Attorney General (Ontario) v. Fatehi, [1984] 2 SCR 536

Supreme Court of Canada

Attorney General (Ontario) v. Fatehi, [1984] 2 S.C.R. 536

Date: 1984-12-13

The Attorney General for the Province of Ontario (Plaintiff) Appellant;

and

Riaz Fatehi (Defendant) Respondent.

File No.: 16837.

1984: June 22; 1984: December 13.

Present: Ritchie, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Highways—Damage due to traffic accident—Crown expended money for clean up—Whether or not negligent driver liable—Public Transportation and Highway Improvement Act, R.S.O. 1980, c. 421, s. 33—Interpretation Act, R.S.O. 1980, c. 219, s. 11.

Negligence—Traffic accident—Highway damaged—Whether or not Crown can recover money spent for clean up.

Crown—Recovery for expenses incurred because of traffic accident—Accident caused by negligent driver—Whether or not Crown can recover.

Respondent was solely responsible for a traffic accident on a provincial highway owned in fee simple by the appellant. The police requested a fire department to stand by, because of the danger of explosion, and to clean up the debris, at a cost of $300. The trial judge allowed appellant to recover this amount, not on the basis that the claim was for economic loss, but rather on the basis that it was a claim by the owner of the highway to recover physical damage resulting from respondent’s negligence. The Court of Appeal, however, characterized the case as one of pure economic loss and therefore not recoverable under Canadian law.

Held: The appeal should be allowed.

The highway ceased to be one in the sense of being a traffic-carrying facility when it was blocked because of respondent’s negligent actions and appellant, as its owner, thereby suffered damage to its property in the same way as any other property owner. Absent some disqualifying law in these circumstances, appellant is entitled to recover its direct damages—the cost of restoring the road to its prior condition. This was not a case

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of economic loss. Appellant’s motive for repairing the road, whether it be because of a statutory duty or because of its being owner making good the damage to its asset, did not bear on its entitlement to recover its loss from respondent.

The Crown has a long-established right to bring this action and this right has not been precluded expressly or inferentially by s. 33 of the Public Transportation and Highway Improvement Act or by any other Act or rule of court. This right, further, is not to be discouraged by the courts on the ground of public policy. The fact that some provinces have statutes expressly authorizing the Crown to bring such an action and the fact that others do not merely indicate that public policy is not clear one way or the other and that there is no inherent requirement that it discourage this type of action.

Provincial highways should not be accorded “special status” since they lie in the “public domain”. The term “public domain” has no precise meaning in common law and is of no assistance in determining either the right of the Crown to bring this action or the obligation of the defendant in the action (if properly brought) to be exonerated from payment of damages occasioned to the Crown’s property by his negligence.

Junior Books Ltd. v. Veitchi Co., [1983] 1 A.C. 520; Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189; Toronto Transportation Commission v. The King, [1949] S.C.R. 510; Glasgow Corporation v. Barclay, Curie & Co. (1923), 93 L.J.P.C. 1; Attorney‑General for Ontario v. Crompton (1976), 14 O.R. (2d) 659; Cattle v. Stockton Waterworks Co. (1875), L.R. 10 Q.B. 453; Seaway Hotels Ltd. v. Consumers’ Gas Co., [1959] O.R. 581, affirming [1959] O.R. 177; Spartan Steel & Alloys Ltd. v. Martin & Co., [1972] 3 All E.R. 557, [1973] 1 Q.B. 27; Star Village Tavern v. Nield (1976), 71 D.L.R. (3d) 439; Electrohome, Ltd. v. Welsh Plastics, Ltd., [1968] 2 All E.R. 205; Margarine Union G.m.b.H. v. Cambray Prince Steamship Co., [1969] 1 Q.B. 219; Rickards v. Sun Oil Co., 41 A.2d 267 (1945); Heeney v. Best (1979), 28 O.R. (2d) 71; Yamerovski v. Dani (1977), 18 O.R. (2d) 704; Agnew-Surpass Shoe Stores Ltd. v. Cummer-Yonge Investments Ltd., [1976] 2 S.C.R. 221; Armstrong v. Attorney-General of New Brunswick (1956), 5 D.L.R. (2d) 606; Attorney-General of Canada v. Jackson, [1946] S.C.R. 489; Nykorak v. Attorney-General of Canada, [1962] S.C.R. 331; The Queen v. Murray, [1967] S.C.R. 262; The Queen v. Buchinsky, [1983] 1 S.C.R. 481; St. Catha-

