Before calling attention to the effect of this language, it is right to mention, first of all, that the statutes of the KINo Parliament of Canada in their French version pass through Dusors. the two Houses of Parliament and receive the assent of His - Majesty at the same time and according to the same pro- D CJ. cedure as those statutes in their English version. The enactment quoted is an enactment of the Parliament of Canada just as the enactments of the same section, expressed in English, are.
The first section of the Act respecting the Revised Statutes of Canada, assented to on the 19th of July, 1924, is in these words:
1. So soon as the said Commissioners or a majority of them shall report in writing the completion of the said consolidation, including therein such Acts or parts of Acts passed during the present session and subsequent thereto as the Governor General upon the said report may deem advisable so to be included, the Governor General may cause a printed Roll thereof, attested under his signature and that of the Clerk of the Parliaments to be deposited in the office of such Clerk; and such Roll shall be held to be the original of the said statutes so revised, classified and consolidated.
Sections 4, 5 and 8 are as follows:
4. The Governor in Council, after such deposit of the said last mentioned Roll, may, by proclamation, declare the day on, from and after which the same shall come into force and have effect as law, by the designation of "The Revised Statutes of Canada, 192..."
5. On, from and after such day, the said Roll shall accordingly come into force and effect as and by the designation of "The Revised Statutes of Canada, 192...," to all intents, as if the same were expressly embodied in and enacted by this Act, to come into force and have effect, on from and after such day.
2. On, from and after such day, all the enactments in the several Acts and parts of Acts in Schedule A above mentioned shall stand and be repealed to the extent mentioned in the third column of the said Schedule A.
8. The said Revised Statutes shall not be held to operate as new laws, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the said Acts and parts of Acts so repealed, and for which the said Revised Statutes are substituted. 2. If upon any point the provisions of the said Revised Statutes are not in effect the same as those of the repealed Acts and parts of Acts for which they are substituted, then as respects all transactions, matters and things subsequent to the time when the said Revised Statutes take effect, the provisions contained in them shall prevail; but, as respects all transactions, matters and things anterior to the said time, the provisions of the said repealed Acts and parts of Acts shall prevail. The proclamation contemplated by this Act was made on the 22nd of December, 1927.
It is quite clear that, as regards the alleged negligence, THE in respect of which the respondents' claim arises, which occurred after the Revised Statutes received the force of law, the respondents' remedy, if any, must be derived from DurJ the Revised Statutes. It seems equally clear that, in construing section 19 of the Exchequer Court Act, the statute in its French version cannot be ignored.
The phrase " pendant qu'il agissait dans 1'exercice de ses fonctions ou de son emploi dans tout chantier public " is plainly inconsistent with any construction of the phrase " public work " which has the effect of extending its meaning in such a way as to include public services. The rule for the construction of the parent enactment (50-51 Vict., c. 16, s. 16 (c)), laid down in Paul v. The King (1), that the phrase " public work " includes physical things of defined area and ascertained locality and does not include public services, is plainly sanctioned and adopted by these words as the rule applicable to the construction of section 19 in the Revised Statutes of 1927.
" Chantier," in this connection, implies defined area and locality and is incapable of application in such a way as to include public services, as such. We are indebted to our brother Cannon for the following note upon the subject which puts this point beyond dispute:
Littr6, " Dictionnaire de la langue frangaise," verbo " chantier " nous dit que d'apris le sens donn6 soit par le bas latin, soit par le frangais, le chantier est une place, un espace vide oft l'on entasse du bois, oi l'on radoube un vaisseau, 'on travaille quoi que ce soit.
Larousse du XX~me sibcle le d6finit: Atelier h l'air libre, cl8tur6 ou non, cii l'on travaille des mat~riaux de construction (bois, pierre, fer, etc.). Harzfeld, Darmesteter & Thomas, "Dictionnaire de la langue francaise "; Lieu oi l'on d6pose des mat6riaux pour les travailler.
Lafaye, " Dictionnaire des synonymes de la langue francaise," sous la rubrique: " boutique, magasin, atelier, chantier, le d6finit: Tout lieu consacr6 h une industrie. Ces auteurs nous disent: Dans le chantier, comme dans la boutique, on fait deux choses, on tient des objets et on travaille.
Mais le chantier, du latin canterius, chevron, 4tangon, se distingue par la matibre des objets.
Ce qu'on y tient en d6p8t ou en vente, c'est exclusivement du bois, bois de chauffage, de charpente, de charronnage, de construction, et quelquefois des pierres h bitir; d'autre part, le bois et la pierre sont les seules matibres employ6es dans les travaux du chantier tous ou la plupart relatifs & l'industrie du batiment, et qui comprennent principalement ceux des charpentiers, des scieurs de long, des constructeurs de navires et des tailleurs de pierre.
Lebrun & Toisoul, "Dictionnaire Etymologique de la langue frangaise:
Chantier: Atelier i l'air libre, cl6tur6 ou couvert, oii 'on travaille le bois, la pierre.
(1) (1906) 38 Can. S.C.R. 126.
