Quebec Ry. L. & P. Co. v. Canadian Pacific Ry. Co.

tion for the expropriation of the five lots. The sum it paid on the Malcolm mortgage no doubt satisfied any claim for in respect of the property covered by that mortgage, to wit lots 9011, 9565, 9565A and 9566, but that M u Jpayment cannot be applied towards compensation for lot 149. We think therefore that the action should be remitted to the Exchequer Court to determine the amount of compensation payable in respect of lot no. 149.

Under all the circumstances, and 'as the appellant fails with respect to the greater part of his claim, we think that there should be no order as to the costs of this appeal. The costs of all proceedings in the Exchequer Court will be in the discretion of the judge when disposing of the matter referred back.

J.-This is an appeal by special leave of this court from a judgment of the Court of King's Bench, Quebec.

On the 24th of June, 1910, the appellant obtained leave from the Board of Railway Commissioners for Canada to cross the tracks of the respondent in St. Valier street, in the city of Quebec. By the order of the Board, certain directions were given as to the installation of semaphores, of a diamond and derails, of the interlocking plant and of an annunciator to warn signalmen of the approach of trains.

The order further contained the following provision:- An accident having happened to a signalman while lifting a semaphore lever, the workman brought an action against the present respondent under the Quebec Workmen's Compensation Act (R.S.Q. 1909, ss. 7321 et seq.), and was awarded $3,000 as compensation, with interest and costs. The respondent had contested the plaintiff's action, so that it was condemned to pay a considerable sum for costs as well as for the interest on the capital sum awarded. The respondent paid the amount of the judgment, and claimed one half of its expenditure from the appellant. It was granted merely one half of the capital sum awarded to the signalman, the court being of the opinion that it had uselessly contested the latter's action, thus incurring by its own fault liability for the costs of contestation and for interest. This judgment having been affirmed by the Court of King's Bench, the appellant obtained special leave to appeal to this court.

S.C.R.

We are all of opinion that the compensation granted to the signalman under the statute is an expenditure which comes fairly within the terms of the seventh paragraph of the order of the Board of Railway Commissioners. The Cy. respondent is ordered to employ and pay the signalmen necessary to operate the interlocking plant at the joint J expense of the appellant, and the obligation of the latter is to reimburse the respondent to the extent of one half " the said expense."

To borrow the language of their Lordships of the Judicial Committee in Workmen's Compensation Board v. Canadian Pacific Railway Co. (1), the right conferred on the workman, by the Workmen's Compensation Act, is the result of a statutory condition of the contract of employment made with him, and his right to compensation arises, not out of tort, but out of his statutory contract.

The Workmen's Compensation Act in question in that case was the statute passed by the legislature of British Columbia, but the language of their Lordships applies with equal force to the Quebec Workmen's Compensation Act. The right to compensation under that Act does not arise out of a fault committed or presumed, but is a right possessed by the workman under his contract of employment.

It follows that when the respondent paid this compensation to the signalman, it made a payment to which paragraph 7 of the order applies, and the liability of the appellant to reimburse one half of this payment cannot be questioned.

The appeal is dismissed with costs.

Appeal dismissed with costs.