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rines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577; Re Rockcliffe Park Realty Ltd. and Director of the Ministry of the Environment (1975), 10 O.R. (2d) 1, referred to.

APPEAL from a judgment of the Ontario Court of Appeal (1981), 34 O.R. (2d) 129, 127 D.L.R. (3d) 603, 18 C.C.L.T. 97, allowing an appeal from a judgment of Steele J. in a matter originally instituted in the Fourth Small Claims Court of the County of Wellington. Appeal allowed.

T.H. Wickett, Q.C., and L. Kowal, for the appellant.

Brian H. Wheatley, Q.C., and Peter A. Daley, for the respondent.

The judgment of the Court was delivered by

ESTEY J.—The issue in this appeal arises out of a motor vehicle collision on a provincial highway in Ontario, for which the respondent is admittedly solely responsible. The accident occasioned expense by the appellant in cleaning up the roadway in order to prevent further damage to the road and to open the highway to traffic.

The litigation proceeded upon the basis of an agreed statement of facts. The appellant is the owner in fee simple of the highway and, as already indicated, the collision on the highway was caused by the negligence of the respondent. As a result of the collision gasoline and debris were strewn on the surface of the highway, and by reason thereof other vehicles were prevented from using one lane of the highway until injured persons, wrecked vehicles, spilled gasoline, glass and other debris were removed. There was a present danger of fire and explosion, danger to persons and property of members of the public using the highway, and a danger of damage to the surface of the highway. A nearby municipal fire department was requested by the Ontario Provincial Police to remove the debris and to stand by in case of fire and explosion, all at a

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cost of $300, which the appellant sought to recover.

The judge of first instance, Steele J. of the Ontario High Court, gave judgment to the appellant on the basis that it was not a case of economic loss but rather a claim by the appellant as owner of the highway to recover physical damage resulting from the respondent’s negligence. The dissent by Brooke J.A. in the Court of Appeal, reported at (1981), 34 O.R. (2d) 129, 127 D.L.R. (3d) 603, 18 C.C.L.T. 97, reached the same conclusion. Brooke J.A. agreed that this was not a case of pure economic loss but simply a claim by the Crown arising out of damage or potential damage to its property. In reaching this conclusion he rejected a plea by the present respondent that his negligence had simply caused the Crown to carry out its statutory duty to maintain the highway for which no claim could arise against the defendant-respondent for damages. Brooke J.A. concluded at p. 133 (O.R.): “I regard the case simply as one where the Crown sues a defendant who by his negligence has caused the loss or damage of Crown property”.

Wilson J.A. (as she then was) concluded that this was a case of pure economic loss and that as such recovery could not be made under the laws of Canada. After a review of the authorities from the United Kingdom, the learned justice concluded that under their law, a plaintiff can recover for economic loss consequent upon physical damage to his property or person but cannot recover for purely economic loss. This conclusion may now be invalidated by Junior Books Ltd. v. Veitchi Co., [1983] 1 A.C. 520. In any event, she went on to conclude that it was most uncertain as to whether recovery for pure economic loss can be effected in this country by reason of the judgment of this Court in Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189. The apparent basis upon which Wilson J.A. reversed the judge of first instance appears to be that because the ownership of the highway is in the “public domain”, as

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indeed were the funds raised by taxation for the maintenance of the highway, no duty was owed by the operator of a motor vehicle to the Crown in respect of the highway. The action in her view should fail for the further reason that there was no express right of action given to the Crown in The Public Transportation and Highway Improvement Act, R.S.O. 1970, c. 201, as amended by 1971 (Ont.), c. 61. In her reasons for judgment, however, it was stated, at pp. 144-45 (O.R.):

It may be, however, that where an action is brought by the Crown as the owner of property which has been damaged,…it may not have to find its right of recovery in the express terms of the statute… There is no doubt that it can sue a tortfeasor for intentional damage to its property like any private property owner.

