Berardinelli v. Ontario Housing Corp, [1979] 1 SCR 275

Supreme Court of Canada

Berardinelli v. Ontario Housing Corp, [1979] 1 S.C.R. 275

Date: 1978-10-03

Carmen Berardinelli (Plaintiff) Appellant;

and

Ontario Housing Corporation and Her Majesty in Right of the Province of Ontario (Defendants) Respondents;

and

Paul Pickett, of the City of Mississauga, Regional Municipality of Peel, carrying on business as Paul Pickett Landscaping (Third Party) Respondent.

1978: February 23; 1978: October 3.

Present: Laskin C.J. and Martland, Spence, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF ONTARIO.

Limitation of actions—Public authorities—Crown agency—Whether Ontario Housing Corporation exercising statutory or public duty or authority—Whether Crown agency in all its functions—The Public Authorities Protection Act, R.S.O. 1970, c. 374, s. 11 as amended—The Crown Agency Act, R.S.O. 1970, c. 100, s. 2—The Housing Development Act, R.S.O. 1970, c. 213, s. 6(2) as am. by 1974 (Ont.), c. 31 and 1976 (Ont.), c. 44, s. 2.

Respondent, Ontario Housing Corporation, is the owner of certain housing units in Toronto. Appellant, a tenant in one of these units, slipped on some ice or snow while walking in a common area of the development and suffered injuries. The Writ of Summons was issued more than six months after the date of the accident and respondent contended that by reason of s. 11 of The Public Authorities Protection Act, R.S.O. 1970, c. 374, as amended, the claim was statute barred. This was raised as a point of law under Rule 124 of the Ontario Rules. The Court of first instance concluded that as respondent is a Crown agency within the meaning of The Crown Agency Act, R.S.O. 1970, c. 100, it is a public authority and entitled to rely on s. 11 of The Public Authorities Protection Act and consequently that the action was statute barred. The Court of Appeal reached the same conclusion by another route determining inter alia that, even if respondent was a Crown agency some of its duties and authorities are of such a nature that in respect of their exercise or discharge the Corporation is not entitled to invoke s. 11. It then proceeded to the issue whether the alleged neglect or

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default of the Corporation was in the exercise of any statutory or other public duty and concluded that the default in removing the ice or snow was directly linked to the statutory function of the Corporation.

Held (Martland J. dissenting): The appeal should be allowed.

Per Laskin C.J. and Spence, Dickson, Beetz, Estey and Pratte JJ.: The reference in s. 11 to “any statutory or other public duty” applies to those aspects of the statutory powers and duties which have a public aspect or connotation and does not comprehend those other responsibilities which have a private executive or private administrative application or are subordinate in nature. To read the section otherwise would be to bring within the protective limitation of s. 11 every aspect of the powers enunciated in s. 6(2) of The Housing Development Act, R.S.O. 1970, c. 213, as amended, including operational matters, however insignificant, and would create different conditions of owner liability for two apparently similar housing facilities. The effect of this construction is to create the need to segregate actions and powers into two categories, those entailing a public aspect or which are inherently of a public nature and those managerial, internal or operational matters having a predominantly private aspect. The removal of snow would therefore be a private and operational matter, subordinate or incidental in character, which would not be covered by the protective limitation of s. 11.

Per Martland J., dissenting: While the Court of Appeal correctly held that the Corporation fell within the class of legal persons entitled to protection by s. 11 the main argument here was in respect of the second question stated by Howland J.A. i.e. whether the alleged neglect or default was in the execution of any statutory or other public duty or authority? The test to be applied should be that of Viscount Simon in Griffiths v. Smith, [1941] A.C. 170,—was the duty of removing ice from the common area of the Corporation’s housing project an exercise of its function of managing that project?

Further there is no authority which supports the proposition that the operational or mundane functions of management are excluded from the protection afforded by $. 11. If the default alleged relates to the function of management of the project then there is nothing to

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justify the suggestion that this is not a default in the execution of authority within the meaning of s. 11.

[Bradford Corporation v. Myers, [1916] 1 A.C. 242; McGonegal et al. v. Gray et al., [1952] 2 S.C.R. 274; Griffiths v. Smith, [1941] A.C. 170; Edwards v. Metropolitan Water Board, [1922] 1 K.B. 291; Clarke v .St. Helen’s Borough Council (1916), 85 L.J.K.B. 17 referred to.]

