Supreme Court of Canada
The Queen v. Spence, [1952] 2 S.C.R. 517
Date: 1952-10-07
The Queen (Respondent) Appellant;
and
Trevelyn Spence (Suppliant) Respondent.
and
The Queen (Respondent) Appellant;
and
Ivan Bradshaw (Suppliant) Respondent.
1952: March 10, 11, 12; 1952: October 7.
Present: Rand, Kellock, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Crown—Master and Servant—Negligence of Servant—Scope of
authority —Scope of employment—Soldier receiving unauthorized order—Duty to
obey—Liability of Crown—The Exchequer Court Act, R.S.C. 1927, c. 34, s. 19(c).
The Militia Act, R.S.C. 1927, c. 132, as amended by 1947 (Can.) c. 21, ss. 14,
20, 69(2), 115, 117 and 138.
In an action for damages arising out of the collision between
a taxicab and an army truck owned by the Crown and driven by a soldier of the
Royal Canadian Armoured Corps (Reserve), who on the order of his commanding
officer was using the truck to convey a civilian baseball team, Cameron J., in
the Exchequer Court, held that the accident was solely due to the negligence of
the soldier; that the truck was used contrary to army regulations and that the
commanding officer had no authority to use it for such purposes. He found
further that the soldier was on duty and that it was within the scope of his
duties to drive military vehicles when directed to do so by his commanding
officer and not open to him to question such an order; and that as the soldier
at the time of the accident was a servant of the Crown acting within the scope
of his duties or employment, the principle of respondeat superior
applied and the Crown was therefore liable for the damages sustained.
On appeal to this Court the finding of negligence was not
questioned but the Crown contended that under the relevant legislation, army
regulations and orders, the commanding officer had no authority to make use of
the truck for the purposes described, and that while the soldier was under a
duty to obey the lawful orders of his superior officer, the order in question
was an unlawful one and that consequently in driving the truck pursuant thereto
he was not acting within the scope of his duties or employment.
Held: (Rand and Locke JJ. dissenting), that in the
circumstances of the case, the soldier was acting within the scope of his
duties or employment.
Per: Kellock J. Under the circumstances of the case,
there was nothing to indicate that the order was an unlawful order. It was
therefore the duty of the soldier to obey. Keighly v. Bell 4 F & F 763 at 790, applied.
Per: Estey J. The commanding officer was authorized to
promote recruiting. It was part of his duty to direct the use of Army vehicles
for military purposes, including that of recruiting. In issuing the transport
work
[Page 518]
ticket authorizing the use of the vehicle
here in question he misconstrued the regulations, but this issue was so closely
associated with that authority which it was his duty to exercise that it cannot
be said that in doing so he acted without the scope of his employment. Neither
could it be said of the sergeant to whom the transport work ticket was issued,
nor of the driver, who received the instructions from him. Dyer v. Munday
[1895] 1 Q.B.D. 742 at 746; Lloyd v. Grace, Smith & Co.
[1912] A.C. 716 at 737; Percy v. Corporation of the City of Glasgow
[1922] A.C. 299 at 306; Goh Choon Seng v. Lee Kim Soo [1925] A.C.
550 and Lockart v. C.P.R. [1942] A.C. 591, applied.
Per: Cartwright J. In the circumstances of the case it
was the soldier's duty to obey the order and in doing so he was acting within
the scope of his duty. Irwin v. Waterloo Taxi-Cab Co. Ltd. [1912]
3 K.B. 588. He did not know his commanding officer had no right to give him the
order nor could it be said on the evidence that as a reasonable man he should
have known. Evans v. Bartlam [1937] A.C. 473 at 479; Hodgkinson
v. Fernie (1859) 11 C.B.N.S. 415 at 421.
Per: Rand J. (dissenting): It was not within the scope
of the authority of the commanding officer, directly or indirectly, to give a
lawful order which could make the driving of the truck an act of the soldier
within the course of his duties. A campaign for recruits was authorized and the
means was assumed to be in the commanding officer but its scope could not
extend to the violation of express regulations dealing with the use of equipment
by which he was bound. The trip was an act of an extra-service nature and there
was nothing before the Court to warrant the conclusion that, since the trip
would involve the expense of conveyance, a bus could be hired on behalf of the
Government, nor that in the face of the regulations cited, the truck could be
used for such a purpose. Irwin v. Waterloo Taxi-Cab Co. Ltd., supra,
on which the Court below relied, distinguished. There the servant was bound to
obey, here the only order the soldier was bound to obey was a lawful order. The
special character of military relations might justify his obedience but that
did not make the act done that of the Crown. If the commanding officer himself
had driven the truck, he would not have bound the Crown, nor could he engage
the Crown's responsibility by ordering a subordinate to do the same act.
Per: Locke J. (dissenting): The use of the Army truck
to carry the baseball team was contrary to the Army Regulations and the
commanding officer had no authority to authorize its use for such purpose. The
general instructions given him to recruit could not be construed as authorizing
the carrying on of such activities by means forbidden by Army Orders. The
obligation of the soldier who drove the truck under The Militia Act and
the King's Regulations and Orders was to obey lawful orders only. In acting in
accordance with an order not lawfully given, he was not acting within the scope
of his duties or employment within the meaning of s. 19(c) of the Exchequer
Court Act (Bourton v. Beauchamp, [1920] A.C. 1001; Moore
v. Donnelly, [1921], 1 A.C. 329 applied). The scope of the duties and
employment of the soldier could not be extended by his mistaken understanding
as to what they were (Wardley v. Enthoven (1917) 86 L.J.K.B. 309).
[Page 519]
APPEAL by the Crown from two judgments of the Exchequer
Court of Canada, Cameron J. , allowing the suppliants' Petition of
Right to recover damages because of the negligence of an officer or servant of
the Crown acting within the scope of his duties or employment.
W. R. Jackett Q.C. and K. E. Eaton for the
appellant. The trial judge erred in holding that the driver, Ryan, was acting
within the scope of his duties or employment as a servant of the Crown at the
time of accident. Ryan was not engaged on any business of the Crown in the
right of Canada. The transportation of a baseball team was wholly unconnected
with the business activities of the Government of Canada. Poulton v. London
& Southwestern Ry. Co. ; Halparin v. Bulling ;
Battistoni v. Thomas ; Dallas v. Hinton .
The Crown is not liable for what is done in the course of an undertaking which
is not part of the Crown's business merely because some of the participants are
servants of the Crown for other purposes and because there may be an indirect
benefit from the undertaking. Offerdahl v. Okanagan Centre Irrigation
& Power Co. . If Ryan received an "order"
to go on a trip, it could not have been obeyed by him as a military order,
since under the Militia Act, s. 69(2) as enacted by 1947 (Can.) c. 21,
s. 22, he was not subject to laws, regulations and orders relating to the
Canadian Army at the time it was communicated to him because: (i) he was not
then on active service, (ii) it was not issued during a period of annual
training or drill under the Act, (iii) it was not issued while he was on
military duty, in the uniform of his unit or within any place used for the
purposes of the Canadian Army, and (iv) it was not issued to him during any
drill or parade of his unit at which he was present in the ranks or as a
spectator nor was it issued to him when he was going to or from the place of
the parade. When obeying an "order" not given within the limits laid
down by this provision, Ryan was not acting within the scope of his duties or
employment as a member of the Canadian Army. The order he received could not
operate to extend such scope beyond the statutory limits
[Page 520]
established by s. 69(2). Cases such as
Irwin v. Waterloo Taxi-Cab Co. ; Smith v. Martin
;
Risdale v. S.S. Kilmarnock , apply only where the
orders are such, as by terms of the servant's employment, he was bound to obey.
They do not apply to an order requiring an inferior servant to do something
outside the scope of his employment whether or not the inferior servant was
aware of the limits imposed by the employer on the employment. Gaskell
v. St. Helen's Colliery Co. .
