The King v. Mason, [1933] SCR 332

Supreme Court of Canada

The King v. Mason, [1933] S.C.R. 332

Date: 1933-04-25.

HIS MAJESTY THE KING (Respondent) Appellant;

and

GEORGE MASON (Suppliant) Respondent.

1933: February 28; 1933: April 25.

Present: Duff, Rinfret, Lamont, Smith and Crocket JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Dredging operations—Fishing net—Damages—Negligence—Jurisdiction— Public work—Interference with navigation—Exchequer Court Act, section 19 (c)—Fisheries Act, s. 33.

At Livingstone Cove, Nova Scotia, is a breakwater owned by the Crown to provide a shelter for boats of shallow draught. In this cove the respondent had set a salmon trap net under licence from the Department of Marine and Fisheries, the leader of the net being attached to the breakwater. Dredging operations were being carried on in the vicinity of the Department of Public Works under the supervision and direction of one of its officers. The tug A., hired by the Crown, whilst moving a loaded scow to the dumping grounds, came into contact with the respondent’s net, seriously damaging it. The action is to recover the value or cost of repairing the net and the loss of its use for about one month.

Held that the Exchequer Court of Canada had jurisdiction to hear the case. According to the circumstances, the master and crew of the tug A., the crew of the scow and the master and crew of the dredge were servants of the Crown acting within the scope of their “duties of employment” upon a “public work” within the meaning of section 19 (c) of the Exchequer Court Act.

Held, also, that the accident was attributable to the negligence of the servants of the Crown in the management of the tug and scow under the circumstances and conditions existing at the time of the accident, and that the respondent was entitled to damages for the injury caused to his net and damages for the loss of its use.

[Page 333]

Held, further, that, upon the evidence, the respondent’s net was not an interference with navigation within the meaning of section 33 of the Fisheries Act. That section should not be interpreted as relieving those in charge of any vessels of the duty to exercise due care to avoid damage to the property of others, whether that property constitutes an obstruction to navigation or not.

Judgment of the Exchequer Court of Canada ([1933] Ex. C.R. 1) affirmed.

APPEAL from the judgment of the Exchequer Court of Canada (1), maintaining the respondent’s petition of right with costs.

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

H. McInnes K.C. and F. P. Varcoe K.C. for the appellant.

J. L. Ralston K.C. for the respondent.

The judgment of the court was delivered by

Crocket J.—This is an appeal from a judgment of the Exchequer Court of Canada[1], adjudging that the suppliant was entitled to recover from His Majesty the King the sum of $1,500 and costs as compensation for damages claimed to have been sustained by him through the partial destruction of a salmon trap-net by a tug boat and scow while employed in dredging operations in the vicinity of a breakwater at Livingston’s Cove, Antigonish Co., N.S., during the summer of 1930.

Although the jurisdiction of the court does not appear to have been challenged on the trial or in the appellant’s factum on this appeal, objection was taken on the argument before us that the case was one which did not fall within the terms of clause (c) of section 19 of the Exchequer Court Act, R.S.C., c. 34. If it did not there is no other clause or provision of the Act which empowers that court to entertain a petition in such a case as the evidence discloses. The jurisdictional point, therefore, turns entirely upon the construction of that clause, which, enumerating

[Page 334]

one of the matters the court “shall have original jurisdiction to hear and determine,” reads as follows:—

Every claim against the Crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment upon any public work.

Mr. Varcoe contended that the captain and crew in charge of the tug and scow were not in the circumstances servants of the Crown, and that the work in which they were engaged was not a public work within the meaning of this clause.

It was expressly admitted by counsel for the Crown at the trial before the learned president of the court that the breakwater in question was owned by the Crown in right of the Dominion; that the dredging operations were being carried on by the Federal Department of Public Works under the supervision and direction of an officer of that department, and that the tug and crew were employed in the operation and under the direction of the officer in charge. John Nickerson, an officer of the Public Works Department, testifying as a witness for the Crown, stated that the tug was hired by the department, and was acting in this operation under the direction of the man in charge of the dredge for the department. In view of the course taken at the trial, we do not think it is now open to the Crown to contend that the captain and crew of the tug and the men on the scow were not, at the time of the grievance complained of, servants of the Crown acting within the scope of their “duties or employment,” within the meaning of section 19 (c).

