Supreme Court of Canada
Conseil des Ports Nationaux v. Langelier et al.,
[1969] S.C.R. 60
Date: 1968-10-01
Le Conseil des
Ports Nationaux Appellant;
and
Jean Langelier,
Armand J. Lavoie, Larry Lajoie, Honorable Joseph Jean et Immeubles Bourget Inc.
Respondents.
1968: March 8, 11; 1968: October 1.
Present: Fauteux, Martland, Ritchie, Spence
and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Crown—Injunction—Whether National Harbours
Board subject to injunction—National Harbours Board Act, R.S.C. 1952, c. 187.
By a petition for interlocutory injunction,
the respondents, owners of properties bordering on the St. Lawrence river,
asked that the National Harbours Board be restrained from carrying out certain
works on the river which, it was claimed, would injuriously affect their
respective properties. The Board moved by way of declinatory exception to
dismiss the petition on the ground that, being an agent of the Crown, it was
not subject to injunction. The exception was dismissed at trial, and this
judgment was affirmed by the Court of Appeal. The Board was granted leave to
appeal to this Court.
Held: The
appeal should be dismissed.
[Page 61]
The appellant corporation has the capacity to
be sued and is, for the purposes of the Act which created it, a servant of the
Crown. But it does not thereby enjoy an immunity from claims in tort, if it
acts wrongfully. A personal liability will result when a person, whether
individual or corporate, although a Crown agent and purporting to act as such,
commits an unlawful act. The position of an agent of the Crown is not different
because the agent is a corporation and not an individual. If a corporation
commits a wrongful act, it is liable therefor and it cannot escape liability by
alleging that it is not responsible for anything done outside its corporate
powers. This is true whether it is purporting to act as a Crown agent or not.
If a corporation can be held liable civilly in damages for wrongs which it has
itself committed or ordered, it is obvious that a person threatened with the
commission of an unlawful act by a corporate Crown agent can seek the
assistance of the Court to prevent the corporation from doing that which it is
not authorized to do as a Crown agent. The appellant cannot prevent the Court
from inquiring into the legal justification for its conduct merely by saying
that because it is an agent of the Crown it is immune from suit.
Couronne—Injonction—Peut-on obtenir une
injonction contre le Conseil des ports nationaux—Loi sur le Conseil des ports
nationaux, S.R.C. 1952, c. 187.
Les intimés, ayant des propriétés le long du
fleuve St-Laurent, ont demandé contre le Conseil des ports nationaux une
injonction interlocutoire lui enjoignant de discontinuer certains travaux dans
le fleuve qui, ils ont allégué, ruineront la valeur de leurs propriétés
respectives. Le Conseil des ports nationaux a opposé une exception
déclinatoire, demandant que la requête d’injonction soit rejetée pour le motif
que, étant un mandataire de la Couronne, une injonction ne peut être décernée
contre lui. L’exception a été rejetée par la Cour de première instance, et ce
jugement a été confirmé par la Cour d’appel. Le Conseil a obtenu la permission
d’en appeler à cette Cour.
Arrêt: L’appel
doit être rejeté.
La corporation appelante est habile à ester
en justice et est, pour les fins de sa loi constitutive, un serviteur de la
Couronne. Mais, elle ne jouit pas de ce fait d’une immunité à l’égard des
réclamations basées sur la faute, lorsqu’elle agit illégalement. Lorsqu’un
individu ou une corporation, mandataire de la Couronne et agissant comme tel,
commet un acte illégal, il en résulte une responsabilité personnelle. La
condition de mandataire de la Couronne n’est pas différente lorsque ce
mandataire est une corporation au lieu d’être un individu. Si une corporation
commet un acte illégal, elle encourt une responsabilité, et elle ne peut pas
échapper à cette responsabilité en alléguant qu’elle n’est pas responsable de
ce qui est fait en dehors de ses capacités. Ceci est vrai, qu’elle prétende
agir comme mandataire de la Couronne ou non. Si une corporation peut être tenue
civilement responsable en dommages pour la faute qu’elle a elle-même commise ou
ordonnée, il est évident qu’une personne, menacée de la commission d’un acte
illégal de la part d’une corporation, mandataire de la Couronne, a droit
d’obtenir l’aide des tribunaux pour
[Page 62]
empêcher la corporation de faire ce qu’elle
n’est pas autorisée de faire comme mandataire de la Couronne. La corporation
appelante ne peut pas empêcher les tribunaux d’examiner la légalité de sa
conduite pour le seul motif qu’étant un mandataire de la Couronne elle est à
l’abri de toute poursuite.