The baseball club's trip was arranged by Reid probably as
Director of the Prince Edward Island Department of Physical Fitness and
certainly was not arranged by or on behalf of the Crown in the right of Canada
or the Canadian Army. He could not as commanding officer of the Regiment have
directed the Knights of Columbus ball team to take the trip nor have instructed
their manager as such regarding the trip. His ex post facto
justification of the use of the military vehicle on the ground that the trip
was a recruiting activity is not borne out by the facts.
The trial judge erred in holding that Ryan was operating the
military vehicle pursuant to an order given him as a member of the armed
forces. Reid said the work ticket was issued to "enable" Ryan to
proceed with a ball team to Souris and return and that
he gave Ryan no other orders. Sergeant Charles Ryan said that Reid told him
there was a trip for a baseball team and that he told the driver Harrison Ryan,
where he was to pick it up and his destination. On the face of it, none of
these arrangements had anything to do with the Canadian Army and none of the
men who went on the trip gave evidence that at the time they thought that they
did. Sergeant Ryan knew nothing of a recruiting campaign. In any event it was
outside Driver Ryan's duties or employment to operate a military vehicle on a
trip prohibited by regulations respecting the operation of such vehicles. It
did not fall within the permitted use of vehicles to transport service
personnel to sports fields because the persons being transported were not
"service personnel" and because the trip was to a place more than
twenty miles distant and no special authority had been obtained therefor.
[Page 521]
It was not permitted by the Regulation providing for
transportation of "prospective army recruits" because the persons
transported were not being transported as "prospective army recruits"
and their transportation had not been authorized in the prescribed manner. The
trip was not authorized by the special provision concerning the transportation
of the Royal Canadian Cadet Corps because the persons being transported were
not being transported as cadets and were not being transported in connection
with a "duly authorized parade or training activity." The Regulations
made by the Quarter Master General pursuant to s. 11 and Appendix VI of the
King's Regulations and Orders, made by the Governor in Council under s. 139 of
the Militia Act, limit the scope of employment of members of the armed
forces operating military transport. Whelan v. Moore ;
Knowles v. Southern Ry. Co. ; Bourton v. Beauchamp
;
Moore v. Donnelly . The regulations restricted the scope
of Ryan's employment and it is immaterial whether he was aware of them. Wardle
v. Enthoven & Sons Ltd. ; Cartwright v. Shell-Mex
& B.P. Ltd. . The front cover of "Regulations
for Military Operated Vehicles, 1947" require that "this pamphlet
must be carried at all times by every qualified driver of a military operated
vehicle irrespective of rank …" The prohibitions made the trip something
outside of Ryan's employment and not merely an unauthorized way of doing some
work he was appointed to do. Compare Goh Choon Seng v. Lee Kim Soo
and Lockart v. C.P.R. .
Even if Ryan can be regarded as having acted pursuant to a
military order he was not at the time of the accident acting within the scope
of his duties or employment as a servant of the Crown because his services were
loaned or transferred, for the purpose of the trip, either to the Knights of
Columbus ball team, the Provincial Department of Physical Fitness, Reid, or
some other person or authority other than the Crown in the right of Canada.
Salmond on
[Page 522]
Torts 10 Ed. 86-7;
Donovan v. Laing ; Bull & Co. v. West African
Shipping Agency ; Century Insurance Co. v. Northern
Ireland Road Transport Board .
D. L. Mathieson Q.C. and G. R. Foster
for the respondents. The only point in issue is whether the trial judge was
correct in finding that at the time of the accident Corporal Ryan, the admitted
servant of the appellant was acting within the scope of his duties or
employment within the meaning of the Exchequer Court Act, as amended, s.
19(c), as alleged by the respondents in the Petitions of Right. The
respondents submit that the trial judge was correct in confining his inquiry to
the ascertainment of the scope of Corporal Ryan's duties or employment in order
to determine the jurisdiction of the Court and in holding that "while Reid
committed a breach of the regulations regarding the use of military vehicles
.... such breach did not narrow the scope of Ryan's duties or employment".
His decision was based on the common sense principle that a soldier in Ryan's
position must give implicit obedience to the orders given him by his commanding
officer in the ordinary matters of the service, except where such orders are
clearly contrary to law. The evidence clearly establishes that Brigadier Reid
as Corporal Ryan's commanding officer gave the order to make the trip in the
normal manner, that is by issuing a transport work ticket and by passing this
order to Corporal Ryan through the sergeant in charge of transport. No evidence
was submitted to show that on receipt of this order Corporal Ryan knew it was
contrary to regulations, or, in fact, that Corporal Ryan had any knowledge of
the regulations. Reid as commanding officer was obviously designated by the
appellant as one authorized to give orders on its behalf. In exercising that
authority he ordered Ryan to make the trip as a military driver, an order which
by its nature Ryan would have the right to assume as coming under the authority
of his commanding officer. It was therefore his duty as a soldier to obey. The trial
judge was correct in applying to the facts of this case, Irwin v. Waterloo
Taxi-Cab Co. Ltd. ; Charlesworth on Negligence at p. 50.
[Page 523]
If the jurisdiction of the Court depends not only on the scope
of Corporal Ryan's duties or employment but also on Brigadier Reid's, then the
respondents submit that the appellant is still liable, despite the breach of
the regulations by Brigadier Reid, because he was engaged in a matter
incidental to and arising out of the business of the appellant. It is not disputed
that the latter did an act which his master, the appellant, had not authorized,
in permitting the army truck to make the journey without first obtaining the
proper consent under the regulations. However the act was so connected with his
duty to encourage recruitment, an act which the appellant authorized, that it
may rightly be regarded as a mode—although an improper mode—of doing that act,
and the appellant remains liable. Goh Choon Seng v. Lee Kim Soo ;
Limpus v. The General Omnibus Co. ; Salmond
on Torts 10 Ed., 90; Bayley v. Manchester
.
It was urged on behalf of the appellant that Corporal Ryan
could not be said to be the servant or agent of the appellant acting within the
scope of his duties or employment because he was at all relevant times the
servant or agent of the Knights of Columbus working for them and under their
control. The burden of proof rests on the appellant, and this burden is a heavy
one. Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool)
Ltd. . Not only is the burden a heavy one
but the presumption is all against there being such a transfer. Century
Insurance Co. v. Northern Ireland Road Transport Board ;
Nicholas v. F. J. Sparks & Son ; Chowdhary
v. Gillot . Not only have the appellants failed
to discharge the burden of proof and overcome the presumption but on the
contrary the evidence clearly establishes that the appellant retained control
over its admitted servant, Corporal Ryan. See also Jones v. Scullard
.
In the Mersey Docks case, supra, Lord Porter at
p. 17 points out that where both a mechanical device, in this case the army
truck, and its driver are both loaned the inference is that the servant remains
the servant of the general
[Page 524]
employer. See also Jones v. Scullard,
supra. If therefore the vehicle and Corporal Ryan were loaned to the
Knights of Columbus the presumption is against Corporal Ryan being transferred
because in the words of Lord Wright in the Century Insurance case, supra,
at p. 497, "he was bound to have regard to paramount directions given by
the respondents (the permanent employers) and was to safeguard their paramount
interests."
It was established that Corporal Ryan was paid by the
appellant for the performance of his duties as a military driver on the day in
question, and it was found as a fact by the trial judge that he was
"undoubtedly on duty that day", therefore there can be no dispute
that the appellant was the only person with power to dismiss him, and therefore
retained control of his servant. No evidence was adduced to show that Ryan,
either expressly or impliedly, consented to being transferred to the Knights of
Columbus, and the absence of such consent implies that he remained the servant
of the appellant. Mersey Docks case, supra, per Lord MacMillan at
p. 14. Nor was it shown Ryan was working with the Knights in response to any
request from them or under any agreement between them and the appellant. Clelland
v. Edward Lloyd Ltd. . The evidence as a whole, and the
findings of fact by the trial judge, point conclusively to the fact that only
"the use and benefit" of Corporal Ryan's work could be considered as
transferred but that Corporal Ryan at all times remained the servant of the
appellant.
Rand J.
