NOTES
Canadian Law and Aircraft Noise Disturbance:
A Comparative Study of American,
British, and Canadian Law
Lowell S. Fink *
The considerable attention given to legal aspects of aviation nois3
in Great Britain and the United States has not been duplicated in
Canada.1 This survey will illustrate a common law approach to the
problems of aviation noise disturbance, which will be useful not only
to common law practitioners, but to Quebec attorneys as well. The
British and American approaches will be compared as a prelude to
an examination of the law of Canada and of Quebec law in particular.
It will be considered whether the Civil Code of Quebec effectively
resolves conflicts centering about aviation noise disturbance.
Aviation noise may arise from the operation of several classes of
aircraft.2 For present purposes domestic civil aircraft, foreign civil
aircraft, and domestic military aircraft are considered of primary
importance. Note further that the emergence of supersonic aircraft
compels a determination of whether “sonic boom” is part of the overall
noise problem or requires separate analysis. This queestion can best
be answered after an evaluation of the analytical tools which presently
exist. Therefore, examination of the sonic boom question will follow
comparison of American, British and Canadian law. That comparison
will consider all aircraft noise disturbance, including sonic boom, to
be subject to uniform analysis.
The American Experience
Recent American case law evolved from litigation involving mili-
tary aircraft. Since that litigation took place prior to the enactment of
* LL.M. candidate, Institute of Air and Space Law, McGill University; Member
of the Bar of Texas.
1 However, the Canadian Bar Association has considered the problem at several
annual meetings. Reference will be made hereinafter to papers presented to
those meetings.
2 Although this study centers about aircraft operators, note that liability may
attach to airport operators as well.
McGILL LAW JOURNAL
[Vol. 11
the Federal Tort Claims Act,3 ordinary tort doctrines were not avail-
able to the plaintiff. Instead, the plaintiff in Causby v. United States 4
argued that the government had effected a partial taking of his land
by continuous overflights which unreasonably interfered with the use
and enjoyment of his land. Plaintiff alleged violation of the fifth
amendment of the United States Constitution 5 and sued under the
Tucker Act,6 which renders the government liable for its contracts,
both express and implied.
Despite the fact that the offending overflights had complied with
pertinent federal regulations, the Court found an unreasonable inter-
ference with use and enjoyment, and awarded compensation for the
diminution in value of the plaintiff’s property.7 In 1958 a county
airport authority was held liable under the Causby doctrine., In that
case the Supreme Court conclusively indicated that compliance with
federal regulations 9 does not insulate a defendant from liability to
landowners.
Of paramount significance is the fact that these cases employ
language peculiar to traditional nuisance analysis in order to grant
recovery. This has led to serious conceptual difficulties. In 1962,
Batten v. United States,0 a decision of the 10th Circuit Court of
Appeals, held that there could be no recovery for taking by unreason-
able noise in the absence of a direct overflight of a plaintiff’s land.
Stated otherwise, without overflight, disturbance however severe is
non-compensable “consequential damage” from authorized aviation
activities. It is submitted that this decision misconstrued the evolu-
tion of the doctrine of eminent domain in American law.”‘ Further-
3 Federal Tort Claims Act, 60 Stat. 842, 28 U.S.C. 1346 (1946). See generally
Aviation Noise Under the Federal Tort Claims Act, 24 Fed. Bar J. 165 (1964).
(Regular overflights below the minimum safe altitudes,
but within a Civil Aeronautics Authority-approved safe landing glide angle).
6 U.S. CONST. amend. V, “… nor shall private property be taken for public
4 328 U.S. 256 (1946)
use without just compensation.”
6 28 U.S.C. s. 1346 (a) (2) (1952).
7 Causby, supra note 4 at 263, “The fact that the path of glide … was approved
by the Civil Aeronautics Authority does not [prevent the occurrence of a taking].”
s Griggs v. County of Alleghany, 369 U.S. 84 (1962).
0 72 Stat. 739, 49 U.S.C. s. 1301 (24) (1958) ; 14 C.F.R. s. 60.17.
10 306 F. 2d 580 (2d Cir. 1962), cert. denied, 371 U.S. 955 (1963) (noise from
ground testing of engines).
“1 Arguments denying the necessity of physical entry to a finding of taking
begin with Eaton V. B.C. & M. R.R. Co., 51 N.H. 504 (Sup. Jud. Ct. N.H. 1872)
and Thompson V. Androscoggin River Improvement Co., 54 N.H. 545, 552 (Sup.