APPEL d’un jugement de la Cour du banc de la
reine, province de Québec, confirmant un jugement du Juge Mitchell qui avait rejeté une
exception déclinatoire. Appel rejeté.
APPEAL from a judgment of the Court of
Queen’s Bench, Appeal Side, province of Quebec1, affirming a
judgment of Mitchell J. dismissing a declinatory exception. Appeal dismissed.
Laurent E. Bélanger, Q.C., and J.M.
Jacques, for the appellant.
Paul Trudeau, for the respondents.
The judgment of the Court was delivered by
MARTLAND J.:—This is an appeal from a judgment
of the Court of Appeal of the Province of Quebec,
dismissing an appeal by the appellant from a decision of the Superior Court
which dismissed a declinatory exception made by the appellant against a
petition by the respondents for an interlocutory injunction. The circumstances
which gave rise to these proceedings are stated by the learned trial judge as
follows:
The petition for interlocutory injunction
alleges in substance that the Petitioners are proprietors of properties in
Pointe-aux-Trembles bordering the St. Lawrence river; that for several
days Respondents National Harbours Board and Shell Canada Ltd. had been
carrying out or procuring the carrying out illegally of the filling in of the
St. Lawrence river for the purpose of creating a new and extensive parcel
of land of a width of 500 feet and installing thereon reservoirs, thereby
illegally displacing the limits of the river which borders Petitioners’
property; that the continuation and realization of this work will cause serious
and irreparable harm to the Petitioners, ruining for ever their properties, as
well from the residential as from the commercial point of view; that the
Respondent City of Pointe-aux-Trembles has issued a permit to construct in the
immediate vicinity of Petitioners’ property huge reservoirs of 48 feet in
height even before the site had been prepared;
[Page 63]
praying for the issue of an interlocutory
injunction, enjoining Respondents, their employees and representatives to cease
and cause to cease all works of construction or preparation of the ground now
in process on the bed of the St. Lawrence adjacent to the Petitioners’
property.
Petitioners also requested the issue of an
immediate interim injunction, and after hearing the parties, an interim
injunction was issued as prayed for by Mr. Justice Caron on the 28th March
1966, to remain in force until the 14th April 1966, pending hearing and
disposition of the prayer for the interlocutory injunction.
At the hearing for the interim injunction
Respondent National Harbours Board appears to have orally objected to the
jurisdiction of the Court as regards it, but no judgment having been rendered
thereon, a formal motion by way of declinatory exception was duly filed and,
after argument, was taken on délibéré. Pending judgment on the exception the
interim injunction was continued in force until April 20th, 1966 and the
petition for an interlocutory injunction continued to the same date.
The basis for the declinatory exception is
that Respondent National Harbours Board is an emanation or instrumentality of
the Crown, and is therefore exempt from any process, upon the principle that
the King can do no wrong, the Court therefore being incompetent ratione
materiae to adjudicate with respect to it.
The appellant is a body corporate created by the
National Harbours Board Act, R.S.C. 1952, c. 187. The sections of
that Act, which are relevant to this appeal, are the following:
3. (1) There shall be, under the direction
of the Minister, a Board to be known as the “National Harbours Board”
consisting of four members, namely, a Chairman, a Vice‑Chairman and two
other members, who shall be appointed by the Governor in Council to hold office
during good behaviour for ten years.
(2) The Board is a body corporate and
politic and shall be and be deemed to be, for all the purposes of this Act, the
agent of Her Majesty in right of Canada.
(3) The Board has the capacity to contract
and to sue and be sued in the name of the Board.
39. (1) Subject, as hereinafter provided
any claim against the Board arising out of any contract entered into in respect
of its undertaking or any claim arising out of any death or injury to the
person or to property resulting from the negligence of any officer or servant
of the Board while acting within the scope of his duties or employment may be
sued for and prosecuted by action, suit or other proceeding in any court having
jurisdiction for like claims between subjects.
