DAME PILON v. MARION, KNAPP ET LES HIRITIERS DE
JULIEN BELLEMARRE
Bruce Cleven*
The British North America Act, in distributing legislative powers,
authorizes the Parliament of Canada to enact legislation in relation
to all matters except those coming within the sixteen enumerated
Classes of Subjects assigned to the provincial legislatures.’ “For
greater Certainty, but not so as to restrict the Generality of the
foregoing”, the authority of Parliament extends to all matters coming
within certain enumerated classes of subjects. It is apparent that the
Canadian Constitution does not distribute entire fields of law but
rather a power to legislate on “matters” which “come within” specific
classes of subjects or within the federal residue. Consequently the
Parliament of Canada and the legislature of the Province of Quebec
may each enact an intra vires law in the same field, both of which
may apply to the same factual circumstances.
This situation may arise in the field of Aeronautics in cases of
responsibility resulting from airplane crashes. Jurisdiction over
Aeronautics has been conferred on the Parliament of Canada as an
exercise of its general power under section 91 to legislate for the
Peace, Order and Good Government of Canada. 2 The provincial legis-
latures have enacted laws on civil responsibility under their authority
to legislate in relation to matters coming within Property and Civil
Rights in the Province. The problems that arise in this area may be
illustrated with reference to Dame Pilon v. Marion, Knapp et les
H6ritiers de Julien Bellemarre, a recent decision of the Superior
Court 3 in Quebec, which unfortunately ignored the constitutional
issue on which the very foundation of the judgment depended.
In this case a pilot and three gratuitous passengers departed in a
small aircraft for a fishing trip into the Laurentians. During what
appears to have been an attempted landing on a small lake before
91 and 92.
* of the Junior Board of Editors, second year law student.
SThe British North America Act, 1867, 30 and 31, Victoria, c. 3, sections
2 Johannesson V. The Rural Municipality of West St. Paul, [1952] 1 S.C.R.
292, approving the obiter dictum expressed in In re the Regulation and Control
of Aeronautics in Canada, [1932] A.C. 54.
3 An unreported judgment of the Superior Court of the District of Montreal –
C.S., Montreal, no. 490,918, 8 May, 1963. Mr. Justice R. Brossard.
No. 3]
CASE AND COMMENT
they reached their destination, the plane crashed killing all its oc-
cupants. The wife of one of the passengers instituted an action
against the heirs of the pilot, Julien Bellemarre, and the co-owners
of the plane, Mr. Marion and Mr. Knapp.
Plaintiff alleged that the accident was caused by defendants’
fault, negligence, imprudence and general want of skill. Against the
heirs of the pilot she made the following allegations in her declara-
tion:
“a) Avoir conduit et pilot6 ledit a6ronef de fagon n6gligente, impru-
dente, et incomp~tente, constituant un danger pour la vie des personnes
occupant ledit a6ronef y compris ledit Jacques L’Heureux, 6poux de la
demanderesse.
b) Avoir viol6 les dispositions de ]a loi sur I’adronautique et les r~gle-
ments de Fair 6dict6s sous I’empire de ladite loi.”
Specifically she alleged that the weight of the passengers and
equipment exceeded the maximum allowed by the regulations, that
the plane had been flown at a prohibited altitude, and that the pilot
had flown in climatic and atmospheric conditions which were them-
selves not only prohibited by the air regulations but which constituted
an act without regard to the elementary rules of prudence. Against
Marion and Knapp she alleged the failure to maintain the equipment
in good condition and:
“f) Avoir n~glig6 d’assurer audit a~ronef
les standards de naviga-
bilit6 requis par la loi et par les r~glenents 6dict~s sous l’empire de
ladite loi de l’a~ronautique.”
Indirect evidence as to the cause of the crash was placed before
the court by an expert witness who had investigated the accident
for the Minister of Transport. From an examination of the scene of
the mishap he observed that surrounding trees were untouched, that
imprints of the pontoons were made in the ground, and that the
pontoons were compressed upwards. From these facts he concluded
that the plane had been inverted and at a 700 rate of descent just
prior to the impact. It was his view that there had been a loss of
control of the aircraft. He had been unable to find any evidence of
malfunction of controls or of the aircraft itself after a thorough
investigation. Moreover, he discovered that the cables which cause
the ascent or descent of the aircraft were still intact. It was his
opinion that the loss of control was due to the pilot.