Thorson J.A. likewise denied the appellant’s claim, but for different reasons than those advanced by Wilson J.A. He expressly refrained from agreeing that a driver of a motor vehicle owes no duty of care to the Crown as the owner of the highway. Rather, he reached his decision on the basis that the legislature of Ontario had not expressly conferred a right of recovery in the Crown in these circumstances. He concluded, as did Wilson J.A., that the Crown should not be treated as an ordinary property owner for the purposes of this claim. In absence of this ground, he would have been prepared to deny the appellant’s claim on the basis it was for pure economic loss, recovery for which is not, in his view, generally permissible in Canada.

Neither of the Justices comprising the majority of the Court of Appeal cites any authority for the requirement of an express authorization by the legislature before the Crown can be found to have the capacity to sue in these circumstances. Neither has advanced any authority by case law, statute or text for the distinction between the ownership in the Crown of a highway and the ownership of real

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property by a private individual, nor for the distinction in law between land in the “public domain” and that not. The basis for the judgments of the majority of the Court of Appeal, apart from a finding that the claim must fail by reason of the exclusionary principles applying to pure economic loss, appear to be founded entirely on considerations of public policy.

Nature of Loss Suffered by the Crown

It is said by the respondent, and by the majority below, that the appellant must fail as its loss was pure economic loss, thus far unrecoverable at law. Whether that is so depends upon questions of both fact and law. On the facts as agreed, the road was blocked by the negligent actions of the respondent. It ceased to be a road in the sense of a traffic-carrying facility. Whether the respondent achieved this result by deliberately tearing up a section of the surface, or by negligently operating his vehicle so as to drop a large load of rocks on the road, or so as to strew broken auto parts, debris and gasoline on the road, as was here the case, makes no difference in fact. The road, by reason of the respondent’s wrongful acts, ceased to be a road.

The appellant as the owner of the road has thereby suffered damage to its property. The appellant suffered this direct damage in the same manner as any other property owner, and unless there is some disqualifying law operating in these circumstances (which will be discussed later), the appellant would be entitled to recover for these direct damages so suffered. The appellant restored the road to its prior existence and condition. The cost of so doing was the measure of its loss. Two considerations must be examined. The appellant did not ‘repair’ the road in the sense of making good, ordinary wear and tear to the roadway. Rather, the appellant was required to expend its resources in order to make whole its property which had been significantly degraded by the actions of the respondent. This action by the appel-

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lant was not taken by reason of its statutory duty to repair, but as an owner of a facility put out of action by the negligent conduct of the respondent. Or at the very least, this was the response by the appellant for a combination of reasons: to repair the road under its statutory duty as will be discussed below; and to restore the road as an owner making good damage to its asset. Neither motive nor operating reason disentitles the appellant from recovering its loss from the respondent.

In contrast to this direct injury to the property of the appellant is the instance of what in law is sometimes called “pure economic loss”. All pecuniary damage incurred with reference to property of a plaintiff is economic loss which entitles the plaintiff to be made whole so far as a monetary award can do. However, in the case of pure economic loss the courts have historically taken a different approach. By “pure economic loss” the courts have usually been taken to refer to a diminution of worth incurred without any physical injury to any asset of the plaintiff. For some time now, the courts in the United Kingdom have held pure economic loss to be unrecoverable. Vide Cattle v. Stockton Waterworks Co. (1875), L.R. 10 Q.B. 453. The learned author of Linden, Canadian Tort Law (3rd ed. 1982), summarized the position of the courts at pp. 413-14 where he says:

Even the great Justice Oliver Wendell Holmes when faced with a similar case denied recovery and thundered, “The law does not spread its protection so far”. Similarly, the great Cardozo J. echoed these sentiments in another context. He feared “liability in an indeterminate amount for an indeterminate time to an indeterminate class”.