(2) Any such action, suit or other
proceeding may be commenced and prosecuted to judgment in the same manner and
subject to the same rules of practice and procedure and to the same right of
appeal as nearly as may be as in cases between subjects.
(3) The said court has the same
jurisdiction to order or adjudge the payment of costs either by plaintiff or
defendant as in like cases in the said court between subjects.
[Page 64]
The learned trial judge held that the claim in
question here fell within s. 39(1), holding that the “negligence” referred
to in that subsection meant tortious liability as understood at common
law, or for fault, as contemplated by articles 1053 et seq. of the Civil
Code, and that “injury to property” included injurious affection of
property rights.
This decision was sustained on appeal, Pratte J.
dissenting. Choquette J., with whom the other three members of the Court agree,
said as follows:
Outre l’article 39 de la loi précitée, il y
a Particle 3, dont les paragraphes 2 et 3 se lisent comme suit:
3. (2) Le Conseil est un corps constitué et
politique, et, pour toutes les fins de la présente loi, il est et est censé
être le mandataire de Sa Majesté du chef du Canada.
(3) Le Conseil est habile à passer des
contrats ainsi qu’à ester en justice en son propre nom.
Comme on le voit, ce n’est que «pour les
fins de la présente loi» que le Conseil «est censé être le mandataire de Sa
Majesté». Si le Conseil excède les pouvoirs que la loi lui confère, si, par
exemple, il s’empare de «terrains ou d’un droit de propriété limité, ou d’un
intérêt limité dans des terrains» sans l’autorisation préalable du gouverneur
en conseil et sans l’expropriation ou le consentement prévus à l’article 11, il
ne peut être dit que le Conseil agit comme mandataire de la Couronne. Dans ce
cas, le Conseil est dans la position d’un ministre qui outrepasserait ses
attributions, engageant ainsi sa responsabilité personnelle.
Ce n’est donc pas contre la Couronne que
les intimés demandent une injonction, mais contre le «corps constitué et
politique» qui a excédé ses pouvoirs et qui est quand même «habile à ester en
justice en son propre nom» pour se voir ramener dans les limites de son mandat.
L’injonction est aussi dirigée contre les représentants et préposés du Conseil.
The appellant contends that s. 39 is not
applicable, there being no claim for damages and no allegation of negligence as
against any officer or servant of the appellant and there being no provision
for remedy by way of injunction. It is also submitted that the appellant, being
an agent of the Crown, enjoys all of the immunities of the Crown at law, and
cannot be sued at all, save to the extent that such suit is specifically
permitted by statute. It was also argued that the National Harbours Board, as
such, was incapable of acting in any way, save as an agent of the Crown, and
that if, in fact, its powers were exceeded, any such act could not be that of
the Board, but would be only the act of the individuals involved.
[Page 65]
These latter propositions raise a question of
considerable importance. If correct, they would involve the conclusion that no
subject, threatened with an unlawful act by a corporate Crown agent, would have
any recourse to the courts against such corporation in order to prevent it.
The appellant is a corporation created by a
statute which defines its corporate powers. It has the capacity to be sued. It
is, for the purposes of the Act which created it, a servant of the Crown. Does
it thereby enjoy an immunity, in the same manner as the Crown itself, from
claims in tort, if it, i.e., the corporation itself, acts wrongfully?
A convenient starting point for the
consideration of this matter is to be found in the well known statement by
Dicey, “The Law of the Constitution”, 10th ed., p. 193:
In England the idea of legal equality, or
of the universal subjection of all classes to one law administered by the
ordinary courts, has been pushed to its utmost limit. With us every official,
from the Prime Minister down to a constable or a collector of taxes, is under
the same responsibility for every act done without legal justification as any
other citizen. The Reports abound with cases in which officials have been
brought before the courts, and made, in their personal capacity, liable to
punishment, or to the payment of damages, for acts done in their official
character but in excess of their lawful authority. A colonial governor, Mostyn
v. Fabrigas, (1774) 1 Cowp. 161; Musgrave v. Pulido, (1879) 5 App.
Cas. 102; Governor Wall’s Case, (1802) 28 St. Tr. 51, a
secretary of state, Entick v. Carrington, (1765) 19 St. Tr. 1030;
K. & L. 174, a military officer, Phillips v. Eyre, (1867) L.R. 4
Q.B. 225; K. & L. 492, and all subordinates, though carrying out the
commands of their official superiors, are as responsible for any act which the
law does not authorise as is any private and unofficial person.
