Plaintiffs also put forward the cases of Conseil des Ports Nationaux v Langelier, (SCC),[1969] SCR 60 and Al’s Steakhouse & Tavern Inc v Deloitte & Touche, (ON CA), [1997] OJ No 3046.

In my view,these cases merely stand for the proposition that a servant of the Crown may still be sued in his or her personal capacity for their owntort, notwithstanding that they are servants of the Crown. That principle is not disputed. [16] Several cases were put forward by both counsel where the courts had to consider s 9 of the CLPA or a similar statutoryprovision. Those cases include Enright v Canada, 2018 FC 802, Young v McCreary, (ON CA), [2001] OJ No 1315(“McCreary”), Sulz v Attorney General et al, 2006 BCSC 99 and The King v Moscovitz, (SCC), [1935] SCR 404.

I didnot find anything in those cases that would help me determine the question before me, but do note that in McCreary the Court stated inobiter: [11] I cannot accept the proposition that s. 9 should be applied to shield Crown servants from liability without regard to the capacity inwhich they were acting at the time of the alleged wrong. If an individual who happens to be a servant of the Crown is involved in amotor vehicle accident while on a Sunday drive, surely that individual's weekday status as a Crown servant is irrelevant to liability fordamages caused in his or her personal capacity. ...

It would be inconsistent with established principles of

interpretation to hold that s. 9applies to all actions against Crown servants without regard to the capacity in which they were acting at the time of the alleged wrong. [17] The cases referred to deal with situations on the two ends of the spectrum: clearly personal conduct or clearly work conduct.They do not deal with this unique situation of a CAF member, driving from his home on the base, to his office on the base, in uniform,before actual duties of the day have been started. [18] I am aware that there are cases, primarily in the employment or workers’ compensation realm, that consider whether a litigantdriving to or from work, is acting in a personal or employment capacity.

But the results in those cases turn on the facts and the legislationpertinent to those cases. [19] The purpose and intent of s 9 of the CLPA is to prevent the Crown from having to pay twice for the same injury. Since theCrown is not named as a defendant in this case, that will not happen. However, just because the Crown has not been named as a

defendant in this action, the

interpretation of the words “servant of the Crown” found in s 9 of the CLPA should not change from their grammatical and ordinary sense. The only effect of not naming the Crown as a defendant is that the deeming provision in s 36 of the CLPA has no application. [ 20 ] I have come to the conclusion that the Defendant has not established to the requisite level (in accordance with Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 ) that the Defendant was a “servant of the Crown” within the meaning of s 9 of the CLPA when he struck the Plaintiffs with his personal vehicle at CFB Edmonton. Consequently, the Defendant’s application for

summary dismissal under r 7.3 is dismissed. The Plaintiffs may continue with their action against the Defendant. [ 21 ] In their cross application, the Plaintiffs sought an order that at all material times the Defendant was not a servant of the Crown under the CLPA . This application was last minute, having been filed two days before the Special Chambers date. Although this appears to be just the opposite side of the coin to the Defendant’s application, it is not. This cross application is made under r 7.1 of Alberta Rules of Court. The issue that the Plaintiffs seek to determine is not just an issue of law.

It is a potentially complex question of fact as to whether the Defendant was a servant of the Crown when he was driving his personal vehicle from his home on the base, to his office on the base, while in uniform. I indicated at the hearing, I think that there may be evidence missing as to the status of a CAF member, living and working on a base and in uniform. Furthermore, the cases are legion that caution on the inappropriate use of r 7.1. [ 22 ] If the parties cannot agree on costs, an application may be brought before me in morning Chambers. Heard on the 9 th day of March, 2023.

Dated at the City of Edmonton, Alberta this 27th day of April, 2023. B.W. Summers A.J.C.K.B.A. Appearances: Martin G. Schulz and Chris Tuskan Martin G. Schulz & Associates for the Plaintiffs Carter D. Greschner and Tom Poretti for the Defendant