Reasons for Judgment

Court File No.: CV-23-92467
Date: 2025/04/08
Ontario Superior Court of Justice

Between:
Shaun Curtis Davis, Plaintiff/Responding Party
and
Attorney General of Canada, Defendant/Moving Party
and
Dr. Heather Isobel Langille, Defendant/Moving Party

Appearances:

• Adam P. Strömbergsson-DeNora, for the Plaintiff/Responding Party
• Bahaa I. Sunallah and Samaneh Frounchi, for the Defendant/Moving Party (Attorney General of Canada)
• Corey Willard and Ravital Zabarsky, for the Defendant/Moving Party (Dr. Heather Isobel Langille)

Heard: January 9, 2025
Justice K.A. Jensen

Introduction

1 This is a decision on a motion by the Attorney General of Canada (“AGC”) to strike the Plaintiff’s action on the basis that it discloses no reasonable cause of action. In addition, the AGC states that the claim is time-barred.

2 Before the motion hearing, the Plaintiff agreed to dismiss his claims against the Defendant Dr. Heather Isobel Langille. The Plaintiff also withdrew his challenges based on the Canadian Charter of Rights and Freedoms and his claims of discrimination contrary to the Canadian Human Rights Act. The Statement of Claim is therefore reduced to a sole claim in negligence against the AGC in Right of the Minister of Transport.

3 For that reason, in the present decision I refer to only one Defendant – the AGC. The AGC represents the Minister of Transport (the “Minister”) and Transport Canada. The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics. In the discharge of those responsibilities, the Minister administers the certification and licensing regime of pilots in accordance with the Canadian Aviation Regulations (“CARs”). That regime requires those seeking to obtain a pilot license to obtain and maintain a medical certificate.4

4 The Plaintiff, Mr. Shaun Curtis Davis, is a commercial pilot, qualified on helicopters and fixed-wing aircraft.

5 The Plaintiff was assessed as medically unfit by the Regional Aviation Medical Officer, Dr. Langille, on January 11, 2017. The reason for the unfit assessment was a diagnosis of alcohol use disorder.

[6] Based on Dr. Langille's assessment, the Minister refused to renew the Plaintiff's medical certificate. The Plaintiff's case was referred to the Aviation Medical Review Board (“AMRB”).

[7] Over the next three years, the Minister made multiple requests for information from the Plaintiff and multiple referrals to the AMRB. During this time, the Plaintiff was not flying and attended multiple assessments and treatments regarding alcohol use disorder.

[8] Following a review by the AMRB in February 2020, the Plaintiff was found fit for a restricted category 1 medical certificate. The restriction was that the Plaintiff could only pilot with or as a co-pilot. The Plaintiff requested an amendment to his restricted medical certificate that would allow him to fly solo. This was denied in May 2020.

[9] The Plaintiff filed a request with the Transportation Appeal Tribunal of Canada (“TATC”) for a review of the decision to provide him with a restricted category 1 medical certificate.

[10] In a decision rendered in December 2022, the TATC found in favour of the Plaintiff and remitted the matter for reconsideration.5

[11] In the decision, the TATC member stated:

[87] There has been an abject failure on the part of CAM[6] and the AMRB to objectively consider the evidence and change their opinion accordingly as the facts changed. Mr. Davis, although not blameless in this fiasco, has been severely negatively impacted by this process.

[88] I find that Mr. Davis did not cease to meet the medical requirements for a medical certificate without restrictions as the evidence is that he does not now and did not in the past have an alcohol use disorder.

[12] The Plaintiff was ultimately granted an unrestricted medical certificate.

[13] On June 21, 2023, the Plaintiff commenced an action against two defendants, the AGC in Right of the Minister of Transport and Dr. Langille.

[14] Dr. Langille serves as a Regional Aviation Medical Officer (“RAMO”). In this capacity, she reviews applications for medical certification and advises the Minister regarding these applications. Dr. Langille reviewed and advised the Minister on the Plaintiff’s application for medical certification.

[15] In the Statement of Claim, the Plaintiff alleges the following causes of action:

• the tort of negligence as alleged against Transport Canada;
• the tort of negligence as alleged against Dr. Langille;
• the tort of misfeasance in public office against Dr. Langille; and
• a Charter of Rights and Freedoms claim for damages against Transport Canada.

[16] Given the Plaintiff’s decision to dismiss his claims against Dr. Langille and to withdraw the Charter challenge, the only issues in the present motion are whether the claim in negligence against the remaining defendant, the AGC in Right of the Minister of Transport, should be struck on the basis that it discloses no reasonable cause of action and/or it is time-barred.

The Negligence Claim Against the Minister of Transport

[17] In the Statement of Claim, the Plaintiff alleges that the Minister is liable for the negligent implementation of policy. He states that the Minister was required to implement policy using an evidence-based approach that assessed the Plaintiff's medical fitness at the time of the medical assessment.

[18] The Plaintiff further states that the Minister owed the Plaintiff a private duty of care based on public commitments to consider every possible accommodation for the Plaintiff’s condition, which were made and continue to be made to the aviation community. The Plaintiff states that he was entitled to expect that the Minister's officials would be diligent and competent in the performance of their commitments and duties.