This principle was applied in this Court in Roncarelli
v. Duplessis.
The quotation was cited in his reasons by-Abbott J., at p. 184.
The proposition was clearly stated in Feather
v. The Queen,
by Chief Justice Cockburn, at p. 297:
But in our opinion no authority is needed
to establish that a servant of the Crown is responsible in law for a tortious
act done to a fellow subject, though done by the authority of the Crown—a
position which appears to us to rest on principles which are too well settled
to admit of question, and which are alike essential to uphold the dignity of
the Crown on the one hand, and the rights and liberties of the subject on the
other.
[Page 66]
It was stated again by Viscount Finlay in Johnstone
v. Pedlar:
It is the settled law of this country,
applicable as much to Ireland as to England, that, if a wrongful act has been
committed against the person or the property of any person the wrongdoer cannot
set up as a defence that the act was done by the command of the Crown. The
Crown can do no wrong, and the Sovereign cannot be sued in tort, but the person
who did the act is liable in damages, as any private person would be.
In Nireaha Tamaki v. Baker, the Privy Council
considered a claim for an injunction by a person who claimed a native title of
occupancy to certain lands in New Zealand. The respondent was the Commissioner
of Crown Lands in the provincial district of Wellington. The Governor had
advertised for sale lands, including those claimed by the appellant, and the
appellant sued for a declaration that the land still remained land owned by
natives, under their customs and usage, to which undisturbed possession had
been guaranteed by treaty, and for an injunction against selling the same. The
respondent objected that the interest of the Crown in the lands in question
could not be attacked by this proceeding. At p. 575 Lord Davey says:
The learned judges in the Court of Appeal
thought that the case was within the direct authority of Wi Parata v. Bishop
of Wellington, 3 N.Z.J.R. (N.S.) S.C. 72, previously decided in that Court.
They held that “the mere assertion of the claim of the Crown is in itself
sufficient to oust the jurisdiction of this or any other Court in the Colony.
There can be no known rule of law,” they add, “by which the validity of
dealings in the name and under the authority of the Sovereign with the native
tribes of this country for the extinction of their territorial rights can be
tested”. The argument on behalf of the respondent at their Lordships’ bar
proceeded on the same lines.
Their Lordships think that the learned
judges have misapprehended the true object and scope of the action, and that
the fallacy of their judgment is to treat the respondent as if he were the
Crown, or acting under the authority of the Crown for the purpose of this
action. The object of the action is to restrain the respondent from infringing
the appellant’s rights by selling property on which he alleges an interest in
assumed pursuance of a statutory authority, the conditions of which, it is
alleged, have not been complied with. The respondent’s authority to sell on
behalf of the Crown is derived solely from the statutes, and is confined within
the four corners of the statutes. The Governor, in notifying that the lands
were rural land open for sale, was acting, and stated himself to be acting, in
pursuance of the 136th section of the Land Act, 1892, and the respondent
in his notice of sale purports to sell
[Page 67]
in terms of s. 137 of the same Act. If
the land were not within the powers of those sections, as is alleged by the
appellant, the respondent had no power to sell the lands, and his threat to do
so was an unauthorized invasion of the appellant’s alleged rights.
In the case of Tobin v. Reg., 16
C.B. (N.S.) 310, a naval officer, purporting to act in pursuance of a statutory
authority, wrongly seized a ship of the suppliant. It was held on demurrer to a
petition of right that the statement of the suppliant shewed a wrong for which
an action might lie against the officer, but did not shew a complaint in
respect of which a petition of right could be maintained against the Queen, on
the ground, amongst others, that the officer in seizing the vessel was not
acting in obedience to a command of Her Majesty, but in the supposed
performance of a duty imposed upon him by Act of Parliament, and in such a case
the maxim “Respondeat superior” did not apply. On the same general principle it
was held in Musgrave v. Pulido, (1879) 5 App. Cas. 102, that a
Governor of a Colony cannot defend himself in an action of trespass for wrongly
seizing the plaintiff’s goods merely by averring that the acts complained of
were done by him as “Governor” or as “acts of State”. It is unnecessary to
multiply authorities for so plain a proposition, and one so necessary to the
protection of the subject. Their Lordships hold that an aggrieved person may
sue an officer of the Crown to restrain a threatened act purporting to be done
in supposed pursuance of an Act of Parliament, but really outside the statutory
authority.