It was in reference, however, to the contention that the work in which they were engaged was not a public work within the meaning of clause (c) that the objection was chiefly stressed. The case of Paul v. The King[2], relied upon by the appellant, considered the clause before the amendment of 1917 (7-8 Geo V, c. 23) effected a very material change in its meaning, as pointed out by Mignault J. in The Wolfe Company v. The King[3], and by the same learned judge in delivering the judgment of this court in The King v. Schrobounst[4]. The latter case decides that the words “upon

[Page 335]

any public work,” as they now appear in the subsection, are not to be given the restricted meaning which they bore before the amendment, and that a claim for personal injuries caused by the negligence of the driver of a motor truck, the property of the Crown, while transporting workmen in the employment of a department of the Government of Canada to a public work being carried on by that department, fell within the meaning of the subsection. We think that this claim also falls within its terms, and that the words “upon any public work,” as now used in the clause, are not to be limited to a physical structure belonging to the Government, and that they are broad enough to comprehend, at least, a dredging operation such as that with which we are concerned, and which was being carried on in a defined area.

It was not disputed that the tug and scow on the occasion in question came into contact with the net and so damaged it as to render it altogether useless until repaired and to necessitate the suspension of the suppliant’s fishing operations until he could replace it, so that, with the admissions above referred to, the whole controversy between the parties on the trial as to liability may be said to have been confined substantially to the question of the alleged negligent navigation of the tug, and whether or not the suppliant in a conversation he had with the captain of the dredge a few days before the accident, when the latter asked him to move his net, had agreed to accept the risk of any injury resulting from the collision of the tug with the net in its then existing position.

Although the Crown contended that the suppliant’s net was an unlawful hindrance to navigation, no question was raised that the suppliant had not a valid licence, issued under the authority of the Dominion Fisheries Act, for the berth in which it was placed, or that the net was set off the Government wharf in practically the same position and in precisely the same manner as it had been under similar licences issued to the suppliant annually since the year 1923. The fishery inspector for the district, whose duty it was to countersign all licences issued in the district and to see to the observance of all fishery laws and regulations therein, testified that he saw the net and leader set and that they were set absolutely in the manner prescribed in

[Page 336]

the licence, though some question appears to have been raised as to whether the licence itself authorized the attachment of the rope to the wharf and as to the precise direction the rope and leader thence followed, the captain of the tug having sketched a plan shewing the direction more northwesterly than the suppliant claimed.

A departmental plan in evidence shews the breakwater running almost due west from the shore line with the wharf at the westerly end, the length of the whole structure being about 376 feet. The wharf is about 40 feet wide and forms a rectangular jog on the southerly side of the breakwater about 90 or 100 feet east of the face of the wharf.

The dredging was being done along the south side of the wharf and breakwater to secure a depth of 8 feet at low water O.S.T., for the purpose, it seems, of affording shelter for boats and crafts of shallow draught.

On the day in question the dredge was working behind the jog close to the south side of the breakwater. It had a scow filled with dredged material ready for towing to the dumping ground more than half a mile northwest of the breakwater. The tug, which had been employed in the work for about two weeks for the purpose of towing the scows to the dumping ground and returning them to the dredge, and which drew about 9 feet aft and 5 feet forward, having received its signal from the dredge during the afternoon when the tide was within about half an hour of dead low water, as the evidence clearly shews, proceeded into the breakwater, bow on, and, after getting its anchor line fastened to the laden scow, backed out beyond the west end of the wharf with her tow in a northwesterly direction to get into position to pull the scow around the outer end of the breakwater and out to the deep water for dumping. There was no dispute about these facts, and it was common ground that it was during this manoeuvring that the scow drifted or swung down on the net.

The tug captain swore that only the scow ran into the net, but another witness, McEachern, a local seaman, employed in the operations, who saw the accident, swore that the scow and tug both ran into it.

There was a tide of 4 feet in the cove. The plan, prepared by the department for the dredging operations, shewed two lines of soundings running from the southwest

[Page 337]

corner of the wharf a distance of 300 feet—one in prolongation of the south side of the wharf almost due west, and the other southwest. The first of these lines shewed depth markings varying from 7 feet 8 inches at the face of the wharf to 13 feet 3 inches and the second from 8 feet 2 inches to 9 feet 8 inches. There was evidence that between these two courses there was a channel of 12 feet depth, and that this and the other tugs previously employed in the work usually backed out in a westerly or southwesterly direction and that in such a movement there would be no danger of the tug or scow running into the net; that there was ample sea-room for both tug and scow to move out from inside the breakwater towards the southwest, and that had they done so they would not have drifted on the net as they did. There was also the evidence of one of the two men employed on the scow that the scow’s anchor first caught the net and that the tug swung around on top of the net at a point roughly half way out on the leader.

The contention of the Crown, of course, was that there was no negligence in the management of the tug or scow, and that the damage was wholly attributable to the conditions of tide, current and wind prevailing at the time.

The learned president found that if the conditions of wind, current and tide were such as described by the tug captain, the tow should not have commenced when it did, and that in any event, when it was found that the tug and tow were likely to drift upon the net, the scow, which was equipped with anchors, at least should have anchored, and that the collision would thereby have been avoided.

