Supreme Court of Canada
Ballantyne v. Edwards, [1939] S.C.R. 409
Date: 1939-06-17
Linton Hossie Ballantyne (Defendant) Appellant;
and
Dame Catherine Sophie Edwards (Plaintiff) Respondent.
1938: December 8; 1939: June 17.
Present: Duff C.J. and Rinfret, Crocket, Kerwin and Hudson JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Husband and wife—Separated from bed—Action for damages by wife against husband—Prescription—Inscription in law—Applicability of article 2233 C.C. enacting no prescription between husband and wife—Doctrine of “déchéances”—Articles 2183, 2233, 2261, 2262 and 2267 C.C.
Article 2233 of the Civil Code, which enacts that “husband and wife cannot prescribe against each other,” applies to all cases of prescriptions, both to the short and to the long prescriptions.
The limitations provided by articles 2261 and 2262 C.C., which are called therein “prescriptions” and are dealt with as prescriptions, are real prescriptions; they are not merely “déchéances,” as, in that case, according to the doctrine generally adopted in France, the exception as regards husband and wife contained in article 2233 C.C. would not operate.
[Page 410]
APPEAL from the judgment of the Court of King’s Bench, appeal side, province of Quebec, reversing the judgment of the Superior Court, Surveyer J. and dismissing the appellant’s inscription in law.
L. H. Ballantyne in person for the appellant.
V. M. Lynch-Staunton and John F. Stairs for the respondent.
The judgment of the Court was delivered by
Rinfret J.—This is an action in damages instituted by the wife, who is the respondent, against her husband, who is the appellant.
By means of an inscription in law the appellant prayed for the dismissal of the action on the ground that it was prescribed under the provisions either of article 2261 or of article 2262 of the Civil Code. The material provisions of those articles relied on by the appellant are as follows:
2261. The following actions are prescribed by two years:
* * *
2. For damages resulting from offences or quasi-offences, whenever other provisions do not apply;
2262. The following actions are prescribed by one year:
1. For slander or libel reckoning from the day that it came to the knowledge of the party aggrieved.
* * *
By force of article 2267 C.C. in those cases
the debt is absolutely extinguished and no action can be maintained after the delay for prescription has expired.
The Court of King’s Bench, however, decided that the appellant’s plea of prescription could not succeed because the parties were husband and wife, and they could not “prescribe against each other,” as enacted in article 2233 of the Civil Code.
The ground upon which the appellant maintains that the judgment appealed from is wrong may be expressed as follows: he says that the limitations provided for by articles 2261 and 2262 C.C. are really not prescriptions, but properly speaking “déchéances”; and that, according to the doctrine generally adopted in France, the exception as regards husband and wife contained in article 2233 C.C. does not operate in the case of “déchéances.”
[Page 411]
But the difficulty for the appellant is that, in the Code itself, these limitations are called prescriptions and they are dealt with as prescriptions.
They are to be found under the sub-title “Of Certain Short Prescriptions” and under the general title “Of Prescription”; and they come within the definition of prescription given in article 2183 C.C.
Prescription is the word used in article 2233 C.C. as well as in articles 2261, 2262 and 2267 C.C. According to the accepted rule of interpretation, the same word used throughout the same legislation should be construed as having the same meaning.
No distinction is made in article 2233 C.C. In terms it is of general application. We should not introduce an exception where the Code itself makes none; and we think article 2233 must be held to apply to all cases of prescription—both to the short and to the long prescriptions.
Such is also the view of Mr. Mignault. (Droit Civil Canadien, Volume 9, page 545). He says:
mais il faut remarquer que la prescription même courte n’a pas lieu entre époux. (Article 2233).
Now, article 2267 C.C. enacts that the right of action is denied only “after the delay for prescription has expired”; and article 2233 C.C. provides that prescription does not run between husband and wife. It follows that, in this case, as prescription did not run, the right of action still exists; and we agree with the majority of the Court of King’s Bench that the appellant’s contention cannot prevail.
In this Court the appellant wished to raise the further point that, quite apart from any question of prescription, the respondent had no right of action in the present case, on the principle that no husband or wife is entitled to sue the other for an offence or a quasi-offence.
But, we do not think the point is open to the appellant.
The parties are before the Court on an inscription in law.
Under the Code of Procedure (art. 192), the inscription in law “must contain all the grounds relied upon,” and “no ground which is not therein alleged can be urged at the hearing.”
[Page 412]
A general allegation, which moreover is merely introductory, is not sufficient; there must be a specific allegation. The only ground specifically alleged in the inscription in law is that of prescription.
Admittedly, the point was not raised in the courts below. But Mr. Justice St. Jacques who delivered the main judgment for the majority in the Court of King’s Bench, more than once expressed a doubt as to whether the right of action existed. He stated however:
La Cour doit rester dans le cadre de l’inscription en droit, telle qu’elle est libellée.
We therefore express no opinion upon the question whether the respondent was entitled to sue in damages; and it may be that the appellant is still at liberty to raise his objection in the future course of the case.
The appeal fails and must be dismissed with costs.
Appeal dismissed with costs.
Solicitor for the appellant: L. H. Ballantyne in person.
Solicitor for the respondent: V. M. Lynch-Staunton.
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