Sometimes damages have been recovered when accompanied by recoverable physical loss: Seaway Hotels Ltd. v. Consumers’ Gas Co., [1959] O.R. 581, affirming [1959] O.R. 177; although doubt has been cast upon the proposition that the mere incident of some physical loss will justify recovery for all economic loss suffered: Spartan Steel & Alloys Ltd. v. Martin & Co., [1972] 3 All E.R. 557, [1973] 1 Q.B. 27.

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Examples of unrecoverable economic loss are illustrated by the situation where a blocked highway renders the operation of a downstream business establishment temporarily unprofitable: Star Village Tavern v. Nield (1976), 71 D.L.R. (3d) 439 (Man. Q.B.) (although the court there put the denial of recovery on the basis of lack of foreseeability or proximity to the acts of the defendant); Electrohome, Ltd. v. Welsh Plastics, Ltd., [1968] 2 All E.R. 205; Margarine Union G.m.b.H. v. Cambray Prince Steamship Co., [1969] 1 Q.B. 219. The classic illustration of unrecoverable pure economic loss is the negligent damage to a highway which blocked traffic to the plaintiffs toll bridge. The Crown suffered the actual damage (in my view a recoverable category) to its highway while the plaintiff, the owner of the toll bridge, suffered pure economic loss, heretofore generally regarded as unrecoverable in the United Kingdom, the United States and Canada: see Richards v. Sun Oil Co., 41 A.2d 267 (1945); Cattle v. Stockton Waterworks Co., supra.

However, Seaway, supra, has been followed in other cases in this country: Heeney v. Best (1979), 28 O.R. (2d) 71, and Yamerovski v. Dani (1977), 18 O.R. (2d) 704. The recoverability of pure economic loss in the courts of England has been altered since the judgments in this proceeding below in the House of Lords judgments in Junior Books Ltd. v. Veitchi Co., supra, where Lord Roskill said, at p. 546:

But in the present case the only suggested reason for limiting the damage (ex hypothesi economic or financial only) recoverable for the breach of the duty of care just enunciated is that hitherto the law has not allowed such recovery and therefore ought not in the future to do so. My Lords, with all respect to those who find this a sufficient answer, I do not. I think this is the next logical step forward in the development of this branch of the law. I see no reason why what was called during the argument “damage to the pocket” simpliciter should be disallowed when “damage to the pocket” coupled with physical damage has hitherto always been allowed. I do

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not think that this development, if development it be, will lead to untoward consequences.

The plaintiff there succeeded by reason of the finding of a sufficiently proximate relationship between the parties which gave rise to a duty of care owed by a contractor to the owner and from which duty flowed the obligation to avoid pure economic loss. The law in Canada remains, as was said in the majority below, somewhat uncertain by reason of the decision of this Court in Rivtow Marine, supra. Both the majority (Ritchie J.) and the minority (Laskin J., as he then was) allowed damages for loss of profit suffered by a non-contracting owner of a product, manufactured by the defendant, by reason of the failure by the defendant to warn the plaintiff of the condition of the product in question (a crane) at a time when the plaintiff could have made arrangements to remedy the defects at a minimum of expense. This was classified as a tort independent of the contract of manufacture and sale. The minority differed from the majority position only with regard to the recoverability of the cost of making the repairs. The majority seem to have denied recovery for the repairs on the basis that it was dependent upon liability in contract on a warranty, and there was no contractual relationship between the parties to the action. Laskin J. would have allowed the cost of repairs as economic loss flowing from the actions of the plaintiff which gave rise to the need for repairs, at p. 1219:

The present case is concerned with direct economic loss by a person whose use of the defendant Washington’s product was a contemplated one, and not with indirect economic loss by third parties, for example, persons whose logs could not be loaded on the appellant’s barge because of the withdrawal of the defective crane from service to undergo repairs. It is concerned (and here I repeat myself) with economic loss resulting directly from avoidance of threatened physical harm to property of the appellant if not also personal injury to persons in its employ.

