Judgment of the Court — PIGEON J.
The judgment of the Court was delivered by
PIGEON J.—On July 5, 1970, an Air Canada aircraft en route from Montreal to Los Angeles crashed at Toronto. Among the passengers who were killed in that accident were Reginald Whittingham, his wife and their only son. Two actions were instituted in the Superior Court. Appellants were the plaintiffs in those actions in their capacity as executors of each of the two spouses. The husband’s brother was a co-plaintiff in the first action as being the only surviving member of the family. The wife’s brother was a co-plaintiff in the other action. The claims made by these co-plaintiffs are not the subject of this appeal, which is concerned only with claims by the executors. In the two statements of claim, the only allegation relating to the facts of the accident reads as follows:
7. THAT on or about July 5, 1970 the said aircraft, after a momentary touch down on Runway 32 at Toronto International Airport, Malton, Ontario in the course of attempting an enroute stop on a scheduled flight from Montreal, Quebec to Los Angeles, California crashed or was caused to crash near the said airport, which crash caused the death of the said Reginald Whittingham and all other passengers as well as all members of the crew on the said aircraft, 109 people having thus been killed.
In the action based on the death of the husband, the allegation regarding the amount of damages claimed by the executors reads as follows:
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16. THAT in the premises, Plaintiffs Arthur V. Mack and Dorothy Dyce, in their quality as Executors and personal representatives of the Estate of the late Reginald Whittingham, claim and are entitled to recover from Defendant the sum of $63,220.00, the whole consisting of the following:
a) For the loss alleged in Paragraph 13 hereof, the sum of
$ 5,000.00
b) For the severe shock, fear, anguish, terror, physical injuries, pain and apprehension of death suffered by the late Reginald Whittingham, the sum of
10,000.00
c) For loss of enjoyment of life of the late Reginald Whittingham, the sum of
5,000.00
d) For loss of anticipated future savings from earnings as well as loss of anticipated increase in net worth of the late Reginald Whittingham during what would have been his normal life span, the sum of
35,000.00
e) For expenses incurred and to be incurred in respect of the investigation of the death of the late Reginald Whittingham and the investigation of the assets and liabilities of his Estate as well as in connection with the settlement of the said Estate, the sum of
5,000.00
f) For loss of enjoyment of the vacation commenced by the late Reginald Whittingham on the day of the aforesaid crash, the sum of
1,000.00
g) For loss of the registered baggage of the late Reginald Whittingham, the sum of
360.00
h) For loss of objects belonging to the late Reginald Whittingham and of which he took charge himself on the said aircraft, the sum of
360.00
i) For loss of monies and other valuables belonging to the late Reginald Whittingham that he carried on his person while on the said aircraft, the sum of
1,500.00
In the other action the corresponding allegation is identical, except that it does not include subparagraph (a) above, which refers to the loss of future contributions by the husband’s employer to his pension fund. In addition, a smaller amount is claimed in the last subparagraph.
On a motion to dismiss made in accordance with art. 165 of the Code of Civil Procedure, St‑Ger-
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main J. of the Superior Court struck out all items of claim by the executors except the last three, which related exclusively to the loss of physical property. This judgment was based entirely on a decision of this Court, Driver et al v. Coca-Cola Ltd.[1] Reference was made inter alia to the following passages from the reasons of Taschereau J. (at p. 207):
[TRANSLATION[2]] But if the physical suffering, the shortening of life and the anxiety which result constitute a serious element of damages, it is still necessary for the victim to have felt the effects of them in his lifetime for the right to be created before his death.
I do not think that the elements necessary to justify the claim of the heirs are to be found in the present case. The victim died almost instantly. Did she suffer physically and morally? Did she experience this anguish which I described just now? We know nothing of that, and we do not even know if, after having been struck by the respondent’s truck, she was still conscious when the ambulance took her to the hospital.
It is not established that these essential elements of damages have ever formed part of the property of the succession of the victim, and the heirs cannot in consequence be invested with them.
This judgment was affirmed on appeal on the grounds that, since the case involved international transportation governed by the Carriage by Air Act, R.S.C. 1970, c. C-14, the special provisions as to liability made in that Act and the Warsaw Convention contained in the Schedules thereto exclude any action other than by members of the family “in respect of the death of a passenger”. In particular, Deschênes J.A. observed:
[TRANSLATION] Appellants raised a further distinction: s. 2(5) of the Carriage by Air Act, and Schedule II, apply only in the event of a passenger’s death. The actions, they submit, claim compensation consequent upon, in the one case, injuries sustained, and in the other, death. Therefore, the claims should be allowed pro tanto, at least in so far as they are based on injuries rather than on death.
However, this ingenious argument cannot be sustained for two reasons. First, nothing in the actions supports the distinction now advanced by appellants. Second, the capacity in which appellants appear implies
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the death of the passengers, and the possible remedies consequent upon that death have a single basis governed by the Act and its Schedules.
Gagnon J.A., dissenting, said:
[TRANSLATION] Section 2(5) of the Act (R.S.C. 1970, c. C-14) only substitutes for the liability of a carrier under any law in force in Canada, in respect of the death of a passenger, the liability imposed by Art. 17 of the Convention, also in respect of the death of a passenger. The English text reads: “liability in respect of the death of a passenger”.