APPEAL from a judgment of the Supreme Court of Ontario[1] dismissing an appeal from a judgment of Henry J.[2] declaring that the six-month limitation period in The Public Authorities Protection Act applied to the respondent, Ontario Housing Corporation. Appeal allowed, Martland J. dissenting.

J. Edgar Sexton, for the appellant.

Duncan Finlayson, Q.C., for the respondents.

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

ESTEY J.—This appeal comes to this Court from a disposition by the Courts below of a point of law arising on the pleadings and placed before the Courts in interlocutory proceedings under Rule 124 of the Rules of the Supreme Court of Ontario. Rule 124 provides as follows:

Either party is entitled to raise by his pleadings any point of law, and by consent of the parties or by leave of a judge, the point of law may be set down for hearing at any time before the trial, otherwise it shall be disposed of at the trial.

For the purposes of this motion the parties have agreed that the facts are as pleaded in the Statement of Claim. These can be simply stated. The respondent, the Ontario Housing Corporation being a corporation without share capital established pursuant to The Ontario Housing Corporation Act, 1964 (Ont.), c. 76, re-enacted as The Ontario Housing Corporation Act, R.S.O. 1970, c. 317, is the owner of certain housing units located in Napanee Court situated in the City of Toronto, Province of Ontario and the appellant is a tenant occupying one of the housing units. The appellant

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while walking on a common area in this development slipped on some ice or accumulated snow and suffered injuries. The Writ of Summons was issued by the appellant more than 6 months after the date upon which the appellant suffered his injuries and the respondent takes the position that by reason of s. 11 of The Public Authorities Protection Act, R.S.O. 1970, c. 374, as amended by 1976 (Ont.), c. 19, the appellant’s claim is statute barred, the limitation period therein being 6 months.

The respondent owns the housing units in question pursuant to The Housing Development Act, R.S.O. 1970, c. 213, as amended by 1974 (Ont.), c. 31, (and 1976 (Ont.), c. 44, s. 2) specifically s. 6(2) thereof which provides as follows:

The Lieutenant Governor in Council may constitute corporations with such powers and duties as are deemed expedient to carry out any of the terms of any agreement made under subsection 1, or to carry out any building development or housing project, including power to plan, construct and manage any building development or housing project undertaken under any such agreement or otherwise, and including power to acquire and dispose of land in its own name. [Emphasis added]

It is convenient at this time to set out s. 11 of The Public Authorities Protection Act, supra:

No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.

The question of law put before the Court pursuant to Rule 124 is set out in the Notice of Motion as follows:

…whether the Defendant, Ontario Housing Corporation, is entitled to rely on s. 11 of The Public Authorities Protection Act.

The Court of first instance concluded that as the respondent is a “Crown agency” within the meaning of The Crown Agency Act, R.S.O. 1970, c. 100, it therefore is a public authority and is en-

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titled to rely on s. 11 of The Public Authorities Protection Act and consequently the appellant’s action was statute barred. In the course of his judgment Henry J. stated:

The point is concluded by s. 2 of The Crown Agency Act in providing that the corporation is for all its purposes an agent of Her Majesty and its powers may be exercised only as an agent of Her Majesty.

The Court of Appeal reached the same conclusion by another route. In that Court it was determined unanimously that even if the respondent is in law a Crown agency some of its duties and authorities are of such a nature that in respect of their exercise or discharge the Corporation is not entitled to invoke s. 11. Hence the Court of Appeal proceeded to what was said to be a second issue, namely “whether the alleged neglect or default of the Corporation was in the exercise of any statutory or other public duty”. The Court then went on to reach the conclusion that:

Management of housing units necessarily includes provision for the removal of ice and snow from the entrances and the common areas. This is a normal function of property management… The default in removing the ice or snow from the common areas was directly linked to the statutory power of the Corporation in this connection. The appellant was one of the members of the public for whose benefit the statutory authority in question was to be exercised. It was not a subsidiary activity of a non-public nature.

Accordingly, s. 11 of the Act extended to this situation and the limitation period having run, the appeal was dismissed.

