Focus On

AIR TRANSPORTATION - Liability - Civil actions

Thursday, January 10, 2019 @ 9:13 AM  

Appeal by the Workers’ Compensation Board of British Columbia (WCB) from an order dismissing a subrogated negligence claim. The subrogated claimant, Forest, suffered injuries in an airplane crash. The aircraft was owned by Flanagan Enterprises and registered in the United States. It operated within Canada pursuant to an agreement under NAFTA. Dause, an American businessman, leased the aircraft from Flanagan Enterprises and sublet it to Pacific Skydivers, a British Columbia company. At the time of the crash, Forest was employed by Pacific to take photographs of clients during their parachute jumps. The pilot at the time of the crash was Ian Flanagan, the principal of both Flanagan Enterprises and Pacific Skydivers. The trial judge apportioned 50 per cent of the fault for the crash to Ian Flanagan and Pacific Skydivers, and 50 per cent to Johnson, an American mechanic. The trial judge declined to find any liability on the part of Transport Canada, Flanagan Enterprises or Dause. The trial judge held that Transport Canada did not owe a private law duty of care to Forest due to insufficient proximity, and that in any event, the standard of care was met. The trial judge rejected the assertion that Flanagan Enterprises and Dause engaged in a scheme or common design to circumvent Canadian aviation safety regulations. WCB appealed.
HELD: Appeal dismissed. There was no authority for WCB’s contention that the leasing arrangements involving the aircraft were invalid and required Flanagan Enterprises and Dause to retain possession and exercise control of the aircraft. The trial judge’s findings of fact did not disclose any palpable and overriding error. The conclusions that Transport Canada did not owe Forest a private law duty of care, and if such duty was owed, that the standard of care was not breached were affirmed by the Court of Appeal for the reasons given by the trial judge.

British Columbia (Workers’ Compensation Board) v. Flanagan Enterprises (Nevada) Inc., [2018] B.C.J. No. 3763, British Columbia Court of Appeal, S.D. Frankel, A.W. MacKenzie and D.C. Harris JJ.A., November 23, 2018. Digest No. TLD-January72019008