Méthot v. Commission de Transport de Montréal, [1972] SCR 387

Supreme Court of Canada

Méthot v. Commission de Transport de Montréal, [1972] S.C.R. 387

Date: 1971-12-20

René Méthot (Plaintiff) Appellant;

and

Montreal Transportation Commission (Defendant) Respondent.

1971: January 28; 1971: December 20.

Present: Fauteux C.J. and Abbott, Judson, Hall and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Municipal corporation—Child struck by bus—Notice to Montreal Transportation Commission—Right of action—Prescription—Action to be taken within 6 months—Starting point of prescription, date of accident or of notice—Charter of the City of Montreal, ss. 536, 536a, 537.

On April 16, 1956, the plaintiff’s son, a minor, was struck by a bus belonging to the defendant Commission. On April 19, notice of this accident was given to the defendant. On October 18, 1956, the plaintiff, personally and in his capacity as tutor of his son, brought an action against the defendant, claiming damages. The latter pleaded that having regard to the provisions of s. 536 and following of the Charter of the City of Montreal, the action was prescribed. Under s. 536, notice must be given within 30 days from the date of the accident but the action cannot be instituted before the expiration of 30 days from the date of the receipt of the notice. Under s. 536a, the action must be instituted within six months from the date when the right of action originated. The Superior Court dismissed the defence. In the Court of Appeal it was held that the plea of prescription was well-founded and, for this reason, the action was dismissed. The plaintiff appealed to this Court.

Held: The appeal should be allowed.

Per Fauteux C.J. and Abbott and Judson JJ.: Whereas under the ordinary law the right of action originates at the time the quasi-delict is committed, in the present case, which is governed by ss. 536, 536a and 537 of the Charter and the interpretation given to them by this Court in La Cité de Québec v. Baribeau, [1934] S.C.R. 622, the right of action originated not on the day of the accident but after the notice of it was given to the Commission. It follows that, under the provisions of s. 537 of the Charter, the prescription only began to run from the

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day on which the Commission actually received the notice. The conclusion must therefore be that the action against the Commission was not prescribed when it was brought.

Per Judson, Hall and Pigeon JJ.: A right of action does not originate until a plaintiff has an immediate right to institute and maintain his suit. Before the notice required by s. 536 had been given and thirty days thereafter had expired there was no right of action. It is clear, therefore, that the right of action could not have “originated” prior to the expiration of the 30‑day period and that, consequently, the action was not prescribed.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], reversing a judgment of Bertrand J. Appeal allowed.

J.P. Ste-Marie, Q.C., for the plaintiff, appellant.

Gaëtan Raymond, for the defendant, respondent.

Abbott and Judson JJ. concurred with the judgment delivered by

THE CHIEF JUSTICE—On April 16, 1956, Michel Méthot, who was then seven years of age, was struck by a bus belonging to the Montreal Transportation Commission. On April 19, notice of this accident was given to the Commission, as required by 14-15 Geo. VI, c. 124, s. 4, which, in such cases, makes proceedings against the Commission subject to the provisions of ss. 536, 536a and 537 of the Charter of the City of Montreal, mutatis mutandis. On October 18, 1956, René Méthot, the father and tutor of Michel Méthot, brought an action against the Commission, claiming by way of damages $16,946.94 personally, and $81,000 in his capacity as tutor of his son, a minor.

The Commission contested this action on the merits and pleaded, in particular, that having regard to the provisions of the aforementioned sections of the Charter of the City of Montreal, the action was prescribed.

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The Superior Court dismissed the defence and condemned the Commission to pay the plaintiff $4,536.94 personally and $16,200 in his capacity as tutor of his son Michel.

In the Court of Appeal¹ it was held that the plea of prescription was well founded, and as this was decisive of the appeal and the case, the Court did not have to rule on the question of liability. The appeal was allowed and the action dismissed with costs.

Hence the appeal to this Court.

Thus the only question we have to decide is whether, having regard to the aforementioned sections of the Charter of the City of Montreal, the action against the Commission was prescribed at the time it was brought, on October 18, 1956.

It is appropriate to cite one opposite the other the French and English versions of these sections.

536. Notwithstanding any law to the contrary, no right of action shall exist against the city for damages resulting from bodily injury, caused by an accident, or for damages to movable or immovable property, unless within thirty days from the date of such accident or damages, and, in the case of accident and of damages caused by a fall on the sidewalk or the roadway, unless, within the ten days from the date of such accident, a written notice has been received by the city, containing the particulars of the damages sustained, indicating the surname, Christian names, occupation and address of the person who has suffered the same, giving the cause of such damages, and specifying the date and the place where the same occurred.