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Shortly thereafter, Pigeon J., in Agnew-Surpass Shoe Stores Ltd. v. Cummer-Yonge Investments Ltd., [1976] 2 S.C.R. 221, stated at p. 252:

It is now settled by the judgment of this Court in Rivtow Marine Ltd. v. Washington Iron Works that recovery for economic loss caused by negligence is allowable without any recovery for property damage.

Nonetheless it must be acknowledged that Rivtow has been variously applied or rejected by the courts of this country, some of whom find in the majority judgment recognition of economic loss and some of whom have found the opposite. It is not possible to say whether the law of Canada, as reflected in the authorities to date, contemplates recovery for a pure economic loss in the sense of Junior Books, supra, in the House of Lords.

In this proceeding it is unnecessary, in my view, to settle this issue because, for reasons given above and illustrated in my view by the cases aforementioned, this is not a case of economic loss but of direct damage to property of the plaintiff occasioned by the negligence of the respondent.

The Right in the Appellant Crown to Sue

It was said in argument here and by some members of the Court of Appeal that the appellant has no capacity to bring this action because no statutory authority for doing so can be found. This brings us to an examination of the state of the common law and the right, if any, of the Crown to bring an action in common law for damage to Crown property. In Chitty, Prerogatives of the Crown (1820), at p. 245, the learned author states:

The general rule is, that the King may waive his prerogative remedies, and adopt such as are assigned to his subjects. He may maintain the usual common law actions, as trespass quare clausum fregit, or for taking his goods… And though the King chuse a common law action, he may, by virtue of the prerogative we have just noticed, commence it in any court.

This Court was concerned with the right of the Crown to bring an action for damage to its prop-

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erty in Toronto Transportation Commission v. The King, [1949] S.C.R. 510, where such a right was found to reside in the Crown. Kellock J. stated, at p. 520:

It seems to me that when the Crown brings an action at common law, it accepts the common law applicable to such a claim.

It is important to note that the operative section of the then applicable statute, the Exchequer Court Act (s. 50A), did not authorize the bringing of the action by the Crown, but simply prescribed a rule with reference to the master and servant relationship between the Crown and members of the armed forces. Kellock J. continued, at p. 521:

While the section does not create any direct or specific right in the Crown, it places the Crown in the recognized common law relationship and its rights are those arising from that relation under the rules of that law; Attorney General v. Jackson, per Rand J. at 493.

In the same appeal, Kerwin J. as he then was, stated, at p. 515:

The Crown coming into court could claim only on the basis of the law applicable as between subject and subject unless something different in the general law relating to the matter is made applicable to the Crown… Here, if the common law alone were applicable, the Crown would have no claim by reason of the fact that it failed to prove that the negligence of the Commission’s servants caused the damage.

No reference was made to any statute expressly authorizing the action and the silence of the statute in s. 50A was not construed as indicating an incapacity in the Crown to bring the action.

An earlier case is from the courts of Scotland, Glasgow Corporation v. Barclay, Curie & Co. (1923), 93 L.J.P.C. 1, where the issue arose from alleged misuse by overweight wagons of the streets of the City of Glasgow by the defendant. In the result, the court found no negligence, but in giving judgment, Lord Dunedin, at p. 5, stated:

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That a person, who, by his action, did something which made the highway impassable, and so destroyed the use of that highway by others, could be interdicted at the instance of a road authority I do not doubt, even though what I have denominated his action was connected with the use of the highway by himself; and although suits for damages in respect of such action may be sought for in vain in the books, I do not doubt that they would lie. But in order that such interdict or damage should be made good, it would be necessary to show that the person against whom the suit was directed had been guilty of some negligence which had resulted in the destroying or restricting that right of passage on the highway which others besides himself enjoy.