[19] The Plaintiff alleges that the Defendant failed to assess his evidence in a reasonable way. He says the Defendant’s delegates fixated on discrete parts of the Plaintiff’s medical file without considering the totality of the evidence, were not experts in the field of addictions medicine, and were motivated by unconscious bias, fostered by the Minister’s policies against mental health and substance abuse conditions.

Analysis

General Principles on Striking a Pleading

[20] Rule 21.01(1)(b) of the [Rules of Civil Procedure][7] provides that a court may strike out parts of a claim for disclosing no reasonable cause of action when it is plain and obvious that the action is certain to fail because the statement of claim contains a radical defect.

[21] As noted by Perell J. in Eisenberg v. Toronto (City), 2019 ONSC 7312, at para. 81:

Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action, and the court's power to strike a claim is exercised only in the clearest cases. The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff. However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law. [Footnotes omitted.]

[22] Although a motion to strike for failure to disclose a reasonable cause of action must be treated with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.[8]

[23] In a motion to strike, the facts are taken from the statement of claim. They are assumed to be true for the purposes of the r. 21 motion unless they are patently ridiculous or incapable of proof.[9]

Has the Limitation Period Expired?

[24] When the Plaintiff withdrew his claim against Dr. Langille just prior to the hearing of the motion, the AGC reserved its right to rely on Dr. Langille’s submissions on this motion with respect to the limitation period.

[25] Section 4 of the [Limitations Act, 2002][10] presumes that an action is to be commenced by the "second anniversary of the day on which the claim was discovered."

[26] Section 5 of the Limitations Act, 2002 stipulates that the discoverability of a claim for relief involves the identification of the wrongdoer, and the discovery of his/her acts or omissions that constitute liability. For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of their damages; rather, the limitation period begins to run with the plaintiff's subjective or objective appreciation of being damaged.[11]

[27] The AGC argues that the Statement of Claim clearly reveals that the Plaintiff was aware, on or about June 12, 2017, that he had a potential claim against the Minister. At paragraph 56 of the Statement of Claim, the Plaintiff states:

On or about June 12, 2017, then-counsel for the plaintiff advised Dr. Langille that no evidence existed to support Transport Canada’s conclusion that plaintiff suffered from Alcohol Use Disorder. Counsel further advised the plaintiff sustained a substantial loss of income and damage to his professional reputation as a result of Dr. Langille’s advice and the Minister’s decision.

[28] Therefore, the AGC submits that the latest date by which the Plaintiff would have had to commence an action was June 12, 2019. However, he did not issue his Statement of Claim until more than four years later on June 21, 2023. The AGC argues that the Plaintiff failed to make his claim before the expiry of the applicable limitation period, and it is thus, statute-barred.

[29] In response, the Plaintiff states that his claim arises out of the bad faith actions of the Defendant in their continual refusal to undertake a reasonable and objective review of his medical records. The Plaintiff claims that the pattern of bad faith actions was not discoverable until on or around June 23, 2022, when the Defendant first provided its dated document disclosure for the TATC hearing. He says that it was only upon reviewing this disclosure that it became evident that a civil proceeding was the appropriate forum to seek a remedy for the injuries resulting from the bad faith actions of the Defendant. The Plaintiff maintains that not only was the Statement of Claim in this proceeding filed within the limitation period, but the limitation period has also not yet expired.

[30] In oral argument, Plaintiff’s counsel offered an alternative argument that the impugned conduct was a continuous act or omission and therefore, s. 15(6) of the Limitations Act, 2002 operated to extend the limitation period to the date the act or omission ceased.

[31] In [Dugalin v. Canada (Attorney General), 2019 ONSC 6656], Perell J. provided the following helpful summary of the law regarding motions to strike involving limitation periods:

[12] For a motion under rule 21.01(1)(a), the issue to be determined must be an issue of law raised by the pleading. An issue of fact or of mixed fact and law cannot be determined on a motion made under this rule. If there is a factual dispute or if a full factual record is necessary to decide the issue of law, the court should decline to hear the motion under rule 21.01(1)(a).

[13] Courts may determine whether a claim is statute barred on rule 21.01(1)(a) motions, where the determination of the issue does not depend on findings of fact. Where the availability of a limitation period defence depends upon findings of fact, it is a question of mixed fact and law and not a question of law that can be decided on a motion under rule 21. A plaintiff’s claim should not be struck under rule 21.01(1)(a) based on the expiry of a limitation period, where there is a factual controversy about when the claim was discovered.

[14] Where a statement of defence is delivered and the pleadings reveal that discoverability is not an issue, the court may determine whether the plaintiff’s claim is statute barred under rule 21.01(1)(a). [Footnotes omitted.]

[32] It is rare for a limitations issue to be decided on a pre-trial motion to strike: Davidoff v. Sobeys Ontario, 2019 ONCA 684, at paras. 10, 14 and 15. If findings of fact are required to be made, the matter is better left for trial.

[33] I agree with the Defendant that the Plaintiff has wrongly asserted bad faith as an independent cause of action in his factum.[12] Therefore, the Plaintiff’s submission that he did not discover the pattern of bad faith until June 23, 2022 is not a valid response to the limitation period argument.

