Fidelity Insurance Co. of Canada et al. v. Cronkhite Supply Ltd. et al., [1979] 2 SCR 27

Supreme Court of Canada

Fidelity Insurance Co. of Canada et al. v. Cronkhite Supply Ltd. et al., [1979] 2 S.C.R. 27

Date: 1979-05-03

Fidelity Insurance Company of Canada (Third party) Appellant;

and

Workers’ Compensation Board (formerly known as Workmen’s Compensation Board) (Defendant) Appellant;

and

Imperial Construction (B.C.) Ltd. (Defendant) Appellant;

and

Cronkhite Supply Ltd. and others (Plaintiffs) Respondents;

and

United Association of Journeymen & Apprentices of the Plumbing and Pipe-fitting Industry of the United States and Canada, Local Union Number 170 and others (Plaintiffs);

and

Sengleson Installations Ltd. (Defendant).

1979: May 3.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Mechanics’ liens—Claims against lands owned by Workers’ Compensation Board—Board not a Crown agency—Entitlement to claim mechanics’ liens—Interpretation Act, R.S.B.C. 1960, c. 199, s. 35—Mechanics’ Lien Act, R.S.B.C. 1960, c. 238.

Westeel-Rosco Ltd. v. Board of Governors of South Saskatchewan Hospital Centre, [1977] 2 S.C.R. 238; R. v. Ontario Labour Relations Board, Ex p. Ontario Food Terminal Board (1963), 38 D.L.R. (2d) 530; Metropolitan Meat Industry Board v. Sheedy, [1927] A.C. 899, referred to.

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APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing the cross-appeal of the respondents Cronkhite Supply Ltd. and others from a judgment of Darling Co. Ct. J. allowing in part and dismissing in part claims to relief under the provisions of the Mechanics’ Lien Act, R.S.B.C. 1960, c. 238. Appeal dismissed.

W.S. Berardino and Miss Marion Allen, for the third party, appellant.

S.D. Gill and J.J. Camp, for the plaintiffs, respondents.

The judgment of the Court was delivered orally by

MARTLAND J.—It was conceded, in argument, that if the respondents were legally entitled to claim mechanics’ liens against the interest of the appellant, the Workers’ Compensation Board, hereinafter referred to as “the Board”, as owner of the lands in question in this case, the appeal could not succeed.

The contention of the appellants is that such claims cannot be legally made because of the provision which was contained in s. 35 of the Interpretation Act, R.S.B.C. 1960, c. 199, which provided as follows:

35. No provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, her heirs or successors, unless it is expressly stated therein that Her Majesty shall be bound thereby.

This section refers only to “the rights of Her Majesty, her heirs or successors”. It does not refer to agents or employees of the Crown. The Crown had no interest in the lands in question, which are the property of the Board.

The appellants’ position is that the Board, as a Crown agency was entitled to rely on this section and so was not subject, in respect of its lands, to the provisions of the Mechanics’ Lien Act, R.S.B.C. 1960, c. 238, under which the respondents’ claims to mechanics’ liens are made. During the course of argument the question was raised as to whether the Board is a Crown agency and this

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issue was argued before us by counsel on both sides.

We are all of the opinion that the appellants have failed on this point. The matters to be considered in deciding whether or not a particular entity is a Crown agent were stated by Mr. Justice Ritchie who delivered the judgment of this Court in Westeel-Rosco Limited v. Board of Governors of South Saskatchewan Hospital Centre[2], at pp. 249 and 250, where he said:

Whether or not a particular body is an agent of the Crown depends upon the nature and degree of control which the Crown exercises over it.

He cited with approval a passage from the judgment of Laidlaw J.A. in R. v. Ontario Labour Relations Board, Ex p. Ontario Food Terminal Board[3], at p. 534, and a statement of Lord Haldane in Metropolitan Meat Industry Board v. Sheedy[4], at p. 905.

We have considered the relevant provisions of the Workers Compensation Act, and particularly those cited to us in argument by counsel, and are of the opinion that, applying the tests referred to in the Westeel case, the Board is not a Crown agency and therefore cannot claim any benefit from s. 35. The respondents can therefore claim their mechanics’ liens against the lands in question owned by the Board.

The appeal is dismissed with costs.

Judgment accordingly.

Solicitors for the appellants: Russell & DuMoulin, Vancouver.

Solicitors for the respondents: Ladner, Downs, Vancouver.