Part of this passage is cited by Newcombe J.,
who delivered the reasons of the majority of this Court in Rattenbury v.
Land Settlement Board.
In that case the appellant complained of the imposition of taxes against
his land in British Columbia and against himself under the Land Settlement
and Development Act, R.S.B.C. 1924, c. 128, alleging that certain sections of
that Act, relied upon by the respondent, were ultra vires of the
provincial legislature. He claimed a declaration, damages and an injunction.
The respondent pleaded, inter alia, that it was a branch of the
provincial Department of Agriculture, a servant and agent of the Crown, that it
possessed no other capacity, that its acts were done in that capacity and that
it could not be sued.
At p. 62, Newcombe J. says:
For myself, I see no reason to doubt that
the defendant Board is sued in its official capacity. It is described and
identified in the action not otherwise than by its corporate name; it is thus
the corporation, and not its individual members, which is the party defendant;
and as a statutory body, it has no capacity other than that which it derives
from its constituting Act. I do not question the general truth involved in the
proposition expressed by Bankes L.J., in Mackenzie-Kennedy v. Air Council, (1927)
2 K.B. 517, at p. 523:
[Page 68]
In the absence of distinct statutory
authority enabling an action for tort to be brought against the Air Council, I
am of opinion, both on principle and upon authority, that no such action is
maintainable. The Air Council are not a corporation, and even if it were to be
treated as one the respondent’s position would not be improved.
The learned Lord Justice mentions the case
of Roper v. Public Works Commissioners, (1915) 1 K.B. 45; and he
quotes from an Irish case, Wheeler v. Public Works Commissioners, (1903)
2 Ir. Rep. 202, a passage from the judgment of Palles C.B., as follows:
Now, if a corporation be constituted for
the sole purpose of doing acts for the Crown, it is prima facie outside
its powers to do anything except for the Crown, and, as in law a wrongful act
cannot be done for the Crown, such a corporation is not capable of doing such
wrongful act in its corporate capacity. In such a case, therefore, the wrongful
act cannot be deemed that of the corporation, but must be deemed the personal
act of those who committed it.
With these observations, however, are to be
contrasted what was said by Atkin L.J., at p. 533 of the Air Council
case, (1927) 2 K.B. 517. But whatever may be said about the Air Council,
and while it is certainly true that the revenues of the Crown cannot be reached
by judicial process to satisfy a demand against an officer or servant of the
Crown in any capacity, whether incorporated or not, it is common practice,
founded upon general principle, that the court will interfere to restrain ultra
vires or illegal acts by a statutory body, and, when it is charged, as in
this case, that the proceedings in question, though authorized by the letter of
the statute, are nevertheless incompetent, by reason of defect in the enacting
authority of the legislature, the court must, I should think, have jurisdiction
so to declare, and to restrain the ultra vires proceedings, although
directed by the statute and in strict conformity with the legislative text. To
this extent, in my view, the action is properly constituted; indeed, upon this
point the authority is conclusive.
After citing from the Tamaki case, he
goes on to say:
It is not necessary for me. to consider the
position of the individual members of the Board, because I hold that, as such,
they are not before the Court; but, upon the authorities, it seems to be
established that the doer of a wrongful act cannot escape liability by setting
up the authority of the Crown, unless in proceedings by a foreigner against a
British subject, in which case an exception is introduced, as appears by Feather
v. The Queen, (1865) 6 B. & S. 257, at pp. 279, 295, 296, in which
Baron Parke’s charge in Buron v. Denman, (1848) 2 Exch. 167, was
explained. It seems to be only in such a case that it is of any use to justify
upon the authority of an act of State. Walker v. Baird. (1892) A.C. 491.
In the Mackenzie-Kennedy case, to which he refers, it was held that the
appellant’s action in tort did not lie against the Air Council. The Air Council
was not an incorporated body. Bankes L.J. said that it was a Department of
State. It was held that an action for tort would not lie against the statutory
body set up under that name.