Jud. Ct. N.H. 1872). Doubt was cast on the theories of these cases by Trans-
No. 1]
AIRCRAFT NOISE DISTURBANCE
more, the Supreme Court in its 1963 decision, Dugan V. Rank, 12
clearly indicated physical entry was not indispensable to a finding
of a “taking”. It did so, in fact, upon the same authority that Batten
had relied on for its contrary decision. 13
Another currently unresolved issue in American law is the extent
to which a municipality may regulate aircraft noise. It has been held
that a municipality may not pass ordinances directly conflicting with
federal flight rules.14 However, where the local ordinance deals with
noise, per se, which is not expressly regulated by federal statute, it is
uncertain that local regulation is precluded. This question is currently
being litigated in the case of American Air Lines et al V. Town of
Hampstead.15 The outcome of this case is critical not only to the land-
owner-air transport conflict, but also to the evolution of the federal-
state power scheme in American constitutional law.
The following principles emerge from the American treatment of
aviation noise:
portation Co. v. Chicago, 99 U.S. 635, 642 (1878). In Richards v. Washington
Terminal Co., 233 U.S. 546, 551 (1914) the Court stated that the ” .. legislature
may legalize what would otherwise be a public nuisance, but it may not confer
immunity from action for a private nuisance of such a character as to amount
in effect to a taking.” (Emphasis supplied). Thus, Transportation Co. v. Chicago
was limited to the public nuisance aspects of the acts in question by Richards V.
Washington Terminal. The broad theory of “taking” was followed in United
States V. General Motors Corp., 323 U.S. 373 (1945). The following year Causby,
supra note 4 at p. 262 f.n. 7 indicated that the broad doctrine of General Motors
was approved, but that since Causby did, in fact involve physical entry, the
broader doctrine was unnecessary to the decision. The fact that Eaton, Causby,
and Griggs did involve physical entry has led to the erroneous conclusion that
their decisions are limited to similar facts. Such interpretation of those cases
does not follow from their language which speaks to a broader field. An
expression of this view is found in Thornburg v. Port of Portland, 376 P. 2d 100
(Ore. 1962). See 4 Nichols on Eminent Domain 338 (rev. 3d ed. 1962). See
generally Lewis, Eminent Domain (2d ed. 1909).
12 372 U.S. 609, 625 (1963). [T]he riparian right is a part and parcel of the
land in a legal sense, yet it is… [an] intangible right inhering therein and
neither a partial nor a complete taking produces a disfigurement of the physical
property… A seizure of water rights need not necessarily be a physical invasion
of the land. It may occur upstream as here. Interference with or partial taking
of water rights in the manner it was accomplished here might be analogized to
interference or partial taking of airspace over land. (Emphasis supplied). See
also United States v. Brondon, 262 F. 2d 642, 644 (9th Cir. 1959).
13 Cauzby, supra note 4; Griggs, supra note 8; Portsmouth Harbor Land &
Hotel Co. v. United States, 260 U.S. 327 (1922). See Nichols, supra note 11
at 260.
14 Alleghny Airlines v. Village of Cedarhurst, 238 F. 2d 812 (2d Cir. 1956).
15 Civil Action File No. 63 C 1316; 63-1280 (E.D. N.Y. 1964).
58
McGILL LAW JOURNAL
[Vol. 11
1. The rights of landowners have been considered in terms of use and
enjoyment of land.
2. Recovery has been predicated upon the degree of interference, with no
controlling significance attributed to the presence of material damage.
3. The doctrine of trespass has been rejected in resolving aircraft disturbance
cases.16
4. No federal legislation directly treats aircraft noise disturbance liability.
5. Compliance with federally promulgated
flight regulations does not
obviate the aircraft operator’s potential liability to the landowner. The
effect of existing regulation upon the right of a municipality to regulate
aircraft disturbance is undetermined.
6. Although the status of nuisance doctrine as a basis of liability is uncer-
tain, its use as a method of analysis is accepted.
For present purposes no distinction need be made between liability
attaching to domestic civil aircraft and to foreign civil aircraft in
American law. As to domestic military aircraft, Causby illustrates
the constitutional attack. Perhaps the enactment of the Federal Tort
Claims Act has provided additional approaches, but detailed examina-
tion of that act is beyond the scope of the present study.’1
The British Experience
As early as 1920, Great Britain had legislated trespass and
nuisance out of existence as regards aircraft noise.,
In 1949 addi-
tional legislation legitimized noise and vibration created by aircraft
16 See Causby, supra note 4 at 261. Compare Smith v. New England Airport
Co., 270 Mass. 311, 170 N.E. 385, 389 (Sup. Jud. Ct. Mass. 1930) with Burnham
v. Beverly Airways Inc., 311 Mass. 628, 42 N.E. 2d 575 (Sup. Jud. Ct. Mass.
