R. v. Buchinsky, [1983] 1 SCR 481

Supreme Court of Canada

R. v. Buchinsky, [1983] 1 S.C.R. 481

Date: 1983-04-26

Her Majesty The Queen Appellant;

and

Anthony Buchinsky Respondent.

File No.: 16313.

1982: May 10; 1983: April 26.

Present: Ritchie, Dickson, Estey, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Actions—Per quod servitium amisit—Servicemen in Armed Forces—Action by Crown to recover expenses resulting from injuries sustained by its servants through respondent’s negligence—Whether or not action lies—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 37.

Respondent injured two members of the Canadian Armed Forces in a traffic accident in Manitoba, giving rise to a cause of action by the servicemen. As members of the Armed Forces, the two men were deemed to be servants of the Queen by operation of s. 37 of the Federal Court Act. Appellant, relying upon a claim of per quod servitium amisit, sought to recover the wages paid and medical and hospital expenses of the two injured servicemen from the respondent. The issue was whether or not appellant was entitled to bring the action and to rely on the claim of per quod servitium amisit.

Held: The appeal should be allowed.

Per Ritchie, Estey, Lamer and Wilson JJ.: A per quod action is available to the Crown in right of Canada in respect of recovery for loss of services of members of the Armed Forces as servants of Her Majesty within the meaning of s. 37 of the Federal Court Act. The Crown’s rights are not limited to common law rights which were in turn restricted to a right of action for loss or impairment of domestic and menial servants, but are included the kind of services rendered by members of the Armed Forces. The common law of Manitoba in 1974 did not exclude the services of the Armed Forces from being the subject of a per quod action.

Per Dickson J.: The Crown had an enforceable per quod claim in respect of Armed Forces personnel; the action was not restricted to matters relating to menial and domestic servants. The serious question, not raised here but which might be raised in a future case, was whether this action, despite its antiquated origin, might

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find a different justification in line with present legal principles and with a scope altered to meet any new perception of the action.

Nykorak v. Attorney General of Canada, [1962] S.C.R. 331; The King v. Richardson, [1948] S.C.R. 57; Attorney-General of Canada v. Jackson, [1946] S.C.R. 489; The Queen v. Murray, [1967] S.C.R. 262, applied; Inland Revenue Commissioners v. Hambrook, [1956] 2 Q.B. 641; Taylor v. Neri (1795), 1 Esp. 386, distinguished; Lumley v. Gye (1853), 2 E. & B. 216, 118 E.R. 749; Pagan v. Leifer (1969), 69 W.W.R. 247; Schwartz v. Hotel Corporation of America (1970), 75 W.W.R. 664, referred to.

APPEAL from a judgment of the Manitoba Court of Appeal (1980), 114 D.L.R. (3d) 721, allowing an appeal from a judgment of Dewar C.J. Appeal allowed.

Derek H. Aylen, Q.C., and David Sgayias, for the appellant.

S.S. Kapoor, Q.C., for the respondent.

The judgment of Ritchie, Estey, Lamer and Wilson JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for Manitoba allowing an appeal from a judgment of Chief Justice Dewar whereby he had found the Crown to be entitled to recover damages in the amount of $18,804.54 in respect of an action per quod servitium amisit (hereinafter referred to as a per quod action) allegedly occasioned by the expense incurred by the Crown in defraying the cost of hospitalization and expenses resulting from injuries sustained by servants of the Crown through the negligence of the defendant.

The facts giving rise to this action are the subject of an agreed statement of facts and as it is comparatively short it appears to me to be convenient to reproduce it in full. That statement reads as follows:

1. It is agreed between the Plaintiff and the Defendant that an accident occurred as alleged on the 26th day of September, 1974, at approximately 10:50 o’clock in the afternoon on Provincial Trunk Highway No. 240, approximately half a mile South of Provincial Trunk Highway No. 1 near Portage la Prairie, in the Province of Manitoba, in which the Defendant, Anthony

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Buchinsky, driving a 1966 Ford Station Wagon, bearing 1974 Manitoba Licence No. 5964 struck the said Robert Brent Langley, while he, along with two other persons, was attempting to push a 1972 Chevrolet Vega in which the said William Stanley Coulter was seated, and which stalled along the North shoulder of Provincial Trunk Highway No. 240.

2. It is agreed that the Defendant thereby caused injury to the Plaintiffs servants, ROBERT BRENT LANGLEY and WILLIAM STANLEY COULTER, who themselves have a cause of action against the Defendant, to the extent of the Defendant bearing seventy‑five (75%) per cent of the liability for the damages suffered to the said servants of the Plaintiff.