[34] However, I find that this is not an appropriate case for striking the action on the basis of the limitation period. This is not one of those rare cases where it is clear that the issues of discoverability and the continuing cause of action are apparent on the face of the claim.

[35] I note that the decision cited by the Plaintiff, Huether v. Sharpe, 2024 ONSC 1987 (“Huether (ONSC)”), in support of his arguments on the limitation period and negligence issues was recently overturned by the Court of Appeal for Ontario on both issues.[13]

[36] In [Huether (ONCA)], the Court of Appeal held that a continuous act or omission requires a succession or repetition of separate acts of the same character.[14] In the words of Monahan J.A., at para. 39:

In essence, the term is used to describe causes of action that accrue from repeating actionable conduct. Because each repetition of the actionable conduct is identical and occurs continuously, it founds a new and discrete cause of action.

[37] Although continuing causes of action are uncommon,[15] it may well be that in the present case, the actions taken by various individuals named in the Statement of Claim, which occurred over the course of time until 2022, constituted a succession of separate acts of the same character. Thus, the limitation period may not have started to run until 2022.

[38] I find that this is an issue that would be better left for trial. It is not plain and obvious to me that the Plaintiff’s claim is barred by the Limitations Act, 2002.

Does the Negligence Claim Disclose a Reasonable Cause of Action?

[39] To succeed with a negligence claim, the plaintiff must be able to establish all of the four following essential elements: (1) the defendant owed the plaintiff a duty of care to avoid the kind of loss alleged; (2) the defendant’s conduct breached that duty by failing to observe the applicable standard of care; (3) the plaintiff sustained compensable damage; and (4) the damage was caused, in fact and in law, by the defendant’s breach.[16]

[40] The legal analysis that must be applied in determining whether a duty of care is owed to the plaintiff is known as the Anns/Cooper test. In Cooper v. Hobart, 2001 SCC 79, at para. 30, the Supreme Court of Canada reformulated the Anns test as follows: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?

[41] In Edwards v. Law Society of Upper Canada, 2001 SCC 80, which was the companion case to Cooper, the Court reiterated the test in the following terms:

[9] At the first stage of the Anns test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The focus at this stage is on factors arising from the relationship between the plaintiff and the defendant, including broad considerations of policy. The starting point for this analysis is to determine whether there are analogous categories of cases in which proximity has previously been recognized. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show proximity — that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. Factors giving rise to proximity must be grounded in the governing statute when there is one, as in the present case.

[10] If the plaintiff is successful at the first stage of Anns such that a prima facie duty of care has been established (despite the fact that the proposed duty does not fall within an already recognized category of recovery), the second stage of the Anns test must be addressed. That question is whether there exist residual policy considerations which justify denying liability. Residual policy considerations include, among other things, the effect of recognizing that duty of care on other legal obligations, its impact on the legal system and, in a less precise but important consideration, the effect of imposing liability on society in general.

[42] The Defendant argues that the Statement of Claim discloses no reasonable cause of action in negligence against Transport Canada. Relying on the decision in Gill v. Canada (Attorney General), 2014 BCSC 582 (“Gill (BCSC)”),[17] the Defendant asserts that courts have already held that where Transport Canada acts in its capacity as a regulator, its duties are owed to the public at large and not to regulated entities.

[43] The Defendant asserts that even if Gill (BCSC) does not apply to the present circumstances, Transport Canada owes no private law duty of care to the Plaintiff regarding its decision to suspend the Plaintiff's medical certificate because there is no relationship of proximity in the present case and policy arguments would negate any possible duty of care.

[44] In response, the Plaintiff asserts that the present case is different from Gill (BCSC) in that the Plaintiff is not an airline claiming economic loss. Gill (BCSC) deals with a broad duty of care, one in which any business that obtains an authorization from Transport Canada could claim that a duty of care exists. Such indeterminate liability would have a chilling effect.

[45] In contrast, the Plaintiff argues, the present case involves a much more direct relationship between the regulator and the regulated person. The regulator does not review each and every medical certification. It reviews and engages with files that raise concerns about an individual's medical fitness to serve as flight crew, which is effectively a very personal investigation. That investigation arises from a statutory duty to accord a pilot a medical certificate if the pilot meets the medical criteria for the certification.

The Application of Gill (BCSC) to the Present Case

[46] In Gill (BCSC), Transport Canada suspended the Air Operator Certificate of Mr. Gill’s airline, International Express Aircharter Ltd., following an accident in which three people were killed. The airline went bankrupt. It was later determined that Transport Canada had erred in cancelling the certificate. The TATC concluded that the Minister’s reasons for suspending the operating certificate were unsupported and referred the matter back to the Minister for reconsideration.[18] Mr. Gill subsequently brought an action in negligence against Transport Canada.