I am rather disposed to think (His Lordship states in his reasons), that conditions were not quite so unfavourable as described by the master of the tug; I do not think they were very unusual or occasioned any real difficulty in handling the tow. I am unable to appreciate just why the tug and tow could not emerge from behind the breakwater upon such a course as would compensate for the counteracting forces of wind and current, and had this been done, and I believe it might have been done, the accident would have been avoided. Upon this aspect of the case, I therefore think the accident was attributable to the negligence of the servants of the respondent,

which sufficiently shews that the negligence to which he attributed the damage was negligence in the management of the tug and scow in the circumstances and conditions as he believed them to exist. We are of opinion that the evidence discloses ample justification for this finding.

[Page 338]

This being so, it is a matter of no consequence whether the suppliant had or had not the right to attach his leader to the wharf in the manner above indicated. It was contended by the Crown that he was not authorized to do so, and that his net was therefore an unlawful obstruction to navigation. It is quite evident, as the learned president points out, that the fact of the rope being tied to the wharf had no causal connection with the damage, and that the same thing as did happen would have happened had the leader been attached to a rock or pole in the water immediately adjacent to the wharf, as the suppliant undoubtedly had a right to attach it.

The fact of the damage having been proved to have been caused by the negligent navigation of the tug also renders it unnecessary to consider the argument which Mr. McInnes addressed to us on his submission that the licence conferred no right to put the leader and trap in such a position as to interfere with navigation, and that the tug’s rights of navigation in the waters in question were paramount to the suppliant’s rights of fishery under his licence from the Fisheries Department of the Government. It is sufficient to say that the learned president found upon the evidence that the suppliant’s net was not an interference with navigation, and that in no view can s. 33 of the Fisheries Act be properly interpreted as relieving those in charge of any vessels of the duty to exercise due care to avoid damage to the property of others, whether that property—be it a fishing net or anything else—constitutes an obstruction to navigation or not. We pronounce no opinion upon the suggestion of the learned president that if the conditions were as described by the captain of the tug, the latter, acting under the orders of the superintendent in charge of the dredging operations, owed a duty to the owners of the same to delay the departure of the dredge to await better conditions of wind and weather.

As to the defence founded on the maxim volenti non fit injuria, it is plain that the maxim has no application here. The proximate cause of the damage complained of was the negligent navigation of the tug. There is nothing in the evidence to indicate the acceptance of the risk attending such negligence. The conversation narrated had no relation to any such contingency.

[Page 339]

Counsel for the Crown also contended that compensation must be confined in any event to the damage to the net itself, and that no damages were recoverable for loss of profits resulting therefrom. We are of opinion that this contention is inadmissible. Under the language of ss. (c) of s. 19 above quoted, the Exchequer Court had jurisdiction to hear and determine,—and to award of course appropriate compensation for—“any claim (for damages) arising out of any * * * injury to * * * property resulting from the negligence of any officer,” etc. There is clearly nothing in these words to restrict the compensation for the injury to the property itself, if any further damage can be proved to have resulted from the negligence as the natural and direct consequence thereof under the well established rule governing the award of damages for wrongful injuries, whether to person or to property. It may be true that in some cases, as in The Anselmo, De Larranga[5], cited in the appellant’s factum, and in The Columbus[6], where a vessel or other property used in the earning of business profits is totally destroyed and full value is given as for a total loss, the claimant could not recover anything more to compensate him for the loss of the use of his vessel, but it has never been held, so far as I know, in a case where a vessel or any other chattel used for the carrying on of business has been damaged to such an extent as to render it useless until repaired and as to necessitate the suspension of the business in the carrying on of which it was used, that the owner is not entitled to recover any and all damages which he sustains as a natural and direct consequence of the injury complained of. See Owners of Steam, Sand Pump Dredges v. The owners of SS. “Greta Holme”[7]. In this case where the dredge was injured owing to a collision with a ship, the House of Lords held that its owners, though they were not out of pocket in any definite sum, were entitled to recover damages for the loss of the use of the dredge. Lord Herschell said:—

I take it to be clear law that in general a person who has been deprived of the use of a chattel through the wrongful act of another is entitled to recover damages in respect thereof, even though he cannot prove what has been called “tangible, pecuniary loss,” by which I under-

[Page 340]

stand is meant that he is a definite sum of money out of pocket owing to the wrong he has sustained.

The suppliant here claimed $1,000 for the damage to the net and $1,500 for the resultant loss of its use. The learned president awarded $1,000 as the cost of restoring the net and $500 as compensation for the loss of its use for one month. There was, we think, ample evidence to warrant his conclusion that the suppliant sustained damage to the latter amount in addition to the cost of repairing the net as a direct and natural consequence of the negligence complained of on the part of the Crown’s servants.

The appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellant: Hector McInnes.

Solicitor for the respondent: C. J. Burchell.