3. It is agreed that the total amount of damages suffered by the Plaintiff is as follows:

As to ROBERT BRENT LANGLEY—
medical and hospital expenses—	$     19,715.00
loss of wages—ie. paid allowances	4,603.99
Sub-Total	$     24,318.99
As to WILLIAM STANLEY COULTER—
medical and hospital expenses—	$          170.50
loss of wages—ie. paid allowances	49.92
Sub-Total	220.42
TOTAL	$     24,539.41

4. It is agreed that the Plaintiff be allowed to amend Her Statement of Claim at trial to effect the change in damages sought in respect of ROBERT BRENT LANGLEY from $23,755.99 to $24,318.99.

5. It is agreed that at all material times relevant hereto ROBERT BRENT LANGLEY and WILLIAM STANLEY COULTER were members of the Canadian Forces and deemed to be servants of Her Majesty by virtue of Section 37 of the Federal Court Act, 1970, S.C. Chap. C-1.

6. It is agreed that the only issue to be determined by this Honourable Court is as to whether or not Her Majesty the Queen, as the master of the said ROBERT BRENT LANGLEY and WILLIAM STANLEY COULTER is entitled to recovery of the monies agreed upon herein, and whether an action does lie at the instance of Her Majesty the Queen, and whether She is entitled to rely upon the claim of per quod servitium amisit.

The application for leave to appeal to this Court was made upon the following grounds:

1. That the Court of Appeal for Manitoba erred in law in holding that an action per quod servitium

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amisit is not available to the Crown in Right of Canada in respect of recovery for loss of services of members of the Canadian Forces.

2. That the Court of Appeal for Manitoba erred in law in holding that the common law in Manitoba does not include members of the Canadian Forces in the class of servant in respect of which the Crown in Right of Canada may be compensated for loss of services.

The provisions of s. 37 of the Federal Court Act, to which reference is made in the agreed statement, read as follows:

37. For the purpose of determining liability in any action or other proceeding by or against the Crown, a person who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown.

For greater clarity, and having regard to references made in the cases hereinafter referred to, I think it desirable to reproduce also the provisions of s. 50 of the Exchequer Court Act, R.S.C. 1952, c. 98, which provide that:

50. For the purpose of determining liability in any action or other proceeding by or against Her Majesty, a person who was at any time since the 24th day of June, 1938, a member of the naval, army or air forces of Her Majesty in right of Canada shall be deemed to have been at such time a servant of the Crown.

Like the learned Chief Justice of the Manitoba Court of Queen’s Bench, I find the first ground of appeal to be conclusively answered in the reasons for judgment of Mr. Justice Judson in Nykorak v. Attorney General of Canada, [1962] S.C.R. 331, where he said at pp. 333‑34:

The argument now put forward is that the legislation has succeeded in imposing liability on the Crown on the ground of a master and servant relationship but has failed in its attempt to enlarge the rights of the Crown because it still does not make the soldier into the kind of servant for loss of whose services the per quod action will lie. It is unnecessary here to repeat the detailed historical surveys of this form of action which are to be found in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.), [[1955] A.C. 457, 1 All E.R. 846] and Commissioner for Railways (N.S.W.) v.

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Scott [(1959-60), 33 A.L.J.R. 126]. As far as members of the armed forces are concerned it was decided in The King v. Richardson, [[1948] S.C.R. 57], that s. 50 does entitle the Crown to bring this action for disbursements for medical and hospital expenses and pay and allowances. This decision was foreshadowed in Attorney‑General of Canada v. Jackson, [[1946] S.C.R. 489, 2 D.L.R. 481], where the Crown’s claim failed only because the soldier himself, as a gratuitous passenger, had no cause of action against the driver of the car in which he was a passenger. That is all that these cases decide but they are conclusive of the present case. The result follows on the plain meaning of the enactment which merely says to a wrongdoer that it is not cheaper to injure a soldier than a civilian because the Crown assumes to look after a soldier during his period of disability.

In The King v. Richardson, [1948] S.C.R. 57, Kerwin J. (as he then was) said at pp. 61-62:

It now becomes necessary to consider the ground upon which the trial judge dismissed the Information. In view of the definiteness of section 50A, it is unnecessary to consider the correctness of any of the decisions to which we were referred, which hold that at common law the relation of master and servant did not exist between the Crown and a member of the armed forces. The existence of that relationship being settled by statute, why should not the Crown be entitled to bring an action per quod, the same as any other master? The mere fact that Parliament has provided that in proceedings by His Majesty, a member of the Forces should be deemed to be a servant of the Crown indicates to me that it contemplated the bringing of such an action. Although the services to be performed by a member of the Forces differ in kind from those expected from the servant of a private employer, that circumstance, in my opinion, affords no ground for denying to the Crown the benefits of a form of action established many years ago and constantly allowed ever since. It may be anomalous, as stated by Lord Porter and Lord Sumner in Admiralty Commissioners v. S.S. Amerika, [[1917] A.C. 38], but that it still persists cannot be gainsaid. Any opinion of these learned judges is entitled to the greatest respect but their observations as to the action not lying at the suit of the Crown are obiter and, with respect, I find myself unable to agree with them. On the particular point with which I am now dealing, the decision of McKinnon J. in Attorney General v. Valle-Jones,

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[[1935] 2 K.B. 209], is not of assistance as there it was admitted, page 213:—“It is not denied that an action for loss of the services of a servant by the tortious act of a third party is available to the Crown as an employer as well as to a subject”, but the dissenting opinions of Chief Justice Latham and Williams J., in The Commonwealth v. Quince, [(1944) 68 C.L.R. 227], express the same conclusions as that at which I have arrived. [The underlining is mine.]

The action per quod is born of the relationship of master and servant and though of very early origin in my opinion still persists in the common law provinces of Canada in one form or another. The action recognizes the right in the master to recover damages as against a wrongdoer who has injured his servant and thus deprived the master of his services. The measure of damages in such cases is the cost necessarily incurred by the master in respect of the loss of any services of his servant and includes the cost of medical and hospital expenses incurred on the servant’s behalf as a result of such injury so suffered by him. As will hereinafter appear, the master’s right of action in such a case is dependant on the servant in turn having a valid cause of action against the wrongdoer.

As I have already indicated, the issue to be determined on this appeal is settled by agreement as being whether or not Her Majesty as master of Messrs. Langley and Coulter is entitled to recover and whether an action does lie at the instance of Her Majesty entitling her to rely upon the claim of per quod.

Chief Justice Dewar in rendering the judgment at first instance in this case, adopted the view, with which I agree, that the cases of Nykorak v. Attorney General of Canada, (supra), The King v. Richardson, (supra), and Attorney-General of Canada v. Jackson, [1946] S.C.R. 489, all of which were decided in this Court, are conclusive authority recognizing the right of the Crown to bring an action for the recovery of damages on a per quod basis in respect of the loss of services of “a member of the Canadian Forces” who at the relevant times was “deemed to have been … a servant of the Crown”. (See s. 37 of the Federal

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Court Act, (supra), and s. 50 of the Exchequer Court Act, (supra). By paragraph 5 of the agreed statement of facts, the parties are agreed that Messrs. Langley and Coulter “were members of the Canadian Forces and deemed to be servants of Her Majesty by virtue of Section 37 of the Federal Court Act”.

In view of all the above, it will be seen that I am of opinion that the Court of Appeal did indeed err in law in holding that a per quod action is not available to the Crown in the right of Canada in respect of recovery for loss of services of members of the Canadian Forces as servants of Her Majesty within the meaning of s. 37, (supra).

This, however, is not an end of the matter as the appellant contends in support of the second ground of appeal that the rights of the Crown under the circumstances here disclosed are limited to common law rights which in turn are restricted to a right of action for loss or impairment of domestic and menial servants and do not include the kind of services rendered by members of the Armed Forces. The first half of this submission is founded on the judgment of Martland J. in The Queen v. Murray, [1967] S.C.R. 262, at p. 268 where he correctly stated as follows:

The situation is that as a result of s. 50 of the Exchequer Court Act, Parliament enabled the Crown in the event of an injury to a member of the armed services, to enforce such rights as would be available to a master seeking compensation for loss of the services of his injured servant. What those rights may be can only be determined by the law in force at the time and the place when and where the injury to the servant occurred.

On the other hand, the Court of Appeal sought to support the second ground of appeal based on the contention that the common law in force in Manitoba when the injuries of the servants occurred governed the circumstances and was correctly described by Lord Denning in Inland Revenue Commissioners v. Hambrook, [1956] 2 Q.B. 641, where he purported to trace the history of the per quod action and concluded that it could only lie in the loss of services of a menial or familial character. Lord Denning’s reasoning is founded in

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large measure on the construction which he places on a judgment delivered by Chief Justice Eyre in Taylor v. Neri (1795), 1 Esp. 386. On analysis the latter judgment is found to be based on injuries sustained by a singer which prevented him from continuing to perform in an opera house of which the plaintiff was the manager. Apart from the fact that the injured singer was in the employ of the plaintiff, this authority appears to me to be a slim basis upon which to assert, as the Court of Appeal has done in this case, that the per quod action is limited to domestic or menial servants. In fact Eyre C.J. nonsuited the plaintiff on the ground that the singer was not a servant at all and on this basis there was of course no room for the application of the per quod action.