Art. 17 of the Convention covers not only liability for the death of a passenger, but also liability for damage resulting from wounding or other bodily injury.
A comparison of the two texts seems to suggest that it was only in the case of damage resulting from death, “in respect of death”, that the legislator intended to substitute the Convention for domestic law. For us, the statute must take priority, and it is not necessary to consider whether Canada, by s. 2 of the Act, did or did not fully implement, on its territory and with respect to its citizens, the international convention.
In addition, Art. 17 of the Convention only states the principle of liability (certain conditions of which are defined by the other articles of Chapter III); it does not define the word “damage”. It does not resolve our problem. I refer to the recent decision of this Court in Surprenant et al v. Air Canada (C.A.M. 09-014989-71, October 27, 1972) that the word “damage” must be interpreted in accordance with our law.
On this point, I would adopt the conclusion that the Warsaw Convention, as amended by the Hague Protocol and implemented in Canada by s. 2(1) of the Act, but subject to the other provisions of the section, and hence of subsection 5, presents no obstacle to a claim by an estate based on a cause other than the death of a passenger, and that in Quebec the damages that may be claimed will be determined in accordance with our own rules.
Finally, he concluded as follows:
With regard to items 2, 3 and 5 (i.e. subparagraphs b), c) and f)), assuming for the purposes of deciding the motions to dismiss that the crash of the aircraft was preceded by a “momentary touch down on Runway 32 at Toronto International Airport”, that the crash occurred “near the said airport”, and that the victims had time to suffer the alleged anguish, I would restore those items.
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I have considered Driver v. Coca-Cola Limited, [1961] S.C.R. 201, very carefully, and I feel I must leave it to the trial judge, with the aid of the evidence presented before him, to decide whether the victims were in possession during their lifetime of a right to compensation for damages on account of pain or injuries, shortening of life or anxiety.
At the hearing appellants asked the Court to approve these conclusions of the dissenting judge on appeal. To begin with it should be said that the last two items must be disallowed unhesitatingly. Loss of enjoyment of life, like the loss of enjoyment of the vacation, unquestionably results from the death. It is true that if the victims had only been injured they might have suffered this loss during their lifetimes. But a case cannot be decided according to what might have happened, only what did in fact happen, as this Court held in Pratt v. Beaman[3]. In that case, a person injured in an accident had brought an action in which he claimed damages estimated in accordance with his life expectancy. He died before the case was heard, and his heirs continued the suit. The trial judge fixed the amount awarded on the basis of life expectancy, without allowing for the death of the victim. This Court unanimously affirmed the decision of the Court of Appeal that the amount of damages should be limited to the loss suffered while the victim was actually alive. In the case at bar, the victim’s death occurred almost instantaneously, and this is what effectively caused the loss of enjoyment of life and the loss of enjoyment of the vacation.
Accordingly, the only claim which remains to be considered is “For the severe shock, fear, anguish, terror, physical injuries, pain and apprehension of death”. At the hearing there was a lengthy discussion of the wording of the statement of claim, and the question was raised whether, in view of the beginning of paragraph 16, it was possible to infer, as did Gagnon J.A., the allegation of an interval of time during which the victims underwent anguish and suffering caused by injuries sustained in the initial impact. In my view it is not necessary to reach any conclusion on this question. Even assum-
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ing that the statement of claim can bear the interpretation placed on it by Gagnon J.A., there is no need to wait until the case is tried in order to decide whether the executors have any right of recovery on this item.
The unfortunate victims died in the accident. Their suffering and anguish can only have been experienced and caused them harm up to the time of their death. Their situation is in no way comparable to that of persons who might have survived. For this reason the decisions on such cases cited before the Court are of no assistance. One who survives may sustain great injury from a very brief shock, because he may ultimately feel the harmful effects for the rest of his life. Here the harmful effects could only have been felt for an extremely short time. All that appellants’ counsel felt he could say in this regard was that more than fractions of a second were involved. It is clear from his own allegations, however, that it could at most have been a few minutes. In my view, this necessarily leads to the conclusion reached by the trial judge, that these were victims who died “almost instantaneously”, as in Driver et al v. Coca‑Cola.
We are not prevented from reaching this conclusion by the fact that, at the hearing, counsel for the respondent, arguing that plaintiffs did not allege that the victims had suffered injury an appreciable time before dying, added “if they had, I would not have moved to dismiss, I would have left it for the trial judge to rule on the applicability of Driver v. Coca-cola”. At this stage, the question is not as to what line of conduct would have been adopted in those circumstances. Nor should we consider where the dividing line must be drawn. Here, it is clear that the time lapse was not significant.
In view of this conclusion it is not necessary to consider the point on which the majority relied in the Court of Appeal.
For these reasons I conclude that the two appeals should be dismissed with costs to be taxed
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on the same basis as if there had been a single appeal, save in respect of disbursements.
Appeals dismissed with costs.
Solicitor for the plaintiffs, appellants: David Lack, Montreal.
Solicitors for the defendant, respondent: Boudreau, Giard & Gagnon, Montreal.
Footnotes
- [1] [1961] S.C.R. 201.
- [2] (1961), 27 D.L.R. (2d) 20, at p. 25.
- [3] [1930] S.C.R. 284.
Cases cited
- Driver et al. v. Coca-Cola Limited scr-1961-201