[47] In its decision, the British Columbia Supreme Court noted that the Minister’s responsibilities are delegated to Transport Canada, and in particular, to its Civil Aviation Branch (“TCCA”). The court found that no duty of care was owed by Transport Canada to protect an airline's economic interests. The Court also found that the imposition of a duty of care on TCCA would have a chilling effect on the duties that they are required to perform under the Aeronautics Act and regulations.[19]

[48] The British Columbia Court of Appeal upheld the trial judge’s decision. It found that the trial judge was correct to identify public safety as the overriding purpose of the power to suspend the certificate. Where the regulator deals with the regulated entity for the purpose of administering and enforcing the statutory scheme, those interactions "will not give rise to a relationship of proximity, no matter how close and direct that relationship may be."[20] For the court, at para. 31, Harris J.A. stated:

The evident and overriding purpose of this aspect of the scheme of regulation is to ensure public safety. The obligations imposed on Transport Canada are owed to the public at large, and in particular, the traveling public as a whole. I do not accept that in discharging its responsibilities to protect public safety in considering whether to allow an operator to continue its operations, Transport Canada is also obliged to consider the economic consequences for the operator if its operating certificate is suspended. In exercising its obligations in respect of such a matter, it is not part of the statutory scheme that Transport Canada promote or protect the economic interests of, or otherwise benefit, the operator.

[49] For the following reasons, I agree with the Defendant that the facts in Gill (BCSC) are analogous to the facts in the present case. Furthermore, I find the reasoning of the BCSC and the British Columbia Court of Appeal in Gill to be highly persuasive and applicable to the facts in the present case. Therefore, I find that the first step in the Anns/Cooper test has been met. That is, there is an analogous category of cases in which proximity has been resoundingly rejected.

[50] The regulatory regime in the present case is the same as the regulatory regime in Gill (BCSC). As stated by the court in Gill (BCSC), at para. 17, the Minister is responsible for the development, regulation and supervision of all matters connected with aeronautics, including the accreditation, licensing and certification of all persons providing services relating to aeronautics.

[51] As discussed, in the discharge of those responsibilities, the Minister administers the certification and licensing regime of pilots in accordance with the CARs. That regime requires those seeking a pilot license to obtain and maintain a medical certificate.[21]

[52] The Minister issues a medical certificate to those who meet the medical fitness requirements of the CARs and its associated standards known as "Standard 424 - Medical Requirements - Canadian Aviation Regulations (CARs)".[22]

[53] Section 6.8 of the Aeronautics Act authorizes the Minister to suspend, cancel or refuse to issue, amend or renew a Canadian aviation document if the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, warrant the refusal, in the circumstances and on the grounds prescribed in the CARs.[23] A “Canadian aviation document” is defined in s. 3(1) of the Act as including a license.

[54] The circumstances under which a medical certificate may be refused are the same in the present case as those that were examined in Gill (BCSC). They are set out in ss. 6.6 to 7.21 of the Act. The relevant provision in this case is s. 6.71(1)(c) which provides:

The Minister may refuse to issue or amend a Canadian civil aviation document on the grounds that
(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal.

[55] It is noteworthy that the Minister’s discretion to refuse to issue a civil aviation document is based on the Minister’s opinion as to whether it is in the public interest to do so.

[56] The privilege of exercising a pilot’s license must be withheld unless the medical examiner has indicated that the pilot is medically fit.[24] However, there is an important exception to this requirement: where an applicant does not meet the medical fitness requirements prescribed in CARs and Standard 424 (such as a pilot with any history of alcohol dependence or abuse), flexibility may be applied to issue a medical certificate with limitations or restrictions if it is in the public interest and is not likely to affect aviation safety.[25] The Plaintiff in the present case was granted a restricted license under this exception to the general rule.

[57] The stipulation that public interest and aviation safety must be the determining factors in the exercise of the Minister’s discretion with respect to the medical certification process for pilots supports the legislative intent that was identified in Gill (BCSC). That is, “the fundamental purpose of the Act is to ensure air travel in Canada is conducted safely. The interest sought to be protected is the safety of the flying public and employees engaged in the industry.”[26] The interest of pilots in being permitted to fly notwithstanding any medical difficulties they have is subordinate to the Act’s primordial purpose of protecting the safety of the public and employees engaged in air travel.

[58] As noted by the British Columbia Supreme Court, and affirmed by the British Columbia Court of Appeal, Canada’s responsibilities to protect public safety are not entirely domestic in origin. Rather, the obligations arise from Canada’s obligations as a contracting state of the International Civil Aviation Organization to oversee safe and efficient aviation activity within Canada’s jurisdiction. The Act’s goal of aviation safety reaches beyond Canadian borders.

[59] I disagree with the Plaintiff’s allegation that the relationship between him and the Medicine Branch of the TCCA is different from the relationship between the plaintiff and the TCCA in Gill (BCSC). As the court explained in Gill (BCSC), at para. 20, the Minister’s responsibilities for regulating aviation are delegated to Transport Canada, and in particular, to the TCCA.

[60] TCCA is led by a Director General and an Associate Director General, and is divided into several headquarter branches, one headquarter task force, and five regional branches.[27] The Medicine Branch is one of the headquarter branches of the TCCA. The Pacific Regional Branch of the TCCA and two employees of that branch of the TCCA were the defendants in Gill (BCSC). In both the present case and in Gill (BCSC), the branches are part of the TCCA.