The court assumed that a duty of care to avoid damage to the streets existed but found no violation of the duty. To this end, the remarks of Lord Shaw (at pp. 11-12) are apt:

The respondents in their Case very properly admit that “an individual…is not entitled to use the highway in such a manner as will result in the destruction of separate private property subjacent to the road or otherwise, or in causing material inconvenience or obstruction to the free passage of other users”. If to this had been added the further consideration, that the estimate as to material inconvenience or obstruction must not be minimised by reason of quite abnormal expenses having to be promptly defrayed after the passage of the respondents’ traffic, so as to protect the ordinary users against the destruction or waste caused, then I think that the admission would have been complete, and would have been in accord with sound law.

This case was applied by the Court of Appeal of New Brunswick in Armstrong v. Attorney‑General of New Brunswick (1956), 5 D.L.R. (2d) 606. The Crown was there found to have a substantial interest in a highway bridge and hence have the right to bring action for damage to it. More recently, this issue came before the Ontario courts in Attorney-General for Ontario v. Crompton (1976), 14 O.R. (2d) 659. The facts were very similar to those of this appeal. The action was brought by the province to recover the costs of putting out a fire on a provincial highway, caused by the negligence of the defendant in the operation of his motor vehicle.

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Haines J., sitting at trial in the High Court, found a duty of care in the motorist and a negligent breach of that duty owed to the Crown as owner of the highway and accordingly gave judgment. The Court concluded that the expenses incurred were made in mitigation of the damage caused by the tort feasor and were recoverable as in an ordinary action at common law between subject and subject.

This Court was concerned with a series of appeals arising out of actions by the Crown in the right of Canada for injuries sustained by its employees or property injuries suffered by the Crown in the right of Canada. They are Attorney-General of Canada v. Jackson, [1946] S.C.R. 489; Nykorak v. Attorney-General of Canada, [1962] S.C.R. 331; The Queen v. Murray, [1967] S.C.R. 262; and The Queen v. Buchinsky, [1983] 1 S.C.R. 481. The statutory provisions underlying each of those actions were found in the Exchequer Court Act, or more latterly in the Federal Court Act, adverted to in the Toronto Transportation case, supra, and which in the most recent version refer to actions or proceedings “by or against” the Crown: 1970-71-72 (Can.), c. 1, s. 37. One would expect that such a provision would, without much difficulty, be interpreted as an express authorization of a right in the Crown to sue. Rand J., however, in Jackson, supra, stated, at p. 493:

The Crown’s right is of the same nature as that of a private person: it can arise here only from a wrong to the servant over which the jurisdiction of the province is exclusive.

Earlier, His Lordship concluded (at p. 493):

The amendment, s. 50A, does not purport to create a direct and specific right in the Crown: it places the Crown in a recognized common law relation only, and its rights are those arising from that relation under the rules of that law.

To the same effect is the decision of this Court in Nykorak, supra, at p. 338 and Murray, supra, pp. 269-70.

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The only reference which indicates that the Crown must find the right to bring an action in an express statutory authorization is found in Robertson, Civil Proceedings By and Against the Crown (1908), p. 2. However, note should be taken of the further remark at p. 2 that “the right of the Crown, however, to proceed by prerogative process…still exists unless specifically forbidden”. There is no authority cited by the learned author for his earlier remark that as a proposition, or at least modern tendency, common law actions by the King “are unknown”.