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No action for damages or for compensation shall be instituted against the city before the expiration of thirty days from the date of the receipt of the above notice.

Failure to give the above notice shall not, however, deprive the victims of an accident of their right of action, if they prove that they have been hindered from giving such notice by irresistible force, or for any other similar reason deemed valid by the judge or the court, but no reason may be declared to be such, if the said victim has been ale to communicate with some relation, friend or acquaintance during the course of the ten days above mentioned, or if, within the same delay, he has signed a document in favour of third parties by which he transfers to them a part of his claim.

536a. No action against the city for damages or for compensation shall be admissible unless the same be instituted within six months from the date when the right of action originated.

537. All actions, suits or claims against the city, or any of its officers or employees, for damages resulting from offences or quasi-offences, or illegalities, are prescribed by six months from the day on which the cause of action originated, any article or provision of

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the law to the contrary notwithstanding.

It should be said immediately that the validity and receipt of the notice by the Commission within the time period specified in the first paragraph of s. 536, as well as observance of the provisions of the second paragraph of this section, are not in question.

The only point at issue is whether the six-month prescription, under ss. 536a and 537, runs from the date of the accident (in which case the action is prescribed), or from the date of receipt of the notice by the Commission (in which case it is not).

I am not aware that this controverted matter has before been submitted, in an identical manner, to this Court. Reference must imperatively be made, however, to our decision in La Cité de Québec v. Baribeau[2] which turned on whether respondent had complied with s. 535 of the Act to Consolidate the Charter of the City of Quebec, (19 Geo. V, c. 95). Section 535 of this statute, and ss. 536 and 538 concerning suits against the City of Quebec, correspond respectively to ss. 536, 536a and 537 of the Charter of the City of Montreal, and are textually identical, except for certain minor variations which are not relevant to the consideration of the case at bar.

In the Baribeau case, the Supreme Court found it necessary to interpret s. 535 of the Charter of the City of Quebec, to decide on the true nature of the notice required, in short to determine whether this notice is simply a procedural step or is part of the very formation of the right of action against the City. This is, fundamentally, the unavoidable and essential question which we must answer in the case at bar. Speaking for the Court, Rinfret J., later Chief Justice, dealt with the matter as follows:

[TRANSLATION] Indeed, the notice which is required is not simply a procedural step. It is part of the very formation of the right of action against the City. The legislature regarded the notice, as it was entitled to do, as a further element of the right of action

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itself, and required that it be given “notwithstanding any law to the contrary”. In 1907 the Court of King’s Bench could state, in Montreal Street Railway v. Patenaude (1907) Q.R. 16 K.B. 541, at p. 543:

It is now in jurisprudence that the action may only be brought if notice was first given as required, and the right of legal recourse does not exist without such notice.

This notice is a condition precedent to, and essential for, the existence of the right of action. The question of prescription is not involved here. The prescription of the right of action against the City is covered by ss. 536 and 538 of the Charter, which fixes it at six months from the day on which the right of action originated, “any article or provision of the law to the contrary notwithstanding”. Under s. 535, it is not the right of action that is lost by prescription if the required notice is not given within the fifteen or thirty days (as the case may be) fixed by the section; it is the right of action which does not originate unless the notice is given, except in the exceptional cases provided for. The right of action is not lost by failure to act; on the contrary, it does not originate unless the victim takes action; it does not exist if notice is not first given as required.

Thus whereas under the ordinary law the right of action originates at the time the quasi-delict is committed, in the present case, which is governed by the aforementioned provisions and the interpretation given to them by this Court, the right of action originated not on the day of the accident of April 16, 1956, but after the notice of it was given to the Commission, on April 19, 1956. It follows that, under the provisions of s. 537 of the Charter of the City of Montreal, the prescription only began to run from the day on which the Commission actually received the notice of April 19. The conclusion must therefore be that the action against the Commission was not prescribed when it was brought on October 18, 1956.

