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Supreme Court of Canada

Insurance—Life insurance—Accidental death during a flight—Double indemnity—Interpretation of exception clauses—Civil Code, art. 1014.

Respondent’s husband died as the result of an accident involving the airplane in which he was travelling to demonstrate a method of fighting forest fires, and which occurred just as he was preparing to drop certain objects. The victim held two insurance policies, one for $40,000 and the other for $5,000, providing for the payment of a double indemnity in the event of accidental death. However, this double indemnity was not payable if the death occurred while the insured was performing any function relating to the flight. The majority of the Court of Appeal, holding that the dropping operation the insured was to perform was not a function contemplated by the exception clause, reversed the judgment of the Superior Court and condemned appellant to pay respondent $45,000. Hence the appeal to this Court.

Held (Laskin C.J. and Spence, Dickson and Estey JJ. dissenting): The appeal should be allowed.

Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: The trial judge found that while the insured was not part of the crew, he was nevertheless much more than a mere passenger aboard the airplane, and he played an “active role” in the flight. There is no basis for discounting this statement of facts, and it must therefore be said that there was a close relationship between the flight and the function the insured was to perform, namely insuring the success of the demonstration which was the reason for the flight. The function of the insured was therefore a function “in relation to such flight” or “relative to the said flight”, and appellant is not required to pay a double indemnity.

Per Laskin C.J. and Spence, Dickson and Estey JJ., dissenting: The language used in the exception clauses, “in relation to” and “relative to”, is indefinite and open to various interpretations. In the case of ambiguity in

[Page 482]

the language of an insurance policy, as here, the well-recognized rule must be applied, reading it against the contentions of the insurance company. Although this is a valid ground for dismissing the appeal, appellant must fail on the true construction of the exceptions as applied to the facts of this case. The duties of the accused related to an experiment in combatting forest fires, not to aircraft flight. The fact that they were to be carried out during the course of a flight does not make them any less so.

APPEAL against a decision of the Court of Appeal of Quebec[1], setting aside a judgment of the Superior Court. Appeal allowed, Laskin C.J. and Spence, Dickson and Estey JJ. dissenting.

Robert Truchon, for the appellant.

Richard Dufour, for the respondent.

The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by

DICKSON J. (dissenting)—The appellant Industrielle Compagnie d’Assurance sur la Vie issued two policies of insurance on the life of Michel Lamontagne. The face value of the policies totalled $45,000. Double indemnity coverage was included for which an additional premium was paid. The Company agreed, under the double indemnity provisions, to pay an amount equal to, and in addition to, the face value of the policies if the death of the assured occurred while the policies were in force, as a result of “external, violent and accidental” causes. Mr. Lamontagne died as a result of an aeroplane crash. His death occurred from external violent and accidental causes, yet the Company has refused to make the payment provided for in the double indemnity provisions. It says that it is relieved from doing so by reason of an “Exceptions” clause contained in each of the policies.

At the time of his death, Mr. Lamontagne was engaged in forestry work, more specifically the prevention and fighting of forest fires. He was a fire-spotter, responsible for the Saguenay-Lac St. Jean area in the Province of Quebec. As such, he

[Page 483]

had occasion from time to time to make use of aeroplanes, in locating fires which had been reported and in aiding, through aerial surveillance, ground parties engaged in actually fighting the fires. His employer, Société de Conservation du Saguenay-Lac St. Jean, had entered into a contract with Roberval Air Services Ltd. whereby Roberval made light float aircraft available, as required, for the work of the Société and its employees.

The aircraft in which Mr. Lamontagne, the pilot, and another employee of Société de Conservation du Saguenay-Lac St. Jean, Roger Lalancette, met their death was a small single engine Cessna 185 capable of carrying a pilot and a maximum of five passengers. The pilot flew the aircraft, and acted as radio operator, navigator, map reader and general factotum. He performed all of what might be called the aeronautical duties. He was the [TRANSLATION] “in sole command” according to the evidence of Bertrand Hamel, manager of Roberval Air Services Ltd. Mr. Hamel was questioned as to the status of Mr. Lamontagne on board the aircraft. Two questions and the answers thereto were:

[TRANSLATION] Q. Did you know on what basis he was in the aircraft?

A. On what basis?

Q. In what capacity; do you know what he was doing?

A. Firstly, he was a passenger; secondly, he was going to demonstrate a backfire for the staff of the Société de Conservation de Chicoutimi.