(dissenting) :—I am unable to agree that it was within the scope of the
authority of Col. Reid, directly or indirectly, to give a lawful order which
could make the driving of the lorry an act of the corporal within the course of
his duties as a member of the 17th Reconnaissance Regiment, Reserve, Armoured
Corps.
The original arrangement had been that a baseball team from
Charlottetown, which the regiment sponsored, should go to Souris,
but for some reason this could not be carried out; and Col. Reid, in
order not to disappoint the community of Souris, which
he thought might do harm to recruitment there, arranged to send another
sponsored by
[Page 525]
the Knights of Columbus. Both of these teams played in a
local baseball league, and the players included members of the cadet corps of
one of the city schools, affiliated with the regiment.
Undoubtedly a campaign for recruits to the regiment was
authorized and encouraged, and an area of discretion in means was assumed to be
in the Officer Commanding; but its scope could not extend to the violation of
express regulations by which he was bound. There were such regulations that
dealt with the use of equipment, and they took their character from the
underlying separateness of army action from civilian action, a separateness
amounting to the creation, in some respects and to some degree, of a relation
analogous to a military imperium. Basically, army action of any sort is
confined to army personnel and equipment: civilians are excluded; but this has
necessarily given way, under the impact of modern developments, to a widening scale
of interrelation between the army and civilians, either as private individuals
or as public; and what is to be decided is whether the steps taken were within
or beyond the range of what could reasonably be said to have been authorized
for recruiting purposes.
Relevant rules are to be found in a compilation of
"Regulations governing Military Operated Vehicles, 1947," published
in December of that year but effective at the time of the accident. For
instance, there is s. 22 which, in part, reads:—
Military transport vehicles may be used to transport service
personnel to sports fields, playgrounds and recreational centres, subject to
the following conditions:—
* * *
(d) Under no circumstances
will civilians or persons other than service personnel be transported.
S. 25(a) provides:—
Civilians will not be transported in military vehicles
except under the following circumstances:—
* * *
(d) Where adequate
educational, shopping or entertainment facilities do not exist for dependents
of officers and other ranks at units outside urban areas and public
transportation is not available from unit boundaries, the Officer Commanding a
Command may authorize the use of Service transport not required for other
duties. Transport authorized shall carry dependents only between the unit and
the nearest public transportation, or the nearest facilities, whichever is the
closer.
[Page 526]
Paragraphs (a), (b) and (c) deal with
civilians employed in the Department of National Defence, civilian contractors
or their employees engaged on work for the Department, and civilian official
visitors, lecturers, members of committees acting for or in association with
the Department, etc.
Ss. 27 and 28 provide:—
Members of the Royal Canadian Cadet Corps may be permitted
to ride in military transport vehicles when required to do so in connection
with a duly authorized parade or authorized training activity.
* * *
As the transportation of cadets in a military vehicle at any
other time is not authorized, should the cadet be injured or killed while being
transported other than on a parade or in the course of training as set out
above, sections 73 to 80 inclusive of the Regulations for the Cadet Services of
Canada, 1942, would not apply to provide compensation and medical treatment as
set out therein. The liability of the Department in such a case would be merely
that of the owner of a vehicle to a gratuitous passenger.
Now the team did not make the trip as cadets nor as
substitutes for cadets, nor was it in any sense a cadet or service activity
such as is contemplated either by the Militia Act or the regulations.
The trip was an act of an extra-service nature, of which the most that can be
said is that it was promoted by the Commanding Officer for the indirect purpose
mentioned. That being so, the act was either within or beyond the scope of the
officer's authority: there is no room for the suggestion of carrying out an
authorized act in a forbidden manner.
The trip would necessarily involve the expenses of the
conveyance: could they be incurred, say, by hiring a bus on behalf of the
Government? There is nothing before us either express or by implication of any
sort or description to warrant the conclusion that they could be, nor that, in
the face of these regulations, the lorry could be used for such a purpose.
Voluntary recruitment has for generations been the object of local inducement
and encouragement; but, so far as they have not been private, they have always
been by way of military displays or advertisements in which the authorities
preserved an exclusively military action. If the Commanding Officer could send
a private baseball team over 50 miles in a military lorry as a military
proceeding, I see no limit to the kind of activity, whether of
[Page 527]
sports, dancing, music, dramatics,
or any other mode of arousing the interest and enthusiasm of young people, that
could be resorted to in a similar manner. Such an extension of governmental
action must find its authority in something more specific than the informal
approval by general officers of stimulation to local enlistment.
Cameron J. found against the Crown on the ground that since
the corporal was bound to execute the orders of the Commanding Officer, the act
of driving was within the course of his employment. He founded himself on the
case of Irwin v. Waterloo Taxicab Company Limited .
There a taxi driver carried out the instruction of the General Manager of the
business in driving him to see private friends, not on the business of the
company. The driver had no reason to believe that the trip was not properly
authorized, and it was made in a manner indistinguishable from the ordinary
course of his work. But it was agreed that the driver was under a duty to obey
the direction and to make the trip, and the Court of Appeal held the company liable
for his negligence during the course of it.
The decision raises the question whether, if the General
Manager himself had taken over the wheel and had driven the automobile on the
same errand, the company would have been liable: if not, how the General Manager
could raise the liability of the company through an order to the driver I find
it difficult to see. In this I assume that the General Manager's authority
extended so far as to enable him, if on an occasion he saw fit, and in the
course of his employer's business, to drive the car himself. Moreover, there
does not appear to have been any prohibition against the General Manager being
a passenger, subject of course to the payment of the regular fare.
The fact that the servant there was bound to obey the order
given him distinguishes the case from this. Here, the only order the corporal
was bound in law to obey was a lawful order. It may be that, in his own
interest, he was quite justified in obeying it and he would incur no discipline
or responsibility for so doing; and it is clear that the special character of
military relations necessitates such
[Page 528]
a justification except where the order is patently illegal.
But that does not make the act done the act of the Crown. If Col. Reid himself
had driven the lorry, he would not, in my opinion, have bound the Crown even
though he could have done so in the course of admittedly military purposes. If
that is sound, how he could engage the Crown's responsibility by ordering a
subordinate to do the same act I am quite unable to appreciate.
I would therefore allow the appeal and dismiss the action
with costs throughout if they are demanded.
Kellock J.:—Negligence
on the part of the driver of the military vehicle here in question being no
longer in question, the determination of this appeal depends solely on whether
or not that negligence occurred while the driver was "acting within the
scope of his duties or employment" within the meaning of s. 19(c)
of the Exchequer Court Act. Mr. Jackett relies upon the regulations to
which he referred in support of his contention that the vehicle could not, at
the relevant time, be considered as having been engaged upon any business of
the Crown. The evidence of Colonel Simmons, called on behalf of the Crown,
furnishes, however, an additional standpoint from which this appeal must be
considered.
According to this witness, during the period when the event
here in question took place, both the Reserve and Active forces of the Canadian
Army were in the "throes" of recruiting; "the war had finished
in 1945 and we were stepping up the Reserve Forces and Permanent Forces."
With respect to the regulations as to the use of military
vehicles, the witness said: "Certain things are taken for granted, that we
could use a vehicle for recruiting." In particular he testified:
Q. I believe you told my friend on cross-examination that
there was nothing within your knowledge in these regulations to prohibit the
use of a military-operated vehicle for recruiting? Is that what you said?
A. Yes.
Q. Well, not authorizing the use of one of these vehicles
for recruiting purposes, would a Commanding Officer still be subject to the
limitations of the use of that vehicle imposed by these Regulations?
A. Not necessarily. If it is agreed or authorized that the—there
is nothing in these Regulations which says a vehicle cannot be used for a
purpose, and if it is agreed that it is a recruiting purpose, the vehicle can
be used, and it would be quite all right, naturally.
[Page 529]
With respect to the regulations themselves, the Crown relies
in the first place upon Order 4558 of June 7, 1944, and particularly upon para.
