Perepelytz v. Department of Highways (Ontario), [1958] SCR 161

Supreme Court of Canada

Perepelytz v. Department of Highways (Ontario), [1958] S.C.R. 161

Date: 1958-01-28

Michael Perepelytz (Plaintiff) Appellant;

and

The Department of Highways for the Province of Ontario (Defendant) Respondent.

1957: November 27, 28; 1958: January 28.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Crown—Actions against—Proper style of cause—Special statutory provisions—The Highway Improvement Act, R.S.O. 1950, c. 166, s. 87—Binding effect on Crown—The Interpretation Act, R.S.O. 1950, c. 184, s. 11.

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Highways—Liability of “Department” for non-repair of the King’s Highway—Proper style of cause for action—Amendment—The Highway Improvement Act, R.S.O. 1950, c. 166, s. 87.

Section 87 of The Highway Improvement Act, which provides for a cause of action arising out of non-repair of the King’s Highway, refers throughout to the liability of, and an action against, “the Department”. Subsection (8), providing that in an action under the section “against the Department” the defendant may be described in the style ordinarily used for the Crown in the right of the Province, is merely permissive and does not have the effect that a writ in which the defendant is described merely as “the Department of Highways for the Province of Ontario” is an absolute nullity. If, therefore, an action is brought within the time prescribed by s. 87(4) with the defendant so described, there can be no objection to the making of an order after the expiration of that time permitting the amendment of the style of cause by substituting “Her Majesty the Queen in the Right of the Province of Ontario, Represented by the Minister of Highways for the Province of Ontario” as the description of the defendant, although such an amendment is not necessary.

The Highway Improvement Act clearly provides that the Crown is bound by its provisions and there is, therefore, no room for the application of the rule embodied in s. 11 of the Ontario Interpretation Act.

APPEAL by the plaintiff from a judgment of the Court of Appeal for Ontario[1], setting aside an order of McDonald J. of the District Court of the District of Algoma, amending the style of cause. Appeal allowed.

W.B. Williston, Q.C., for the plaintiff, appellant.

K.D. Finlayson, for the defendant, respondent.

The judgment of Kerwin C.J. and Taschereau, Locke and Cartwright JJ. was delivered by

THE CHIEF JUSTICE:—This is an appeal by the plaintiff from a judgment of the Court of Appeal for Ontario[2] setting aside an order of a District Court Judge which contained the following paragraphs:

1. IT IS ORDERED that the style of cause herein be amended by striking out the words “The Department of Highways for the Province of Ontario” and substituting therefor the words “Her Majesty the Queen in the Right of the Province of Ontario, Represented by the Minister of Highways for the Province of Ontario”.

2. AND IT IS FURTHER ORDERED that the Writ of Summons herein as so amended be re-served on the proper person on behalf of the said Plaintiff.

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3. AND IT IS FURTHER ORDERED that such amendment and re-service shall not be taken as prejudicing the position of the Plaintiff insofar as compliance with the pertinent Sections of Sec. 87 of The Highway Improvement Act being R.S.O. 1950 Chap. 166 is concerned.

4. AND IT IS FURTHER ORDERED that the costs of this Motion be costs in the cause.

The writ of summons was issued September 6, 1955, claiming damages said to have been caused July 8, 1955, by the non-repair of a highway. Apparently there was some doubt as to whether that highway was a township road or a King’s Highway and, therefore, the defendants were the Municipal Corporation of the Township of Korah and the Department of Highways for the Province of Ontario. We are concerned only with the latter. On September 7, 1955, the plaintiff’s solicitor sent the Minister of Highways the writ and a copy and asked that the Department’s solicitors accept service and sign the undertaking to appear, endorsed on the original. This letter was not answered until September 17, when the solicitors acting for the Department returned the original writ without signing the undertaking, but stating “we are proceeding to enter an Appearance thereto”. Such appearance was entered September 27 in the name of the Department. On November 24, 1955, the solicitors for the Department wrote the following letter to the plaintiff’s solicitor:

Will you please deliver your Statement of Claim.

We do not know by what right the Plaintiff sues “The Department of Highways for the Province of Ontario”. We know of no right on the part of anyone to sue a Government Department.

On December 1, 1955, the plaintiff’s solicitor wrote the solicitors for the Department, referring to various sections of The Highway Improvement Act, R.S.O. 1950, c. 166, and stating that, while he considered the action was properly constituted, he preferred to use the style of cause suggested in the Act and enclosed a consent to be signed by the solicitors for the Department that this should be done. Upon this consent being refused, an application was made by the plaintiff to the District Court Judge, who made the order referred to, and it was this order which was set aside by the Court of Appeal[3], F.G. MacKay J.A. dissenting.

It was argued by the plaintiff in the Court of Appeal that the order of the District Court Judge was an interlocutory order from which there was no appeal and that Court was

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unanimous in rejecting that contention. Leave was granted by the Court of Appeal to appeal from its judgment, but, in order to avoid any difficulty that might arise, in view of the terms of s. 38 of the Supreme Court Act, R.S.C. 1952, c. 259, this Court upon the opening of the appeal, with the consent of counsel for the respondent, granted leave to appeal under s. 41 of the Supreme Court Act, as amended by 1956, c. 48, s. 3.

Under the provisions of subs. (4) of s. 87 of The Highway Improvement Act, such an action as this is barred unless commenced within three months of the time of the occurrence. In view of the correspondence set about above, it would be unfortunate if that were the result, but, with respect, I must say there is no question in my mind that paras. 1 and 4 of the District Court Judge’s Order should be affirmed.