The action was maintained against the heirs for $87,044.50, but
dismissed in favour of the co-proprietors as there was no lien de prg-
position between them and the pilot. Mr. Justice Brossard rejected
as unproven the allegations of violations of the Aeronautics Regu-
lations.
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[Vol. 10
imm6diatement comme n’ayant
“La Cour 6carte
t6 nullement prouv~s
les reproches de n6gligence d~coulant de prdtendue violation de la Loi
sur l’a6ronautique et les r~glements de l’air, de surcharge illgale de
l’appareil, de vol A altitude prohib6e par les r6glements, du mauvais
6tat de r~parations et de fonctionnement de “l’avion et de son inapti-
tude au vol.” 4
The court found the pilot at fault due to the presumptions of fact
flowing from the evidence established against him under the au-
thority of articles 1238 and 1242 of the Civil Code.5 In describing the
juridical character of airplane transport, Mr. Justice Brossard said
that it is identical to transport by automobile and consequently:
la responsabilit6 envers
la responsabilit6 envers
les passagers d6coulant
les mimes r~gles de droit et de jurisprudence
les passagers d6-
“S’appliquant donc 4
d’un accident d’avion
que celles qui r6glementent
coulant d’un accident de v6hicule moteur.”6
In the context of responsibility for damage resulting from air-
plane accidents, a basic issue lying behind the judgment is to deter-
mine the effect of laws enacted by both the Parliament of Canada
and the Legislature of Quebec in the field. If the Aeronautics Regula-
tions overlap the provisions on civil responsibility in the Civil Code,
the regulations would predominate; if there is no conflict the two
intra vires laws must be applied to the factual situation. Is a breach
of a regulation sufficient to engage the responsibility of the author
of the damage, or failing the violation or existence of a particular
regulation is the general civil law sufficient for responsibility? In
addition the question arises as to whether Aeronautics Regulations
may be regarded as specific instances of the civil law rules of pru-
dence, and whether their application is juridically identical to that
of the provisions of the Highway Code.7
Possible conflict arises in the determination of a duty which has
been violated. In Quebec article 1053 C.C. sets out the general rule
that all persons who are capable of discerning right from wrong are
responsible for the damage caused by their fault. To establish that
a person was at fault, it must be proved that he had an obligation
which he failed to perform. Article 1053 C.C. itself may be regarded
as imposing a general duty upon capable persons to take reasonable
care in dealings with their neighbours. However, the Aeronautics
Regulations impose certain express obligations on the owner and
pilot of an aircraft. If an airplane crashes, causing the death of a
4 Ibid, p. 22.
5 Art. 1238. Presumptions are either established by law or arise from facts
which are left to the discretion of the courts. Art. 1242. Presumptions not estab-
lished by law are left to the discretion and judgment of the court.
6 Op. cit., at p. 5.
7 R.S.Q. 1941, Ch. 142, as amended.
No. 3]
CASE AND COMMENT
275
gratuitous passenger, it is important to know whether a breach of
a Federal regulation or a breach of the general obligation of care
must be proved in order to establish liability.
It is a principle of constitutional law that if the laws of the two
spheres conflict, the Federal law will predominate. As expressed by
Lord Sankey:
“.. .there can be a domain in which Provincial and Dominion legislation may
overlap, in which case neither legislation will be ultra vires, if the field is
clear, but if the field is not clear and the two legislations meet the Dominion
legislation must prevail.” 8
Thus it is necessary to determine whether or not these laws meet.
To decide this question one must look at the general effect of the
Aeronautics Regulations of which the contraventions alleged in this
case are a part. The Aeronautics Act empowers the minister to make
regulations for the safe and proper navigation of aircraft in Canada.9
The scope of the Act was summed up by Chief Justice Rinfret of the
Supreme Court as follows:
“The Aeronautics Act… makes it the duty of the minister ‘to supervise all
matters connected with aeronautics… to prescribe aerial routes …
to pre-
pare such regulations as may be considered necessary for the control or
operation of aeronautics in Canada… and for the control or operation of
aircraft registered in Canada wherever such aircraft may be… for the
licensing of navigation and the regulation of all aerodromes and airstations,
etc.’ ” 10
The Act also provides a sanction for the breach of these regu-
latory duties.’
