Supreme Court of Canada
Bruell v. Ontario Hydro, [1976] 1 S.C.R. 9
Date: 1975-01-28
Bruell Float Service Limited (Plaintiff) Appellant;
and
Ontario Hydro (formerly the Hydro-electric Power Commission of Ontario) (Defendant) Respondent.
1974: November 22; 1975: January 28.
Present: Laskin C.J. and Judson, Spence, Dickson and Beetz JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Highway traffic—Limitations—Common carrier—Damage to cargo—Collision with low bridge—The Highway Traffic Act, 1970 R.S.O., c. 202, s. 146(1).
Bruell, a common carrier, entered into a contract with respondent to transport certain machinery. The carrier drove under a low bridge and damaged the machinery. When respondent sued for damages Bruell asserted that the claim was within the terms of s. 146(1) of The Highway Traffic Act, 1970 R.S.O., c. 202, and that a one-year limitation applied. The trial judge held that s. 146(1) did apply and dismissed the action. On appeal the judgment at trial was set aside and judgment given for the plaintiff with reference to the Master for assessment of damages.
Held: The appeal should be dismissed.
It would have taken the clearest possible language on the part of the Legislature to impose a limitation provision affecting actions in contract by reason only of the fact that a vehicle might be involved in the performance of the contract.
Dufferin Paving and Crushed Stone, Ltd. v. Anger, [1940] S.C.R. 174; Heppel v. Stewart, [1968] S.C.R. 707; F.W. Argue, Ltd. v. Howe, [1969] S.C.R. 354; Northern Alberta Dairy Pool Ltd. v. Strong & Sons Ltd. (1960), 27 D.L.R. (2d) 174, referred to.
APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from judgment at trial, with reference to the Master for assessment of damages. Appeal dismissed.
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D.J. MacLennan, Q.C and B. Lamb, Q.C, for the appellant.
R.F. Wilson, Q.C, for the respondent.
The judgment of the Court was delivered by
JUDSON J.—The appellant, Bruell Float Service Limited, is a common carrier. It entered into a contract with the Hydro-Electric Power Commission of Ontario to transport certain machinery. The carrier drove under a low bridge and damaged the machinery. The Commission sued for this damage. One of the defences was that the claim was for damages occasioned by a motor vehicle within s. 146(1) of The Highway Traffic Act, 1970 R.S.O., c. 202, and that a one-year limitation applied.
The Commission asserted that the claim was not within s. 146(1) of The Highway Traffic Act but was for damages for breach of contract by a common carrier to deliver the equipment at the specified destination.
The parties set down before the trial this point of law for hearing under rule 124 of the Consolidated Rules. The judge of first instance found in favour of the defendant Bruell, and held that s. 146(1) did apply, and he consequently dismissed the action. On appeal, this judgment was set aside and judgment given in favour of the plaintiff, with reference to the Master for the assessment of damages.
In my opinion, the judgment of the Court of Appeal was correct and I would dismiss this appeal.
One has to begin a study of this problem with the case of Dufferin Paving and Crushed Stone, Ltd. v. Anger, where it was held that the statutory limitation of one year, which is now to be found is s. 146(1) of The Highway Traffic Act, applied to a claim for damage to a building caused through vibration resulting from the operation of cement-
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mixing trucks driving on the street in front of the building.
The problem next came up in this Court in Heppel v. Stewart. The defendant in this case ran into the back of the plaintiff’s motor vehicle. He sought to add as a party defendant the garageman who had, immediately prior to the accident, repaired the braking system on his automobile. This application was made after the expiry of the time prescribed by what is now s. 146(1) of The Highway Traffic Act. The majority of the Court held that the limitation applied. The Court of Appeal had held that the section had no application where the accident was caused by the antecedent negligence of a repairer. The claim against the repairer was in contract, namely, that he had not fulfilled his contract of repair and that, consequently, The Highway Traffic Act had no application to this claim.
The next case in this Court is F.W. Argue, Limited v. Howe. The action here was against the operator of an oil truck who had caused damage by fire to a building by pumping oil beyond the capacity of the building’s tanks. The ratio of the judgment was that the damage was not caused by the use and operation of a motor vehicle but was caused by the use and operation of a pump mounted on the motor vehicle. There is undoubtedly an inconsistency between this judgment and the judgment in the Heppel case. The Heppel case had held that if a motor vehicle is the occasion for the damage, if it is the vehicle which brings it about, then the limitation period applies.
The Court of Appeal, in the present case, unanimously held that it would take the clearest possible language on the part of the Legislature to impose a limitation provision affecting actions in contract by reason only of the fact that a vehicle might be somehow involved in the performance of the contract. I agree with this conclusion. I note that it had been anticipated, in full, in Northern Alberta
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Dairy Pool Ltd. v. Strong & Sons Ltd., also a common carrier case.
I also agree with their conclusion that it is unnecessary in the determination of this appeal to reconcile the Heppel v. Stewart and the F.W. Argue, Ltd. v. Howe pronouncements because the facts before us do not involve a situation where the damage was occasioned by a vehicle not being used as a vehicle (as in the Argue case) nor a related negligence claim in circumstances arising out of a collision between motor vehicles (as in Heppel v. Stewart).
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Smith, Torrance, Lyons, Stevenson & Mayer, Toronto.
Solicitors for the respondent: Day, Wilson, Campbell, Toronto.
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