Piggot v. The King, (1916) 53 SCR 626

Supreme Court of Canada

Piggot v. The King, (1916) 53 S.C.R. 626

Date: 1916-06-19

John Piggott and Sons (Suppliants) Appellants;

and

His Majesty the King (Respondent) Respondent.

1916: June 5; 1916: June 19.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Crown—Negligent—Injury to "property on public work" —Jurisdiction —R.S.C. [1906] c. 140, s. 20 (b) and (c).

To make the Crown liable, under sub-sec. (c) of section 20 of the "Exchequer Court Act" (R.S.C. [1906] ch. 140), for injury to property, such property must be on a public work when injured. Chamberlin v. The King (40 Can. S.C.R. 350) and Paul v. The King (38 Can. S.C.R. 126) followed. Letourneau v. The King (33 Can. S.C.R. 335) overruled.

Injury to property by an explosion of dynamite on property adjoining a public work is not "damage to property injuriously affected by the construction of a public work" under sec. 20 (b) of the Act.

APPEAL from a judgment of the Exchequer Court of Canada dismissing the suppliants' Petition of Right.

Servants of the Crown engaged in building a cement dock on the Detroit River caused damage to suppliants' dock adjoining the work by their blasting operations. The suppliants claimed damages by Petition of Right, which was dismissed by the Exchequer Court for want of jurisdiction. They then appealed to the Supreme Court of Canada.

W. L. Scott for the appellants referred to Letourneux v. The King[1]

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Newcombe K.C. for the respondent cited Paul v. The King[2]; Chamberlin v. The King[3].

The Chief Justice.—The appellants brought their Petition of Right to recover damages against the Crown for injuries alleged to have been caused to their dock through negligence in the course of the work of constructing a public dock 100 feet from the premises of the petitioners.

The "Exchequer Court Act" provides, section 20 (so far as material) :—

The Exchequer Court shall also have exclusive original jurisdiction to hear and determine the following matters:—

(a) Every claim against the Crown for property taken for any public purpose;

(b) Every claim against the Crown for damage to property injuriously affected by the construction of any public work;

(c) Every 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 or servant of the Crown, while acting within the scope of his duties or employment.

At the trial it was pointed out by the Judge of the Exchequer Court that, excepting by statute, the Crown was not liable for wrongs committed by its servants, and that section 20 (c) of the "Exchequer Court Act," the only statutory provision imposing such liability, did so only in the case of injury to property on any public work.

The appellants now seek to rest their case upon section 20 (b) of the Ad. This, however, is to confuse two kinds of action of entirely different nature. Paragraphs (a) and (b) of section 20 are dealing with questions of compensation, not of damages.

Compensation is the indemnity which the statute provides to the owner of lands which are compulsorily

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taken in, or injuriously affected by, the exercise of statutory powers.

For acts done in pursuance of statutory powers there can be no damages, for, the acts being made lawful by the statute, the doing of them can occasion no wrong. For loss occasioned by the doing of such acts compensation is the remedy provided by statute.

It is clear that in the case of a private company or individual committing such acts as those alleged in the petition of right, the appellants would have had their remedy in an action for damages. The Crown, however, cannot be sued for what would, between subjects be a wrong done, except in so far as provided by statute.

It follows that the appellants cannot establish a claim either to compensation under paragraph (b) or to damages under paragraph (c) of section 20 of the "Exchequer Court Act," and their action accordingly fails.

The appeal must be dismissed with costs.

Davies J.—I think this appeal must be dismissed with costs as being directly within the construction of the "Exchequer Court Act" laid down by this court in the cases of Paul v. The King[4] and Chamberlin v. The King[5].

Idington J.—When the "Petition of Right Act," 1875, 38 Vict. ch. 12, was passed, it recited the expediency of making provision for proceeding by way of petition of right, and to assimilate the proceedings on such petitions, as well as in suits by the Crown, to the

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course of practice and procedure in force in actions and suits between subject and subject.

It enacted by the first clause thereof that the petition should set forth with convenient certainty the facts entitling the suppliant to relief.

That held out a very comprehensive purpose of relief, but by section 8 there was, in a section that began in an equally comprehensive spirit outlining the practice and procedure to be applied, the following proviso:—

Nothing in this Act shall be construed to give to the subject any remedy against the Crown, in any case in which he would not have been entitled to such remedy in England under similar circumstances by the laws then in force there prior to the passing of the Imperial statute, 23 and 24 Victoria chapter 34, intituled, "An Act to amend the law relating to Petitions of Right to simplify the proceedings and to make provisions for the costs hereof."

It was intended by other parts of that Act to execute its purposes by and through the ordinary courts of the province. In consequence of the establishment of this court immediately after such enactment, combined with a power of exercising the functions of an exchequer court, that Act was repealed by 39 Vict. ch. 27, sec. 1. And the jurisdiction to try such Petitions of Right was allotted to the Exchequer Court.

By section 19 of that statute, there was, amongst other things, enacted that it was not to give to the subject any remedy against the Crown save in such cases as embraced in above quoted proviso.