In Ville de Mont-Royal v. Dame Leibovitch et Vir[3], decided after the case at bar, the Court of Appeal, constituted by different judges, cited and adopted the foregoing extract from the reasons of this Court in Baribeau, to hold as fatal the delay by respondent in giving appellant the

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notice required by the following provisions of the Cities and Towns Act:

If any person claim or pretend to have suffered bodily injury by any accident, for which he intends to claim damages from the municipality, he shall, within fifteen days from the date of such accident, give or cause to be given notice in writing to the clerk of the municipality of such intention, containing the particulars of his claim, and stating the place of his residence, failing which the municipality shall be relieved from any liability for any damages caused by such accident, any provision of law to the contrary notwithstanding.

With the greatest respect, I cannot share the view that the provisions of the third paragraph of s. 536 run counter to the foregoing interpretation of the first paragraph of this section. The provisions of the third paragraph, as exceptions to the rule laid down in the first paragraph, could not serve as a basis to the interpretation of the first without virtually bringing the rule to the level of the exception.

Moreover, as a matter of fact, if the reasons relied on to justify the lack of notice are found valid by the trial judge, the latter will recognize in his judgment that the lack of notice has not deprived the accident victim of the right of action given him by the ordinary law, subject however to the exceptional six-month prescription.

The conclusion I have formed is not altered by the fact of the conflict existing between the English and French versions of s. 537, and the conflict in the English versions of ss. 537 and 536a. Such conflicts in provisions exorbitant of the general law cannot justify loss of a right existing under that law.

I would therefore allow the appeal with costs, declare that the action brought against respondent is not prescribed, and return the record to the Court of Appeal for judgment on any other question dealing with the merits of the case.

Judson and Pigeon JJ. concurred with the judgment delivered by

HALL J.—This appeal arises out of an accident in which the infant son of appellant, then eight years of age, was injured when struck by one of respondent’s buses on April 16, 1956, on St.

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Laurent Blvd. north of Cremazie Street in the City of Montreal.

The action which was instituted on October 18, 1956, was tried by Bertrand J. who found respondent wholly at fault and awarded damages in the sum of $20,736.94 with interest and costs against the respondent.

The sole issue now before the Court is whether the action taken on behalf of the infant arising out of the said accident was barred by the limitation of actions provisions in the Charter of the City of Montreal made applicable to the respondent by 14-15 Geo. VI, c. 124.

Bertrand J. held that the action had been taken within the time provided by law, but on appeal to the Court of Appeal[4] that Court held that the action had not been taken within the time permitted and for this reason allowed the appeal and dismissed the action.

The limitation provisions are ss. 536, 536a and 537 of the City’s Charter and read as follows:

536. Notwithstanding any law to the contrary, no right of action shall exist against the city for damages resulting from bodily injury, caused by an accident, or for damages to moveable or immoveable property, unless within thirty days from the date of such accident or damages, and, in the case of accident and of damages caused by a fall on the sidewalk or the roadway, unless, within the ten days from the date of such accident, a written notice has been received by the city, containing the particulars of the damages sustained, indicating the nurname, Christian names, occupation and address of the person who has suffered the same, giving the cause of such damages, and specifying the date and the place where the same occurred.

No action for damages or for compensation shall be instituted against the city before the expiration of thirty days from the date of the receipt of the above notice.

Failure to give the above notice shall not, however, deprive the victims of an accident of their right of action, if they prove that they have been hindered from giving such notice by irresistible force, or for any other similar reason deemed valid by the judge or the court, but no reason may be declared to be such, if the said victim has been able to communicate

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with some relation, friend or acquaintance during the course of the ten days above mentioned, or if, within the same delay, he has signed a document in favour of third parties by which he transfers to them a part of his claim.

536a. No action against the city for damages or for compensation shall be admissible unless the same be instituted within six months from the date when the right of action originated.

537. All actions, suits or claims against the city, or any of its officers or employees, for damages resulting from offences or quasi-offences, or illegalities, are prescribed by six months from the day on which the cause of action originated, any article or provision of the law to the contrary notwithstanding.

In his reasons for judgment, Bertrand J. held that the six-month limitation period ran from the date the notice under s. 536 was given, namely, from April 19, 1956, and not from the date the infant was injured. He relied on La Cité de Québec v. Baribeau[5], in which Rinfret J. (as he then was) said:

[TRANSLATION] The special statute applicable to the City of Quebec requires a special notice before certain actions are brought against the City. At the time the accident occurred this statute (Statutes of Quebec, 19 Geo. V. 1929, c. 95) read as follows:

535. Notwithstanding any law to the contrary, no right of action shall exist against the city for damages resulting from bodily injury, caused by an accident, or for damages to movable or immovable property, unless within thirty days from the date of such accident or damages, and, in the case of accident and of damages caused by a fall on the sidewalk or the roadway, unless within fifteen days of such accident or damages, a written notice has been received by the city, containing the particulars of the damages sustained, indicating the surname, Christian names, occupation and address of the person who has suffered the same, giving the cause of such damages, and specifying the place where the same occurred.