The issue raised in this appeal turns upon the interpretation and interrelationship of s. 6(2) of The Housing Development Act and s. 11 of The Public Authorities Protection Act. The empowering provisions of s. 6(2) provide for the granting of “…such powers and duties as are deemed expedient to…plan, construct and manage any building development or housing project…”. These words would appear to be sufficiently broad to include virtually the entire range of executive and administrative activities in all of their operational facets and details in the establishment and operation of a housing facility. This provision must then be read

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in the light of the expression in s. 11 of The Public Authorities Protection Act”…an act done in…the execution…of any statutory or other public duty or authority…” so as to determine whether the protective net of s. 11 is thereby cast over the entire exercise of the power and duty to “plan, construct and manage” under s. 6(2); or alternatively extends only to those activities which have a public aspect as distinct from a private connotation.

The Court is here confronted with at least two possible, but quite different, interpretations of s. 11. The one would impose on all actions involving the execution of the powers undertaken pursuant to s. 6(2) of The Housing Development Act, however minor or miniscule, the protection of the limitation period established by s. 11. The imposition of this limitation period for this special class would have the direct result of producing two categories of housing units in the community; the one operated by persons having a statutory mandate to which a six month limitation period would extend; and the other operated by a person without statutory authority to which the general limitation period would apply. Of course both housing projects would appear identical in fact to the attending public whose rights are directly affected by the distinction.

The other interpretation of s. 11 open to the Court would limit the imposition of the six months limitation period to those aspects of the powers carried out under s. 6(2) having a public connotation and impact in contrast to the great volume of such actions undertaken on a private basis or with something less than a public connotation and impact.

Section 11, being a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated. There is little doubt about the presence of ambiguity and uncertainty of meaning in the section. This provision is found in a provincial statute which deals with a number of public officials

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including justices of the peace, constables, bailiffs, provincial judges and persons responding to a mandamus or mandatory order as well as other persons acting with reference to public order.

The section finds its origin in a statute of the United Kingdom enacted in 1893 and which has been before the courts frequently since that time (vide the Public Authorities Protection Act, 1893 (56 and 57 Vict. c. 61)). In the case of Bradford Corporation v. Myers[3], Lord Buckmaster L.C. in dealing with the position of a municipal corporation acting negligently in the course of delivering coke produced as a waste product in the course of the discharge of its statutory duty to supply gas to the district, stated at p. 247:

In other words, it is not because the act out of which an action arises is within their power that a public authority enjoys the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there arc duties and authorities which arc not public, and that in the exercise or discharge of such duties or authorities this protection does not apply. [Emphasis added.]

The Court proceeded to find that the municipal corporation was not protected by the limitation period because in selling the coke the corporation was not acting in the direct execution of the statute or its public duty or public authority thereunder but rather in a secondary role. It is interesting to note that the Court proceeded on the ground that the section applied only to public authorities although in its terms (and in the terms of s. 11 before this Court) the provision runs to the benefit of “any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority…”. It may be that this restrictive interpretation was placed upon the word “person” by reason of the title of the statute. The Interpretation Act of Ontario (R.S.O. 1970, c. 225) defines “person” as follows:

30.28 “person” includes a corporation and the heirs, executors, administrators or other legal representatives

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of a person to whom the context can apply according to law;

Section 11 therefore would appear to extend to persons corporate and unincorporate and in the case of the former whether established as a Crown agency or otherwise. However this Court is not required to determine the matter with finality since the respondent is clearly a Crown agency, whatever relevance and bearing that fact may have on the considerations raised by this appeal.

Section 11 was last before this Court in McGonegal et al. v. Gray et al.[4], wherein Rand J. on behalf of himself, Taschereau and Cartwright JJ. stated at page 287:

It is pointed out by Buckmaster L.C. that the language of the section implies that some authorized acts of public authorities are not “public”, although I do not take that to mean that under no circumstances could the entire authorized activities of a public authority be wholly of a public nature.

In that case the issue was whether or not the Board of School Trustees and the school teacher employed by them were protected by s. 11 and its limitation period in the case of a claim brought on behalf of a twelve year old student injured in the course of lighting a gasoline stove on the instructions of the teacher in order to warm up the teacher’s and perhaps some students’ lunches.

In disposing of the issue and in finding that the section did not apply Rand J. continued at p. 290:

But the act which resulted in the injury was not one in the course of executing any direct public purpose for the children: it had not yet reached any public aspect: it was a private act, under a private authority.

The Court was divided four to three with the dissent considering that s. 11 applied since the direction of the teacher formed a part of the discharge of the duties imposed upon her under The Public Schools Act, and hence the teacher

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was a public authority entitled to the same protection as the Trustees.