[61] The Plaintiff may feel that his relationship with the Medicine Branch of the TCCA was more personal than the relationship between Mr. Gill and the Pacific Regional Branch of the TCCA because the Plaintiff was required to disclose medical information, which is by nature more personal than information about airline operations. However, that does not change the regulatory nature of the relationship. Like the airline in Gill (BCSC), the Plaintiff in this case faced economic consequences for a failure to meet regulated standards, and like Mr. Gill, the Plaintiff experienced reputational and emotional consequences that also flowed from that failure. In both Gill and the present case, the plaintiffs’ personal and economic interests were impacted by the Aeronautics Act and the CARs.

[62] In both cases, the same provisions of the Act apply to restrict the opportunities of the person aggrieved by the regulator’s decision to contest the decision. Sections 6.71 to 7.2 of the Aeronautics Act form a comprehensive regime for contesting any decision rendered by the Minister with respect to an aviation certificate. Notably, the Minister’s decision to suspend or cancel a certificate cannot be reversed; it can only be sent back to the Minister for reconsideration. Furthermore, an application to review a decision to suspend or cancel a certificate does not operate as a stay of the suspension or cancellation. As noted in Gill (BCSC), at para. 178, s. 7.1(8) of the Act provides that the suspension or cancellation remains in effect until the Minister’s reconsideration is concluded, although the TATC may grant a stay if it considers such stay would not constitute a threat to aviation safety.

[63] Therefore, I find that the reasoning in Gill (BCSC) is applicable to the present circumstances. In the context of the Aeronautics Act and the CARs dealing with the regulation of air operator certificates, the court in Gill (BCCA), at para. 26, held that it is not part of the statutory scheme to protect the economic interests of those that it regulates. Indeed, the protection of the economic interests of those who are regulated would conflict with the purpose of the scheme.

[64] Similarly, in the present case, Transport Canada was acting in its capacity as a regulator to apply and implement the statutory scheme surrounding pilot licenses. The Minister refused to renew the Plaintiff's medical certificate to protect the safety of the public. The thrust of the Plaintiff's claim is that he sustained economic losses (such as lost wages) as a result of the Minister’s refusal to renew his pilot's license. In my view, there is no meaningful difference between the present case and Gill (BCSC).

[65] In making this finding, I have considered the decision of Agarwal J. in Carducci v. Canada, 2022 ONSC 6232. In that case, Agarwal J. stated at para. 49 that Gill (BCSC) cannot be used to argue, on a pleadings motion, that Transport Canada does not owe a duty of care to a regulated entity in all circumstances, or to argue that Transport Canada does not owe a specific duty of the care to the plaintiffs in that case.

[66] In Carducci, the plaintiff Carducci worked as a Design Approval Representative, performing engineering functions for the federal Ministry of Transport until his delegation was cancelled in December 2019. Carducci and his company sued the defendants AGC and five individual employees, alleging that the defendants’ unlawful and intentional conduct led to the cancellation of his delegation. The defendants brought a motion to strike the plaintiffs’ claim on the grounds that, inter alia, it disclosed no reasonable cause of action.

[67] Justice Agarwal found that the plaintiffs’ negligence claim was not so obviously at odds with precedent that it should be struck for that reason alone.[28] However, Agarwal J. did strike the negligence claim, with leave to amend, for failure to disclose a reasonable cause of action.[29]

[68] In comparison to the present case, the plaintiff in Carducci was a Minister's delegate, not a pilot like the Plaintiff. The facts alleged by the Plaintiff much more closely resemble those at issue in Gill (BCSC), where recognition of a private law duty of care was found to conflict with the purpose of the regulatory power at issue. As in Gill, public safety is the overriding purpose of the regulatory power surrounding the licensing of pilots. In contrast, in Carducci, public safety did not appear to be a significant factor in the decision.

[69] Therefore, I adopt the reasoning in Gill (BCSC) and Gill (BCCA) and find that there is no private law duty of care owed by the Defendant to the Plaintiff. It is plain and obvious that the Plaintiff’s claim for negligence is doomed to fail and must be struck.

[70] The conclusion reached above is supported by and consistent with the conclusion I reach in the next section where I apply the Anns/Cooper test to the facts at hand.

Application of the Anns/Cooper Test

[71] In the first stage of the Anns/Cooper test, the Plaintiff must show that there is reasonably foreseeable harm and a “close and direct” relationship between him and the Defendant which justifies the imposition of a duty of care in the circumstances. As in Gill (BCSC), I find that it was reasonably foreseeable to the Defendant that the Plaintiff would suffer negative consequences if his medical certification was not approved in a timely manner.[30] The question then is whether there is the necessary proximity between the parties to make it just and fair to impose a prima facie duty of care on the Defendant.

[72] There are three ways in which the necessary proximity for a prima facie duty of care may arise: (1) the statute itself may create the necessary proximity; (2) the defendant may, through its conduct, have entered into a special relationship with the plaintiff sufficient to establish the necessary proximity; and (3) a combination of the interactions between the parties and the defendant’s statutory duties may create the necessary proximity.[31]

i. Proximity Does Not Arise from the Aeronautics Act and the CARs

[73] As noted by the court in Gill (BCCA), at para. 23, it is well established that as a general proposition, statutory duties or powers imposed on a regulator to promote the public interest do not create a duty of care to specific members of the public who benefit from the scheme.