No action for damages or for compensation shall be instituted against the city before the expiration of thirty days from the date of the receipt of the above notice.

Failure to give the above notice shall not, however, deprive the victims of an accident of their right of action, if they prove that they have been

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hindered from giving such notice by irresistible force, or for any other similar reason deemed valid by the judge or the court.

The question is whether respondent acted in accordance with this section before bringing his action against the City of Quebec.

Indeed, the notice which is required is not simply a procedural step. It is part of the very formation of the right of action against the City. The legislature regarded the notice, as it was entitled to do, as a further element of the right of action itself, and required that it be given “notwithstanding any law to the contrary”. In 1907 the Court of King’s Bench could state, in Montreal Street Railway v Patenaude (1907) Q.R. 16 K.B. 541, at p. 543:

It is now in jurisprudence that the action may only be brought if notice was first given as required, and the right of legal recourse does not exist without such notice.

This notice is a condition precedent to, and essential for, the existence of the right of action. The question of prescription is not involved here. The prescription of the right of action against the City is covered by ss. 536 and 538 of the Charter, which fixes it at six months from the day on which the right of action originated, “any article or provision of the law to the contrary notwithstanding”. Under s. 535, it is not the right of action that is lost by prescription if the required notice is not given within the fifteen or thirty days (as the case may be) fixed by the section; it is the right of action which does not originate unless the notice is given, except in the exceptional cases provided for. The right of action is not lost by failure to act; on the contrary, it does not originate unless the victim takes action; it does not exist if notice is not first given as required (Emphasis added.)

Section 535 adds that the right of action does not exist “unless a written notice has been received by the city”. The notice is to contain certain details and furnish certain particulars on the accident. This can be disregarded in this case, because the City is not pleading insufficiency of the notice. What has to be emphasized, however, is that the City is entitled to receive “a written notice”; and that notice must be communicated to it in due form, in the same manner as any other official notice is communicated to the corporation. This is not a mere insignificant formality from which the claimant may be excused, or for which some other formality, which the court may consider sufficient to take its place, may be substituted.

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Section 535 quoted by Rinfret J. is identical with s. 536 of the Charter of the City of Montreal. Bertrand J. in his reasons said in part:

[TRANSLATION] Furthermore, notwithstanding any provision or law to the contrary, it is the intent of the Montreal Charter to use a language which does not fail to be absolute.

Counsel for the defendant suggests we consider the possibility of holding that once the notice has been sent and received, the right of action is not retroactive to the day on which the event resulting in liability occurred, in accordance with the ordinary law; here this would be the day of the accident.

To adopt this interpretation there would have to be a clear statement to this effect, and that is totally absent; moreover, when the legislator intends to impose retroactivity, which is a somewhat unusual procedure and applies to past events which were not dealt with in the same way until that time, he does so in clear language, devoid of ambiguity.

In view of the considerations relied on by the Supreme Court on this point, giving to the wording on which observations were made the meaning which the language itself suggests, it is impossible to reason that prescription begins to run against a right at a time when such right does not yet have any legal existence: this would be to attribute legal activity to that which has no entity.

It is settled law that statutes of limitation are to be construed strictly. Sir Louis Davies J. in Canadian Northern Railway Company v. Thomas D. Robinson and W. E. Robinson[6] said at pp. 397-8:

I agree that to deprive the plaintiffs of their right of action the words of the limitation clause should be so plain and unambiguous as clearly to embrace the cause of action sought to be included within them.

In Steeves v. Dufferin Rural Municipality[7], Robson J.A. said at p. 210:

It is unnecessary to say that before applying a statute cutting down rights of action it must be clear

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that the right of action alleged comes within the language of the limiting statute.

and Egbert J. in Short v. Public Trustee[8] said:

The limitation imposed is a statutory limitation and, since its effect is to destroy vested rights, it must be interpreted strictly, and to bring himself within its purview a defendant must clearly prove the facts which make it applicable to his case.

