Campbell v. Saskatchewan et al., (2008) 326 Sask.R. 233 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 28, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 326 Sask.R. 233 (QB);2008 SKQB 437

Campbell v. Sask. (2008), 326 Sask.R. 233 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. NO.012

Government of Saskatchewan (applicant/defendant) v. Logan Campbell (respondent/plaintiff) and Saskatoon Youth Development Complex Inc., Rural Municipality of Dundurn No. 314, St. Paul's Roman Catholic Separate School Division No. 20, Saskatchewan Sailing Clubs Association, Sask Sport Inc. and Saskatchewan Power Corporation (respondents/defendants)

(2007 Q.B. No. 721; 2008 SKQB 437)

Indexed As: Campbell v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Barclay, J.

October 28, 2008.

Summary:

The plaintiff was electrocuted when the mast of the sailboat that he was helping to push along a road came into contact with overhead electrical wires. He sued the Saskatchewan Government (Minister of Highways), among others, alleging negligence. Saskatchewan applied to strike the claim against it pursuant to rule 173 of the Queen's Bench Rules.

The Saskatchewan Court of Queen's Bench dismissed the application.

Highways - Topic 14

General and definitions - Definitions - Public highway or road - The plaintiff was electrocuted when the mast of the sailboat that he was helping to push along a road came into contact with overhead electrical wires - He sued the Saskatchewan Government (Minister of Highways), among others, alleging negligence - He alleged that the Minister owed him a duty to guard against inadequate design and construction of the power line, a duty to keep the power line in good repair, and a duty to warn him of any deficiencies in the design, construction, or maintenance of the power line - He relied on, inter alia, s. 3 of the Highways and Transportation Act, 1997, which prescribed the Minister's responsibilities - The Minister applied to strike the claim against him - The Saskatchewan Court of Queen's Bench agreed with the Minister that, s. 3(1) included "public improvements," but "public improvements" could not be interpreted to include power lines just because it included a "public highway" - Power lines did not constitute "anything erected on or in connection with the public highway" within the definition of a "public highway" in s. 2(q) - They were not erected on the public highway - Further, power lines were not erected in connection with the public highway - Power lines were often erected alongside roadways - However, the placement of power lines were not dependent on the placement of roadways - Power lines and roadways were two independent works that might coincide due to the convenience in obtaining easements - The court found no case law suggesting that power lines constituted a "public improvement" - See paragraphs 32 to 38.

Highways - Topic 18

General and definitions - Definitions - Public improvement - [See Highways - Topic 14 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 86 ].

Torts - Topic 83

Negligence - Duty of care - Whether the defendant took reasonable care - [See Torts - Topic 86 ].

Torts - Topic 86

Negligence - Duty of care - Duty to warn - The plaintiff was electrocuted when the mast of the sailboat that he was helping to push along a road came into contact with overhead electrical wires - He sued the Saskatchewan Government (Minister of Highways), among others, alleging negligence - He alleged that the Minister owed him a duty to guard against inadequate design and construction of the power line, a duty to keep the power line in good repair, and a duty to warn him of any deficiencies in the design, construction, or maintenance of the power line - The Minister applied to strike the claim against him, arguing that the claim did not disclose a reasonable cause of action or was an abuse of the process of the court - The Saskatchewan Court of Queen's Bench dismissed the application - It was not plain and obvious that it disclosed no reasonable cause of action - The plaintiff's claims against the Minister in negligence, and analysis under the first stage of the Anns test, indicated that the foreseeability requirement was likely satisfied - The overall scheme of the Highways Act might establish proximity concerning all three duties alleged by the plaintiff - Sections 4(1)(e) and 25(1) of the Highways and Transportation Act, 1997, supported the plaintiff's assertion that the Minister could regulate and control the design construction, and repair of power lines when they were in the vicinity of a roadway - The inapplicability of s. 52, an immunity clause, to the instant case was also indicative of sufficient proximity between the parties - The court's analysis under the second stage of the Anns test was far more complicated - However, the overall scheme of the Act might establish sufficient proximity between the parties - It was not plain and obvious that there was no prima facie duty of care on the Minister to regulate and control the design, construction, and repair of power lines when they were in the vicinity of a roadway - Further, there were no overriding policy reasons that negated this prima facie duty of care.

