City of St. John v. The King, [1932] SCR 537

Supreme Court of Canada

City of St. John v. The King, [1932] S.C.R. 537

Date: 1932-03-01.

The City of Saint John v. The King

1932: February 8; 1932: March 1.

Present: Duff, Rinfret, Lamont, Smith and Cannon JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Contract—Interpretation—Covenant to repair street—Extent of liability—Nature of Structure—Structure designed to serve dual purpose of wharf and road—Liability as to repair of wharf.

APPEAL by the suppliant, the City of Saint John, from the judgment of Maclean J., President of the Exchequer Court of Canada[1], dismissing its Petition of Right to recover from the Crown the cost of repairing a street on which a spur track of the International Railway had been laid, under an agreement dated January 29, 1914, between the City and His Majesty the King, represented therein by the Minister of Railways and Canals for the Dominion of Canada.

On the appeal to this Court, after hearing the arguments of counsel for the parties, the Court reserved judgment, and on a subsequent day delivered judgment dismissing the appeal with costs. Written reasons were delivered by Smith J., with whom the other members of the Court concurred.

This Court disagreed with the ground taken by Maclean J. that, on the interpretation of the said agreement, the only part of the street that the Crown’s covenant to

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repair related to was the strip occupied by the ties and rails of the railway; but agreed with his opinion that the repair or reconstruction that the City was calling upon the Crown to make did not fall within the terms of the covenant. What the City had constructed (originally about 1857, with subsequent repairs) was not simply a roadway but a structure that was to be combined so as to form a wharf and a roadway, the latter superimposed upon the wharf; the specifications for the original construction indicated that the construction of the wharf was at least a main part of the undertaking. The wording of the agreement now in question referred, in this Court’s opinion, only to repair of the road. The part of the structure that was out of repair and which the Crown was being called on to repair, was the timber of the perpendicular face of the wharf, the decay and destruction of which, it was said, would in time result in destruction and consequent non-repair of part of the street. The agreement, however, imposes liability to repair the street and says nothing about the wharf, and, in the Court’s opinion, does not impose any liability to maintain the street in the sense contended for. The cases of Sandgate Urban District Council v. County Council of Kent[2] and Reigate Corporation v. Surrey County Council[3], relied on by appellant, were discussed, and it was held that what was decided in those cases did not amount to authority for appellant’s contention here. The judgment of the Lord Chancellor in the Sandgate case2, at p. 427, was quoted from, and it was pointed out that, in the view there taken, it was the duty to “maintain” that imposed the liability; that in the present case there was no contract to “maintain,” the agreement being merely to keep the portion of the street in proper repair. In the said two cases referred to, the words “maintenance and repair” of the road were given a meaning wider than their express meaning so as to make them include “maintenance and repair” of a structure, found as a fact not to be part of the road. This was evidently arrived at as a proper inference to be drawn from the circumstances and conditions, and was outside of the express language. In the present case the court was asked to construe the express

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language used so as to impose by inference a liability not expressly imposed by the language of the agreement. There was nothing in the conditions existing at the time or in the surrounding circumstances calling for extending the language of the agreement beyond its express and literal meaning. On the contrary, those conditions and circumstances indicated that the parties never contemplated, at the time, that the Crown was to be made Hable for the repairs in question. The term in the agreement giving the City the right to cancel the licence to use the street and compel the removal of the railway tracks at any time on 60 days’ notice, strengthened this view; also the specific provision, in another agreement between the same parties made two years later (by which the City granted to the Government Railway the right to lay a spur along the same street on Ballast Wharf), as to repairs of the wharf structure in addition to the provision for repairs of the street, was another circumstance indicating that the parties did not regard repairs to the street as including repairs to the wharf.

Appeal dismissed with costs.

A. N. Carter for the appellant.

I. C. Rand K.C. for the respondent.