It is my view that a right of action does not originate until a plaintiff has an immediate right to institute and maintain his suit. In the case at bar the appellant (plaintiff) had to plead and prove: (1) that he sustained damages; (2) that the damages sustained were the result of the respondent’s fault; (3) that he gave the notice required to be given by s. 536 previously quoted; and (4) finally that the action was brought after the expiration of thirty days from the date the notice was given. The appellant’s right of action was not maintainable unless all these elements were found in his favour. A right of action arises at a given point (day) in time. One either has a right of action or he does not on the day the action is begun. Before the notice required by s. 536 had been given and thirty days thereafter had expired there was no right of action. Section 536 says specifically: “…no right of action shall exist against the city for damages… unless within thirty days from the date of such accident… a written notice has been received by the city…” and “No action for damages or for compensation shall be instituted against the city before the expiration of thirty days from the date of the receipt of the above notice.” It is clear, therefore, that the right of action could not have “originated” prior to the expiration of the thirty-day period, (emphasis added)

The appellant’s right prior to the expiry of the thirty-day period was at most an inchoate or imperfect right which did not mature into an incontestable right to sue until the thirty-day period had elapsed. Only after the thirty days can his right of action have “originated” as is said in the English version or “a pris naissance”

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as in the French version of ss. 536a and 537. In order to uphold the judgment of the Court of Appeal, it is necessary to conclude that the right of action “a pris naissance” before it existed for s. 536 says: “…no right of action shall exist…” and “No action for damages or for compensation shall be instituted…”

The argument was made that because the last paragraph of s. 536 says: “Failure to give the above notice shall not, however, deprive the victims of an accident of their right of action…” under certain specified circumstances, that this proviso indicates that the right of action arose as of the date of the accident. It is clear, however, that no right of action exists until after the expiration of thirty days from the date of the accident. If the notice required by s. 536 is not given, no right of action accrues unless the proviso can be applied, and the proviso cannot be invoked unless: (1) the notice was not given; and (2) the victim can bring himself within the conditions of the proviso. On the other hand, if the victim was not hindered from giving the notice, he cannot bring an action at all for the opening sentence of s. 536 says: “No right of action shall exist…”. The victim has thirty days within which to give the notice and if the notice be given on the last day, no right of action could exist until thirty days more had elapsed, so it it manifest that under no circumstances could the right of action arise until after the thirty days from the date of the accident. This argument is fully supported by the remarks of Rinfret J. (as he then was) in La Cité de Québec v. Baribeau, supra, at pp. 624-5 when he said:

[TRANSLATION] This notice is a condition precedent to, and essential for, the existence of the right of action. The question of prescription is not involved here. The prescription of the right of action against the City is covered by ss. 536 and 538 of the Charter, which fixes it at six months from the day on which the right of action originated, “any article or provision of the law to the contrary notwithstanding”. Under s. 535, it is not the right of action that is lost by prescription if the required notice is not given within the fifteen or thirty days (as the case may be) fixed by the section; it is the right of action which does not originate unless the notice is given, except in the exceptional cases provided for.

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The right of action is not lost by failure to act; on the contrary, it does not originate unless the victim takes action; it does not exist if notice is not first given as required.

There is strong support for the appellant’s position in the unreported judgment of the Court of Appeal for Quebec in La Cité de Québec v. Dame Magna Vézina Bérubé which appears to me to be very relevant to the present appeal. It was not referred to in the judgment under appeal nor in the factums of the parties. It is a judgment delivered on June 11, 1948, and noted in [1948] B.R. at p. 571 in an action by certain property owners against the City of Quebec for damages sustained by reason of the negligence on the part of the City in a student riot which occurred on February 28, 1946.

The appeal involved primarily the liability of the City for damages sustained, and on this branch of the case the City was held to have been negligent and, therefore, liable unless the right of action had become lost by prescription since the action was not instituted within the special prescriptive period of six months provided in the City Charter.

In answer to the claim that the right of action was barred because action was not taken within the six-month period, the plaintiffs contended that although the damages had been sustained on February 28, 1946, their right to sue did not accrue until six months thereafter. The appeal was heard by Chief Justice Letourneau and Marchand, Bissonnette, E. McDougall and Gagné JJ. The contention that the action was prescribed because not taken within six months following the riot was rejected by the Court, (Letourneau C.J. dissenting). McDougall J. dealt with the question of prescription as follows:

As to the appeal of the City of Quebec, upon the facts, I am of opinion, for the reasons appearing in the notes of Mr. Justice Bissonnette, and subject to the modification suggested, that the proof fully justified a condemnation. All the elements of negligence are present in the failure of the City to take proper steps to act in the suppression of the impending acts of violence of which they had been warned. It was no excuse to accept the mere word of the individual,

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Lizotte, that no illegal acts were or had been considered. Lizotte became one of the chief participators in the events which followed.