Later, the following questions were asked and answers given by Mr. Hamel:

[TRANSLATION] Q. He was a passenger, was he not?

A. Yes, that is correct.

Q. You told Mr. Boies a moment ago that you knew that the purpose of the flight was specifically a sort of experiment to try out a fire-extinguishing substance?

A. A demonstration.

The duties which Mr. Lamontagne was to perform consisted of dropping three objects from the aircraft during flight. The target area was a farm near Chicoutimi. The objects consisted of (i) a

[Page 484]

message container to which a small parachute was attached; (ii) a container of coloured water; (iii) a container of liquid, the purpose of which was to start a small fire which could be controlled and extinguished and thereby prevent the spread of larger forest fires. This was all part of an experiment being carried out by Société de Conservation du Saguenay-Lac St. Jean for the purpose of improving fire fighting procedure. A ground party, including Ralph Pitre, manager of Société de Conservation du Saguenay-Lac St. Jean, was at the drop zone. Mr. Pitre was to photograph the fall of the three objects, and record their trajectory and impact and the area covered by the liquid on striking the ground. This data was to be included in a report to be published a year or two later, depending upon the progress made in the experimentation. Mr. Pitre gave the following evidence respecting Mr. Lamontagne’s position on board the aircraft:

[TRANSLATION] Q. DO you know whether Mr. Lamontagne was performing any duties in that aircraft, or whether he was employed—I will rephrase my question: do you know on what basis Mr. Lamontagne was in the aircraft?

A. As an employee of the Société.

Q. Do you know what he was supposed to do?

A. He was supposed to drop certain objects so that I could photograph them.

Q. What were these objects, what were they called?

A. There were three (3) of them: a message container that he had patented, to which he had fitted a small parachute that a woman from Chicoutimi or Roberval had made for him, an object about a foot and a half (1½′) in diameter; a javel water container with a capacity of approximately a quart containing a coloured liquid; and a container of firebreak.

Q. What is known as a backfire?

A. It was for the purpose of starting a backfire, but we had agreed to call it a firebreak until a better name, or another name, was found.

Q. On the day in question, therefore, Mr. Lamontagne was aboard the aircraft in order to perform the function of dropping the three (3) objects that you have just mentioned, that is, the message container…

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A. A container of coloured liquid and a container of firebreak.

Q. You were on the ground to take photographs?

A. Exactly; it was for a report.

The task of Mr. Lalancette was to count aloud from five to zero at which point Mr. Lamontagne was to drop the containers in succession.

The aircraft crashed before anything was accomplished. At a distance of about one-half mile from the ground crew, the aircraft suddenly went into a vertical dive from an altitude of two hundred to three hundred feet, and struck the ground. The pilot and his two passengers, Lamontagne and Lalancette, lost their lives.

There is nothing in the evidence to suggest that, prior to the crash, Mr. Lamontagne was doing anything other than occupying a seat as a passenger. He had received instruction from his employer, Société de Conservation du Saguenay-Lac St. Jean, to drop the three articles mentioned at a certain location. The fatal accident occurred when the aircraft was still a considerable distance from the target area.

With that brief review of the factual background, we come to the heart of the case. The refusal of the appellant, Industrielle Compagnie d’Assurance sur la Vie, to pay the double indemnity benefit rests upon the “Exceptions” written into the two policies.

In the first policy the exception reads as follows:

[TRANSLATION] Exceptions.—The Benefit shall not apply if the death results, either directly or indirectly, from anyone of the following causes:

4. Participating in an aeronautical operation, or participating or attempting to participate in a flight as a passenger or otherwise. This exception shall not apply if the death of the insured results from a trip or flight as a passenger aboard a licensed civilian aircraft flown by a pilot duly licensed for such purpose, provided that the insured does not receive any aeronautical instruction and has no function to perform in relation to such flight.

[Page 486]

The exception in the second policy reads as follows:

[TRANSLATION] Exceptions.—No amount shall be payable pursuant to this endorsement if the death of the insured results, directly or indirectly, from anyone of the following causes:

3. Participating or attempting to participate in a flight as a member of the crew of the aircraft or as a person having any function relative to the said flight.