This then brings us to the provisions of the Public Transportation and Highway Improvement Act, R.S.O. 1980, c. 421, of Ontario, specifically s. 33 which provides in part as follows:

33. (1) The King’s Highway shall be maintained and kept in repair by the Ministry…

(2) In case of default by the Ministry to keep the King’s Highway in repair, the Crown is liable for all damage sustained by any person by reason of the default, and the amount recoverable by a person by reason of the default may be agreed upon with the Minister before or after the commencement of an action for the recovery of damages.

(3) No action shall be brought against the Crown for the recovery of damages caused by the presence or absence or insufficiency of any wall, fence, guard rail, railing or barrier adjacent to or in, along or upon the King’s Highway or caused by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or upon the King’s Highway that is not on the roadway.

(4) No action shall be brought for the recovery of the damages mentioned in subsection (2) unless notice in writing of the claim and of the injury complained of has been served upon or sent by registered letter to the Minister within ten days after the happening of the injury, but the failure to give or the insufficiency of the notice is not a bar to the action if the judge before whom the action is tried is of the opinion that there is reasonable excuse for the want or insufficiency of the notice and that the Crown is not thereby prejudiced in its defence.

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(5) No action shall be brought against the Crown for the recovery of damages occasioned by the default mentioned in subsection (2), whether the want of repair was the result of nonfeasance or misfeasance, after the expiration of three months from the time the damage was sustained.

(6) All damages and costs recovered under this section and any amount payable as the result of an agreement in settlement of a claim for damages and costs that has been approved of in writing by counsel is payable in the same manner as in the case of a judgment recovered against the Crown in any other action.

(7) In an action against the Crown under this section, the defendant shall be described as “Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Transportation and Communications for the Province of Ontario”, and it is not necessary to proceed by petition of right or to procure the fiat of the Lieutenant Governor or the consent of the Attorney General before commencing the action, but every such action may be instituted and carried on and judgment may be given thereon in the same manner as in an action brought by a subject of Her Majesty against another subject.

(8) Notwithstanding any general or special Act, in an action against the Crown under this section, the defendant may set up by way of counterclaim any right or claim, whether the right or claim sounds in damages or not, and may claim contribution or indemnity from or any other relief over against any person not a party to the action, and every such counterclaim and claim may be instituted and carried on and judgment may be given as if such counterclaim or claim was made by a subject of Her Majesty against another subject.

(9) An action against the Crown under this section shall be tried by a judge without the intervention of a jury, and the trial shall take place in the county in which the default occurred unless otherwise ordered upon an application by any party.

(10) The liability imposed by this section does not extend to a case in which a municipality having jurisdiction and control over the highway would not have been liable for the damage sustained.

This is the section to which reference was made in Attorney-General for Ontario v. Crompton, supra, where Haines J. gave judgment to the Crown in similar circumstances. In the court below, only Thorson J.A. found that express authority must be granted by legislation as a prerequisite to successful recovery for damages to Crown property.

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Wilson J.A. seems to have concluded that no such statutory authority is required where there has been actual damage to the property of the Crown.

It will be seen that s. 33(1) imposes a duty in the Crown to maintain and keep highways in repair. The balance of the subsections of this rather long and detailed provision deals with limitations on the damages which might flow from breach of that duty, notice of claim to be given by the subject, time limitations on the bringing of an action against the Crown, how damages may be recovered by the successful claimant, and certain procedural matters dealing with the style of cause and the nature of the tribunal which shall hear any such claim.

It is said that subs. (8) is of great importance in the determination of the right in the Crown to bring these proceedings. Presumably the argument is based on the ancient interpretative doctrine expressio unius est exclusio alterius. Here the legislature has provided a right in the defendant, that is the Crown, to institute a counterclaim or a claim for contribution or indemnity. This would appear to be no more than a further procedural provision in order to complete the provisions in s. 33 as a mini-code within the statute dealing with the position of the subject when asserting a right to damages for breach of duty in the Crown under s. 33(1) with reference to maintenance and repair of the highway.