3, which limits the use of army vehicles to "official purposes." The
interpretation of this order is not unaffected by paras. 1 and 2 from which it
appears that the order arose out of the then existing shortage of gasoline
"in order to achieve economy." In my opinion, the use of a vehicle
for recruiting purposes, particularly in the light of the evidence of Colonel
Simmons, would be a use for an "official" purpose, and the commanding
officer, to whom was committed the duty of recruiting his regiment up to its
establishment, would of necessity have to judge as to what use would or would
not be proper for such purpose, in the absence of some express provision with
which any proposed use would be in conflict.
Colonel Reid considered that in what he directed he was
carrying out his instructions with respect to increasing the strength of the
regiment under his command. In the methods adopted by him to that end, he
necessarily had a considerable discretion. If, therefore, there could be found
a direct prohibition as to the use of transport vehicles in connection with
recruiting, the question would arise as to whether disobedience would limit the
"sphere of the employment" or merely amount to "a direction not
to do certain things, or to do them in a certain way within the sphere of the
employment;" Plumb v. Cobden , per
Lord Dunedin at 67. If it were necessary to decide that question, I should say
that the sphere of employment was not affected by the disobedience, if any, of
Colonel Reid, and that, therefore, the particular regulations to which we were
referred, notably with respect to the use of military vehicles for the
transport of "service personnel for recreational purposes," the
transport of "civilians employed by the Army," "prospective
recruits" and cadets, do not assist the appellant.
If there were doubt as to whether or not this should be
considered to be the right result, there would still be, in my opinion, a
further question, namely, as to the duty of the driver of the vehicle when the
order from Colonel Reid was given to him.
[Page 530]
In Keighly v. Bell ,
Willes J. expressed himself thus:
I believe that the better opinion is, that an officer or soldier,
acting under the orders of a superior—not being necessarily or manifestly
illegal —would be justified by his orders.
It is obvious that the object with which an order is given
can determine its lawfulness. An officer going on military-duty orders a soldier
to fetch his horse. This would be a valid order. If, however, the officer
wanted his horse to go hunting or to take an ordinary ride for pleasure, this
would take the order out of the category of "lawful" commands.
The authors of the Manual of Military Law, 1929
edition, p. 18, express the view that
So long as the orders of the superior are not obviously and
decidedly in opposition to the law of the land, the duty of the soldier is to
obey and (if he thinks fit) to make a formal complaint afterwards.
A similar view prevails in the United States. In Davis on
"The Military Law of the United States," a former Judge Advocate
General, in speaking of "lawful" orders of a superior officer, says
at p. 381:
If a question arises with respect to their legality, and the
order is not on its face clearly and obviously in contravention of law, it is
the duty of the inferior to resolve such doubt in favour of obedience, relying
for justification on the form of the order so received and obeyed.
In my opinion, the law is sufficiently stated for the
purposes of the case in hand by Willes J. above. Even in time of peace,
military discipline could not otherwise be maintained.
If Colonel Reid in good faith, as he did, considered in
giving the order here in question that he was carrying out his duty as
commanding officer of the regiment in connection with the current effort to
bring it up to strength, it is impossible to say that the Corporal who received
the order to drive the vehicle should have considered he had received an
unlawful order.
With respect to s. 117 of the Militia Act, R.S.C.
1927, c. 132, it may be that illegality in fact would constitute a defence to
any proceeding under that section, but I do not think that that section
establishes the proposition that illegality in fact is sufficient to establish
that a soldier, in carrying out a command of a superior officer, is not acting
[Page 531]
within the scope of his duties or employment within the
meaning of the Exchequer Court Act, if the order is not
"necessarily or manifestly" illegal.
I would dismiss the appeal with costs.
Estey J. :—The
suppliants Bradshaw and Spence, respectively owner and driver of a taxicab,
were awarded damages against Her Majesty in the Exchequer Court for injuries
suffered when the taxicab collided with an Army truck upon a highway between
Charlottetown and Souris, Prince Edward Island, about
1:30 on the morning of July 24, 1947.
The learned trial judge found that Corporal Ryan's negligent
driving of the Army truck was the sole cause of the collision and no appeal is
taken therefrom.
The Army truck was, at all times material hereto, in
possession of the 17th Prince Edward Island Reconnaissance (RECCE) Regiment, a
reserve unit of the Canadian Army then under the command of Lieutenant Colonel Reid.
Corporal Ryan was a member thereof. As such, for the purpose of determining the
liability of Her Majesty in this action, both Lieutenant Colonel Reid and
Corporal Ryan are deemed to be servants of the Crown (Exchequer Court Act,
S. of C. 1923, c. 25 s. 50A). The essential issue is,
therefore, whether Corporal Ryan, at the time the injuries were suffered, was
acting within the scope of his employment within the meaning of s. 19(c)
of the Exchequer Court Act (R.S.C. 1927, c. 34).
19. The Exchequer Court shall also have exclusive original
jurisdiction to hear and determine the following matters:—
* * *
(c) 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.
Lieutenant Colonel Reid, with the intention of promoting
recruiting, arranged for a ball game between the Regiment-sponsored RECCE
junior team of Charlottetown and a local Souris team to
be played at Souris on July 23, 1947. The RECCE team,
for some reason, could not make the trip and Lieutenant Colonel Reid arranged
that the Knights of Columbus, another junior team that played in the same
league with the RECCE team at Charlottetown, would substitute. He directed
their transportation in an Army
[Page 532]
truck and the injuries here claimed for were suffered while
the Army truck was transporting the ball team and its suppprters back to
Charlottetown.
As Commanding Officer, Lieutenant Colonel Reid was
authorized to promote and was at all times material hereto promoting
recruiting. As one witness stated, the Regiment was then in the "throes of
recruiting." There were no regulations dealing with recruiting and it must
follow that as Commanding Officer it was his duty to exercise his discretion in
the development of a programme that he might deem applicable and effective in
the area allotted to him. As Lieutenant Colonel Rogers, then second in command,
deposed:
The policy of the Regiment in regard to recruiting was we
were given certain areas in Queen's and King's counties, in which we were
permitted to recruit, and we were to use the means at our disposal to interest
young lads into joining the Reserve Army.
As part of the recruiting programme Lieutenant Colonel Reid
concluded that good will should be maintained between the Army and the civilian
population and had, as a consequence, upon different occasions transported the
regimental band for entertainment. As he states, they were told at all times
"to co-operate with civilian people." He accordingly arranged a ball
game at Souris with a view to demonstrating to the
young men that the Army was interested in many activities including sport and
thereby to add to their interest in the Army. In all this he was not serving
any purpose of his own or any ulterior or other purpose inconsistent with his
position and duty to promote recruiting. (Whatever suggestion was made to the
contrary was not established by the evidence.) Even if it be admitted he was in
error, the evidence justifies no other conclusion but that he believed he was
promoting recruiting and acting within the scope of his authority.
A servant may, of course, while purporting to act for his
master, do so in a manner that is outside the scope of his employment, but the
conduct here in question is not sufficiently far removed to justify such a
conclusion. The learned trial judge did not go further than to suggest "it
is difficult to agree with his opinion that the game actually played by the Knights
of Columbus team had anything to do" with the subsequent enlistments from Souris. That,
[Page 533]
however, is far from saying that Lieutenant Colonel Reid was
not, in arranging the game, acting within the scope of his employment in the
promotion of his recruiting programme.
The learned trial judge did find that the direction to use
the Army truck for the transportation of this ball team "was contrary to
the regulations and that Colonel Reid had no authority to use it for such
purposes," and continued:
I do not question his good faith in the matter. At the time
he was busily engaged in an effort to secure recruits for his regiment, and
doubtless thought that an exhibition baseball game, between a team sponsored by
the Regiment and the young men of Souris, would assist
in recruiting.
With the greatest possible respect, it would appear that in
the foregoing sufficient weight has not been given to the distinction between
the field of actual authority and the scope of employment. Lord Esher gives
expression to this distinction when he states:
The liability of the master does not rest merely on the
question of authority, because the authority given is generally to do the
master's business rightly; but the law says that if, in course of carrying out
his employment, the servant commits an excess beyond the scope of his
authority, the master is liable. Dyer v. Munday .