1942). The comparison illustrates the shortcomings of trespass theory as applied
to aviation activities. Compare Billyou, Air Law 9 (1963) with Pogue & Bell,
The Legal Framework of Airport Operations, 19 J. Air L. & Com. 253, 266-268
(1952) and Rhyne, Airports and the Courts 154 (1944).
17 See Dahlstrom V. United States, 288 F. 2d 819 (8th Cir. 1956). Note that
negligence was the basis of recovery and recall that the conduct examined in
this study is “intentional”. See generally Gottlieb, Governmental Tort Liability
of the Operation of Airports, 26 J. Air L. & Com. 173 (1959); Comment, 31 So.
Cal. L. Rev. 259, 275 et seq.; Note, 22 Geo. Wash. L. Rev. 496 (1954).
18 The Air Navigation Act, 1920; (10 & 11 Geo. V, c. 30) s. 9 Now Civil Avia-
tion Act, 1949; (12, 13 & 14 Geo. VI, e. 67) s. 40(1) which reads, “No action
shall lie in respect of trespass or nuisance, by reason only of the flight of an
aircraft over any property at a height above the ground, which, having regard
to wind, weather, and all the circumstances of the case is reasonable, or the
ordinary incidents of such flight so long as the provisions of part II and this
part of the Act and any Order in Council or order made under Part II or this
Part of this Act are duly complied with.”
No. 1]
AIRCRAFT NOISE DISTURBANCE
on aerodromes. 19 The protection of these enactments is conditional
upon compliance with pertinent flight regulations.
In contrast, however, British legislation imposes absolute liability
where material damage occurs. 20
“Where material loss or damage is caused to any person or property…
by, or by a person in, or an article falling from, an aircraft while in flight,
taking off or landing,… damages shall be recoverable without proof of
negligence or intention or other cause of action, as if the loss or damage had
been caused by the wilful act, neglect, or default of the owner of the aircraft.”
The meaning of “material loss or damage” in this provision has
never been considered judicially, nor have the other noise provisions
of the British act. Notwithstanding, there is no reason to suppose that
material loss or damage may not be occasioned by aircraft noise.
The provision pertaining to noise on aerodromes applies to both
civil and military aircraft. The provisions precluding nuisance and
trespass and imposing strict liability for material damage do not
apply to military aircraft. Regarding the latter, the Crown Proceed-
ings Act of 1947 21 raises the question of whether any liability what-
ever may attach to such aircraft. As will be seen later, the Canadian
Crown Liability Act contains similar language.
No distinction need be drawn in British law between foreign and
domestic civil aircraft. Of significance, however, is the British choice
of material loss or damage as the essential element of landowner’s
recovery. From that point the following comparisons may be made:
1. Compliance with air-traffic regulations does not afford the American air-
craft operator the protection enjoyed by his British counterpart.
2. Where the American landowner has recovered for disturbance unaccom-
panied by material damage, the British landowner is denied a cause of
action.
3. Recovery for material loss or damage must be sought under traditional
theories in America, while in Britain strict liability is imposed.
4. America has entrusted aircraft disturbance to common law analysis and
judicial resolution, whereas Britain has rejected common law entirely in
cases of aircraft disturbance.
10 Civil Aviation Act, 1949; (12, 13 & 14 Geo. VI, c. 67) s. 41(1) ; Air Naviga-
tion (General) Regulations, 1949, S.I. 1949 No. 374, reg. 230. See generally
Richards and Kaplan, The Control of Aircraft Noise Perceived at Ground Level,
68 Jo. Royal Aer. So. 45 (1964).
20 Civil Aviation Act, 1949, supra note 19, s. 40 (2). See Note, 102 Sol. Jo. 537,
538.
2110 & 11 Geo. VI 0. 4, s. 11(1), 11(2). See Kaplan, H., The Sound Barrier:
Aircraft Noise and Insurers, 53 J.C.I.I. 13, 28 (1956).
McGILL LAW JOURNAL
[Vol. 11
Some Preliminary Questions
In light of the almost polar approaches seen above, several ques-
tions should be posed:
1. Is the interest of the aviation group so superior as to preclude its liability
entirely ?