It was, however, strongly pressed upon us that the Plaintiff’s right of action against this Defendant had become lost by prescription, since the action had been instituted beyond the special prescriptive period of six months provided by the City Charter. With this contention I am unable to agree. It is from this limited point of view alone that I deal with the appeal.

Having regard to the special provisions of the Charter of the City of Quebec, I am of opinion that prescription of the action in delict did not begin to run against the Plaintiffs until the expiry of the six months period during which the City was permitted to make settlement of the claim in accordance with the special statutory enactment in such cases provided. Having failed to exercise this special right, the prescriptive delays applying to the right of action ex delicto were suspended during the period allowed for consideration and adoption of the faculty accorded. (See per Mignault, J. in Quebec Vs. United Typewriter Co., 62 S.C.R. at pps. 251 and 252).

There is no doubt that the action as drawn contemplates the ex delicto nature of the right. That results clearly from the allegations of the declaration. The Appellants’ factum recognizes that the Plaintiffs’ action invokes and is based also upon the special statutory provisions of the statute, (factum, p. 2) but protests that the two rights are mutually inconsistent and cannot both be asserted in one action. I cannot appreciate the force of the argument that repugnancy exists between the rights of action referred to.

The question thus arises as to when the prescription (6 months under City Charter), declared in respect of actions based upon delict, begins to run; in other words, when the right of action arose? Was it from the date of the commission of the wrongful act, or was it from the moment that the City had failed to exercise the faculty accorded it under its Charter (Sec. 336, Subsec. 155) to make a settlement upon arbitration, quite irrespective of the element of negligence?

There is authority to support the view that the right of action arises from the refusal or neglect of the City to exercise the faculty given it. (See Jarvis

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Vs. Surrey Company, 1925, 1 K.B., pp. 554). By its very wording Sub-section 155 (b) of Article 336 of the City Charter contemplates the damages caused and declares that in default of payment thereof in the six months, upon arbitrators’ award, that the municipality may be sued to recover the “damages thus caused”. Could any words be more apt to indicate that during the six months period prescription does not run regarding these damages? There is nothing in this Section incompatible with Articles 536 and 538 of the same enactment, which merely fix the point of departure of the prescription, i.e., from “the date when the right of action originated (a pris naissance)”.

It would be quite illusory to declare that during six months the Plaintiffs could not institute proceedings against the Defendant, and at the same time to deprive them of the right of action unless instituted during the same period. As Lord Atkinson remarked in Wertheim Vs. Chicoutimi Pulp, 1911 A.C., at pp. 307:

“One cannot but feel that the reasoning which leads to results so unjust and anomalous must be fallacious”. Rather it is the case that the law favours the exercise of a right and not its suppression. “Forfeitures, as a great Judge has said, are not favoured in the law.” (J.C. Vs. Society, etc. A.C. 1908, at pp. 199):

In essence, the law says to the City: You may be responsible in damages for the loss caused (as for delict), but we will give you the opportunity once you admit your responsibility and to save you the considerable expense an action would entail, to fix the amount by arbitration and pay the sum so found. But, if you fail thus to recognize your liability within the delay specified we preserve to the Plaintiff his full right of action. (1053 C.C.): Now, in the same breath, could the City say—your action is prescribed, because you did not proceed while we were considering whether we should exercise the faculty accorded.

In conclusion, I cite the last two sentences of the extract from the opinion of Mr. Justice Mignault in the United Typewriter Case, (supra) given in the notes of Mr. Justice Bissonnette:

[TRANSLATION] If appellant is correct the origin of the right of action would coincide with the ex-

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piration of the prescriptive period, and the right of action would be stillborn. This is sufficient to dispose of the plea of prescription.

Upon the whole, and in agreement with the reasons advanced by Mr. Justice Bissonnette I would dismiss the appeal, with costs, subject, however, to the rectification in the amount of the award as he suggests.

Bissonnette J. dealt with the same point. He said:

[TRANSLATION] Brief consideration must now be given to the grounds of prescription put forward by appellant.