[Page 69]
Bankes L.J. cited with approval what was said by
Romer J. in Raleigh v. Goschen:
I will state some general principles of law
which I conceive govern this class of cases; and if you challenge any portion
of what I am about to say, then I will hear you in reply. It appears to me that
if any person commits a trespass (I use that word advisedly as meaning a
wrongful act or one not justifiable) he cannot escape liability for the
offence, he cannot prevent himself being sued merely because he acted in
obedience to the order of the executive Government, or of any officer of State;
and it further appears to me, as at present advised, that if the trespass had
been committed by some subordinate officer of a Government Department or of the
Crown, by the order of a superior official, that superior official—even if he
were the head of the Government Department in which the subordinate official
was employed, or whatever his official position—could be sued; but in such a
case the superior official could be sued, not because of, but despite of, the
fact that he was an officer of State. I think it is clear that the head of a
Government Departmen is not liable for the neglect or torts of officials in the
Department, unless it can be shown that the act complained of was substantially
the act of the head himself; in which case he would be liable as an individual,
just as a stranger committing the same act would be.
Atkin L.J., at p. 532, has this to say, as
to what might have been the position had the Council been incorporated:
Applying these considerations to this
action it appears clear that unless the Air Council is incorporated the name is
but a name for the individuals that compose it. I do not think that it can be
used at all as the equivalent of the names of its members in a suit which is
directed against the members in their private capacity. In any event in this
case I think it is plain, plainer even than in the case of Raleigh v.
Goschen, (1898) 1 Ch. 73, where at least the Lords Commissioners were
individually named, that this present action is directed against the members of
the Air Council in their official or, as I prefer to say, representative
capacity as servants of the Crown, and therefore will not lie. If, however, the
Air Council were incorporated different considerations might apply. The Crown
may and does employ as its servant or servants, an individual, a joint
committee or board of individuals, or a corporation. None can be made liable in
a representative capacity for tort; the individuals may be made liable in their
private capacity, and I see no reason why this liability should not extend to
the juristic person, the corporation, as well as to the individual. It may be
true that the corporation in such a case will have no private assets available
to meet execution, but that may also be true of the individual. One must also
face the difficulty that such a corporation will have no servants, for as in
the case of individual officials, those who serve under it are not its
servants, but servants of the Crown. It is, therefore, only for torts actually
committed by it, or to which it is directly privy, as by giving orders for
their performance, that it can be made liable. But for such a tort proved, for
example, by a minute of an incorporated board expressly commanding the
commission of a tort, in principle, as it appears to me, an action would lie,
however unprofitable such an action would be.
[Page 70]
The case chiefly relied upon by the appellant
was City of Halifax v. Halifax Harbour Commissioners. That case, however,
only held that the Commissioners, who occupied Crown property in Halifax for
the exercise of their powers, were not assessable for business tax as an
“occupier” because their occupation of the property was for the Crown.
This case was followed in Cour de Recorder et
Cité de Montréal v. Société Radio-Canada
in respect of the respondent’s liability for municipal sales tax.
These cases are not of assistance in respect of
the issue which is before us. They illustrate that, where a Crown agent is
properly exercising its function as such, its acts, being those of its
principal, the Crown, are to be dealt with on that basis.
What is in issue here is the responsibility of a
person, whether individual or corporate, who, though a Crown agent, and
purporting to act as such, commits an act which is unlawful. My understanding
of the law is that a personal liability will result. The liability arises, not
because he is an agent of the Crown, but because, though he is an agent of the
Crown, the plea of Crown authority will not avail in such event.
There are some authorities which have stated, in
terms which I consider to be too broad, the proposition that an instrumentality
of the Crown enjoys the same immunity, from an action in tort, as does the
Crown itself. Thus, as an example, in Peccin v. Lonegan and T. & N.O.
Railway Commission,
Davis J.A. says this:
The principle is that the privileges
enjoyed by departments of State and by the officials thereof are so enjoyed by
virtue of the Crown’s prerogative, such departments and their officers being,
as it were, representatives of the Crown and deriving their powers therefrom.
As it was put in Gilbert v. Corporation of Trinity House (1886), 17
Q.B.D. 795, at p. 801: “All the great officers of state are… emanations
from the Crown. They are delegations by the Crown of its own authority to
particular individuals.”