Torts - Topic 6825

Defences - Statutory compliance - Authority or immunity - Acts or persons excluded from authority or immunity - The plaintiff was electrocuted when the mast of the sailboat that he was helping to push along a road came into contact with overhead electrical wires - He sued the Saskatchewan Government (Minister of Highways), among others, alleging negligence - He alleged that the Minister owed him a duty to guard against inadequate design and construction of the power line, a duty to keep the power line in good repair, and a duty to warn him of any deficiencies in the design, construction, or maintenance of the power line - The Minister applied to strike the claim against him, on the basis that it did not disclose a reasonable cause of action - The existence of a statutory immunity clause had been considered relevant in determining whether there was a sufficient proximity between the parties - The Saskatchewan Court of Queen's Bench agreed with the plaintiff that the immunity clause in s. 52 of the Highways and Transportation Act, 1997, did not apply in this case because it was only intended to provide immunity to the Crown where its agents or employees undertook some action under a duty or power conferred in the Act and was not intended to protect the Crown where no such action was undertaken - Therefore, the court rejected the Minister's argument that s. 52 negated proximity - Section 52(1) contemplated omission in a course of action - However, here, the plaintiff alleged that the Minister did not undertake a course of action - In other words, the Minister's omission was his or her failure to consider whether he or she should undertake a course of action - See paragraphs 43 to 48.

Torts - Topic 9156

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Highway authorities - [See Torts - Topic 86 ].

Cases Noticed:

RoyNat Inc. v. Northland Properties Ltd. et al. (1993), 115 Sask.R. 272 (Q.B.), refd to. [para. 9].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 10].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Swift Current (City) v. Saskatchewan Power Corp. et al. (2007), 293 Sask.R. 6; 397 W.A.C. 6 (C.A.), refd to. [para. 12].

Collins v. McMahon et al., [2002] Sask.R. Uned. 96; 2002 SKQB 201, refd to. [para. 13].

Country Plaza Motors Ltd. et al. v. Indian Head (Town) et al. (2005), 272 Sask.R. 198 (Q.B.), refd to. [para. 14].

Smail Communications Slide Art Productions Ltd. v. Air Sask. Aviation Ltd. (1990), 89 Sask.R. 16 (Q.B.), refd to. [para. 15].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 18].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 20].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 20].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 20].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 23].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 23].

Oranchuk v. Saskatchewan Power Corp. (2004), 245 Sask.R. 237 (Prov. Ct.), refd to. [para. 23].

Burgess v. Canadian National Railway Co., [2005] O.T.C. 947; 78 O.R.(3d) 209; 34 C.C.L.T.(3d) 288 (Sup. Ct.), refd to. [para. 23].

Carlstrom v. Ontario Association of Professional Engineers et al., [2004] O.T.C. 177 (Sup. Ct.), refd to. [para. 30].

Rogers et al. v. Faught et al. (2002), 159 O.A.C. 79; 212 D.L.R.(4th) 366 (C.A.), refd to. [para. 43].

Smith v. Saskatoon (City) (2007), 295 Sask.R. 138 (Q.B.), refd to. [para. 64].

Statutes Noticed:

Highways and Transportation Act, S.S. 1997, c. H-3.01, sect. 2(q) [para. 36]; sect. 2(r) [para. 37]; sect. 3 [para. 32]; sect. 52 [para. 44].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 131 [para. 35].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law, generally [para. 68].

Counsel:

Barry J. Hornsberger, Q.C., for the Government of Saskatchewan;

James Gillis, for Logan Campbell;

Henry R. Kloppenburg, Q.C., for Saskatchewan Sailing Clubs Association.

This application was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on October 28, 2008.