Appellant reasons as follows: if the action is based on a delictual remedy, it had to be instituted within a period of six months from the date of the riot, namely February 28. As it was apparently not served until after September 16, the remedy, based on art. 1053 of the Civil Code, was therefore prescribed. As far as the legal or statutory obligation is concerned, the City had repudiated this, so that if its plea of prescription was admissible, the City would, in the opinion of its counsel, be successful in respect of the whole.

In my opinion, and I say it with respect, this proposition by appellant is fallacious. In the United Typewriter case, Mignault J. wrote:

It would be absurd to apply to an action such as that of respondent a prescription by six months, reckoning from the date of the tort, because the right of action only originates when six months have elapsed after the tort, without the City of Quebec having made provision by a special assessment to defray the expenses required to compensate the property owner. If appellant is correct, the origin of the right of action would coincide with the expiration of the prescriptive period, and the right of action would be stillborn. This is sufficient to dispose of the plea of prescription p. 251).

In the Peloquin case cited above, Marchand J., for his part, stated the following:

I think that to get a true understanding of the rights which the section gives the victim, on the one hand, and the corporation, on the other, the first and last paragraphs must be taken together. We find therein this very clear meaning, that the corporation, to compensate for damages from a riot, may resort to arbitration, which will determine the said damages; if the corporation does not

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take this step, and pay what is specified in the arbitral award within six months, the victim may exercise his right to sue at law, which had been suspended. The second paragraph governs rights of the corporation in respect of taxpayers in general, and not in respect of the creditor to whom compensation is owing (p. 338.)

These two eminent jurists thus contended and I agree completely, that the right of action was stayed during this six-month period, and could only be exercised upon expiration of this period.

Against this tenet, counsel for the appellant sets s. 538 of the City Charter, which reads as follows:

538. All actions, suits or claims against the city, or any of its officers or employees, for damages resulting from offences or quasi-offences, or illegalities, are prescribed by six months from the day on which the cause of action originated, any article or provision of the law to the contrary notwithstanding.

There are several peremptory answers to this objection.

First, subs. 155 of s. 336 is a special statute, in derogation of all other causes of action laid down in the Charter. Therefore the creditor, the victim of the riot, had to invoke that statute; he was subject to the machinery provided thereunder and could not evade it. Consequently, any action he might have brought within six months from the day of the riot would have been premature, and the City could have opposed this exception. If, on the other hand, he based his action on the circumstances of the riot, but alleged negligence by the City, the action would lose none of its fundamental character. In other words, if appellant was right, the creditor would be faced with the following absurd dilemma: if he bases his action on a delict, he cannot sue under six months in the case of a riot, since he is subject to this special statute. If he brings his action at the expiration of the six months, it would be extinguished because, according to appellant, it would be prescribed under s. 538. On the other hand, if he brings his action during the six months, it would be inadmissible, because premature. It follows that the ordinary law remedy would be denied him. The legislator never intended that.

Again, s. 155 contains no distinction on the basis of the remedy being exercised on the legal obligation or on the delict. Where the law makes no distinction,

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there is no reason to do so, to fill in the wording. Further, there is nothing to prevent the exercising of both remedies: the one does not necessarily exclude the other. In the United Typewriter case the Supreme Court of Canada held by implication that s. 538 (then s. 561), could not be set up against the remedy exercised under s. 336, para. 155. In my view we cannot depart from that precedent.

In the extract from his reasons above quoted, Bissonnette J. quotes with approval from the judgment of this Court in City of Quebec v. United Typewriter Company[9]. In that case Duff J. (as he then was) said at pp. 242-243:

The decision of this appeal turns upon two points:

1° Was 16 Vict., ch. 233, repealed by s.s. 16, sec. 29 of 29 Vict., ch. 57? The answer to this question depends upon whether or not s.s. 3 of sec. 39 is “inconsistent” with the provisions of the former Act. It seem beyond argument that the later provision can stand and be read together with the earlier Act without any sort of incompatibility. This question must be answered in the negative.

2° Is the present Act within sec 11 of 6, Geo. V, ch. 43, which is in the following words:—

11. Section 8 of the Act 55-56 Victoria, chapter 50, as replaced by section 45 of the Act 7 Edward VII, chapter 62, is again replaced by the following:

8. Every action suit or claim against the city for damages is prescribed by six months, counting from the day when the right of action arose, any article or provision of the Civil Code to the contrary notwithstanding. But no such action, suit or claim can be instituted unless a notice containing the particulars of such claim and the address of the domicile of the claimant, be previously given to the said city within thirty days from the date on which the cause of the damage happened, and no such action or suit can be taken before the expiration of thirty days from the date of such notice.