It was mentioned earlier that s. 11 finds its origin in the English Public Authorities Protection Act, 1893. There is, however, a difference between s. 1 of the 1893 legislation and s. 11 in that s. 11 includes the word “other” immediately before the expression “public duty”. In the English statute the inclusionary reference relates to “any statutory or public duty or authority…” whereas in the Ontario section the key words are “any statutory or other public duty or authority…”. [Emphasis added.] Adhering to the canon of statutory interpretation requiring the attribution of meaning to all words used in the statute if at all possible, one must assume that the insertion of the word “other” was done with deliberate legislative intent. In my view the word “other” as applied to public duty when that phrase appears in tandem with the expression “any statutory…duty” clearly contemplates the existence of both public statutory duties, and statutory duties without a public connotation, the latter being outside s. 11. Indeed it would appear that Rand J. in the McGonegal case, supra, recognized such a classification of functions when he stated:

The distinction made in Myers which confined the scope of the public service to those acts in direct performance of it, as contrasted with those of a private interest although incidental to the undertaking and authority as a whole, and in Clarke between primary and direct public acts and those which are subordinate or incidental to them, indicates the line of distinction for the purposes here.

It therefore follows that the reference in s. 11 to “any statutory or other public duty” applies in the context of s. 6(2) of The Housing Development Act to those aspects of the statutory powers and duties there established which have a public aspect or connotation, and does not comprehend those planning, construction and managerial responsibilities (to paraphrase s. 6(2)) which have a private executive or private administrative application or are subordinate in nature. To read the section otherwise would be to bring within the protective umbrella of the limitation imposed by s. 11 every aspect of the powers enunciated in s. 6(2)

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including operational matters, however insignificant in the spectrum of management activities for example, and would as already mentioned create different conditions of owner liability for two apparently similar housing facilities. Indeed, when urging such a reading of the section, counsel for the respondent candidly admitted that such was the result for which he was contending. When one interpretation can be placed upon a statutory provision which would bring about a more workable and practical result, such an interpretation should be preferred if the words invoked by the Legislature can reasonably bear it; and this is particularly so where the alternative interpretation will reduce the right of recovery of members of the public who suffer loss or injury.

The United Kingdom statute without the additional word “other” has been construed to the same end; that is to say statutory duties have been segregated into two classes, one being inherently public, the other having private connotations. The addition of the word “other” to the statute in my view removes any doubt a court might have had in construing the statute in this manner. Conditions in today’s community are of course vastly different from conditions existing in 1893 when the Act was first introduced. The interpretation I have adopted appears to be even more appropriate in the light of these changes, reflecting the greatly amplified role of the government and its agencies in the modern community, particularly in the conduct of industrial and commercial operations formerly carried on mainly by non-governmental entities.

The effect of construing s. 11 in this manner is to segregate the actions which the respondent might undertake in the course of exercising the powers and duties under s. 6(2) of its parent statute into two categories, the one being those actions which entail a public aspect or are inherently of a public nature and the other being a category of activities, including managerial, which are more of an internal or operational nature having a predominantly private aspect. The cases leave little doubt that the segregation of statutory powers into public and private categories is not an

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easy task (vide Griffiths v. Smith[5] per Lord Porter at p. 211; Bradford Corporation v. Myers, supra, per Lord Buckmaster at p. 250). Difficult or not, the task before this Court is to find the plain meaning of s. 11 in the light of the relationship of that statute with The Housing Development Act and to determine into which category the responsibilities herein in question must fall.

By the nature of the proceedings giving rise to this appeal, we do not have the benefit of a full evidentiary description of the actions taken by the respondent in the course of exercising its authority and duty to manage the housing project in question. The agreed statement of facts does, however, indicate that in connection with the operation of these several housing units the respondent contracted with the third party for the removal of snow from areas apparently under the control and certainly in the ownership of the respondent. For the purposes of this motion, it was assumed that the injury to the appellant was suffered by reason of the failure of the respondent or the third party on behalf of the respondent to remove the ice and snow from the area in question.

