Jobin v. City of Thetford Mines, [1925] SCR 686

Supreme Court of Canada

Jobin v. City of Thetford Mines, [1925] S.C.R. 686

Date: 1925-06-18

Napoleon Jobin (Plaintiff) Appellant;

and

The City of Thetford Mines (Defendant) Respondent.

1925: June 2; 1925: June 18.

Present: Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Municipal corporation—Action in damages—Statutory notice before suit—Sufficiency—(Q.) 13 Geo. V, c. 65, s. 611

The appellant took an action to recover damages to his mill property caused by flooding alleged to be due to an obstruction of the natural flow of the waters of the River Bécancourt by the piers of a bridge constructed by the respondent corporation. Section 5684 of the Revised Statutes of Quebec (now 13 Geo. V, c. 65, s. 611) prescribes that a person who would recover damages from a municipal corporation for injury caused to his property shall within 30 days from the date of the occurrence of such injury give notice in writing to the clerk of the municipality "containing the particulars of his claim." The day after the flooding of which he complains, the appellant caused a letter to be written by his attorney to the secretary-treasurer of the respondent corporation informing it of his claim for damages exceeding $2,000 suffered by him "dans son moulin."

Held, that the notice given by the appellant was a sufficient Compliance with the statute as to damages caused by the flooding to the mill property itself and to its appurtenances.

APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec, varying the judgment of the Superior Court by reducing the amount of damages awarded to the appellant from $979.45 to $689.

The material facts of the case and the questions at issue are fully stated in the above head-note and in the judgment now rejected.

F. Roy K.C. for the appellant.

Galipault K.C. and A. Girouard for the respondent.

The judgment of the court was delivered by

Anglin C.J.C.—This is an action to recover damages to the plaintiff's mill property caused by flooding alleged to be due to an obstruction of the natural flow of the waters of the River Bécancourt by the piers of a bridge constructed by the defendant corporation. The plaintiff claimed $4,000. In the Superior Court he recovered judgment for $979.45. The defendants appealed denying their liability; the plaintiff also appealed claiming the award to be insufficient. By

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a majority judgment the Court of King's Bench reduced the plaintiff's recovery to $689. From this judgment both parties appealed independently to this court. On motion the defendant's appeal was quashed for want of jurisdiction. The plaintiff's appeal, in which he now demands that the judgment in his favour be increased to $2,816.42, was heard.

The finding of the Superior Court that the flooding was due to a narrowing of the river channel by the piers of the bridge constructed by the defendant, affirmed unanimously by the Court of King's Bench, appears to be supported by sufficient evidence to put interference with it by this court out of the question. The sufficiency of the amount allowed for damages is, therefore, the only matter to be considered.

Section 5684 of the Revised Statutes of Quebec (13 Geo. V, c. 65, s. 611) prescribes that a person who would recover damages from a municipal corporation for injury caused to his property shall within 30 days from the date of the occurrence of such injury give notice in writing to the clerk of the municipality "containing the particulars of his claim." The day after the flooding of which he complains, the plaintiff caused a letter to be written by his attorney to the secretary-treasurer of the defendant corporation informing it of his claim for damages exceeding $2,000 suffered by him "dans son moulin." With the view of the Court of King's Bench that the notice given by the plaintiff was a sufficient compliance with the statute as to the damages claimed for injury to the mill and such things as may reasonably be considered as incidental or appurtenant thereto, we are in accord. The legislature did not intend that there should be a detailed account of the items of the damage. The purpose of the notice was to give the municipal corporation such knowledge of the claim in respect of which it was given as would enable it to make the necessary inquiries to ascertain, within a reasonable time after the claim arose, the basis of it and the material facts and circumstances affecting the corporation's liability. The notice, therefore, was properly treated as sufficient to support a claim for liability for damages caused by the flooding to the mill property itself and to its appurtenances.

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The plaintiff's damages as now formulated are particularized as follows:

A. Cost of restoring the mill, $225.

B. Damages to flume, $300.

C. Loss of time, $100.

D. Damages to electric motor, $64.65.

E. Cost of new motor, $400.

F. Temporary repairs to mill, $176.97.

G. Damages to revêtement wall and for levelling ground, $1,450.

H. Damages to cellar and garden, $100.

Total, $2,816.42.

Items A, B, C and D were allowed by the Court of King's Bench, with the exception of forty-five cents in item D, which may obviously be regarded as falling within the maxim "de minimis." These four items, therefore, need not be further inquired into. It may be remarked, in respect of item B, that the Superior Court allowed only $200. The evidence, however, appears to warrant the increase made by the Court of King's Bench.

Item E: The ground on which this claim was disallowed was that the repairs covered by item D, when made, put the motor in good running order, and that the fact that it had really been destroyed and made useless by the flooding only developed after the action was brought. With great respect, that does not seem to be a proper ground for disallowing the item. If, in fact, the flooding so completely destroyed the motor that it could not be repaired and made fit for permanent use without an expenditure of $400, which would be the cost of a new motor, the cause of action for that damage arose at the time of the flooding, although its existence only became apparent subsequently. The decision of this court in Finlay v. Howard[1], establishes that such damages are recoverable. The evidence of the witness Lefebvre makes it clear that this expense will be necessary. On the other hand, however, although the motor which the plaintiff had was comparatively new—the evidence does not disclose how long it had been in actual use—it was in fact worth something less than a new motor would be. Moreover, as the motor proved to

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be of no value, the expenditure of $64.45 for repairs was money thrown away. Deducting this amount, therefore, and an allowance for depreciation in the value of the motor owing to its use up to the time of the flooding—which must at best be an approximation—we think that if the plaintiff recovers, in addition to the $64 already allowed, $275 towards the cost of a new motor, he will be compensated as fully as is reasonable.

Item F: The plaintiff has been allowed, in item A, the cost of restoring the mill; in this item he claims in addition $176.97 for temporary repairs to the mill. It is by no means clear on the evidence that the $225 estimated by the witnesses Couture and Breton as the cost of restoration did not include what was done by way of temporary repairs. Mr. Justice Bernier would allow on this account $161.47. On the whole, the proper conclusion seems to be that the plaintiff has not so clearly established that this expense was outside what is covered by the item of $225 already allowed that we would be justified in reversing the decisions of the Superior Court and of the Court of King's Bench, by both of whom it was rejected.

Item G: This is the most substantial claim made—$1,450 for damages to the revêtement wall and for levelling the ground. It is apparent from the plan that the revêtement wall is some distance from the mill. The evidence shews that it was built by the city for the protection of the highway. Moreover it is at least very doubtful whether it could in any case properly be regarded as so appurtenant to, or connected with the mill that the attention of the municipality would be drawn to a claim in respect of injury to it by a notice claiming damages for injury suffered by the plaintiff "dans son moulin." In respect of this item the purpose of the requirement of the notice was probably not attained. The evidence in regard to the claim for levelling is most unsatisfactory. The trial judge allowed $300 in this connection "pour dommages dans la cour du moulin et les accessoires." The judges of the Court of King's Bench unanimously disallowed this item in toto. The evidence does not enable us to say that in doing so they were clearly wrong.

The same observations apply to item H. The cellar and garden are appurtenant to the residence and in no way appurtenant to the mill.

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In the net result, therefore, we would increase the award made by the Court of King's Bench in favour of the plaintiff by the sum of $275, making his total recovery $964. He should have his costs of the appeal to this court; but the disposition of costs made by the Court of King's Bench will not be disturbed.

Appeal allowed with costs.

Solicitors for the appellant: Taschereau, Roy, Cannon, Parent & Taschereau.

Solicitor for the respondent: A. Girouard.