2. If not, should the existence of material loss or damage be indispensable
to recovery?
3. Has the application of common law analysis satisfactorily resolved con-
flicts of interest in America?
If not, is the failure due to inherent inadequacies in common law analysis,
or rather, because the American constitutional framework has demanded
an unnatural application of common law techniques?
4.
These questions serve as guides in considering the present state of
the law in Canada and in suggesting modifications which may seem
desirable. In Canada, treatment of the problem of aircraft noise
disturbance is unhampered by factors which have shaped American
law. In addition, Canadian lawyers are afforded a direct comparison
between common
law and civil law techniques. Considering for
purposes of discussion that traditional nuisance doctrines apply in
common law provinces in the absence of specific Dominion or provin-
cial legislation, comparison may be drawn with the Civil Code of
Quebec.
The Law of Canada and the Quebec Civil Law
As mentioned above, noise disturbance may arise from three basic
classes of aircraft. Canadian law will be examined as it may apply to
each of these classes. This study will concern itself only with opera-
tions conducted in compliance with applicable flight regulations,
thereby posing directly the problem of damage from authorized
activity.
1. Disturbance Caused by Domestic Civil Aviation Operations:
The Canadian Aeronautics Act,2 2 unlike the British Act, does not
deal with aircraft noise, so provincial law must provide applicable
principles. Likewise, no Dominion case law directly treating noise
disturbance exists. Nonetheless, two cases should be noted. The first
is Nova Mink Farms v. Trans Canada Airlines, 23 a decision of the
Nova Scotia Supreme Court. There, the court held in dictum that
compliance with pertinent flight regulations does not lessen the
22 R.S.C. 1952, Vol. 1, c. 2.
23 (1951) 2 D.L.R. 241.
No. 1]
AIRCRAFT NOISE DISTURBANCE
common law duties of the aircraft operator to parties on the surface.
Even so, that court took a dim view of recovery for mere noise in the
absence of unusual circumstances known to the defendant.
A second case is Lacroix V. R.24 in which the Exchequer Court
denied plaintiff recovery for the alleged taking of an easement over
his property. In so holding, the court expressly rejected the claim that
section 414 of the Quebec Civil Code entitles the owner of land to
ownership of superadjacent airspace. Though it could have ended at
that point, the court went on gratuitously to underscore the landown-
er’s right to full enjoyment of his land. Despite this, the court stated
that aircraft operations which comply with regulations would not give
rise to liability. Two things must be kept in mind about Lacroix. First,
its force goes only to ownership of airspace since the other issues
treated were beyond the scope of the plaintiff’s claim. Secondly, the
expression in dictum of the court’s opinion disregarded the Civil Code
of Quebec, looking even to the United States for authority. Since it
is provincial law which is to be applied under the Exchequer Court
Act,25 the propriety of this is questionable. Nonetheless, the dictum
in Lacroix indicates the direction the Exchequer Court may take in
deciding potential disturbance cases to which the Crown is a party
and which arise in a common law province.
Whether the defendant in a disturbance case involving civil avia-
tion operations is the Dominion or a private party, the law of the
province where the offending conduct took place applies. Therefore,
the Civil Code of Quebec should be examined as a means of resolv-
ing landowner-air transport disputes. Attention is directed to sections
1053 and 1054 dealing with extra-contractual responsibility. Article
1053 states that
“Every person capable of discerning right from wrong is responsible for
the damage caused by his fault to another, whether by positive act, impru-
dence, neglect or want of skill.”
Not only is the person responsible for his own fault, but his respon-
sibility extends “also for the damage caused … by things he has
under his care.” under article 1054.
Recovery under 1053 turns upon plaintiff’s proving fault. 6 Note
that the right to conduct aviation operations is specifically regulated.
(1956) 2
McGill L.J. 114; Richardson, J., Private Property Rights In the Airspace at
Common Law, 31 Can. Bar Rev. 117 (1953).
24 [1954] Ex. Ct. Rep. 69. See Dohan, Airspace and Article 414,
25 1875 (38 Vict., c. 11); R.S.O. 1927, c. 34; See Jamieson, Proceedings By
and Against The Crown in Canada, (1948) 26 Can. Bar Rev. 373.
26 See Crfpeau, Liability For Damage Caused By Things From the Civil Law
Point of View, (1962) Can. Bar Rev. 222.