[74] At para. 28, the court held that the statutory purpose of the Aeronautics Act was “the promotion of the public interest in an efficient and safe aeronautical industry, but not as reflecting specific obligations to protect the specific interests of particular participants in that industry.”

[75] The provisions of the Act that apply in the present case provide further evidence that the statutory purpose of the Act does not extend to protecting the economic and personal interests of pilots. For example, the Act imposes a requirement on physicians who have reasonable grounds to believe that a patient is a member of a flight crew, such as a pilot, to inform Transport Canada if they believe the patient has a medical condition that is likely to constitute a hazard to aviation safety.[32] In addition, the pilot is required to inform the physician that they hold a pilot’s license.[33] Physicians are protected from any disciplinary or other proceedings against them if they disclose information in good faith, and the pilot is deemed to have consented to the release of their medical information.[34]

[76] I find these provisions to be evidence that the legislative goal of protecting aviation safety takes priority over the specific interests of pilots and other aviation document holders. Indeed, physicians and optometrists are specifically protected against any legal or disciplinary action that a pilot (or other certificate holder) might take against them for reporting information that might jeopardize their certificate. In my view, this supports the finding in Gill (BCCA) that the Aeronautics Act does not contemplate a duty of care owed to pilots.

ii. The Interactions Between Transport Canada and the Plaintiff Do Not Create Proximity

[77] The Plaintiff alleges that the Minister’s conduct gave rise to a duty of care because the Minister made specific commitments to pilots with respect to aviation medical decisions. According to the Plaintiff, these representations suggest that Transport Canada will consider pilots' interests and the economic consequences of its decisions on professional pilots. The Plaintiff states that these considerations are marked departures from the facts in Gill (BCSC). They also give rise to a narrow duty of care owed to pilots whose medical status is under review.

[78] The paragraphs in the Statement of Claim that purport to describe the Defendant’s conduct giving rise to the duty of care are as follows:

92. The Minister publicly committed itself to work with the plaintiff to explain the reasons for refusing to renew the plaintiff's medical certification.
93. The Minister publicly committed itself to consider every possible accommodation for the plaintiff's supposed condition before refusing to renew his medical certification, and the Minister made this commitment without reference to the Canadian Charter of Rights and Freedoms or to the Canadian Human Rights Act.
94. The Minister owed the plaintiff a private duty of care based on these public commitments, which were made and continue to be made to the aviation community. The plaintiff was entitled to expect that the Minister's officials would be diligent and competent in the performance of their commitments and duties.

[79] I agree with the Defendant that the Statement of Claim does not provide sufficient facts and particulars regarding these alleged statements or commitments, which would give rise to a proximate relationship. In his factum on the motion, the Plaintiff pointed to his pleading that the Minister "made specific commitments to pilots", as supporting a novel duty of care. However, the Plaintiff failed to set out any particulars in the Statement of Claim as to who made these "commitments", when, in what context, or for what purpose.

[80] During oral argument, the Plaintiff’s counsel stated that the Defendant could have asked for particulars, which would have been provided regarding the alleged statements. Counsel for the Plaintiff admitted that it was an oversight not to have included more information regarding the alleged commitments but he stated that this was not fatal to the Plaintiff’s claim. Counsel for the Plaintiff asserted that he should be given the opportunity to amend the Statement of Claim to include the necessary information.

[81] When asked for particulars during the hearing regarding the statements and commitments allegedly made by the Minister, the Plaintiff’s counsel responded that they are found in statements in the Regulations and Aeronautics Information Manual. However, he did not provide any further specifics.

[82] Furthermore, at paragraph 61 of the Plaintiff’s factum on the motion to strike, he asserts that the Minister owed a duty of care because it made specific commitments to pilots with respect to aviation medical decisions that went beyond the regulatory standards. In his factum, the Plaintiff alleges that the statements addressed pilots directly as a defined group; they indicated that the Minister would work with pilots to explain the Minister's concerns and to find accommodations suitable to the individual pilot. The Plaintiff’s counsel did not provide any indication at the hearing of what the specific commitments “beyond the regulatory standards” were.

[83] As in the case of Drady v. Canada (Health), 2008 ONCA 659, the Plaintiff has not pleaded a specific representation made to him by Transport Canada. Furthermore, he has not asserted reliance upon the alleged commitments, other than by pleading that he was entitled to expect that the Minister’s officials would be diligent and competent in the performance of their commitments and duties. This is not sufficient to establish the necessary proximity.

[84] I am not satisfied that the vague assertions made by counsel for the Plaintiff regarding the Defendant’s commitments will provide the necessary factual basis for finding a proximate relationship between the Plaintiff and the Defendant to establish a novel duty of care. As stated in Good v. Toronto Police Services Board, 2013 ONSC 3026, at para. 88:

General statements made to the public at large acknowledging public duties and obligations and a commitment to the performance of those duties, combined with the reliance on those public statements by members of the public affected by the performance of those duties, cannot, standing alone, create a relationship of proximity. (See R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 49-50; Taylor v. Canada (Attorney General), 2012 ONCA 479 at paras. 95 and 105.)