The powers and duties entrusted to the respondent (and for the purposes of these two statutory provisions I equate “powers” as the term is used in s. 6(2) of The Housing Development Act with “authority” as it is employed in s. 11 of The Public Authorities Protection Act), include the power “to plan, construct, and manage any building development or housing project undertaken…”. It is trite that in this context the terms “to plan, construct and manage” connote not only the overall right and duty for example, to preserve the assets of the corporation and to take such action from time to time as may be required to achieve the objective in the public interest, but also the operational and more mundane functions of management in its every detail, including the removal of garbage, cleaning of windows, letting and reletting of units becoming vacant, the cutting of grass, the financing and refinancing of mortgages registered against the units or some of them, and numerous other aspects of management large and

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small. In the spectrum of the exercise of its mandate under s. 6(2) the removal of snow by the respondent is a private and operational matter in contrast to those burdens of planning, construction and management of a housing complex which have a public character. It is something done every winter by almost every householder in Canada.

The obligation of management to afford continuous access to the premises during the winter is one which may be the subject of subcontracting to others either as a term of a lease or as a term of an independent contract. Management itself will, in a project of any scale, commonly engage an employee, a third party subcontractor, or a tenant for the discharge of this function which is primarily one whose performance is for the private benefit of the occupiers of the premises. It incidentally, of course, affects people having recourse to the premises as invitees, licensees, and perhaps even trespassers. Certainly, the public generally through such facilities as postal delivery, utility servicing, and the like, will to some extent be affected by the discharge of the snow-removal burden. Nevertheless, it is not one of the primary duties exercised in the public interest which quickly comes to mind when one contemplates the range of activities involved in the planning, construction and management of a housing complex located in Metropolitan Toronto or its environs. It is not, in my view, a phase of activity which has “a direct public purpose” or which has a “public aspect” in the words of the majority of this Court in the McGonegal decision, supra. It is predominantly in character a “subordinate” or “incidental” act or “of a private interest” to refer again to the words of Rand J. in that case.

It therefore follows that the actions and omissions of the respondent as they are said to have contributed to the injuries of the appellant are not amongst those “statutory and other public duties” which would be covered by the protective limitation period imposed by s. 11.

For the purposes therefore of resolving the motion brought by the appellant under Rule 124 of the Rules of Practice of the Supreme Court of

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Ontario, I would answer the question put in the Notice of Motion in the negative, namely that the respondent is not entitled to rely on s. 11 of The Public Authorities Protection Act. Nothing herein stated of course has any bearing or reference upon the ultimate rights and obligations of the parties to this litigation other than for the purpose of determining the answer to the specific question raised.

I would therefore allow the appeal, but because the parties have, by mutual agreement, sought to resolve the threshhold issue of the appropriate limitation period by invoking Rule 124 and because these preliminary proceedings will not determine the ultimate rights of the parties on the claims raised in this litigation, I would dispose of the issue of costs in the Court of first instance, the Court of appeal and in this Court as costs to the plaintiff in the cause.

MARTLAND J. (dissenting)—On September 3, 1975, the appellant filed a statement of claim against the respondents, Ontario Housing Corporation, hereinafter referred to as “the Corporation”, and Her Majesty The Queen in Right of the Province of Ontario. The writ had been issued in the same month. He alleged that the Corporation is established on behalf of the respondent, Her Majesty The Queen in Right of the Province of Ontario, and is an agent thereof.

The claim is for damages for personal injuries. The appellant alleged that he was the tenant of a housing unit at Napanee Court in Toronto, leased to him by the Corporation. He says that, on December 6, 1974, he slipped and fell on a patch of ice located on the common area of land, owned and occupied by the Corporation, surrounding its housing unit located on Napanee Court. The claim is based upon the alleged negligence of the respondents in respect of the maintenance of the area under their care and custody.

The respondents, by their statement of defence, inter alia, pleaded the provisions of s. 11 of The Public Authorities Protection Act, R.S.O. 1970, c. 374. That section provided that:

11. No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any

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statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of, or, in case of continuance of injury or damage, within six months after the ceasing thereof.

This action was commenced more than six months after the alleged default occurred.

The appellant then applied, pursuant to Rule 124 of the Rules of the Supreme Court of Ontario, to determine, as a point of law, whether the Corporation was entitled to rely upon that section. For the purposes of the application only, the facts alleged in the statement of claim were agreed upon. Both Courts below have held, though not for the same reasons, that the Corporation was entitled to the protection of the six month limitation period. The appellant, with leave, has appealed to this Court.