The failure to give the above notice shall not deprive the claimants of their right of action, if they prove that they were prevented from giving

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such notice by irresistible force or other reasons deemed valid by the judge or the court, subject to the Act 29 Vict., ch. 57, sec. 39, paragraph 35.

It seems improbable that the legislature could have intended to require notice of action before a cause of action has arisen and that part of the enactment which relates to notice of claim seems to apply only to cases where the cause of action arises upon the happening of the “cause of damage.” This probability is strengthened by the circumstance that in the French version “fait dommageable” in the first sentence is evidently regard as equivalent of “right of action.”

My conclusion is that a right of action arising under the special statute upon which the plaintiff relies in this case does not fall within the class of cases contemplated by this section.

and Anglin J. (as he then was) at pp. 243-244 said:

After giving to this case careful consideration I find myself given to the conclusion that neither the prescriptive provision nor the provision for notice of Art. 561 of the Charter of the City of Quebec (6 Geo. V, c. 43, s. 11) applies to a case in which the plaintiff’s right to claim damages from the city can arise only six months after the happening of the injurious act for the consequences of which damages are sought.

As first enacted by 55-56 V., c. 50, s. 8, this provision probably did not extend to actions for damages caused by rioters. As it now stands the prescriptive clause cannot be meant to apply to a cause of action which only arises on the expiry of the prescriptive period. The provision for notice because found in the same section and introduced by the words “no such action” is almost certainly restricted in its application to actions that are subject to the prescription. It is unlikely that the legislature meant to require notice to be given containing particulars of a claim in respect of which a cause of action may never arise and cannot in any event come into existence until the expiry of five months from the period within which the notice is required to be given. The application of article 561 of the charter must, I think, be confined to cases in which the right to claim and sue for the damages sustained arises immediately upon their being incurred. I find nothing in this provision inconsistent with or repugnant to the provision of the statute, 29 Vict., c. 57(3),

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by which the right of action originally conferred by the statute 16 Vict., c. 233, in circumstances such as exist in the case at bar appears to be reaffirmed.

The appeal fails and must be dismissed with costs.

Both Bissonnette and McDougall JJ. quoted with approval from Mignault J. in the United Typewriter case at pp. 251-252 of that report.

Although given leave by the Court of Appeal under s. 41 of the Supreme Court Act as it then read to appeal to this Court, and after filing the security required by s. 70 as it then read of the Supreme Court Act, the City of Quebec abandoned its appeal to this Court.

It appears that the Court of Appeal overlooked its own judgment in the City of Quebec v. Bérubé and the judgment of this Court in United Typewriter. Neither case was referred to in the judgment of the Court or in the factums.

I am also of opinion that there is an ambiguity between s. 536 and ss. 536a and 537. This ambiguity arises from the provisions in s. 536 that “…no right of action shall exist… unless within thirty days from the date of such accident… a written notice has been received…” and “no action for damages… shall be instituted… before the expiration of thirty days from the date of the receipt of the said notice” and the provision of s. 536a that “No action… shall be admissible unless the same be instituted within six months from the date when the right of action originated” and in s. 537 that “All actions… for damages are prescribed by six months from the day the cause of action originated…”. This ambiguity is accentuated by the difference in wording in the English and French versions of ss. 536a and 537. In the English version the expression “originated” is used which might be taken to refer to the accident or event, whereas in the French version it is “a pris naissance” which clearly refers to the time when the right

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to bring the action came into being. There being this ambiguity, the limitation provisions must be resolved in favour of the appellant whose right of action is said to be barred by ss. 536a and 537.

I would, accordingly, hold that the action brought on October 18, 1956, was within the six‑month period contemplated by ss. 536a and 537, and I would allow the appeal with costs. The Court of Appeal, having disposed of the matter on the ground that the action was prescribed, did not deal with the issues of liability or damages nor were these issues dealt with in this Court. Accordingly, the case will be referred back to the Court of Appeal to be disposed of on the merits on the basis that the action was taken within the period allowed by law.

Appeal allowed with costs.

Solicitors for the plaintiff, appellant: Ste-Marie, LaHaye & Giroux, Montreal

Solicitors for the defendant, respondent: Letourneau, Quinlan, Forest, Raymond, Letourneau & Roy, Montreal