[85] The Plaintiff’s counsel did not suggest any way in which he might amend his pleadings, other than citing the Regulations and Aeronautics Information Manual, to support a relationship of proximity. Therefore, this is not a case where leave to amend the pleadings would cure the defect.

[86] Moreover, there are policy reasons which conflict with the Plaintiff’s assertions that the Defendant owed a duty of care to pilots. This is a fatal defect that makes the amendment of the Statement of Claim futile.

Policy Reasons Negating a Duty of Care (Stage II Policy Considerations)

[87] In [Cooper], the Supreme Court of Canada, at para. 37, stated that "Stage II" policy considerations "are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally."

[88] I find that the effect of recognizing a private law duty of care to pilots would be the creation of unlimited liability with respect to a potentially large and indeterminate class of regulated entities and people. This is because there is no principled reason why a recognized duty of care would not be extended beyond licensed pilots to other aviation document holders as well as aviation businesses like approved maintenance organizations and flight training units. This would create the potential for significant indeterminate liability with respect to a large class of people and entities.

[89] The potential liability is indeterminate because it is incapable of any predictable or objective content, as in the case of Wu v. Vancouver (City), 2019 BCCA 23. In that case, the plaintiffs alleged, as the Plaintiff has done in the present case, that the government decision-makers repeatedly asked for information and took too long to make a decision. The trial judge found that the defendant city owed the plaintiffs a novel duty of care to “make a decision on the plaintiffs’ development permit application, in accordance with the applicable laws, and to do so within a reasonable time”.[35] However, on appeal, the court held that the recognition of a novel duty of care in these circumstances created a risk of indeterminate liability because:

It is not apparent what concrete meaning can be given to “a reasonable time” given the scarcity of resources public authorities can deploy in processing applications and given the competing and shifting priorities public authorities face while discharging their responsibilities. What is reasonable will vary contextually depending on the policy choices a public authority makes.[36]

[90] Similarly, in the present case, thousands of people (not just pilots) apply for medical certification and licenses. The scope of the duty of care owed by Transport Canada in processing those applications would be subject to competing and shifting priorities and will depend upon the policy choices made by the Minister.

[91] In Gill (BCSC), the court expressed the concern that recognizing a duty of care towards aviation businesses, like the plaintiff in that case, could result in the extension of that duty towards other certificate holders such as pilots. In the words of the court, at para. 195:

In the case at bar, I see no principled reason why a recognized duty of care to the plaintiff would not also be extended to Certificate holders generally, rather than just those who had their Certificate suspended or cancelled, as well as others, such as licensed pilots and other aviation businesses that are under licence, like AMOs and FTUs. This indeterminate liability may lead to conflicting duties and a chilling effect on government intervention in an industry in which public safety is paramount. [Emphasis added.]

[92] In my view, the risk of indeterminate liability in the present case is a sufficient public policy reason not to recognize the duty in this case.[37]

[93] In addition, if a duty of care was recognized, TCCA would be required to balance the personal interests of the regulated entities against the legislative goal of public safety, which could result in compromises to public safety. For example, the Medicine Branch of the TCCA might feel pressure to render a decision on an application for medical certification notwithstanding concerns it might have about the quality of the medical evidence. This would undermine the goal of public safety.

[94] The Plaintiff argues that the opposite is true. If a duty of care is not recognized, pilots will be discouraged from reporting their medical problems out of fear that they will suffer the same fate as the Plaintiff. That is, their licenses will be suspended possibly for lengthy periods of time while their files wend their way through the medical certification process. The Plaintiff asserts that if the Medicine Branch faced potential liability for failing to assess applications for medical certification properly and promptly, pilots would be less hesitant to come forward with medical issues.

[95] I do not accept the Plaintiff’s arguments; they are highly implausible. It is unlikely that the prospect of suing the Minister for a decision with which a pilot disagrees will encourage the pilot to provide information about health concerns that could jeopardize their license. Rather, the prospect of being sued by a pilot would likely have a chilling effect on the doctors and decision-makers involved in the medical certification process. They would likely fear that an unfavourable decision would embroil them in years of acrimonious litigation and therefore, would be more likely to make decisions to avoid this prospect.

[96] The Plaintiff raises an additional argument that relates to the distinction between policy-making functions and the execution of policy. The Supreme Court of Canada has instructed that this issue is to be dealt with in the second stage of the analysis.[38]

[97] The Plaintiff concedes that public authorities are shielded from claims of negligence when they enact policy or otherwise exercise discretionary power.[39] Similarly, the law has not recognized an action for negligent breach of statutory duty.[40] However, the Plaintiff correctly points out that a government actor may be liable in negligence for the manner in which it executes or carries out policy.[41]

[98] The Plaintiff argues that the Minister's policies are expressed in the regulations, the standards, and handbooks issued to those charged with implementing policy. In conducting the medical certification process, the Plaintiff asserts that aviation medical officers are implementing policy and are therefore, subject to a duty of care.