Before dealing with s. 87 it is advisable to set out ss. 64 and 65:

64. (1) The Lieutenant-Governor in Council, upon the recommendation of the Minister, may designate any highway or a system of public highways throughout Ontario to be laid out, acquired, constructed, assumed, repaired, relocated, deviated, widened and maintained by the Minister as the King’s Highway.

(2) Every highway heretofore or hereafter constructed, designated and assumed in accordance with this section shall be known as “the King’s Highway”.

65. The King’s Highway and all property acquired by Ontario under this Act shall be vested in His Majesty and shall be under the control of the Department.

The relevant parts of s. 87 read as follows (the italics are mine):

(1) Every portion of the King’s Highway shall be maintained and kept in repair by the Department…

(2) In case of default by the Department to keep any portion of the King’s Highway in repair, the Department shall be liable for all damages sustained by any person by reason of the default, and the amount recoverable by any person by reason of the default may be agreed upon with the Department before or after the commencement of any action for the recovery of the damages.

(3) No action shall be brought against the Department for the recovery of damages caused by the presence or absence or insufficiency of any wall, fence, guard rail, railing or barrier or caused by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or upon the highway lands or any part thereof not within the travelled portion of the highway.

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(4) No action shall be brought for the recovery of damages occasioned by such default, whether the want of repair was the result of nonfeasance or misfeasance, after the expiration of three months from the time when the damages were sustained.

(5) No action shall be brought for the recovery of the damages mentioned in subsection 2, unless notice in writing of the claim and of the injury complained of has been served upon or sent by registered post to the Department within ten days after the happening of the injury.

(6) The failure to give or the insufficiency of the notice shall not be a bar to the action, if the court or judge before whom the action is tried is of the opinion that there is reasonable excuse for the want or insufficiency of the notice and that the Department was not thereby prejudiced in its defence.

(7) All damages and costs recovered under this section and any amount payable as the result of an agreement in settlement of any claim for damages which has been approved of by counsel in writing shall be payable in the same manner as in the case of a judgment recovered against the Crown in any other action.

(8) In any action under this section against the Department, the defendant may be described as “His Majesty the King in right of the Province of Ontario, represented by the Minister of Highways for the Province of Ontario”, and it shall not be necessary to proceed by petition of right or to procure the fiat of the Lieutenant-Governor or the consent of the Attorney-General before commencing the action but every such action may be instituted and carried on and judgment may be given thereon in the same manner as in an action brought by a subject of His Majesty against another subject.

There is no doubt as to the general rules discussed in the reasons for judgment of the majority of the Court of Appeal. In substance they are embodied in s. 11 of The Interpretation Act, R.S.O. 1950, c. 184:

11. No Act shall affect the rights of His Majesty, His Heirs or Successors, unless it is expressly stated therein that His Majesty shall be bound thereby.

However, as stated by the Judicial Committee in Nisbet Shipping Co. Ltd. v. The Queen[4], this section has no relevance to a statute which expressly enacts that the rights of the Crown shall be affected.

In the present case The Highway Improvement Act clearly so provides. If the road in question is a King’s Highway under the earlier sections, then subs. (1) of s. 87 enacts that it shall be kept in repair by “the Department”, i.e., the Department of Highways. By subs. (2), in case of default, “the Department shall be liable for all damages”.

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By subs. (3) no action is to be brought “against the Department” under certain circumstances. By subs. (5) notice of a claim and injury is to be “served upon or sent by registered post to the Department within ten days after the happening of the injury”, but by subs. (6) the failure to do so “shall not be a bar to the action” in specified events, including one that “the Department was not thereby prejudiced in its defence”. By subs. (7) all damages and costs recovered under s. 87 and any amount payable as the result of a settlement “shall be payable in the same manner as in the case of a judgment recovered against the Crown in any other action”. Subsection (8) is merely permissive as to the manner in which the defendant may be described. Upon consideration of its terms, read together with the preceding subsections, it is clear that “may” is not to be read as “must”.

The right of action given by the Act is against the Crown in the right of the Province of Ontario, but in the provisions of the Act, quoted above, which confer the right of action the term consistently used to describe the Crown in the right of the Province is “the Department”. When the appellant in his writ named as one of the defendants “The Department of Highways for the Province of Ontario” it is clear that he intended to designate the entity described in s. 87 by the words “the Department”, that is, the Crown in the right of the Province. He cannot I think be criticized for using to describe the Crown the very words repeatedly used by the Legislature for that purpose. In my opinion, the amendment ordered by the learned District Court Judge was not necessary to the valid constitution of the action but there can be no objection to paras. 1 and 4 of his order.

The appeal should be allowed with costs throughout and the order of the District Court Judge restored, subject to the omission of paras. 2 and 3.

RAND J.:—The effect of the several statutory references to the “Department of Highways”, in respect of duties and the created liability toward an injured person, is to permit an action to be brought against the Crown designated by that expression as a name. Any other construction would

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be little short of a statutory snare for the practitioner. The permission to bring the proceeding in the name of Her Majesty does not exclude that but is to be taken as furnishing an additional mode.

I would, therefore, allow the appeal and restore the order of the District Court Judge as proposed by the Chief Justice.

Appeal allowed with costs.

Solicitor for the plaintiff, appellant: I.A. Vannini, Sault Ste. Marie.

Solicitors for the defendant, respondent: Kingsmill, Mills, Price & Fleming, Toronto.