The Regulations operate in respect of all aircraft in Canada, and
set out safety and airworthiness provisions and rules concerning
flights and weather conditions. They deal with the matters which
were invoked by the plaintiff, weight maximums, minimum altitudes,
and climatic conditions for flights. However, the provisions are of a
general regulatory character and there are no sections directly
dealing with rights of indemnification for damage suffered in air-
plane crashes. Section 515, however, closely resembles our article
1053 C.C.:
“No aircraft shall be operated in such a negligent or reckless manner as
to endanger or be likely to endanger the life or property of any person.” 12
8 Grand Trunk Railway Company of Canada v. Attorney-General of Canada,
[1907J A.C. 65 at p. 68, Lord Dunedin.
9 Aeronautics Act, R.S.C. 1952, ch. 2, section 4, subsection 1.
10 Op. cit., Footnote 2, Rinfret, C.J. at p. 303.
11 Op. cit., section 4, subsection 3. “Every person who violates the provisions
of a regulation is guilty of an offense and is liable on summary conviction to
a fine not exceeding five thousand dollars, or to imprisonment for a term not
exceeding one year, or to both fine and imprisonment.”
12 Air Regulations, P.C. 1954 –
1821 of 23 November, 1954, sec. 515, Statutory
Orders and Regulations Consolidation, 1955, vol. 1, p. 15.
McGILL LAW JOURNAL
[Vol. 10
It seems, however, that the purpose of this section is to prevent
negligent and reckless flying per se by providing for an administra-
tive punitive sanction. On the other hand for article 1053 C.C. to
apply, the negligent act must have caused damage. Under the present
regulatory scheme 13 it appears that the two laws come close but do
not actually conflict. It is established in Canadian law that the
provincial
law of responsibility or negligence applies to damage
13 Can the Parliament of Canada validly enact a law concerning civil claims
arising from airplane crashes under its general authority in relation to aero-
nautics ? In support of the argument that it could one may cite the Carriage by
Air Act (R.S.C. 1952, ch. 45), which was an enactment of the terms of the War-
saw Convention by the Canadian Parliament applying to international flights,
and which includes sections on claims arising from airplane accidents (articles 17
to 30). It has been suggested that it lies well within the legislative competence
of Parliament in relation to aeronautics to enact laws respecting liability in tort
in connection with or arising from aeronautical operations
(Thurlow, J. in
Schwella v. The Queen and the Hydro-Electric Power Commission of Ontario,
[19571 Ex. C.R. 226 at p. 233). Mr. Justice Kellock expressed the view in the
Supreme Court, that: “Once the decision is made that a matter is of national
interest and importance, so as to fall within the peace, order and good govern-
ment clause, the provinces cease to have any legislative jurisdiction with regard
thereto and the Dominion jurisdiction is exclusive.” (Johannesson v. The Rural
Municipality of West St. Paul, [1952] 1 S.C.R. 292, at p. 311).In opposition to
this view Mr. Justice McFarland’s statement in the Ontario Supreme Court may
be quoted: “In my opinion, the principle is quite clearly established that Dominion
legislation cannot trespass upon or create any civil right in the province.” (Gordon
v. Imperial Tobacco Sales Co., [1939] 2 D.L.R. 27 at p. 30). It may be emphasized
that the whole field of law relating to aeronautics was not given to the Parlia-
ment of Canada, but only that over which the provincial legislatures were not
empowered to legislate by virtue of section 92 of the B.N.A. Act. Thus laws
effecting aeronautics may validly fall within section 92 for one aspect and within
section 91 for another purpose or aspect, and a Federal law relating to responsi-
bility could be ultra vires as an enactment on a provincial aspect of aeronautics
and not merely ancillory legislation. Mr. Justice Wurtele in a case concerning
Federal Railway Legislation (MacDonald v. Riordan, (1899) 8 B.R. 555) sug-
gested a distinction: While Parliament has the right to legislate for the principal
object, which is to construct and operate a railway, this authority cannot extend
to and affect the rights of parties who are not employees of the railway com-
pany as to obligations of which they are creditors under provincial law. He states
that: “Any powers that the parliament might attempt to confer which might
relate to or in any way affect the rights of such third parties would be an
infringement of the exclusive power of the provincial legislature to make laws
respecting property and civil rights in the province and would therefore be
unconstitutional and without effect. In keeping within these bounds the respec-
tive legislative powers of the parliament and of the provincial legislatures are
adjusted and reconciled and due effect is given to the legislation of both.” (p. 573).