[99] As the Supreme Court of Canada indicated in Holland v. Saskatchewan, 2008 SCC 42, at para. 14, the characterization of the duties is important. While the Plaintiff in the present case has described the functions performed by CAM as the implementation of policy, he has also characterized them as the implementation of regulations, which constitutes a statutory duty. At paragraph 96 of the Statement of Claim, the Plaintiff states that “the standard of care incumbent upon CAM and the AMRB is to implement the applicable regulations and policies to the standards of a reasonably prudent medical doctor” (emphasis added).

[100] To the extent that the functions of the officials involved in evaluating and making decisions about medical certification constitute the exercise of statutory functions, they do not give rise to a cause of action in tort law.[42]

Conclusion

[101] It is plain and obvious that the Plaintiff’s allegations do not disclose a reasonable cause of action in negligence against the Defendant and must be struck without leave to amend. Given the Plaintiff’s agreement to withdraw the rest of the claims against both defendants, the result of this motion is that the entire action against both Defendants is at end.

Costs and Order

[102] The Defendant, the AGC in Right of the Minister of Transport, has been entirely successful on this motion and is therefore presumptively entitled to their costs. The Defendant provided a Bill of Costs, but it is not clear from that Bill what the Defendant’s request for costs is. The Defendant states: “The Plaintiff claims a sum of $6,795,000 against the AGC. The AGC seeks only to be awarded the costs noted above and detailed in the following pages”. Clarification is needed unless the parties can come to an agreement with respect to costs. I am assuming that there is no remaining issue with respect to the costs of the action against Dr. Langille. However, if that is not the case and an agreement cannot be reached, the parties may schedule an appearance before me. If I do not hear from the parties within 30 days of the release of this decision, I will assume that the issue is resolved.

[103] I make the following Order:

The action against the Attorney General of Canada is struck in its entirety without leave to amend, and with costs.

Justice K.A. Jensen
Released: April 8, 2025

[6]: “CAM” refers to Civil Aviation Medicine. [7]: https://www.ontario.ca/laws/regulation/900194 [8]: Eisenberg, at para. 82, citing R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-25. [9]: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980; Falloncrest Financial Corp. v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), at p. 6. [10]: https://www.ontario.ca/laws/statute/02l24 [11]: Dugalin v. Canada (Attorney General), 2019 ONSC 6656, at para 20. [12]: See Apotex Inc. v. Canada, 2013 ONSC 986, at para. 9. [13]: Huether v. Sharpe, 2025 ONCA 140 (“Huether (ONCA)”). [14]: Huether (ONCA), at para. 44. [15]: Huether (ONCA), at para. 42. [16]: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13. [17]: Aff’d Gill v. Canada, 2015 BCCA 344, 8 B.C.L.R. (5th) 243 ("Gill (BCCA)"), leave to appeal refused, [2015] S.C.C.A. No. 373. [18]: Note that in Gill (BCSC), the court referred to the Transportation Appeals Tribunal of Canada as the “TAT” whereas in the present case the parties and this court refer to the same body as the “TATC”. [19]: Gill (BCSC), at para. 196. [20]: Gill (BCCA), at para. 32. [21]: CARs, s. 404.03. [22]: These standards are the Personnel Licensing and Training Standards respecting Medical Requirements known as “Standard 424 - Medical Requirements - Canadian Aviation Regulations (CARs)” (“Standard 424”). [23]: Section 6.8 of the Aeronautics Act includes any ground referred to in ss. 6.71, 6.9-7.1 and 7.21. [24]: CARs, ss. 404.04(2), 404.04(3). [25]: CARs, s. 404.05. Examples of limitations or restrictions are in Standard 424 Appendix II - Limitations and Restrictions, which may appear on a Permit, License or Medical Certificate include: shortened validity period, the requirement for regular medical reports, limitations on the types of aircraft that may be flown, the requirement to fly without passengers, and the requirement to fly with an accompanying pilot. [26]: Gill (BCSC), at para. 182. [27]: The Transport Canada Civil Aviation Program Manual for the Civil Aviation Directorate can be found at: https://tc.canada.ca/en/aviation/reference-centre/transport-canada-civil-aviation-program-manual-civil-aviation-directorate#sec4-0 [28]: Carducci, at para. 50. [29]: Carducci, at para. 53. [30]: Gill (BCSC), at para. 169. [31]: Imperial Tobacco, at paras. 44-46. [32]: Aeronautics Act, s. 6.5(1). [33]: Aeronautics Act, s. 6.5(2). [34]: Aeronautics Act, ss. 6.5(4), 6.5(6). [35]: Wu, at para. 34. [36]: Wu, at para. 77. [37]: See Wu, at para. 78. [38]: See Cooper, at para. 37. [39]: See Cooper, at para. 38. [40]: Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551, at para. 9. [41]: Holland, at para. 14. [42]: See Holland, at para. 9. During oral argument, Plaintiff’s counsel mused about whether the Minister could be held vicariously liable for the negligent conduct of its delegates, and in particular Dr. Langille. This issue was not thoroughly canvassed in written or oral argument. Nevertheless, given that the action against Dr. Langille has been withdrawn and given my conclusion regarding the absence of a private law duty to pilots, there is no basis in the Statement of Claim for a finding of vicarious liability.