This difference is again emphasized in Story on Agency, s.
452:
* * * he (the principal) is held liable to third persons in
a civil suit for the frauds, deceits, concealments, misrepresentations, torts,
negligences, and other malfeasances, or misfeasances, and omissions of duty, of
his agent, in the course of his employment, although the principal did not
authorize, or justify, or participate in, or, indeed, know of such misconduct,
or even if he forbade the acts, or disapproved of them. Bright & Co.
v. Kerr .
The foregoing statement of the learned author has been
repeatedly quoted, particularly in McGowan & Co. Ltd. v. Dyer
;
Lloyd v. Grace, Smith & Co. ; Percy v. Corporation
of City of Glasgow . See also Willes J. in Bayley
v. Manchester, Sheffield, and Lincolnshire Ry. Co. .
In W. W. Sales Limited v. City of Edmonton ,
it is pointed out that the mere fact the agent's act may constitute a criminal
offence does not necessarily take it outside
[Page 534]
the scope of his employment. Mr. Justice Hudson, delivering
the judgment of the majority of this Court, stated at 471:
Here the servants were "not on a frolic of their
own." They were in fact doing work which was intended to be of service to
their master and was in fact closely connected with acts which they were
specifically instructed to do.
Where it was contended that because the conduct of the
servant in repossessing a bedstead constituted a criminal assault he was,
therefore, acting beyond the scope of his employment, Lord Esher stated:
The question, therefore, for the jury was whether Price was
employed to get back the bedstead, and did the acts complained of for the
purpose of furthering that employment, and not for private purposes of his own
* * * * Dyer v. Munday supra at 746.
The same view is adopted in Goh Choon Seng v. Lee
Kim Soo , where, although the servant committed
an act of trespass, that did not take his conduct outside the scope of his
employment.
Limpus v. The General Omnibus Co. ,
was regarded by Compton J. at 643
as a case of improper driving and not a case in which the
servant did anything altogether inconsistent with the discharge of his duty to
his master and out of the course of his employment—a fact upon which, it
appears to me, the case turns.
The appellant cited among other authorities Halparin
v. Bulling , Battistoni v. Thomas ,
and Dallas v. Home Oil Distributors Limited . The
servant in all of these cases had left his master's business and was proceeding
toward the attainment of a purpose of his own. The case of Poulton v. The
L. & S.W. Ry. Co. , was also cited. There the conduct of
the servant was ultra vires the master, which raised questions not relevant
hereto, as there is no question of ultra vires in the instant case.
Section 50A of the Exchequer Court Act creates a
relationship of master and servant between Her Majesty and a member of the
Army. It thereby imposes a liability upon Her Majesty equal to that of the
member of the Army for damage negligently caused by the latter while acting
within
[Page 535]
the scope of his employment. The King v. Anthony
.
The phrase "scope of employment," because it must so largely depend
upon the circumstances in each case, has generally been conceded to be
incapable of precise definition. The foregoing
authorities do indicate that it is wider than the field or scope of actual
authority and that the purpose of the servant and the fact that he is not
acting in a manner inconsistent with his employment may be factors in determining
scope of employment. Further assistance may be found in a consideration of the
remarks of Willes J. in Barwick v. English Joint Stock Bank ,
where he states:
In all these cases it may be said, as it was said here, that
the master has not authorized the act. It is true he has not authorized the
particular act, but he has put the agent in his place to do that class of acts,
and he must be answerable for the manner in which the agent has conducted
himself in doing the business which it was the act of his master to place him
in.
Quoted with approval in Lloyd v. Grace, Smith
& Co. supra, at 733. See also Hamlyn v. Houston & Co.
.
In Lockhart v. C.P.R. , their
Lordships of the Privy Council adopted the statement of Salmond on Torts, 9th
Ed. p. 95, 10th Ed. p. 89:
But a master, as opposed to the employer of an independent
contractor, is liable even for acts which he has not authorized, provided they
are so connected with acts which he has authorized that they may rightly be
regarded as modes—although improper modes—of doing them. In other words, a
master is responsible not merely for what he authorizes his servant to do, but
also for the way in which he does it * * * On the other hand, if the
unauthorized and wrongful act of the servant is not so connected with the
authorized act as to be a mode of doing it, but is an independent act, the
master is not responsible; for in such a case, the servant is not acting in the
course of his employment, but has gone outside of it.
It was the duty of Lieutenant Colonel Reid to direct, within
the meaning of the regulations, the use of Army vehicles for military purposes,
including that of recruiting. It is unnecessary to recite the regulations which
were placed in evidence, as it must be conceded that a study of them leads to
the conclusion that, in the promotion of his recruiting programme, Lieutenant
Colonel Reid had not the authority to authorize the use of this Army truck to
transport a civilian baseball team from Charlottetown to Souris.
[Page 536]
At the time he considered that because he was doing this in
aid of recruiting that it was for an official purpose and, therefore,
permissible within s. 20 of the regulations, which reads, in part:
20. Military transport vehicles are to be used for official
purposes only. * * * *
The problem here presented is not whether Lieutenant Colonel
Reid exceeded his authority, but did he act outside the scope of his
employment? He was serving no other purpose or interest in all that he did but
that of his master and his conduct was not so far removed from the acts he was
authorized to perform as to justify a conclusion that he was not, at all times,
engaged in his master's undertaking. Upon the whole of the evidence, Lieutenant
Colonel Reid, whose duty it was to direct these vehicles within the meaning of
the regulations, upon this occasion misconstrued them, but even then his
direction was so connected with those directions he was authorized to give that
within the view expressed by Salmond and adopted by the Privy Council in Lockhart
v. C.P.R., supra he was, in directing the use of this truck, acting
within the scope of his employment.
Lieutenant Colonel Reid followed the usual routine of his
Regiment and issued a Transport Work Ticket authorizing this trip. It was given
to Sergeant Ryan who was in charge of the Army trucks. Sergeant Ryan
communicated with his brother, Corporal Ryan, and as a result the latter, who
was qualified to drive Army vehicles, proceeded to the garage and received his
instructions. The truck was serviced and made ready for the trip by Sergeant
Ryan. Corporal Ryan received, in the regular way, Army pay covering this trip.
Both Sergeant Ryan and Corporal Ryan would know that the Regiment was in the
throes of a recruiting campaign and if they had asked any question with regard
to the purpose of this trip they would have been told it was in promotion of
recruiting. Throughout, all three parties were acting within the scope of their
employment at the time the injury for which damages are here claimed occurred.
In my opinion the appeal should be dismissed.
[Page 537]
Locke J.
(dissenting):—The learned trial judge has found that the use of the Army truck
to carry the Knights of Columbus baseball team to Souris and
return on the day in question was contrary to regulations and that Colonel Reid
had no authority to use it for such purposes, conclusions with which I
respectfully agree. The general instructions given to the officer commanding
the unit to endeavour to obtain recruits for his unit cannot be construed as
authorizing the carrying on of such activities by means forbidden by Army
orders.
There remains the question as to whether Corporal Ryan, who
was driving the truck and whose negligence has been held to have caused the
accident, was at the time acting "within the scope of his duties or
employment" within the meaning of that expression in subsection (c)
of s. 19 of the Exchequer Court Act, R.S.C. 1927, c. 34.
Colonel Reid was at the time the officer commanding the 17th
Prince Edward Island Reconnaissance Regiment. Other than his statement that
this was a Reserve unit of the Armoured Corps and the fact that it was not at
the time undergoing its annual drill or training and had not been placed on
active service, there is no evidence of its status. For the Crown the King's
Regulations and Orders of 1939 were tendered in evidence and admitted, with the
consent of counsel for the respondent, from which it must be taken that these
were the general regulations and orders which applied to members of this unit
at the time of the occurrence in question. By Order 1 the Reserve Militia, of
which the unit apparently formed part prior to the amendments to the Militia
Act enacted by c. 21 of the Statutes of 1947, was organized in the manner
defined by Appendix 10 which declared that the organization of the Reserve
Militia was authorized subject to regulations prescribed by the Governor in
Council under s. 16 of the Militia Act. The reference to s. 16 is to the
Act as it appeared as c. 41, R.S.C. 1906. In the revision of 1927 it appeared
as s. 14.