This argument could equally well be applied to aeronautics and the authority of
the Canadian Parliament to make laws in relation to the civil rights of persons
other than the owner or pilot of an aircraft.
No. 3]
CASE AND COMMENT
actions resulting from airplane accidents.14 Mr. Justice Montague
emphasized this principle in a decision of the Court of King’s Bench
in Manitoba.
“But there is, apparently, no fundamental principle arising from aviation,
which has not been previously laid down and in the absence of any statute,
I hold that the rules of law relating to the operation of aircraft in general
are the rules relating to negligence, and cannot see that they are dis-
tinguishable from those which relate to land vehicles, perhaps more closely,
to motor vehicles. The ordinary rules of negligence and due care obtain.” 15
If liability for fault may be established under provincial law,
what then is the function of the Aeronautics Regulations? When
both laws validly exist in the field and apply to one situation, their
scope and operation in the determination of responsibility must still
be ascertained.
Under the Civil Law of Quebec fault is the breach of a pre-exist-
ing obligation, whether it is a precise, determined duty or a general
obligation of prudence and diligence. 16 When a determined obligation
is breached, fault lies in the inexecution itself. But if a general obliga-
tion of care is violated, proof of negligence or imprudence is required
to establish fault.’ 7 The courts are authorized to apply the general
rule of care to the particular circumstances under consideration.
A determined legal duty is a rule resulting from a law or a regula-
tion which clearly establishes an obligation to do or not to do some-
thing.’8 Though there may be another sanction for the violation of
such a provision, a person may be found civilly responsible for damage
resulting from its breach.’ This is recognized even when the legisla-
tion or regulation is enacted by the Parliament of Canada.20 This
principle exists in the common law provinces 21 and has its roots in
14 Malone v. Trans-Canada Airlines, 53 C.R.T.C. 402, at p. 403, Urquhart, J.,
and Turgeon v. Quebec Airways Ltd.; McFarlane v. Quebec Airways Ltd., 48 R.J.
396 at p. 427, Greenshields, J., in the Superior Court.
‘5 McInnerny v. McDougall, [1938] 1 D.L.R. 22 at p. 28. He reiterated this
point in Galer v. Wings Ltd., [1939], 1 D.L.R. 13 at p. 14, as follows: “Unless
and until, therefore, statutory provision is made to the contrary in Canada, com-
mon law principles must guide the courts in dealing with cases which arise in
transport by air.”
16 H., L. & J. Mazeaud, Legons de Droit Civil, (1956), Vol. II, at p. 367.
17 Ibid.
Is R. Savatier, Traitg de la ResponsabilitW Civil en Droit FranVais, (1939),
Vol. I, p. 8.
19 Blais v. P. L. Lortie, Ltje, (1925), 63 C.S. 63, Lemieux, J.; Drury V. Lambert.
(1941), 71 B.R. 336, Tellier, J.
20 Frechette v. Canadian National Railways Company, 1948 R.L. 141.
21 Connell v. Olsev, [1933] 3 D.L.R. 419; Falsetto v. Brown [1933] 3 D.L.R. 545;
Swartz Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277; “The Negligent Action and the
Legislature”, MacDonald, V.C., (1935) 13 Can. Bar Rev. 535, at p. 540.
McGILL LAW JOURNAL
[Vol. 10
English law where an action in damages is permitted for an injury
flowing from the breach of a statutory duty.22 Mr. V. C. Richardson
of Manitoba, writing on aeronautics, points out that “the present
tendency seems to be to treat the statutory provisions governing
other forms of transportation as creating civil rights.” 23 Breaches
of aeronautics regulations have been regarded in a similar light.24
The establishment of the breach of a regulation will not be suffi-
cient in itself to engage the author’s responsibility for the damage.
In the determination of responsibility under article 1053 C.C. an
essential element is “un rapport de causalite” between the damage
and the fault or violated obligation, as a person cannot be held res-
ponsible for a prejudice suffered by another if it did not result from
the violation of his obligation. This principle is illustrated in the
field of aeronautics in a common law jurisdiction by McInnerny V.