McGILL LAW JOURNAL
[Vol. 11
It is the manner in which that right is exercised, not the harm suffer-
ed by landowners that is central to determination of fault questions
under 1053. Thus, so long as aviation operations comply with perti-
nent regulations, a finding of fault is unlikely in the absence of
malice.2 7
The possibility remains of claiming under 1054, which raises a
rebuttable presumption of fault. In order to recover under that article
a plaintiff must prove two things: 1) that an autonomous act of the
thing caused the damage and 2) that defendant had the “garde
juridique” of that thing.28 The first requirement might be answered
by arguing that aircraft noise disturbance emanates not from the
fault of the operator, but rather from the nature of the aircraft
itself. Thus, the autonomous act requirement is met. The other
requirement, “garde juridique”, is met since the defendant is exercis-
ing control over the aircraft for his own benefit.
Even if this argument were acceptable, the exculpatory clause of
paragraph six of article 1054 would likely protect the defendant:
“The responsibility attaches in the above cases only when the person
subject to it fails to establish that he was unable [by reasonable means] to
prevent the act which has caused the damage.”
In the overwhelming majority of cases, airlines can show that
they have taken all reasonable steps to prevent unreasonable noise
disturbance.
These inadequacies of the Civil Code are relevant not only to
domestic civil aviation operations in Quebec, but to certain foreign
operations as well.
27 See Capitant, Vocabulaire Juridique, Vol. 1, p. 17; Josserand, L’Abus des
Droits 58 (1905); Planiol, Traitj Elmentaire de Droit Civil, Vol. II, part 1,
(Eng. Translation 1939). Cf., Brodeur v. Choiniare, [1945]
Nos 870-872(b)
S.C. 334, commented on in Nadeau, Abuse of Rights, [1947] Can. Bar Rev. 512,
514. But cf., Air Rimouski Lt~e v. Gagnon, [1952] S.C. 149, 152, “…even the
most absolute of [proprietary rights] must.., be subjected to certain restrictions
subordinating the exercise of ownership to the rights of neighboring proprietors.”
(Emphasis supplied) See also Comment, 8 McGill L.J. 150 151-153
(1961-62);
Papers presented to the Annual Meeting of the Canadian Bar Ass’n. (1957) at
268 et seq.; Khadr, Riparation des dommages causis par les aironefs du simple
fait du survol des proprit~s privies, 1 Rev. Gen. de ‘Air 10 (1964). See generally
Lamont, 1958 Papers presented to the Annual Meeting of the Canadian Bar
Ass’n. pp. 38, 40; Mankiewicz, Some Aspects of Civil Law Regarding Nuisance
and Damage Caused by Aircraft, 25 Jo. Air L. & Com. 44 (1958); Mazeaud
and Tunc, Vol. 1 pp. 622-675 (5th ed. 1957).
28 See Cr~peau, supra note 26 at 230-236.
AIRCRAFT NOISE DISTURBANCE
2. Foreign Civil Aviation Operations
In the absence of specific Dominion legislation, provincial law
applies to the conduct of foreign air carriers within provincial terri-
tory. However, specific legislation does apply to carriers of states
which are party to the 1952 Rome Convention. Enacted in Canada in
1955, that convention imposes absolute, but limited liability on foreign
civil aircraft causing damage to third parties on the surface.29
Here, as in the case of the British Civil Aviation Act, the meaning
of “damage” is unclear. Noise disturbance from types of aircraft
known in 1952 was not intended to be included within the coverage
of the convention. 30 However, the subsequent development of large jet
aircraft has made real the threat of damage due to noise. It is there-
fore argued that the Rome Convention extends to cases of material
damage caused by aircraft noise.
Employing this interpretation of the Rome Convention, aircraft
of non-member states would presumably be governed by provincial
law. Since only fourteen states are parties to the Rome Convention,
provincial law is predominant, and several difficulties emerge. If
provincial law affords no recovery for damage caused by aircraft
operated in compliance with flight regulations, non-member states’
carriers would be subject to no liability, whereas those of member
states would be subject to absolute but limited liability in cases of
material damage. Contrarily, in provinces whose law affords recovery,
non-member states’ carriers would be subject to unlimited liability for
material damage, whereas member states’ carriers would be subject
to “Rome Convention liability”.
This diversity of laws could be rectified by making the provisions
of the Rome Convention applicable to all foreign aircraft entering
Canadian airspace. Such action might be strongly objected to, notably
29 Foreign Aircraft Third Party Damage Act, 3-4 Eliz. II, c. 15 (1955). c. 1,
art. 1: “Any person who suffers damage on the surface shall upon proof only
that the damage was caused by an aircraft in flight or by any person or thing
falling therefrom, be entitled to compensation as provided by this Convention.