By the amendment of 1947 the designation of the various
military forces of Canada as Militia was altered and all the military forces of
Canada other than the Royal Canadian Navy, the Royal Canadian Air Force and the
Reserves thereof were named the Canadian Army, divided into the
[Page 538]
active force consisting of that
portion that is on continuous full time military service, such other military
units then existing which had been theretofore constituted and such other units
as might thereafter be named and authorized by the Minister under the
provisions of s. 20 of the Act as amended. The Reserve Militia mentioned in
Order 1 and Appendix 10 of the 1939 King's Regulations and Orders is not
mentioned by name. Upon the evidence in the present record, a unit such as the
Prince Edward Island Reconnaissance Regiment was maintained and continued as a
reserve unit of the Canadian Army and this was its status at the time in
question.
This being so, the question as to whether Corporal Ryan was
under any duty to obey the order of the commanding officer of the unit to drive
the truck at that time is not free from doubt. According to Regulation No. 9
which forms part of Appendix 10 to the King's Regulations and Orders, drill and
training for the members of such units is voluntary. Regulation 11 declares
that the Government does not undertake to provide the Reserve Militia, except
when called out on active service, with any equipment, and they are not
entitled to transportation, subsistence, pay or allowances, except while on
active service. The oath taken by every officer and man on joining such a unit,
in addition to containing an oath of allegiance to His Majesty, includes the
oath to "well and truly serve His Majesty in the Reserve Militia of Canada
under the terms and conditions laid down in the law and the regulations duly
made from time to time in that behalf." Corporal Ryan's regiment, as has
been stated, was neither on active service nor undergoing its annual drill or
training, nor had the service he was called upon to perform by the order of
Colonel Reid transmitted to him by Sergeant Ryan anything to do with the annual
drill or training of the unit under the provisions of the Act. It is difficult
to conclude, therefore, that when, according to the regulations, attendance at
drill or training was voluntary and Corporal Ryan, according to Regulation 12,
was not entitled to any pay except while on active service, he was under any
obligation to obey an order to drive the baseball team to Souris,
if these were the regulations then in force in regard to his unit.
[Page 539]
While the regulations thus applicable to the unit contained
these provisions, s. 115 of the Act provided a penalty for:—
Every officer and man of the Militia who, without lawful
excuse, neglects or refuses to attend any parade or drill or training at the
place and hour appointed therefor, or who refuses or neglects to obey any
lawful order at or concerning such parade, drill or training.
This section remained unalterated by the amendment of 1947
other than by striking out the word "militia" and substituting the
words "Canadian Army" which, by the defining section, included a
reserve unit such as this. The question is perhaps affected by s. 69 of the Militia
Act, as enacted by the 1947 amendment, which includes a provision that all
officers and men of the Canadian Army shall be subject to "all laws,
regulations and orders relating to the Canadian Army" when, inter alia,
they are within any armoury or other place where arms, guns, ammunition or
other military stores are kept since, while the order to take the truck from
Charlottetown to Souris and return was communicated to
Sergeant Ryan by Colonel Reid by telephone and he received the work order which
authorized the use of the vehicle elsewhere, Corporal Ryan took delivery of the
truck and received at least part of his instructions from Sergeant Ryan at an
armoury. There appears thus to be a conflict between these sections of the Militia
Act and the regulations affecting Reserve units such as this. In view of
the fact that the regulations were clearly authorized by section 14 of the
statute, as it was before the amendment, it may well be contended that the
words "Canadian Army" in section 115, as amended, should be construed
as applicable to units other than those of the Reserve Militia which were
affected by the regulations contained in Appendix 10 to the King's Regulations
and Orders. I find it unnecessary to come to a conclusion on the point, in view
of the opinion that I have formed that in any event Corporal Ryan owed no duty
to obey an order to do something prohibited by the regulations.
The truck or lorry driven by Ryan had been issued to the
28th Light Anti-Aircraft Regiment and, according to Colonel Reid, it had been
"loaned" to him for the purpose of making this trip. The regulations
for the employment of military vehicles at the time provided that transport
[Page 540]
vehicles were to be used for official purposes only and, while
by Regulation 22 they might be used to transport service personnel to sports
fields, play grounds and recreation centres, this was permissible only in the
case of properly authorized and organized military sports and, in the case of
these, the use of transport for such purposes, for distances in excess of
twenty miles, was allowed only on the authority of the Quartermaster General at
Army Headquarters or the general officer commanding of the command concerned,
and its use for carrying civilians or persons other than service personnel was
prohibited. The vehicle in question was not being used for official purposes at
the time of the accident nor for the purpose of transporting service personnel
to authorized or organized military sports: the distance between Souris and Charlottetown is fifty-three miles and permission
to use the truck for a journey of this extent had neither been asked nor
granted. If it be assumed for the purpose of argument that Corporal Ryan was
obligated by the terms of his enlistment and the obligations imposed upon him
by the Militia Act and the King's Regulations and Orders to obey an
order of the commanding officer of the unit, communicated to him in an armoury,
when such unit had neither been placed on active service nor was engaged in its
annual drill or training under the provisions of the Militia Act, his
only obligation was to obey a lawful order.
The oath required of Ryan on admission to the Reserve
Militia under Regulation 15 of Appendix 10 of the King's Regulations and Orders
was to serve under the terms and conditions laid down in the law and the
regulations duly made from time to time in that behalf. The penalties
authorized by the Militia Act for disobedience are for the failure or
refusal to obey any lawful order, not any order which a superior officer may
see fit to give. While, as pointed out by Hudson, J. in Dallas v. Home
Oil Distributors Limited , the question as to whether a given
act of an employee is within the scope of his employment, in the sense in which
that phrase is used for the purpose of determining the employer's liability to
third persons, is strictly not the same question as to whether an injury
received by an employee was an injury received in the
[Page 541]
course of his employment for the
purpose of applying the Workmen's Compensation Act, nevertheless judicial
reasoning in respect of the latter class of questions may be valuable and
illuminating. In Bourton v. Beauchamp , where
a claim was made under the Workmen's Compensation Act of 1906 by reason of the
death of a miner killed in doing an act prohibited by statutory regulation
under the Coal Mines Act 1911, it was held that the deceased in disobeying the
statutory regulation was acting outside the sphere of his employment and that,
consequently, his death was not caused by an act arising out of or in the
course of his employment. To the same effect is Moore v. Donnelly
.
The reasoning applied in arriving at the conclusions of the House of Lords
seems to me applicable in the present matter and accordingly that in performing
an act forbidden by the regulations Corporal Ryan was not "acting within
the scope of his duties or employment" within the meaning of subsection (c)
of s. 19 of the Exchequer Court Act. The learned trial judge considered
that the decision of the Court of Appeal in Irwin v. Waterloo Taxicab
Co. Ltd. , should be applied in the
circumstances of the present case but, with respect, I am unable to agree. In
that case, Bird, the driver of the taxicab had been instructed to obey orders
given to him by Black, the general manager of the taxicab company, and at the
time of the accident he was complying with an order which, as shown in the
judgment of Buckley L.J., he was by the defendant's directions bound to obey.
In the present matter, the obligation of the soldier is limited by the statute
and the regulations to obedience to lawful orders. The decision in Irwin's
case does not, therefore, seem to me in point. If it were it would be
necessary, in my opinion, to decide whether the case was rightly decided, a
debatable question, to my mind.