McDougall25 where the Manitoba King’s Bench held that the breach
of a regulation requiring the pilot to cut off the dual controls did not
itself constitute negligence, which was established, however, because
the defendant’s acts and skill did not measure up to the standard of
a reasonable man.
If there is a situation which is not covered by a regulation, the
plaintiff may then prove fault by showing that the author of the
damages did not take ordinary and reasonable precautions in the
performance of his act.26 Certainly, as in the case under considera-
tion, if the plaintiff fails to prove alleged breaches of regulations but
discharges the burden of establishing negligence, his claim is valid
in law. Moreover, the mere obedience to a rule of law does not
exonorate a defendant if he has acted negligently.21 Thus civil res-
ponsibility covers the field and may be invoked with or without
regulatory violations. Similarly with respect to railway legislation,
corporations remain subject to the civil law even though both Federal
and Provincial laws occupy the field.28 Mr. Justice Letourneau ex-
pressed this view in the Quebec Court of Appeal:
“Je reconnais qu’une compagnie de themin de fer puisse Atre condamn~e
en dommages non seulement si elle a violm l’une des dispositions statutaires
2 2 Lochgelly Iron and Coal Co. Ltd. V. M’Mullan, [1934] A.C. 1; Monk v. War-
bey, [1935] 1 K.B. 75.
23 “Canadian Law of Civil Aviation”, Richardson, V.C., K.C., L.L.B., Winnipeg,
53 C.R.T.C. 321, at p. 339.
24 Dame Biliveau V. Les H ritiers de Letiecq, [1961] R.L. 513, Ouimet, J.
25 Op. cit., see also Rockland Airways v. Miller, [1959] 19 D.L.R. 2d 683, Ontario
High Court, Schatz, J.
26 Savatier, op. cit., at p. 17; Aubry et Rau, Cours de Droit Civil Frangais, 6th
Edition, Vol. IV,
(1951), p. 427.
22 Audet v. Central Vermont Ry. Inc., 54 C.R.T.C. 171.
28 Grenier v. C.N.R.. (1929). 35 R.L. n.s. 166 (S.C.), Archer, J.
No. 3]
CASE AND COMMENT
qui la regissent, mais encore A raison d’une negligence ou imprudence de
droit commun.” 29
The effect of specific obligations in determining fault is not to
replace the general duty implied in our code but to help ascertain
if an individual is negligent, by enunciating a specific rule of pru-
dence applying to a particular situation.
Although few sources express the underlying reasoning for this
application of the Aeronautics Regulations, nevertheless the effect
of these regulations may be determined by the following factors.
Since they do not cover the same ground as article 1053 of the Civil
Code the authorities indicate that the ordinary rules of responsibility
in the province apply. The civil law approach treats regulations as
specific duties which may assist in determining or themselves deter-
mine fault; but they do not limit the scope of article 1053 C.C. which
remains to cover the entire field of delictual civil responsibility. More-
over this treatment of Federal regulations does not conflict with the
Common Law approach displayed in aeronautics cases.
Thus the remarks of Brossard, J.30 that the legal rules relating
to air transport are identical with those relating to transportation
by motor vehicle are correct, when assessed with regard to the func-
tion and effect of specific regulations in establishing fault. There is
as well both judicial and doctrinal support for his opinions.3 ‘ Con-
sequently even though plaintiff failed to prove alleged violations of
the Air Regulations she could still rely on the general duty of care
implicit in article 1053 C.C. Though the decision correctly applied the
law imposing an obligation on the pilot of the aircraft, it is regretted
that the learned trial judge failed to fully motivate this application.
This is particularly unfortunate as a thorough explanation of the law
at this time would be of great value in the rapidly expanding field of
aeronautics.
29 Frechette V. C.N.R., op. cit., at p. 148.
30 Op. cit., at p. 4: “Quant aux relations juridiques qui s’6tablissent entre le
transporteur de passagers et ses passagers, le transport par avion ne diffire pas
du transport par vdhicule moteur; aucun texte de loi ne permet de faire cette
distinction…”
3 lMclnnerny v. McDougall, op. cit.; Richardsdn, op. cit.; A. Nadeau, Traiti
de Droit Civil du Qudbec, Vol. VIII, p. 91.