Nevertheless, there shall be no right to compensation if the damage is not a
direct consequence of the incident giving rise thereto, or if the damage results
from the mere fact of passage of the aircraft through the airspace in conformity
with the existing air traffic regulations. See R.S.C. 1952, Vol. 1 c. 2, Part II, s. 18.
30 I.C.A.O. Doc. 7379, LC/34 pp. 16, 17, 23, 398. See Khadr, supra note 27 at
44-49; Rinck, Damage Caused by Foreign Aircraft to Third Parties, 28 Jo. Air
L. & Com. 405, 408 (1961-1962); Lee, R., The Legal Problem of Supersonic Air-
craft, unpublished study, McGill Institute of Air & Space Law (1963) at p. 12.
McGILL LAW JOURNAL
(Vol. 11
by the United States, which opposes strict liability. 31 Nonetheless, this
action is within the sovereign rights of Canada over her airspace.32
Notwithstanding this suggestion, the present state of the law of
Quebec would apply the law of that province to cases of aviation
disturbance arising therein which did not involve material damage.
Where material damage occurs, Quebec law would apply to non-mem-
ber states’ carriers, and the Rome Convention would apply to carrier
of member states.
3. Canadian Military Aviation Operations
As mentioned above, certain aspects of the law of governmental
liability in tort are common to Canada and Great Britain. Notably,
the Canadian Aeronautics Act does not appear to apply to military
aircraft. Rather, they are under the control of the Minister of Defen-
se.3 3 In addition, the Crown Liability Act, article 3 section 6, “… does
not make [s] 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 war, for the purpose of the defence of
Canada or of training, or maintaining the efficiency of, any of the
naval, army, or air forces of Canada.” 34
There has been no judicial construction of the above provision, so
its effect upon liability of military aviation operations is uncertain.
However, actions have been taken successfully against the Crown for
acts of its military personnel.35
In any case, the law of the province in which the conduct complain-
ed of arises controls any liability the Crown may have. However, it is
the provincial law as it existed in 1947, the date of the enactment of
31 See Rinck, supra note 30 at 405.
32 See Johannsen et al V. Rural Municipality of St. Paul, [1952] 1 S.C.R. 292.
See also Spanish Law of Air Navigation, art. 120 (20 July 1960).
33 Aeronautics Act, R.S.C. 1952 Vol. 1, c. 2, Part II, s. 6 (2); s. 8 (1), 8(2).
34 1-2 Eliz. II, c. 30 (1953). 1952-3 Debates House of Commons, Vol. III p.
3284: In reply to Mr. Diefenbaker’s question whether the postal and military
were to be exempted from the proposed Crown Liability Act, Mr. Garson answered,
“. . clauses in the Defense Act and in the Aeronautics Act, in the Employees’
Compensation Act and in the various other federal statutes [have] composite
effect to relieve the Crown from the claims of which he speaks.” p. 3285. See
Kaplan, supra note 21 at p. 28.
35 E.g. Darowany v. R., [1957] Ex. Ct. R. 340; Lindsay v. R., [1956] Ex. Ct. R.
186, 191.
AIRCRAFT NOISE DISTURBANCE
No. 1]
the Crown Liability Act.3 6 It is anomalous that the Crown, with its
tremendous power to inflict harm through governmental activities,
should be judged by law not subject to change.37 Aviation activities
are but one example of technological evolution demanding contem-
porary legal treatment. The development of necessary concepts is
rendered impossible by the present construction of the Crown Liabil-
ity Act.
Towards A Canadian Policy
Reviewing briefly, provincial law will apply in nearly all cases of
aviation noise whether caused by military or civil aircraft. The excep-
tion is where material damage is caused by aircraft having the nation-
ality of a state party to the 1952 Rome Convention. Further, the Civil
Code of Quebec appears to consider only the defendant’s conduct, not
the quantum of harm which flows therefrom. The seeming inade-
quacies of the law of Quebec make necessary a consideration of the
preliminary questions posed earlier in this study. Those questions
raise alternate means of resolving the conflict between groups inter-
ested in air transport and landowner groups. Note that the land-
owner as a member of the public shares an interest in aviation,
thereby assuming a dual role.