Section 11 of the Interpretation Act of Ontario, R.S.O. 1980, c. 219, provides:

11. No Act affects the rights of Her Majesty, Her heirs or successors, unless it is expressly stated therein that Her Majesty is bound thereby.

The right of Her Majesty to bring such an action is nowhere precluded, expressly or inferentially, in s. 33. The common law has long accorded a right in the Crown to bring such an action. I cannot see

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that s. 33, by some remote implication or inference, has truncated or obliterated that right.

It may be said that public policy ordains otherwise and that such action should be discouraged by the courts. This submission is said to be supported by the fact that in some provinces express authorization is given in the statute for the bringing of an action for the recovery of these expenses by the Crown. On the contrary, the presence of such statutes in other provinces, and the absence of like provisions in Ontario, would indicate that the dictates of public policy are by no means clear one way or the other, and certainly that there is no inherent and conclusive requirement in public policy to discourage this type of action. The provisions in other provincial statutes may perhaps be found there as a result of an abundance of caution, or there may be some other legislative procedures or rules of court which have indicated the wisdom of expressly making the provision. We have not had our attention directed in this appeal to any provision in any statute or rule of court in the Province of Ontario, or indeed any authority from the courts of that province which would indicate that the state of the statute as it now appears, and as it has appeared in the past, is to be taken as a repeal by inference of the common law right in the Crown to recover damages for loss of or injury to its property.

Public Domain

Finally, there is reference in the judgment of Wilson J.A. below to a special status in the highways of the province by reason of the fact that they are in “the public domain”. No reference is made as to the definition of public domain in this context. In Holdsworth’s A History of English Law (1938), vol. 10, at pp. 303 and 305, that learned author sets out the rights of the owner and the user of the highway confining the right in the public to a right of passage and repassage. At p. 304 it is stated:

A fortiori a person commits a tort if, as in the case of Harrison v. Duke of Rutland, he uses the highway, not for purposes of passage, but in order to interfere with the lawful user of the land by its owner.

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And later on the next page, the text continues:

Secondly, subject to these rights of the public, the owner is entitled to all his rights as owner, and can sue anyone who interferes with those rights.

The words “public domain” occur very rarely in our jurisprudence. There are three references in U.S. dictionaries to “public domain”. Bouvier’s Law Dictionary (1929) is representative of these. In it the term is said to be synonymous with “public lands”. More importantly, the American Jurisprudence, 63A Am Jur 2d § 1, states, at p. 486, with reference to public lands, that the words “public lands” and “public domain” are synonymous. However, the learned authors go on to state that the term “public domain” does not “include streets and highways”. Thus, at least in the context of American law, public domain would appear to set aside highways from the public domain, not so as to make them immune to action by the state but to make them subject to supervisory action by the state. In this Court, in St. Catharines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577, Ritchie C.J., at p. 599, makes reference to public domain as including ungranted lands in the province which belong to the Crown. This was a proceeding under the British North America Act, 1867  [now the Constitution Act, 1867 ]. The most modern reference to public domain appears to be found in the judgment of Dubin J.A. of the Court of Appeal of Ontario in Re Rockcliffe Park Realty Ltd. and Director of the Ministry of the Environment (1975), 10 O.R. (2d) 1, where he equates “public domain” to publicly owned property. The other two members of the court, however, simply referred to it as meaning land in Ontario. Finally, there is a reference to public domain in copyright law as indicating intellectual works, the titles of which are not subject to individual ownership in either subject or Crown. The term would appear to have no precise meaning in the common law and would not appear to be of any assistance in either the determination of the right of the Crown to bring this action or the obligation of the defendant in the action, if properly brought, to be exonerated from the payment of damages occasioned to the property of the Crown by the defendant’s negligence.

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For these reasons, I would allow the appeal and restore the judgment of the trial judge with costs to the appellant here and in the courts below.

Appeal allowed with costs.

Solicitor for the appellant: A. Rendall Dick, Toronto.

Solicitors for the respondent: Raphael, Wheatley & MacPherson, Toronto.