Anctil v. City of Quebec, (1903) 33 SCR 347

Supreme Court of Canada

Anctil v. City of Quebec, (1903) 33 SCR 347

Date: 1903-05-26

STEPHANIE ANCTIL (PLAINTIFF)

Appellant;

And

THE CITY OF QUEBEC (DEFENDANT)

Respondent.

1903: May 26

PRESENT :—Sir Elzéar Taschereau C. J. and Sedgewick, Girouard, Davis and Nesbitt JJ.

ON APPEAL FROM THE SUPERIOR COURT, SITTING IN REVIEW, AT QUEBEC.

Assessment of damages—Reservation of recourse for future damages—Expropriation —Res judicata—Right of action.

A lessee of premises used as an ice house recovered indemnity from the city for injuries suffered in consequence of the expropriation of part of the leased premises and, in his statement of claim. had specially reserved the right of further recourse for damages resulting from the expropriation. In an action brought after his death by his universal legatee to recover damages for loss of the use of the ice-house during the unexpired term of the lease :

Held, affirming the judgment appealed from, that the reservation in the first action did not preserve any further right of action in consequence of the expropriation and, therefore, the plaintiff s action was properly dismissed by the courts below, a?, in such cases, all damages capable of being foreseen must be assessed once for all and a defendant cannot be twice sued for the same cause The City of Montreal v. McGee (30 Can. S. C. R. 582), and The Chaudière Machine and Foundry Co v The Canada Atlantic Railway Co (33 Can.S.C. R.11) followed

APPEAL from the judgment of the Superior Court, sitting in review, at Quebec, affirming the judgment of the Superior Court, District of Quebec, dismissing the plaintiffs action with costs.

The "plaintiff's deceased husband leased an ice-house for nine years from the 30th April, 1899, by deed of lease dated 7th January, 1899. On 4th January, 1901, the City of Quebec took possession of a portion of the leased premises for public purposes under expropriation

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proceedings previously taken in virtue of powers conferred by the city charter and the lessee brought action against the city for $5,000 damages as indemnity for injures suffered by him as tenant of the leased property on account of such expropriation, with special reservation of his recourse for other damages. On 29th June, 1901 he was awarded $350 damages and this judgment was affirmed on appeal by the Court of King's Bench. The appellant, after her husband's death, brought the present action, as his universal legatee and testamentary executrix, claiming $7,000 damages for loss of the use of the leased property during the unexpired term of the lease. The respondent pleaded res judicata. The trial judge maintained that plea and dismissed the action with costs. The Court of Review affirmed this judgment and the plaintiff appealed to the Supreme Court of Canada.

Belcourt K.C. and Beaubien KG. for the appellant. Sir Alphonse Pelletier K. C. for the respondent.

THE CHIEF JUSTICE (Oral) are all of opinion that this appeal should be dismissed with costs. In view of the express reservation in his first action of the claim for the damages upon which his present action is grounded, the appellant may be night m his contention that the judgment a quo is wrong in holding that there is resjudicata as to such damages by the judgment in that action. He cannot, however, succeed upon this his second action and it was rightly dismissed by the Court of King's Bench, affirming the Superior Court ; and this we hold upon the ground that his damages had to be assessed once for all and that the law gave him only one action therefor. if he did not include them all in his first action, he must suffer the consequences of his failure to do so. They

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then were all known to him and were not unforeseen, if that were material. His reservation of the right to a second action was illegal and can be of no avail to him, though prescription cannot be invoked against him. The law protects the defendant from being twice sued for the same cause. The city of Montreal v. McGee ([1]); The Chaudière Machine and Foundry Co v. The Canada Atlantic Railway Co. ([2]) and the cases there cited * Lambkin v. The South Eastern Railway Co. ([3]); Cripps on Compensation, (4 ed.) p. 138.

Appeal dismissed with costs

Solicitors for the appellant: Bernier & Beaubien.

Solicitors for the respondent: Pelletier & Chouinard.