Howland J.A., who delivered the unanimous judgment of the Court of Appeal, said:

There are two issues requiring consideration in this appeal:

(a) does the Corporation fall within the class of persons entitled to protection by s. 11 of The Public Authorities Protection Act?;

(b) was the alleged neglect or default in the execution of any statutory or other public duty or authority?

Section 11 of The Public Authorities Protection Act was added to the Act in 1911 by 1 Geo. V, c. 22, s. 13(1). Previously the statute offered protection primarily to justices of the peace and constables. Despite the broad language of s. 11, it would seem to be clearly settled that the words “any person” in s. 11 only apply to public authorities. As Kerwin J. pointed out in McGonegal et al. v. Gray et al., [1952] 2 S.C.R. 274 at p. 282 in considering s. 11:

“The Ontario section is in substance the same as s. 1 of the British Public Authorities Protection Act, 1893, which has been considered in numerous cases in England, Scotland and Ireland. . . . The House of Lords noticed some of them in Bradford Corporation v. Myers, [1916] 1 A.C. 242, where it was finally decided that the word ‘person’ must be limited so as to apply only to public authorities.”

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In answer to the first question, the Court of Appeal held that the Corporation fell within the class of persons entitled to protection by s. 11. I agree with the reasons given for reaching that conclusion.

The main argument in this Court was in respect of the second question stated by Howland J.A. The appellant’s submission is that not every action of a public authority is within the ambit of the Act and that it is only when acting in pursuance of a public duty or authority that a public body is given protection under the Act. Acts of the public authority of a private nature, simply incidental to the direct performance of its main objects, are, it is contended, not protected, and, as the clearing of snow from its common area was not a duty specifically imposed on the Corporation, such activity is merely incidental to the performance of its objects.

The Corporation refers to s. 6(2) of The Housing Development Act, R.S.O. 1970, c. 213, which provides as follows:

6. (2) The Lieutenant Governor in Council may constitute corporations with such powers and duties as are deemed expedient to carry out any of the terms of any agreement made under subsection 1 or to carry out any housing project, including power to plan, construct and manage any housing project undertaken under any such agreement or otherwise, and including power to acquire and dispose of land in its own name.

Subsection (1) of s. 6 empowers the Crown in right of Ontario to make agreements with the Crown in right of Canada respecting joint projects as contemplated in the National Housing Act, 1954, S.C. 1953-54, c. 23. The Corporation contends that the removal of ice and snow from sidewalks and common areas surrounding the subject premises is a function of property and building management in the interests of the public at large, pursuant to the statutory power or authority conferred upon the Corporation.

The appellant, in support of his submission, relies upon the judgment of the House of Lords in

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Bradford Corporation v. Myers[6]. In that case, the defendants, a municipal corporation, were authorized by Act of Parliament to carry on the undertaking of a gas company and were bound to supply gas to the inhabitants of the district, and they were also empowered to sell the coke produced in the manufacture of the gas. The defendants contracted to sell and deliver a ton of coke to the plaintiff, and by the negligence of their agent the coke was shot through the plaintiff’s shop window. More than six months afterwards the plaintiff commenced an action of negligence against the defendants. The defendants pleaded s. 1 of the Public Authorities Protection Act, 1893, as a bar to the action.

The material portion of s. 1 provided:

Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect:

(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof:

These words are substantially the same as those contained in s. 11 of the Ontario Act. I do not see any significance, in respect of their interpretation, in the fact that the English Act refers to “any Act of Parliament, or of any public duty or authority”, while the Ontario Act speaks of “any statutory or other public duty or authority”. [The emphasis is mine.] Both of these Acts contemplate the execution of a public duty or authority as well as the execution of a statute. The word “other” in the Ontario Act merely emphasizes this.

It was held that the act complained of was not done in the direct execution of a statute or in the

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discharge of a public duty or the exercise of a public authority and so the Public Authorities Protection Act, 1893 (U.K.), afforded no defence to the action.

The appellant relied upon the words of Lord Buckmaster, L.C., at p. 247:

In other words, it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply.

Lord Buckmaster went on to add:

This distinction is well illustrated by the present case. It may be conceded that the local authority were bound properly to dispose of their residual products; but there was no obligation upon them to dispose by sale, though this was the most obvious and ordinary way. Still less was there any duty to dispose of them to the respondent. No member of the public could have complained if the respondent had not been supplied; nor had any member of the public the right to require the local authority to contract with him.