In answer to the first preliminary question, it is urged that there
are circumstances in which aviation operations, though conducted in
compliance with flight regulations, should be actionable. Secondly,
material damage should not be a prerequisite to recovery. In extreme
circumstances frequent noise and vibration unaccompanied by mate-
rial damage are not dismissable as mere neighborhood inconvenience.
Management of the air transport-landowner conflict centers, then,
about two inquiries. First, what is the extent of the landowner’s
burden as a member of the public interested in aviation? At what
36Schwella v. R., [1957] Ex. Ct. R. 226, 230; Gaetz v. R., [1955] Ex. Ct. R.
133, 135-136. See generally Binnie, Attitudes Towards State Liability in Tort:
A Comparative Study, 22 U. Toronto Faculty L. Rev. 188 (1964); Comment,
22 Can. Bar Rev. 269 (1944); Comment, 6 Oh. L.J. 77 (Mar. 1956).
37 In describing American practice Edmond Cahn, in Predicament of Democratic
(1962) notes that, “The typical American statute provides that the
Man, 69
government shall be liable for injuries ‘in the same manner and to the same
extent as a private individual under like circumstances’. With this sort of legisla-
tion, the government’s collosal capacity to inflict injury grossly exceeds its legal
responsibility.” See generally, Harper & James, The Law of Torts s. 29.15 (1956);
Schwartz, Public Tort Liability in France, 29 N.Y.U.L. Rev. 2432 (1959).
McGILL LAW JOURNAL
[Vol. 11
point or points along the scale of conduct should liability attach?
Secondly, of what elements should that liability consist?
The landowner’s role as a member of the public does not warrant
that he suffer material damage to his property. Rather, strict lia-
bility should be imposed on mere proof of causation. 88
In contrast, mere aircraft noise becomes unreasonable only in
extreme circumstances. The question is one of degree, unlike the
certainty that material damage has occurred. The choice is one of
recovery vel non. If recovery is to be granted in the absence of
material damage a judicially manageable means of identifying ac-
tionable circumstances is required. This raises the third and fourth
preliminary questions, which deal with the result of common law
analysis of aviation noise disturbance in America. The American
treatment has not been entirely satisfactory, but this is due to
the requirements of American constitutional law coupled with the
pre-1946 governmental tort immunity. The existence of these factors
in American constitutional law has made necessary the employment
of the “taking” doctrine, whereas pure nuisance concepts are available
in Canada.
An added problem in American law is that a respectable body of
authority insists that where the public suffers a nuisance, an indi-
vidual can recover on his own account only if he has suffered dam-
age differing in kind from that suffered by the public at large. 39
Plaintiffs seeking recovery for material damage could overcome this
argument, but those suffering mere disturbance would be denied
reecovery under the abovementioned view. However, this view does
not prevail in Canadian common law provinces. An individual must
show that he has suffered harm “above and beyond that suffered
by the public” in order to recover on his own account in a public
nuisance situation.40 Pure nuisance theory seems, therefore, both
appropriate and available to the resolution of aircraft noise disputes
in Canada’s common law provinces.
One final alternative must be considered, that of promulgating an
empirical test couched in terms of maximum allowable noise levels.
Although such a test would afford certainty, it could only be a com-
38 This proof is, however, difficult to establish. See Varner, Legal Aspects Of
The Sonic Boom, 23 Ala. Lawyer 342, 345 (1962). Cf., City of Newark V. Eastern
Airlines, 159 F. Supp. 750 (D. N.J. 1958).
39 See Prosser, Law of Torts 404 note 59, but see note 64, p. 405.
40 See Paterson, A. R., When Is an Aircraft a Nuisance in the Eyes of the
Law ?, 1957 Can. Aer. J. 336, 337 (Dec. 1957) ; Fleming, The Law of Torts 357-358
(2d ed. 1961) and cases cited therein.
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AIRCRAFT NOISE DISTURBANCE
promise. As such, it could leave certain plaintiffs without recourse in
unusual circumstances. Thus, an ad hoc approach employing nuisance
analysis is preferable.
In light of the above, the following twofold scheme is submitted as
a satisfactory resolution of aviation-landowner conflicts:
1. Physical damage to property is not to be tolerated by landowners as part
of their role as members of the public. If causation of material damage is
considered indispensable to development of air transport, the resultant
costs should be borne by aviation enterprises and connected groups.
2.
In the absence of material damages there are, nonetheless, certain extreme
circumstances which will give rise to liability. Identification of such
circumstances is to be on an ad hoc basis.
