Burgess, a Minor Under 18 Years of Age Acting by Her Litigation Guardian Burgess, et al. v. Canadian National Railway Co. et al.

[Indexed as: Burgess (Litigation Guardian of) v. Canadian National Railway Co.]

85 O.R. (3d) 798

Court of Appeal for Ontario,

Laskin, MacPherson and Cronk JJ.A.

September 7, 2006*

• This endorsement was recently brought to the attention of the Editors.

Crown -- Liability -- Plaintiffs bringing action against various parties for damages for negligence after infant plaintiff struck by train at railway crossing -- Plaintiffs alleging that Canada was negligent based on failure of Ministry of Transport railway inspectors to perform statutory duties under Railway Safety Act -- Claim against Canada struck as disclosing no reasonable cause of action -- Canada having private law duty of care to members of public for negligent performance by inspectors of their statutory duties -- Plaintiffs not identifying any regulation, rule or emergency directive that was negligently enforced by inspectors -- No private law duty to plaintiffs existing in circumstances. [page799]

The infant plaintiff was seriously injured when she was struck by a train at a railway crossing. The plaintiffs sued CNR, the municipality and the federal government for damages for negligence. The claim against the federal government was based on the alleged failure of Ministry of Transport railway inspectors to (among other things) remedy the hazardous conditions at the crossing, ensure that the other defendants adequately designed, inspected, maintained and repaired the crossing, and carry out adequate inspections and analysis of the equipment, design and infrastructure at the crossing. The federal government moved successfully to strike the paragraphs of the statement of claim which contained the claims against Canada. The plaintiffs appealed.

Held, the appeal should be dismissed.

The motions judge did not err in finding that the moving defendant did not owe a private law duty of care to the plaintiffs. Under the statutory scheme established by the Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.), the moving defendant's statutory duties were owed to the public at large. Sections 3 and 4(4) of the Act did not give rise to the necessary proximate relationship to ground a private law duty of care owed by the moving defendant to the plaintiffs.

APPEAL from the order of Turnbull J. of the Superior Court of Justice (2005), 2005 39687 (ON SC), 78 O.R. (3d) 209, [2005] O.J. No. 4650, granting a motion to strike claims against a moving defendant.

Cases referred to Anns v. Merton London Borough Council, [1978] 2 All E.R. 492, [1978] A.C. 728, 121 Sol. Jo. 377, 75 L.G.R. 555, [1977] 2 W.L.R. 1024 (H.L.) (sub nom. Anns v. London Borough of Merton), apld Other cases referred to Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.) et al.); Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29, 66 B.C.L.R. 273, 10 D.L.R. (4th) 641, 54 N.R. 1, [1984] 5 W.W.R. 1, 29 C.C.L.T. 97, 26 M.P.L.R. 81 Statutes referred to Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.), ss. 3 [as am.], 4 [as am.]

Thomas D. Galligan, for appellants. Joel Levine, for respondent Her Majesty the Queen in the Right of Canada as represented by the Minister of Transport. Jennifer Teskey, for Canadian National Railway Company, Christopher Grey and James D. Noake.

Endorsement

[1] Endorsement by THE COURT: -- In our view, this appeal must be dismissed.

[2] In his comprehensive reasons, the motions judge essentially disposed of the respondent's motion on the basis that the appellants' pleadings do not assert that the railway inspectors were negligent with respect to any of the matters assigned to them under the Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.). [page800] We agree with the motions judge's analysis and, in particular, with his application of Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76 on this point: see paras. 121-23 of the motions judge's reasons.

[3] More fundamentally, however, the respondent had no private law duty to regulate or to issue emergency directives beyond those regulations that were in effect at the relevant time. There is no suggestion here that there was a failure to comply with those regulations.

[4] Finally, the appellants acknowledge that, in the end, the only real question on this appeal is whether the motions judge erred in concluding that it is plain and obvious that the appellants' claims against the respondent will fail. The appellants also candidly acknowledge that if the motions judge erred in his holding that the respondent owed a private law duty of care to the appellants, their action against the respondent is unsustainable.

[5] In our opinion, the appellants' action against the respondent flounders on the first branch of the test in Anns v. Merton London Borough Council, [1978] A.C. 728, [1978] 2 All E.R. 492 (H.L.), that is, on the question of proximity. See also Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29. Under the statutory scheme established by the Railway Safety Act, the respondent's statutory duties are owed to the public at large. We do not accept the appellants' argument that ss. 3 and 4(4) of the Railway Safety Act give rise to the necessary proximate relationship so as to ground a private law duty of care owed by the respondent to the appellants.

[6] Accordingly, the appeal is dismissed. The cross-appeal is also dismissed as moot. In the circumstances, we award no costs of this proceeding.

Appeal dismissed.