The act complained of arose because one of the servants of the appellants, acting in the course of an errand on which they had power to send him, but on which they were not bound in the execution of any Act or in the discharge of any public duty or authority to send him, in breach of his common law duty to his fellow citizens, caused damage by his personal negligence.

In Edwards v. Metropolitan Water Board[7], the Court of Appeal had to deal with the application of the Public Authorities Protection Act, 1893, to a case in which the plaintiff had been injured by a lorry used by the defendant to convey pipes from a central depot to a district depot and to bring back empty casks and drums, which had contained oil, from the district depot to the central depot. The

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plaintiff was injured while the truck was on its return journey. The defendant was under a statutory duty to supply water to the inhabitants of a certain area. It had a number of pumping, filtering and storage depots which had to be supplied with materials for the repair and extension of its pipeline system. Main pipes had to be replaced from time to time when the pipes burst.

The Court held that the defendant could rely upon the Public Authorities Protection Act, 1893. The plaintiff had relied upon Bradford Corporation v. Myers. Bankes L.J., in the following passage dealt with this submission:

The question in this case is whether the act of sending this lorry on its journey was an act done in pursuance or execution or intended execution of the statutes which impose upon the respondents their duties, or in execution of a public duty. The main duty of the respondents is to supply water for the public living and carrying on business within their area; but there are many duties incidental to that main duty, and one of these is a duty to keep and maintain their pipes in proper working condition. Consider the various operations necessary to the direct execution of their main duty. A trench must be cut in order to lay a main pipe. In order to lay a new pipe or repair an old one, a man must carry a pipe some short distance, perhaps from a stack of pipes, in order to place it in position. By some means pipes must be conveyed from the manufactory, or from the respondents’ stock, to the point where they are required. No one could deny that each of these operations is in direct execution of the respondents’ statutory duty. If a pipe bursts which must be replaced immediately, and a lorry is sent hurriedly from Battersea with a single pipe, it is not disputed that it would be sent in direct execution of the respondents’ duty. Then if they in the exercise of a reasonable and prudent discretion think it necessary to keep a store of pipes at each of their depots, is not the vehicle which conveys the pipes to the stores to replenish the stock sent in exercise of the respondents’ statutory duty? In my opinion it is impossible to distinguish between sending a vehicle expressly to take a pipe to a place where a main pipe has burst, and sending a vehicle with a number of pipes to replenish a store so that main pipes which have burst may be immediately or quickly repaired. Therefore in my opinion the learned judge was justified upon the materials before him in arriving at his conclusion.

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Mr. Shakespeare contended that if in Bradford Corporation v. Myers ([1916] 1 A.C. 242) the corporation had been moving coke from their gas works in order to get rid of it, and so remove an impediment in the way of executing their statutory duty of supplying gas, the decision of the House of Lords must still have been for the plaintiff. There I join issue. In my view if the corporation had been moving the coke in order to clear their gas works that they might better fulfil their statutory duty the decision of the House of Lords would have been the other way. The basis of the decision was that the plaintiff had entered into a contract with the corporation for the supply of coke and that the damage was done in the course of supplying coke under that contract. The House of Lords drew a distinction between damage done in the direct execution of a public duty or power and damage done in acting on a mere permission or licence to do an act which the public have no right to demand under statutory authority; and they applied the expression “direct” to distinguish between supplying gas, which the corporation was bound to do, and making a contract for the sale of coke which the corporation might, but need not make.

Scrutton L.J., at p. 306, said:

If I am asked whether a lorry conveying pipes and stores to a district depot and removing empty receptacles from a district depot, or even returning empty, is being employed in the direct execution of the respondents’ statutory duty, I say, having carefully read Bradford Corporation v. Myers, that it clearly is. I cannot distinguish between conveying pipes for repairs and oil for pumping-engines; or between conveying full drums of oil to a store and removing empty drums from a store. Each of these acts seems to be a direct execution of the respondents’ duty; because in my view the direct execution of the duty includes all incidental acts reasonably necessary for the execution of the duty. This view is not inconsistent with Bradford Corporation v. Myers, and is in accordance with several decisions in the Court of Appeal cited in Myers’s Case and not disapproved by the House of Lords in that case.