By the later development of the jurisdiction of the Exchequer Court, when separated from this court, it so turned out that the limits of relief under the "Petition of Right Act" were confined to the jurisdiction given that court.

Indeed, it has inadvertently, as I submit, been sometimes said that court had been given not only a jurisdiction,

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but that its provisions created a right to relief as well as supplied a remedy.

The measure of relief intended by the "Petition of Right Act" was, I think, wider than that jurisdiction, but, inasmuch as the jurisdiction given in the Exchequer Court was the only jurisdiction to try any such claims, the only practical relief given was that assigned by the said "Exchequer Court Act."

The result has been to limit by the jurisdiction given the only relief, and that is less than, though probably intended to be coterminous with, the relief given in the Imperial Act above quoted.

It would be impossible properly to extend the express language of the jurisdiction given, by means of any section denying the right to be greater than something else.

The absurdity has continued for many years, and probably justice has often been thereby denied.

The sub-section (c) of section 2 of the "Exchequer Court Act" under which the appellant seeks relief reads as follows:—

(c) Every 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 or servant of the Crown while acting within the scope of his duties or employment.

This case illustrates what a stupid enactment this is.

The words therein, "on any public work," rendered it impossible, in the case of Chamberlin v. The King[6], for us to interfere, solely because the injury, if any, was done to property a long distance from the place where the public work existed from which it was said the cause of the destruction of suppliant's property originated.

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The cause of the ir jury there in question was alleged to be the issuing of fire from an improperly constructed or guarded smoke stack.

The court below had therein found there was, in fact, no well-grounded cause of complaint, but the suppliant had a right to have us rehear the case and determine the merits of the appeal if there had been jurisdiction in the Exchequer Court.

He was in law properly refused, and the decision was put, I suspect, upon the ground of jurisdiction alone not only as a proper way of disposing of the appeal, but a means of bringing home "to others the actual condition of the law.

The learned trial judge herein has followed, properly as I conceive, that decision.

This case illustrates how absurd and barbarous the law is.

If counsel for the suppliant states correctly the facts, then the servants of the Crown negligently used dynamite in such a way as to blow up a pier belonging to the suppliant.

The property owned by the suppliant and by the Crown formed at the time parts of a long pier, of which it was desired by the Crown to destroy part of that which it had acquired and, in doing so, unintentionally, I assume, destroyed part of that same work which had passed into the suppliant's possession.

What right would any private owner ever imagine he could have to use dynamite under such circumstances until he had severed clearly and completely the connection between the properties so that there could be no risk of such consequences as alleged?

However that may be in fact, there can be no question that, under the plain language of the sub-section,

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dynamite or other explosive might be so used on such a property as to smash to pieces men and property lawfully beside it, and neither owner nor representative could recover for such damages.

The men guilty might be prosecuted criminally and sent to prison, but civil damages there could be none recoverable under this sub-section (c).

And all that, I suspect, comes of someone confusing provisions relative to Crown property found in the statutes preceding this with other subject matters that had to be provided for.

I cannot put the construction Mr. Scott asks us to put on the word "construction" in the preceding subsection, and get out of the difficulty that way.

It was destruction the respondent's servants were engaged in, and not even construction in a sense different from that for which I think the word stands as I read it in sub-section (b).

I respectfully submit that the sooner the probably misplaced words, "on any public work," are stricken out of sub-section (c) the better.

I think the appeal must be dismissed, but should we give costs? I think not.

Anglin J.—I respectfully concur in the reasons assigned by the learned judge of the Exchequer Court for dismissing this action. Since the decisions in Chamberlin v. The King[7] and Paul v. The King[8], Letourneux v. The King[9] is not authority for maintaining such an action. As to clause (b) of section 20 of the "Exchequer Court Act," invoked in this court by the suppliant, damage to property sustained in the

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course of construction of a public work through negligence or otherwise is not "damage to property injuriously affected by the construction" of such public work.

Brodeur J.—The claim made against the Crown may result from the negligence of its officers, but does not arise out of an injury "on any public work."

There has been a long series of decisions of this court to the effect that the provisions of section 20, sub-section (c), of the "Exchequer Court Act" render the Crown liable for injury to property only when the property is situated on a public work. City of Quebec v. The Queen[10]; Larose v. The King[11]; Paul v. The King[12]; Chamberlin v. The King[13].

It may be that the provisons of the section have not been given a very wide construction by those decisions, but the latter seem to have been accepted by Parliament, since no legislation has ever been passed to extend the jurisdiction of the Exchequer Court to all claims for damages arising from the negligence of a servant of the Crown while acting within the scope of his duties on a public work.

Until such legislation is passed, we are bound by these decisions, and it is then necessary for the plaintiffs, if they sue for damages, to shew that the injury to their property has occurred on a public work.

Their appeal fails because they have been unable to prove such injury.

Appeal dismissed with costs.

Solicitors for the appellants: Rodd, Wigle & McHugh.

Solicitor for the respondent: T. G. Meredith.