It is common ground that the aircraft and the pilot were properly licensed and that Mr. Lamontagne was not receiving aeronautic instruction, nor was he a member of the crew. There was only one crew member, the pilot. The question, therefore, to be answered is whether, in terms of the first policy, Mr. Lamontagne had any [TRANSLATION] “function to perform in relation to such flight” and in terms of the second policy, whether he was a [TRANSLATION] “person having any function relative to the said flight”.

The first thing which, I think, strikes one on reading the two exceptions is the indefinite nature of the language used, “in relation to” and “relative to.” It is not surprising that this language has led to the difference of judicial opinion, which has been manifest to date, as to the proper interpretation of the exceptions. The exceptions can be read as excluding only those who have something to do with the flying or navigation of the aircraft, or in other words, an aeronautical function. They can also be given an extended meaning to exclude, in addition, any person present in the aircraft for the performance of some specific task, assignment, or duty connected with the purpose of the particular flight. The judge at trial and Kaufman J.A., in dissent, in the Quebec Court of Appeal, favoured the latter interpretation, concluded that Mr. Lamontagne fell within the exceptions and denied recovery. The majority opinion of the Quebec Court of Appeal (Lajoie and Chouinard JJ.A.) adopted the former interpretation, concluded the exceptions did not apply and maintained the action.

The fact that there is a difference of judicial opinion does not lead inexorably to the conclusion

[Page 487]

that language is ambiguous. The question is whether, upon a fair reading, it can be said to be ambiguous. I would give an affirmative answer to that question upon studying the language here under consideration. Having regard to the well-recognized rule that, in the case of ambiguity in the language of an insurance policy, the policy should be read against the contentions of the company issuing the policy, this is in my view a classic case in which such rule should be invoked. Although this is a valid ground for dismissing the appeal, it is not the only one. In my opinion, on the true construction of the exceptions, as applied to the facts of this case, the Assurance Company must fail.

It seems to me that, when one is faced with language such as [TRANSLATION] “function relative to the said flight” and [TRANSLATION] “function… in relation to such flight,” there are two questions to be asked: (i) what are the functions which it is alleged bring the assured within the exceptions?; (ii) what are those functions relative to, or “in relation to”? One must begin by identifying the “function” and then determine to what that function relates. It is putting the cart before the horse to start with the flight and then try and relate that back to functions.

The answer to the question of determining “function” does not present any difficulty; in short, to drop three containers from an aircraft over a particular farm. In this context it is, I think, relevant to ask “if Mr. Lamontagne had a function or duty, to whom did he owe that duty?” The answer, of course, is that he owed the duty to his employer, Société de Conservation du Saguenay-Lac St. Jean. The functions which he was to perform during the flight were to be carried out upon the instructions of his employer. In no manner was he subject to the control of Roberval Air Services Ltd. or subject to the control of the pilot of the aircraft. Equally, neither Roberval nor the pilot was under his control.

Turning then to the second question, in my opinion, with due respect to those who may be of another view, I do not see how it can be said that the duty of dropping three containers can be “relative to,” or “in relation to” anything other than the

[Page 488]

demonstration or experiment which was being carried out at the time. That demonstration was directed toward, and related solely to, improvement of fire prevention measures in forested areas. It had nothing whatever to do with aircraft, or the flight of aircraft, even though an aircraft was utilized as a means of transport. The duties which Mr. Lamontagne was to perform were forestry-oriented, not flight-oriented, and the fact that they were to be carried out during the course of a flight does not, in my opinion, make them any less so.

It is contended, with respect to the exception in the second policy, that the words [TRANSLATION] “as a person having any function relative to the said flight” must be given some meaning and must embrace duties other than or beyond those performed by a [TRANSLATION] “member of the crew”. That is true, but I do not think it concludes the matter in favour of the appellant Company. It is not difficult to think of persons who might be on board an aircraft with duties to perform thereon and yet not be members of the crew. I take, for example, a check pilot, an aero engine mechanic, a flight engineer, a student pilot, a Ministry of Transport inspector, an employee of an aero engine overhaul or airframe overhaul firm. Each of these would be a “person having any function relative to the said flight”, but none would be a “member of the crew”.

In summary, I would dismiss this appeal for two reasons. First, the duties which Mr. Lamontagne was to perform related to an experiment in combatting forest fires, not to aircraft flight. Secondly, the imprecision of language and the doubt thereby occasioned, together with the onus upon the appellant Company to establish that the exceptions apply, must lead one, I think, to resolve the matter against the author of the policies, the appellant Company.

I would dismiss the appeal with costs.