The application of the same Act was again considered by the House of Lords in Griffiths v. Smith[8]. The managers of a non-provided public elementary school, a statutory body created by the

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Education Acts, issued invitations to, among others, the appellant to attend an exhibition on the school premises of work done by the pupils, one of whom was the appellant’s son. While this display was in progress the floor of the room collapsed and the appellant suffered severe injuries in respect of which she sued the managers.

It was held that the managers were a public authority and that the authorization of the display on the school premises was an exercise by the managers of their functions as such. The neglect of the managers in respect of the floor was a neglect in the exercise of their statutory duty.

Viscount Simon, L.C., stated what he considered to be the true test to determine whether a public authority is entitled to rely upon the Public Authorities Protection Act, 1893, and, in so doing, he made reference to the Myers case. At p. 179 he said:

Lastly, was the action of the managers in authorizing the invitations to this school‑display an act done in the execution of their statutory duty or authority? It was strenuously contended for the appellants that this action was “voluntary” in the sense in which the sale of coke in the Bradford Corporation case ([1916] 1 A.C. 242) was voluntary. It is true that St. Clement’s school could have been carried on without arranging to hold this display. But that is not the true test. The real question is whether the managers, in authorizing the issue of invitations to the display on the school premises after school hours, should be regarded as exercising their function of managing the school. To apply the distinction indicated by the Master of the Rolls, was the managers’ action “something incidental to, part of, the process of carrying on” their statutory duty? Both the trial judge and the Court of Appeal took the view that in this matter the managers were doing an act which formed part of the operation of carrying on a public elementary school.

This Court dealt with the same issue on an appeal from the Court of Appeal for Ontario involving s. 11. The case is McGonegal et al. v. Gray et al.[9] The facts of this case were as follows. The appellant trustees by virtue of The Public Schools Act (Ont.) conducted a public school at

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which the respondent Charles Gray, a 12-year-old boy, was a pupil and the appellant McGonegal was a teacher. For the purpose of heating soup, the boy was instructed by the teacher to light a gasoline stove, the property of the appellant trustees. In attempting to do so he was severely burned.

The majority of the seven man Court held that the trustees could not invoke the protection of s. 11. Taschereau, Rand and Cartwright JJ., were of the opinion that the act which caused the injury was not one in the course of exercising any direct public purpose for the children. It was an authorized act in a private aspect and therefore the Act did not apply. Reference was made to the Griffiths case, the Myers case and Clarke v. St. Helen’s Borough Council[10].

Rinfret C.J., Kerwin and Estey JJ., were all of the view that the case was within the decision in the Griffiths case. The soup was to be used by some of the children and the use of the stove, provided by the trustees, for the purpose of heating soup provided by them to be partaken of by the children, as well as by the teachers, was an act in the intended execution of their statutory duty, which included, as well as teaching, attention to the health and comfort of the pupils.

Locke J., while holding that s. 11 did not apply, did so only because he interpreted the facts as showing that the teacher intended the soup to be heated for her own use and not for the children. Had it not been for this conclusion, he clearly indicates that he would have held that s. 11 would apply. He said, at p. 297:

If in fact the teacher had intended to prepare a meal for the children, in accordance with the practice that had been followed during the previous winter on the instructions and with the approval of the trustees, I think s. 11 would bar the action. It is not, however, in the view that I take of this matter, necessary to decide the point.

In my opinion, the test to be applied in the present case is the same as that stated by Lord

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Simon, L.C., in the Griffiths case. Was the duty of removing ice from the common area of the Corporation’s housing project an exercise of its function of managing that project? In my opinion it was. The appellant’s claim alleges negligence in the maintenance of the area under the Corporation’s care and custody. Subsection 6(2) of The Housing Development Act empowered the Corporation to “manage any housing project”. Maintenance of the housing project was a part of that management and, consequently, default in the execution of that authority falls within s. 11.

I find no authority which supports the proposition that the operational or mundane functions of management are excluded from the protection afforded by s. 11. If the default alleged relates to the function of management of the project, then, in my opinion, there is nothing to justify the suggestion that this is not a default in the execution of authority within the meaning of s. 11.

I would dimiss the appeal with costs.

Appeal allowed with costs, MARTLAND J. dissenting.

Solicitors for the appellant: Holden, Murdoch, Walton, Finlay, Robinson, Toronto.

Solicitors for the defendants, respondents: Kingsmill, Jennings, Toronto.

Solicitors for the third party, respondent: Borden & Elliot, Toronto.