It may be said that if officers and men of the Canadian Army
were entitled to question the validity of orders given to them by their
superiors, it would be destructive of military discipline. This argument was
advanced in Heddon v. Evans , where an action was
brought against an officer who had sentenced a soldier to fourteen days'
[Page 542]
confinement to barracks for conduct
which was said to be to the prejudice of good order and military discipline, the
plaintiff contending that the officer imposing the punishment had exceeded his
jurisdiction. McCardie J. pointed out that the compact or burden of a man who
entered the Army, voluntary or not, was that he would submit to military law,
not that he would submit to military illegality; that he must accept the Army
Act and Rules and Regulations and Orders and all that they involved, since
these "expressed his obligations and announced his military rights."
Dealing with the argument that if such actions were permitted it would
injuriously affect the discipline of the Army, he said that he would not think
this was so since he could not think that discipline would be the less readily
exerted or the less loyally accepted if it were subjected at all times to the limitations
created by the military law itself. Even if the contrary were so, I think this
would not affect the matter to be here decided, which is the determination of a
question of law depending upon the construction to be given to the regulations
and the statutes. In Keighly v. Bell , a
military officer claimed damages from his commander for false imprisonment,
malicious prosecution and libel. Willes J. in the course of the argument, in
referring to the contention of the defendant that what he had done in the
matter had been authorized or approved by his superiors, said in part (p. 790)
:—
I hope I may never have to determine that difficult
question, how far the orders of a superior officer are a justification. Were I
compelled to determine that question, I should probably hold that the orders
are an absolute justification in time of actual war—at all events, as regards
enemies, or foreigners—and, I should think, even with regard to English-born
subjects of the Crown, unless the orders were such as could not legally be
given. I believe that the better opinion is, that an officer or soldier,
acting under the orders of his superior—not being necessarily or manifestly
illegal—would be justified by his orders.
Later, in delivering judgment, he said in part (p. 805) :—
If it were necessary to state any principle on which it
would be competent to me to decide such a case, it would be that a soldier,
acting honestly in the discharge of his duty—that is, acting in obedience to
the orders of his commanding officers—is not liable for what he does, unless it
be shown that the orders were such as were obviously illegal. He must justify
any direct violation of the personal rights of another person by showing, not
only that he had orders, but that the orders were such as he was bound to obey.
[Page 543]
The statement first above quoted appears to me on the face
of it to be simply obiter and neither of the passages appear to me to
deal directly with the question to be decided here, as to whether obedience to
an unlawful order lies within the scope of the duties of a soldier.
I am further of the opinion that the matter is not affected
by the fact that Corporal Ryan may not have been aware of the true extent of
the duty imposed upon him by the terms of his employment, by the Militia Act
and by the King's Regulations and Orders and may have thought that he was in
duty bound to obey the order in question. To impose liability upon the Crown
the conditions of the section of the Exchequer Court Act must be met. I
am unable, with respect for contrary opinions, to understand how the scope of
his duties and employment could be extended by his mistaken understanding as to
what they were (Wardle v. Enthoven ).
I would allow this appeal and direct that the action be
dismissed with costs throughout if they are demanded.
Cartwright J.:—This
is an appeal from two judgments of Cameron J. whereby it was adjudged that the
suppliants Spence and Bradshaw were respectively entitled to recover damages in
the amounts of $10,318.85 and $750, resulting from a collision which occurred
on the 24th of July, 1947 between a taxi-cab, owned by Bradshaw and operated by
Spence, and an army truck, the property of the appellant, driven by Corporal H. W. Ryan.
The learned trial judge found on conflicting evidence that
the sole cause of the collision was the negligence of Corporal Ryan and neither
this finding nor the assessment of damages was questioned before us.
In the statement of defence in each case it is admitted that
at the time of the collision "a motor vehicle, the property of His Majesty
the King, as vested in the Minister of National Defence, was being driven by
one Corporal Harrison W. Ryan, No. F403452, a servant of His Majesty the King
in the employ of the Royal Canadian Armoured Corps (Reserve)" but it is
pleaded that Corporal Ryan, at the time of the collision, was not acting within
the scope of his duties or employment. The question for determination is
whether or not he was so acting.
[Page 544]
The relevant facts for the purposes of this appeal may be
briefly stated as follows:
At the time of the collision Corporal Ryan was a non-
commissioned officer in the Canadian Army and a member of the 17th P.E.I.
Reconnaissance Regiment with Head quarters at Charlottetown. This regiment did
not form part of the active force and Corporal Ryan was not on full-time
military service. The Commanding Officer of this regiment was
Lieutenant-Colonel Reid. The vehicle in question was a 60-cwt. truck which had
been issued to the 28th Light Anti-Aircraft Regiment. The Commanding Officer of
that regiment had loaned the vehicle to Lieutenant-Colonel Reid and counsel for
the appellant did not argue that Lieutenant-Colonel Reid did not have the
lawful custody of the vehicle or that he would not have been entitled to use it
for any lawfully authorized military purpose connected with the regiment under
his command.
Lieutenant-Colonel Reid testified that he had received
orders, which were not in writing, to do all that he could to build up the
strength of his unit by securing recruits from an area which included Souris, a small town about fifty-three miles from
Charlottetown, that he thought that it would tend to encourage recruiting if he
arranged an "exhibition" baseball game between a team of young men at
Souris and a team sponsored by his regiment and
composed of members of the Queen's Square School Cadet Corps which was
affiliated with his regiment and that, with this end in view, he made
arrangements for such a game, intending to transport the Cadet Corps team from
Charlottetown to Souris in an army truck. For reasons
which do not appear the Cadet Corps team was unable to play this game.
Lieutenant-Colonel Reid considered that the failure to send a team after the
game had been arranged would have a bad effect on the purpose which he was
seeking to accomplish, that is to encourage recruiting, and made arrangements
that a team sponsored by the Knights of Columbus and which was in the same
league as the Cadet Corps team should make the trip to Souris and
play the game in place of the last mentioned team.
[Page 545]
He accordingly instructed Sergeant Ryan, a member of his
regiment who was at the time on full-time military service to call in Corporal
Ryan and to instruct him to make the trip. A "Transport Work Ticket"
authorizing the trip was made out, was signed by Lieutenant-Colonel Reid and
was given by him to Sergeant Ryan. On Corporal Ryan arriving at the armoury in
response to the call which he had received, Sergeant Ryan handed him the
"Transport Work Ticket", which showed on its face that the trip to be
taken was from Charlottetown to Souris, and ordered him
to pick up the Knights of Columbus team, to drive them to Souris
and, after the game and such entertainment as had been arranged for the
visiting team were over, to drive the team back to Charlottetown. It was on the
return trip that the collision occurred.
It was proved that Corporal Ryan was an experienced driver
and that "he had standing orders", which expression was explained to
mean that he had the permanent status of a duly qualified driver of army
vehicles. On previous occasions when Corporal Ryan had been called upon by his
Commanding Officer to drive an army vehicle he had been paid out of the public
treasury and he was to be so paid for the trip in question.
These being the facts, it would seem clear that the order to
make the trip was given to Corporal Ryan at a time while he was upon military
duty and within an armoury and that it was his duty to obey it provided it was
a lawful order. This follows from Sections 69(2) and 117 of the Militia Act,
R.S.C. 1927, c. 132 as amended by 1947, 11 George VI, c. 21, sections 22 and
34(1). The relevant portions of these sections provide as follows:—
69(2) Officers and men of the Active Force and members of
the permanent staff of the Canadian Army shall at all times be subject to all
laws, regulations and orders relating to the Canadian Army and all other
officers and men of the Canadian Army shall be subject to such laws,
regulations and orders.
* * *
(c) at any time while upon
military duty .... or within any armoury * * * *
117. Every officer and man of the Canadian Army who disobeys
any lawful order of his superior officer * * * shall incur a penalty * * * *
[Page 546]
Indeed, I did not understand counsel for the appellant to
argue that if the order had been to drive the truck for some purpose authorized
by the relevant regulations it would not have been Corporal Ryan's duty to
carry it out.
The main argument on behalf of the appellant is that under
the relevant legislation, regulations and orders, Lieutenant-Colonel Reid had
no authority to make use of the truck for the purpose described, that, while
Corporal Ryan was under a duty to obey the lawful orders of his superior
officer, the order given to him was unlawful and that consequently in driving
the truck pursuant to such order he was not acting within the scope of his
duties or employment.
