The Queen v. Fillion, (1895) 24 SCR 482

Supreme Court of Canada

The Queen v. Filion (1895) 24 SCR 482

Date: 1895-03-11

Her Majesty The Queen (Respondent)

Appellant

And

Odilon Filion (Suppliant)

Respondent

1894: Nov. 8; 1895: Mar. 11.

Present:—Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick and King JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Crown—Negligence of servants or officers—Common employment—Law of Quebec—50 & 51 V. c. 16, s. 16 (c).

A petition of right was brought by F. to recover damages for the death of his son caused by the negligence of servants of the Crown while engaged in repairing the Lachine Canal.

Held, affirming the decision of the Exchequer Court, Taschereau J. dissenting, that the Crown was liable under 50 & 51 V. c. 16, s. 16 (c); and that it was no answer to the petition to say that the injury was caused by a fellow servant of the deceased, the case being governed by the law of the province of Quebec in which the doctrine of common employment has no place.

Appeal from a decision of the Exchequer Court of Canada[1] in favour of the suppliant.

The suppliant, by his petition of right, sought to recover damages for the death of his son who was killed by the falling of a derrick in use at the Lachine Canal where repairs were being made. The defence was a denial of negligence, and that the injury was caused by a fellow servant of the deceased. The Exchequer Court held that the injury was due to the negligence of the superintendent of the canal and foreman of the work, and that the doctrine of common employment had no place in the law of the province of Quebec where the injury complained of occurred. The Crown appealed.

Hogg Q.C. for the appellant.

Monk Q.C. and Coderre for the respondent.

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THE CHIEF JUSTICE.—I have not prepared a judgment in this case, as I entirely agree with the reasons given by the learned judge of the Exchequer Court for the conclusion that the Crown was liable. The question of jurisdiction is precluded by the decision of this court in The Queen v. City of Quebec[2]. On the merits two points were argued, first, whether or not negligence was established, and, secondly, if it was, were the suppliant and the servants of the Crown guilty of negligence in a common employment? The evidence as to negligence is clear, and I agree with the learned judge of the Exchequer Court that the doctrine of common employment has no place in the law of the province of Quebec. I therefore reject both grounds of appeal.

TASCHEREAU J.—I dissent. I would allow the appeal, and dismiss the petition of right on the ground that it is still the law of the land, as held in The Queen v. McLeod[3], that the rule respondent superior does not apply to the Crown.

GWYNNE J.—It is unnecessary, in my opinion, to discuss the questions whether a petition of right could have been maintained in a case like the present prior to the passing of the Dominion statute 50 & 51 Vic. ch. 16, or how far the judgment of their Lordships of the Privy Council in the case of the Windsor & Annapolis Railway Co. v. The Queen[4], has shaken the ancient doctrine that the subject had no remedy against the Crown for torts committed by its servants, for I am of opinion that the language of the above Dominion statute is sufficient to give to persons suffering injury in person or property on any public work resulting from the negligence of any officer or servant of the Grown while acting within the scope of his duties or

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employment, a right to redress, even though they may have had none before, such redress being sought for in the Court of Exchequer.

The only question raised by the argument in appeal which is necessary to be determined in the present case, in my opinion is, whether the persons whose negligence (as the learned judge of the Exchequer has, as a matter of fact found) caused the death of the young man for whose death the proceeding by petition of right has been instituted by his father, came within the description of the persons named in subsection c of sec. 16 of the above Act, that is to say, “officers or servants of the Crown acting within the scope of their duties or employment,” and I am of opinion that they do.

I cannot see anything in the evidence which would justify me in pronouncing the judgment of the learned judge of the Exchequer Court to be erroneous upon the matter of fact found by him that the death was caused by their negligence or the negligence of one of them.

No objection was taken to the effect that to qualify the father to maintain the petition of right he should have been shown to have taken out letters of administration and have been a suppliant in the character of personal representative of the deceased, and as no objection was taken upon that point, I do not deal with it; dealing with the case as argued I am of opinion that the appeal must be dismissed.

SEDGEWICK J.—This appeal was asserted before the decision of this court in The City of Quebec v. The Queen[5]. An important question involved in that case was as to the construction that was to be given to the Dominion statute 50 & 51 Vic. ch. 16, section 16, paragraph c, which enacts that:

The Exchequer Court shall have jurisdiction for any claim against the Crown arising out of any death or injury to the person or to property on any public work, resulting from the negligence of any officer

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or servant of the Crown while acting within the scope of his duties or employment.

It had been contended by the Crown that that section did not create a liability but only gave jurisdiction in claims against the Crown existing aliunde that statute. In The City of Quebec v. The Queen[6], as well as in several other cases, the Court of Exchequer had decided against the Crown’s contention, and my learned brother Gwynne in delivering the judgment of the court (since this case was argued), says:

The object, intent and effect of the above enactment was, as it appears to me, to confer upon the Exchequer Court in all cases of claim against the Government, either for the death of any person or for injury to the person or property of any person committed to their charge, upon any railway or other public work of the Dominion under the management and control of the Government, arising from the negligence of the servants of the Government acting within the scope of their duties or employment, upon such public work, the like jurisdiction as in like cases is exercised by the ordinary courts over public. companies and individuals.

I consider myself bound by that judgment, and if so the principal ground of this appeal has disappeared.

I entirely concur in the view which was taken by the learned judge below upon the facts. In my view there was negligence on the part of the officers of the Crown in not testing the strength and capacity of the derrick which caused the injury before it was put into operation, and it is further clear, as pointed out by the learned judge in the court below, that the doctrine of collaborateur, until recently the law of England and of Ontario, does not obtain in the province of Quebec.

I am therefore of opinion that the appeal must be dismissed with costs.

KING J.—Concurred.

Appeal dismissed with costs.

Solicitors for the appellant: O’Connor & Hogg.

Solicitors for the respondent: Primeau & Coderre.