Adoption of “1” above makes uniform the treatment of material
damage cases, regardless of whether the defendant is a domestic or
foreign carrier. Adoption of “2” raises two questions. First, are the
carriers of Rome Convention states amenable to provincial law treat-
ment of mere disturbance since the convention did not intend to cover
mere noise? Secondly, note that the law of Quebec seems to offer no
recovery to landowners, no matter how severe the harm from air
transport operations conducted in compliance with pertinent regula-
tions. Ostensibly, the Rome Convention serves only to impose respon-
sibility for damage, not to provide immunity from liability for conduct
not covered by the convention. Thus, the first question may be
answered affirmatively. The second problem illustrates patently the
need to assess the propriety of the Quebec law in light of existing
technology. Discussion thus far has assumed that sonic boom requires
no departure from the proffered scheme of analysis. A brief examina-
tion of the nature of sonic boom justifies that assumption.
Sonic Boom
Sonic boom may be described as a cone of high pressure air con-
sisting of closely grouped sound waves accompanied by a loud cracking
noise. Its intensity is a function of the size, weight, altitude, geome-
try, and flight attitude of the aircraft. In addition, atmospheric condi-
tions exert considerable influence on sonic boom intensity.41 The
destructive potential of these supersonic overpressures is conjec-
tural, but present purposes are served by noting that sonic booms
4′ See generally, Preliminary Data Oklahoma City Sonic Boom Study, Fed. Av.
Agency, August 3, 1964; Hopkins and McIntosh, Is Sonic Boom an Explosion?,
1957 Ins. L.J. 15.
McGILL LAW JOURNAL
[Vol. 11
have accounted for damage ranging from minor glass breakage to
the 1959 incident at Uplands Air Force Base near Ottawa, in which
a low supersonic overflight caused structural damage in excess of
$500,000 to the newly erected terminal building.42 If man deems it
indispensable to travel at supersonic speeds, 43 the resultant material
damage is presumably no more the burden of the subjacent land-
owner than is damage caused by a falling aircraft.
A more difficult question is presented by sonic booms which
cause no material damage. Their noise is sudden; trailing the path
of the aircraft, they could affect wide portions of the populace unfami-
liar with aircraft disturbance. Furthermore, the frequency of sonic
boom over a given area may be dependant on a multiplicity of factors,
some of which are uncontrollable. Nonetheless, in final analysis, sonic
boom is merely noise.44 As such, it becomes unreasonable under
extreme circumstances. Ad hoc recognition of such situations ren-
ders sonic boom amenable to the suggested scheme even though
actionable facts may differ from those where subsonic operations
are in question.
Conclusions
A legislative approach thus appears to be the most equitable
solution to aviation noise problems. These issues should be treated
with a view to the just distribution of the burden of air transport
operations beetween the industry, its consumers, the public, and
finally, the landowner group. This can best be accomplished by
preventing legal formalism from eclipsing the interests of the groups
involved, as it has done to a large extent in the United States.
Several policy factors may be noted in conclusion. First, it is
arguable that the air transport interests are better able to bear the
cost of offending operations than is the landowner group. Further,
these costs may be passed on to users of aviation services and
products. Secondly, as regards material damage, it is not anticipated
that prolific litigation would flow from adoption of the suggested
scheme due to the high cost of litigation and the involvement of
42 See Varner, supra note 38.
43 The future of commercial supersonic transportation is in large part de-
pendent on resolution of the sonic boom problem. See Av. Wk. & Sp. Tech., Aug. 3,
1964 at p. 38; Astr. & Aer., Sept. 1964 at pp. 16, 70, 77.
44 See Hamman, An Old and a New Legal Problem: Defining “Explosion” and
“Sonic Boom”, 45 A.B.A.J. 696 (1959).
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AIRCRAFT NOISE DISTURBANCE
insurance companies which tend to settle out of court wherever
possible
5
Canadian recognition of aviation disturbance as a present problem
is desirable,
indeed necessary. This is particularly applicable to
Quebec. The inattention of the law of that province to the quantum
of damage occasioned by authorized operations may have been jus-
tified in the past. However, the ability of air transport participants
to inflict immense harm upon surface interests requires reassessment
of basic concepts. Without indicating the form this process may take,
it is clear that an imbalance in the law presently exists between air
transport and surface interests in the province of Quebec.
45 Some Canadian insurers have expressly included sonic boom damage
homeowners’ policies, thereby avoiding disputes over whether sonic boom
within aviation risk clauses, etc.
in
is
