Muir et al. v. Canada, (1986) 5 F.T.R. 286 (TD)

• Court: Federal Court (Canada)
• Case Date: December 02, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1986), 5 F.T.R. 286 (TD)

Muir v. Can. (1986), 5 F.T.R. 286 (TD)

MLB headnote and full text

Muir et al. v. Canada (Government)

(T-1511-85)

Indexed As: Muir et al. v. Canada

Federal Court of Canada

Trial Division

Jerome, A.C.J.

February 26, 1986.

Summary:

The family of a deceased former member of the Canadian Armed Forces brought an action against the federal government for damages for alleged negligence on the part of agents of the government. The government alleged that the action was barred by reason of s. 4(1) of the Crown Liability Act and s. 88 of the Pension Act. Accordingly, the government applied to strike out the statement of claim.

The Federal Court of Canada, Trial Division, after considering the pleadings, acceded to the government's request and struck out the statement of claim, without prejudice to the plaintiffs' right to file an amended statement of claim.

Crown - Topic 1648

Torts by and against Crown - Actions against Crown - Bars or exclusions - Recovery of statutory disability or death pension - The family of a deceased former member of the Armed Forces sued the federal Crown for damages for negligence respecting his death - The action would be barred by s. 4(1) of the Crown Liability Act and s. 88 of the Pension Act if a pension is or was payable to the family - The claim failed to make clear whether the family had claimed, received or been refused a pension - The Federal Court of Canada, Trial Division, acceded to the Crown's request to strike out the claim, without prejudice to the right of the family to issue an amended statement of claim with the relevant facts.

Statutes Noticed:

Crown Liability Act, R.S.C. 1970, C-38, sect. 4(1) [para. 3].

Pension Act, R.S.C. 1970, c. P-7, sect. 88 [para. 3].

Counsel:

M. Cavanaugh, for the plaintiffs;

R. Levine, for the defendant.

Solicitors of Record:

Lang, Michener, Toronto, Ontario, for the plaintiffs;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, for the defendant.

This application was heard before Jerome, A.C.J., of the Federal Court of Canada, Trial Division, at Toronto, Ontario, on December 2, 1985. The decision of Jerome, A.C.J., was delivered on February 26, 1986.