The judgment of Martland, Ritchie, Pigeon, Beetz and Pratte JJ. was delivered by

PRATTE J.—Appellant is appealing from the majority decision of the Court of Appeal of the Province of Quebec, reversing the judgment of the

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Superior Court and condemning it to pay the sum of $45,000 to respondent pursuant to an endorsement to two insurance policies for a face value of $5,000 and $40,000 respectively, issued by appellant on the life of respondent’s husband, Michel Lamontagne (the insured), and providing for the payment of a double indemnity in the event the insured should die accidentally.

The insured died on August 24, 1973, as a result of injuries sustained in the crash, on August 21, 1973, of a small Cessna 185 airplane in which he was travelling with the pilot and one Lalancette, both of whom also died in the accident.

The purpose of the flight was to enable the insured to demonstrate a method of fighting forest fires which he was in the process of perfecting. He was to drop three objects and Lalancette was to carry out an agreed count down with the observers on the ground responsible for photographing the operation, while the pilot alone was in charge of flying the aircraft and operating the radio equipment on board. The airplane crashed after flying over once and when it was approaching the place where the insured was to drop the first object.

Appellant claims that it does not owe the double indemnity benefit because of an exception provision contained in each of the two endorsements and whereby this benefit is not payable if the insured had to perform a function concerning the flight that caused his death. It is admitted that in all other respects the death occurred in the circumstances specified in each of the policies for the payment of the double indemnity.

The exception clause contained in the first policy reads in part as follows:

[TRANSLATION] Exceptions.—The Benefit shall not apply if the death results, either directly or indirectly, from anyone of the following causes:

4. Participating in an aeronautical operation, or participating or attempting to participate in a flight as a passenger or otherwise. This exception shall not apply if the death of the insured results from a trip or flight as a passenger aboard a licensed civilian aircraft flown by a pilot duly licensed for such purpose, provided that the

[Page 490]

insured does not receive any aeronautical instruction and has no function to perform in relation to such flight.

The exception clause contained in the second policy reads in part as follows:

[TRANSLATION] Exceptions.—No amount shall be payable pursuant to this endorsement if the death of the insured results, directly or indirectly, from anyone of the following causes:

3. Participating or attempting to participate in a flight as a member of the crew of the aircraft or as a person having any function relative to the said flight.

The whole issue between the parties is therefore as to whether the dropping operation which the insured had to carry out during the flight was under the terms of the first policy a “function to perform in relation to such flight”, and under the terms of the second policy a “function relative to the said flight”.

The majority of the Court of Appeal was of the view that the function the insured had to perform was not one of those contemplated by the two exception clauses. According to Chouinard J.A. this was not “a function related to the operation of the aircraft”, but rather “a function performed on the occasion of a flight”.

Lajoie J.A. expressed the same idea in the following terms:

[TRANSLATION] Although it is true that the purpose of the flight during which the crash occurred which caused Lamontagne’s death was to enable the victim to demonstrate methods for fighting forest fires, I do not find anything in the evidence to indicate that Lamontagne participated in any way in the operation of the aircraft or had any aeronautical function in connection with this flight directly in relation to the control or command of the aircraft.

Kaufman J.A., on the other hand, did not share the view of his brother judges:

I do not share my colleague’s conclusions that Mr. Lamontagne’s functions aboard the ill-fated aircraft did not fall within the exceptions set out in the contract of insurance.

[Page 491]

It seems to me that even though he did not exercise direct control of the flight, which was the pilot’s prerogative, he nevertheless was a person “ayant une fonction quelconque relative à ladite envolée”.

With respect I think that the views of the majority of the Court of Appeal are erroneous.

It is well-known that the provisions of a contract must be interpreted one by the other in order that, given the normal meaning of the words used, each has a meaning. The meaning of the words “function to perform in relation to such flight” in the first policy and “any function relative to the said flight” in the second policy should not be sought in the abstract without taking into account the context in which each of these phrases was used.

As regards the first policy it appears from the exception clause that the double indemnity benefit is payable if the insured was a passenger aboard the flight and if he had no function to perform in connection with this flight. These are two specific and distinct conditions. Under the first condition the insured must be a passenger.

According to Robert (Dictionnaire alphabétique et analogique de la langue française) a passenger is a person who is not a member of the crew and who is carried on board a ship or an airplane. Again according to Robert, the crew of an airplane means all the persons who are responsible for operating the aircraft, and includes in the case of a transport airplane the service personnel.