On the facts of that case, however, the decision
went no further than to say that the Temiskaming and Northern
[Page 71]
Ontario Railway Commission, a body appointed by
the Crown to administer a public undertaking of the Crown, enjoyed the Crown
immunity from suits in tort for the tortious acts of its servants or agents.
As to the phrase “emanation from the Crown”, I
would refer to what is said by Luxmoore L.J., in the Privy Council, in International
Railway Co. v. Niagara Parks Commission:
Kelly J. in his judgment referred to the
Commission not only as being the agent or servant of the Crown but also as “an
emanation of the Crown”. The latter phrase is also used by McTague J.A. Their
Lordships are unable to appreciate the precise meaning intended to be
attributed to this phrase by the Courts below. If it is intended to refer to
the Commission in some capacity other than that of agent or servant it is
impossible to ascertain from the judgments delivered what the legal
significance of that capacity may be. The word “emanation” is hardly applicable
to a person or a body having a corporate capacity. Its primary meaning is “that
which issues or proceeds from some source” and it is commonly used to describe
the physical properties of substances (e.g. radium) which give out emanations
of recognizable character. The words seem first to have been used by Day J. in Gilbert
v. Trinity House (1886), 17 Q.B.D. 795.
After referring to the judgment of Day J., in
which the phrase is used, he goes on to say:
The learned Judge in the passage quoted
seems to use the word as synonymous with servant or agent and in no other
sense. Their Lordships are of opinion that it would avoid obscurity in the
future if the words agent or servant were used in preference to the
inappropriate and undefined word “emanation”.
After reviewing the authorities cited by
counsel, and a number of other cases, which I do not think it is necessary to
list, my understanding of the position of servants or agents of the Crown, at
common law, in respect of a claim in tort, is this:
First is the proposition that the Crown itself
could not be sued in tort.
Second is the proposition that Crown assets
could not be reached, indirectly, by suing in tort, a department of government,
or an official of the Crown. As to a government department, there was the added
barrier that, not being a legal entity, it could not be sued.
[Page 72]
Third is the proposition that a servant of the
Crown cannot be made liable vicariously for a tort committed by a subordinate.
The subordinate is not his servant but is, like himself, a servant of the Crown
which, itself, cannot be made liable.
Fourth is the proposition that a servant of the
Crown, who commits a wrong, is personally liable to the person injured.
Furthermore, if the wrongful act is committed by a subordinate, at his behest,
he is equally liable, not because the subordinate is his servant, but because
the subordinate’s act, in such a case, is his own act. This is what is said in
the passage from Raleigh v. Goschen, previously cited.
Is the position any different because the agent
in this case is not an individual, but a corporation? I think not, and I agree
with the reasoning of Atkin L.J. in the Mackenzie‑Kennedy case.
As Choquette J. has pointed out, in the reasons
for judgment of the Court of Appeal, s. 3(2) of the National Harbours
Board Act declares that the Board “shall be and be deemed to be, for all
the purposes of this Act, the agent of Her Majesty in right of Canada”.
(The italicizing is my own.) It is only when the Board is lawfully executing
the powers entrusted to it by the Act that it is deemed to be a Crown agent.
I am not prepared to accept the proposition
enunciated in Wheeler v. Public Works Commissioners, supra, that a
corporation constituted for the sole purpose of doing acts for the Crown is not
capable of doing a wrongful act in its corporate capacity, unless that
statement is to be limited in its meaning to say that such a wrongful act is
not authorized by its corporate powers. Otherwise the statement subscribes to
the theory that a corporation cannot be made liable in tort because its
corporate powers do not authorize it to commit a wrong. In my opinion, if a
corporation, in the purported carrying out of its corporate purposes, commits a
wrongful act, it is liable therefor and it cannot escape liability by alleging that
it is not responsible for anything done outside its corporate powers. This is
true whether it is purporting to act as a Crown agent, or not.
[Page 73]
This view appears to be implicit in the
statement of Duff J., as he then was, in The Quebec Liquor Commission v.