That decision has been doubted as an authority since shortly after it was rendered. For example, in the case of Lumley v. Gye (1853), 2 E. & B. 216, 118 E.R. 749, at p. 759, it was discussed and the following comment occurs:

The case was very little discussed, was a decision at Nisi priùs, and does not appear to have undergone much consideration;…

Unlike the Court of Appeal, I am unable to find any firm basis in the reasons for judgment of Lord Denning in Inland Revenue Commissioners v. Hambrook, (supra), for holding that the common law of Manitoba in 1974 excluded the services of members of the Armed Forces from being the subject of a per quod action. With all respect, my doubts in this regard are reenforced by the following passage from the reasons for judgment of Mr. Justice Huband in the Court of Appeal where he said:

There have been few per quod actions prosecuted in Manitoba since 1870. Hunt, J. of the Manitoba Court of Queen’s Bench rendered two decisions, both of which adopted the position of the English Court of Appeal in the Hambrook case. The two decisions by Hunt, J. are Pagan v. Leifer (1969) 69 W.W.R. 247 and Schwartz v. Hotel Corporation of America (1970) 75 W.W.R. 664.

In the Pagan case [Pagan v. Leifer (1969), 69 W.W.R. 247] Mr. Justice Hunt expressly adopted the judgments of this Court in Nykorak v. Attorney General of Canada (supra) and The King v.

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Richardson, (supra), and in the Schwartz v. Hotel Corporation of America case (1970), 75 W.W.R. 664, the same judge said at pp. 665-66:

Such an action for loss of services by any employee is an action per quod servitium amisit.

I recently considered such an action in Pagan v. Liefer (1969) 69 WWR 247, 6 DLR (3d) 714. In that case I expressed the opinion, which I still hold, that such form of action is now confined to the loss of services of domestic or household servants and members of the family performing such services and to claims by the Crown in respect of out‑of‑pocket expenses in relation to injuries to a member of the Armed Forces.

In both the cases cited by Mr. Justice Huband the right of the Crown to bring a per quod action in respect of members of the Canadian forces is clearly recognized as it is in the decisions of this Court to which I have referred and which are binding on the courts of Manitoba.

In view of all the above I am, as I have indicated, of the opinion that the learned Chief Justice of the Queen’s Bench Division properly applied the common law “in force at the time and the place when and where the injury to the servant occurred”.

I would accordingly allow this appeal with costs throughout and restore the judgment of the learned Chief Justice.

The following are the reasons delivered by

DICKSON J.—This case involves an action per quod servitium amisit—an action by a master for the loss of services of his servant. I agree with the opinion of Ritchie J. that this Court’s decisions in The King v. Richardson, [1948] S.C.R. 57, and Nykorak v. Attorney General of Canada, [1962] S.C.R. 331, did decide that the Crown had an enforceable per quod claim in respect of armed forces personnel. In my opinion the decision by the English Court of Appeal in Inland Revenue Commissioners v. Hambrook, [1956] 2 Q.B. 641, holding that a per quod action is only available in respect of menial and domestic servants, is unsupported by authority. It follows that the Crown’s appeal in this case must succeed. I write separately to make a general point about per quod actions.

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Counsel in this case did not argue that the action per quod servitium amisit is no longer a valid cause of action. Whether it still should be recognized has been for some time the subject of debate in the cases and among academic commentators. The conceptual underpinnings of the action are the main reason its validity has been brought into question. The action is of ancient origin. At its inception, it was based on the precept that a master had a proprietary or quasi-proprietary interest in the services of his servant. In an indirect sense at least, it amounted to an assumption of a proprietary interest in the servant himself. The per quod action developed during an era in which the master/servant relationship was analyzed in status terms, whereas we have long since treated the employment relationship as a contractual one. The debate is not whether the original assumptions underlying the action can any longer be supported. That rationale is plainly offensive in today’s society. The serious question is whether, despite its antiquated origins, the action can now find a different justification. Does it serve a useful purpose that would not otherwise be met? Is it consistent with general principles of tort law concerning collateral benefits and recovery for economic loss? Do employers, simply because they are employers, merit a special cause of action? Should the action per quod servitium amisit be abandoned, maintained or expanded? In a future case it may be appropriate to address these issues.

I would allow the appeal, set aside the judgment of the Court of Appeal of Manitoba and restore the judgment of the Chief Justice of the Court of Queen’s Bench of Manitoba. The appellant should have costs throughout.

Appeal allowed with costs.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondent: S.S. Kapoor, Winnipeg.