The first condition is thus that the insured must not be part of the crew, or in other words must not be one of the persons responsible for operating the airplane.

The second condition is clearly distinct from the first: “provided that [he]… has no function to perform in relation to such flight”; the functions contemplated by this second condition must necessarily be different from those connected with the operation of the aircraft, which are dealt with in the first condition. The second condition cannot be but a repetition in different terms of what is

[Page 492]

already covered by the first one: this would amount to saying that the words “and has no function to perform in relation to such flight” must be construed so as to make them useless rather than meaningful. I need not refer to the well-known rule set out in art. 1014 of the Civil Code to the effect that “When a clause is susceptible of two meanings, it must be understood in that in which it may have some effect rather than in that in which it can produce none”.

If the second condition is to be given any meaning it necessarily contemplates functions that are not related to the operation of the aircraft. The clause stipulates that the function must be “in relation to” the flight. In the case at bar it seems beyond question that the insured was to perform a function during the flight. Was this a function “in relation to the flight”? Even though the expression “en rapport avec” is often used incorrectly to translate the English expression “in relation to”, its meaning nevertheless appears to me to be sufficiently clear; it implies a relationship that would have been more correctly expressed by the words “relativement à”, “relative”, “concernant” or “touchant”.

In the case at bar, although it is certain that the insured was not part of the crew, there seems to me to be no doubt that he was aboard the airplane as much more than a mere passenger. This was the view of the trial judge:

[TRANSLATION] The flight had a specific purpose, namely to demonstrate and test a method of fighting forest fires, and the said MICHEL LAMONTAGNE was to play a specific and very important role in the airplane during the flight, consisting of the chronological release of three objects.

Much more significantly, in the critical phases of the flight the very movements of the aircraft were subject to and affected by the special function the late MICHEL LAMONTAGNE was carrying out there and then.

In such a situation the Court declines to liken the active role of the late MICHEL LAMONTAGNE during the flight of August 24, 1973 to that of a mere passenger.

[Page 493]

This is a finding of fact which the trial judge made on the basis of the evidence as a whole and which cannot be said to be clearly erroneous. The majority decision of the Court of Appeal does not dispute its validity, moreover; if the Court of Appeal reversed the judgment of the Superior Court it was because it gave the two endorsements a different interpretation in law and not because it interpreted the evidence differently. I do not see anything in the case at bar that would allow me to discount the trial judge’s statement of facts cited above. It must therefore be said that the insured was the principal figure in the demonstration that was the purpose of the flight, and that the operation of the aircraft was necessarily affected by the requirements imposed by the insured in order to ensure the success of the demonstration. There was, in my view, a close relationship between the flight and the function the insured was to perform; this was properly speaking a function “relative au vol” or “concernant le vol” or, to use the actual words of the endorsement, “en rapport avec telle envolée”.

I am therefore of the opinion that the double indemnity benefit provided for in the endorsement contained in the first policy is not owed by appellant.

I reach the same conclusion regarding the double indemnity benefit provided for in the endorsement contained in the second policy. As in the first case, the exclusion operates if the insured is a member of the crew or if he has “any function relative to the said flight”. The second condition was intended to cover a situation not already covered by the first one. The scope of this second provision is, for the purpose of the present dispute, identical with that in the first policy.

It is true, as respondent pointed out to the Court, that an exception clause contained in an insurance policy is interpreted in favour of the insured rather than the insurer, who drafted the contract. Nonetheless, this rule whatever its weight in any given situation, cannot override the principle set out in art. 1014 C.C. It is not permissible, even for the better protection of the interests of the insured, to totally disregard a provision or to place on it a construction that would make it meaningless.

[Page 494]

I conclude that the appeal must be allowed, the decision of the Court of Appeal reversed and the judgment of the Superior Court restored; appellant will be entitled to its costs in the Superior Court and the Court of Appeal, but, pursuant to the condition imposed on the leave to appeal, it must pay respondent’s costs in this Court.

Appeal allowed, LASKIN, C.J. and SPENCE, DICKSON and ESTEY JJ. dissenting.

Solicitors for the appellant: Beauvais, Bouchard, Truchon & Aubut, Quebec.

Solicitors for the respondent: Dufour & Côté, Chicoutimi.

 



[1] [1976] C.A. 459.

 

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