Moore:
The broad principle, of course, is that the
liability of a body created by statute must be determined by the true
interpretation of the statute. It is desirable, perhaps, to advert first of all
to a discussion of the subject in The Mersey Docks and Harbour Board
Trustees v. Gibbs (1864) L.R. 1 H.L. 93. Mr. Justice Blackburn,
delivering the opinion of the judges in that case, proceeded upon the principle
stated by him in these words (p. 107):
It is well observed by Mr. Justice
Mellor in Coe v. Wise, (1864) 5 B. & S. 440; 4 New Rep. 352, of
corporations like the present, formed for trading and other profitable
purposes, that though such corporations may act without reward to themselves,
yet in their very nature they are substitutions on a large scale for individual
enterprise. And we think that in the absence of anything in the statutes (which
create such corporations) showing a contrary intention in the legislature, the
true rule of construction is, that the legislature intended that the liability
of corporations thus substituted for individuals should, to the extent of their
corporate funds, be co-extensive with that imposed by the general law on the
owners of similar works.
An exception is recognized, however, in the
judgment of Mr. Justice Blackburn, as well as in the speeches of the Lords
in the case of public officers who are servants of the Government; that is to
say, officers fulfilling a public duty, appointed directly by the Crown and
acting as officers of the Crown. Such a public officer is not responsible for
the acts of inferior servants or officials merely because the superior officer
has the right of the selection and appointment, as well as the right of removal
at pleasure. Canterbury v. The Attorney-General, (1842) 1 Ph. 306 at p. 324.
It is now recognized also that there is nothing to prevent the Crown being
served by a corporation, and nothing to prevent such a corporation claiming the
same immunity as an individual. Bainbridge v. The Postmaster General, (1906)
1 K.B. 178 at pp. 191-192, and Roper v. The Commissioners of His Majesty’s
Works and Public Buildings, (1915) 1 K.B. 45.
What he is saying here is that a corporation
which is a servant of the Crown enjoys the same immunity as an individual
servant of the Crown, and is not vicariously liable for torts committed by its
servants. It follows that, its immunity being no greater, its liability is also
the same as that of an individual servant of the Crown.
In the matter of liability for the acts of its
servants, the matter has now been dealt with, so far as the appellant is
concerned, by s. 39 of the Act.
If it can be held liable civilly in damages for
wrongs which it has itself committed or ordered, it is obvious that
[Page 74]
a person threatened with the commission of an
unlawful act by a corporate Crown agent can seek the assistance of the Court to
prevent the corporation from doing that which it is not authorized to do as a
Crown agent. This is clearly the principle laid down in the Tamaki and
the Rattenbury cases.
In the present case the respondents allege that
the appellant commenced to engage in and intended to continue the commission of
an unlawful act which injuriously affected them. They seek an injunction to
prevent it. If that which the appellant seeks to do is lawfully justified that
is the end of the matter. But in my opinion the appellant cannot prevent the
Court from inquiring into the legal justification for its conduct merely by
saying that because it is an agent of the Crown it is immune from suit.
I have reached my conclusions without reference
to s. 39 of the National Harbours Board Act. The purpose of that
section was, I think, to make it clear that actions of the kind described
in it were not to be subject to the exclusive jurisdiction of the Exchequer
Court. That Court, when the National Harbours Board Act was passed, had
exclusive jurisdiction in respect of claims arising out of contracts entered
into by or on behalf of the Crown and claims against the Crown arising out of
death or injury to person or property resulting from the negligence of any
officer or servant of the Crown while acting within the scope of his duties or
employment.
The Board was given capacity to contract, but,
as it was an agent of the Crown, it might have been considered, therefore, as contracting
on behalf of the Crown. At common law, an agent of the Crown was not
vicariously liable for the acts of his subordinates, who were not his servants,
but were servants of the Crown.
Section 39 made it clear that the Board itself
could be sued on its contracts and, also, as vicariously liable for the
negligence of its officers and servants, and the recourse in such event was not
limited to proceedings in the Exchequer Court against the Crown.
But, as already stated, there was always
recourse in the common law courts in respect of acts done, without legal
justification, by an agent of the Crown, and the Board, on that principle, is
liable if it commits itself, or orders or
[Page 75]
authorizes its servants to commit, an act done
without legal justification. Equally, if it threatens to commit an act, without
legal justification, a subject, whose legal rights are thereby threatened, has
recourse to the Courts to restrain the commission of such act.
I would dismiss this appeal with costs.
Appeal dismissed with costs.
Attorney for the appellant: J.M. Jacques,
Montreal.
Attorneys for the respondents:
Prévost, Trudeau & Bisaillon, Montreal.
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