The learned trial judge found that Lieutenant-Colonel Reid
was acting throughout in good faith and in the belief that he was entitled to
use the truck as he did but that he was mistaken and that under the relevant
orders he had no authority to use the truck for this purpose and committed a
breach of the regulations regarding the use of military vehicles in so doing.
The learned trial judge was, however, of opinion that Corporal Ryan was acting
within the scope of his duties or employment, that it was his duty to drive
army vehicles in accordance with the orders which he received from his superior
officers, that this was what he was doing at the time of the collision and that
consequently the appellant is liable for the damages resulting from his
negligent driving.
Counsel for the respondents seeks to support the judgment on
the grounds stated by the learned trial judge but he also argues that
Lieutenant-Colonel Reid was entitled to use the truck for the purpose
mentioned. He submits that the only order or regulation properly proved, and in
any case the only one having relevance, was that contained in Exhibit B, Order
No. 4558 said to have been issued by the Quartermaster General, and that the
only provision in such order which has a bearing on the case at bar is the
sentence:—"Army vehicles are to be used for official purposes only."
He then argues that Lieutenant-Colonel Reid's purpose was an official one, that
he had been ordered to do everything in his power to encourage recruiting,
that, in view of section 138 of the Militia Act,
[Page 547]
it is unimportant that he had no written orders to this
effect and that the encouragement of recruiting, having been ordered, became an
official purpose. He submits that as, so far as the record discloses, the
regulations are silent as to how this purpose should be carried out it must be
taken to be left to the reasonable discretion of the Commanding Officer
concerned. In support of this view counsel made reference to the evidence of
Lieutenant-Colonel Simmons, called by the appellant. This officer stated that
his duties included general supervision over the operation of military vehicles
in the charge of the various units in the Eastern Command, reserve force and
active force, although the primary responsibility for the use of such vehicles
rested with the Officer Commanding each unit. Colonel Simmons said in part:—
You are asking a simple question, "could a vehicle be used
for recruiting purposes", and I would say "yes". My answer would
be "yes".
Of course, these officers could not by their evidence
relieve the court of its duty to construe the relevant regulations but, as I
understand it, their evidence was not tendered for this purpose but rather to
show what orders were in fact received and what practice was actually followed
in a matter not expressly dealt with in the regulations, i.e., the encouraging
of recruiting. It is clear that if accepted, the argument that
Lieutenant-Colonel Reid was authorized to use the vehicle for the purpose
mentioned and was giving a lawful order to Corporal Ryan when he ordered him to
drive the truck as he did, is sufficient to dispose of the appeal in favour of
the respondents. I do not find it necessary to pass finally upon this argument
and will only say that the question appears to me to be a doubtful and
difficult one.
For the purposes of this appeal I will assume, without
deciding, that the learned trial judge was right in holding that
Lieutenant-Colonel Reid did not have authority to send the truck to this
particular destination and for this particular purpose. The question then is
whether, on this assumption, Corporal Ryan was acting within the scope of his
duties or employment at the time of the collision, for it was his negligence
which caused injury to the suppliants.
[Page 548]
The effect of the conflicting views put forward may be
summarized as follows. For the appellant it is urged that the duty of Corporal
Ryan was limited to driving army vehicles for such purposes as might be
authorized by the relevant statutes, regulations and orders in force at the
time of the accident, that since, ex hypothesi, driving the truck to Souris for the purposes mentioned was not authorized by such
regulations his act in driving it there fell outside the scope of his duties
and that the fact that he was ordered by Lieutenant-Colonel Reid to drive the
truck to Souris is irrelevant as Corporal Ryan's duty
did not include obedience to the orders of his Commanding Officer unless they
were lawful. For the respondents it is argued that the duty of Corporal Ryan,
who was admittedly on the day of the accident a servant of the Crown, was to
drive army vehicles, that it was no part of his duty to decide to what places
or for what purposes such vehicles should be driven but that as to this he was
to obey the orders given to him by his superior officers, provided that such
orders were not ex facie unlawful and (perhaps) provided further that
the orders were not such as a reasonable man in Corporal Ryan's position should
have realized were unlawful.
I have reached the conclusion that in the circumstances of
this case it was Corporal Ryan's duty to obey the order which he received and
that in driving the truck to and from Souris in
obedience to that order he was acting within the scope of his duty. This view
appears to me to be supported by the Judgment of the Court of Appeal in England
in Irwin v. Waterloo Taxi-cab Company, Limited ,
relied upon and followed by the learned trial judge. In that case one Bird was
employed by the defendant Taxi-cab Company to drive its taxi-cabs. He was
instructed by his employer to obey the orders of the General Manager, Black,
and to drive the cabs as directed by him. Black ordered Bird to drive one of
the taxi-cabs on what was clearly as between Black and the Company a frolic of
his own but it was found that this fact was not known to Bird and that the
circumstances were not such that he ought reasonably to have known it. While so
driving Bird
[Page 549]
negligently struck and injured the plaintiff. It was held
that the Company was liable for Bird's negligence although it is, I think,
clear from the judgments that had Black himself been driving the Company would
not have been liable. We were not referred to any subsequent decision in which
this judgment has been doubted and with respect I agree with it.
In the case at bar I think it clear that Corporal Ryan did
not know that Lieutenant-Colonel Reid had no right to give him the order which
he gave nor do I think that it can be said on the evidence that as a reasonable
man Corporal Ryan should have known this. I have already indicated that, even
after having had the advantage of hearing a full and able argument on the question,
I am doubtful as to whether or not Lieutenant-Colonel Reid was authorized to
give the order in question. It was not proved that any of the regulations or
orders relied upon by the appellant as prohibiting Lieutenant-Colonel Reid from
giving such an order had in fact been brought to Corporal Ryan's attention or
had been published in such a manner that it became his duty to be aware of
their contents. I do not think that there is any presumption that he knew their
contents. In this connection reference may be made to the words of Lord Atkin
in Evans v. Bartlam .
For my part I am not prepared to accept the view that there
is in law any presumption that any one, even a judge, knows all the rules and
orders of the Supreme Court. The fact is that there is not and never has been a
presumption that every one knows the law. There is the rule that ignorance of
the law does not excuse, a maxim of very different scope and application.
It appears to me that to hold that it was not within the
duty of Corporal Ryan to obey the order given to him in this case by his
superior officers would tend to bring about a condition of confusion. I cannot
assent to the proposition that where a non-commissioned officer or man whose
duty it is to drive army vehicles receives from his Commanding Officer an
order, not obviously unlawful, to drive a vehicle to a particular place and for
a particular purpose he must, before obeying the order, conduct an inquiry of
his own as to whether the order is lawful.
[Page 550]
In Hodgkinson v. Fernie , in
his charge to the jury at page 421, Cockburn C.J. said:—
There would be an end to all subordination, military or
naval, if the officer subordinate in command were to take upon himself to
decide upon the merits of the order, before he obeyed it.
This charge was approved on a motion for a new trial by a
court consisting of Cockburn C.J. and Creswell, Crowder and Willes JJ.
In the case at bar counsel for the appellant does not
suggest that Corporal Ryan should have questioned the merits of the order he
received. The suggestion is that he should have questioned its legality. But
where there is nothing on the face of an order or in the surrounding
circumstances to indicate that it is unlawful the effect of holding that the
subordinate should question its legality before obeying it would, I think,
result in no less confusion than would permitting him to decide upon its
merits.
We are not called upon in this case to consider the duty of
a soldier who receives an order, in fact unlawful, in such circumstances that
he ought reasonably to know it is unlawful and I wish to make it clear that I
do not intend to decide anything in relation to such a situation.
For the reasons given by the learned trial judge on this
branch of the matter and for the reasons set out above I am of opinion that
these appeals should be dismissed with costs.
Appeal dismissed with costs.
Solicitor for the appellant: F.
R. Varcoe.
Solicitors for the respondents: Bell and
Mathieson.
Email this Content