Sachet, "Accidents du travail, ler vol. p. 85, n* 82, nous dit: " Le chantier est, en principe, A I'industrie du bAtiment et de la construction ce que l'usine, la manufacture ou la fabrique sont a l'in- THE KNo dustrie de la production: pris dans son acception premibre il signifie D.ois. l'emplacement oii des ouvriers sont occup6s A travailler le bois, la pierre, la terre et les diff6rents mat6riaux destin6s h l'6dification de bitiments DUFF, C.J. ou h la construction de routes, chemins, chausses, travaux d'art, etc. Mais peu A peu le sens de cette expression s'est 61argie et a fini par englober, du moins dans le langage courant, tous les lieux de travail un peu vastes, ainsi que les d6p8ts de marchandises des n6gociants en gros, quelle que soit la nature des travaux qui y sont ex6cut6s." La Revue Trimestrielle de Droit Civil, 1902, ler vol., 6tudiant la loi sur la responsabilit6 des accidents du travail, donne, A la page 456, les indications suivantes:
"37. Chantiers-Dans quel sens le l6gislateur de 1898 a-t-il entendu employer le mot " chantier "?
Pour M. Cabouat c'est un terme vague sans acception pr~cise. Pour M. Loubat c'est un 'lieu en plein air oii on dispose les objets pour les travailler' (Loubat, op. cit., p. 91, n' 100). Avec M. Sachet au contraire nous nous trouvons en pr6sence d'une d~finition prise et restrictive: 'C'est un emplacement oi des ouvriers sont occup6s A travailler le bois, la pierre, la terre et les diff6rents mat~riaux destin6s A l'4dification de bAtiments ou A la construction de routes'
(Sachet, op. cit., p. 84, n* Cette d~finition est rejet6e par la Cour de Caen, qui d~cide que 'l'expression chantier de 'article ler de la loi de 1898 implique le groupement, dans un emplacement d6termin6, d'un certain nombre d'ouvriers employ6s A la prdparation des mat6riaux destinis A des constructions ou a des travaux quelconques' (C. Caen, 30 janv. 1901, Rec. Arr. Caen, 1901, p. 5).
The statute, in the French version, plainly does not envisage a vessel, as such, although it does envisage a shipyard.
Nor does it contemplate an automobile as such, although it may very well be held to contemplate an automobile factory.
The statute, in the French version, must, of course, be read with the statute in the English version. I am not suggesting that, read in that way, the proper construction and application of the statute is inconsistent with the construction and application of it in the actual decision in Schrobounst's case (1) or in Mason's case (2), supra; but, the phraseology of the French version markedly emphasizes what I have already indicated, that is to say, the impropriety of making these two decisions a new point of departure for the development of a principle of liability which the statute plainly does not sanction.
The appeal should be allowed and the petition dismissed. We assume the Crown will not ask for costs.
(1) [1925] Can. S.C.R. 458.
S.C.R.]
Can. S.C.R. RINFRET J.-The appeal should be allowed and the peti- TE KiNo tion dismissed. In my opinion this is not a case for costs. Dunos.
Appeal allowed. Solicitor for the appellant: W. Stuart Edwards.
Solicitor for the respondents: Paul Labelle.
HIS MAJESTY THE KING (RESPON- DENT).
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PELLANT *Nov.
DET
AND
*May l3 ROSE MOSCOVITZ AND ANNA MOS-R
N COVITZ (SUPPLIANTS)...
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EPONDENTS. ON APPEAL FROM THE EXCHEQUER COURT OF CANADA Crown-Liability of, for negligence of its servant "while acting within the scope of his duties or employment upon any public work" (Exchequer Court Act, R.S.C. 19R7, c. 34, s. 19 (c))-Collision through negligent driving of Crown's motor truck by soldier in Canadian Army Service Corps on returning from delivering military stores to Airport of Royal Air Force.
The suppliants claimed damages from the Crown by reason of the death of M., who was fatally injured when a motor truck in which he was riding collided with a motor truck of the Crown, driven (negligently, as found at trial) by K., a private in the Canadian Army Service Corps. K's duties were those "of driver of a mechanical transport vehicle," and he had driven the truck from its garage (which served as a depot for such vehicles) at Kingston, with military stores which were being sent by the Canadian Army Service at Kingston to a detachment of the Royal Air Force airport at Trenton. The stores had been delivered and the truck was returning to Kingston when the accident happened.
Held: The negligence of K. was not "negligence of any officer or servant of the Crown while acting within the scope of his duties or employment upon any public work" within s. 19 (c) of the Exchequer Court Act (R.S.C. 1927, c. 34), so as to make the Crown liable. While the airport at Trenton, as well as the garage at Kingston, might well fall within the description "public work " (The King v. Dubois, ante, p. 378), and while the duties of the officer or servant, in the execution of which the negligence occurs, may be so connected with the public work (in or in relation to the construction, repair, maintenance, working or care of it) as to bring negligence in their performance, elsewhere than on the public work, within the scope of the enactment (The King v. Dubois supra), there was in the present case no such connection between the duties or employment in which K. was engaged at the time of the collision, and either the garage at Duff C.J. and Rinfret, Cannon, Crocket and Hughes JJ. (Rinfret J., through illness, did not take part in the judgment). APPEAL by the Crown from the judgment of Maclean J., President of the Exchequer Court of Canada (1), in favour of the suppliants, who, by petition of right, had claimed damages from the Crown for the death of one Himan Moscovitz, who died from injuries received in a collision of motor trucks. The suppliant Rose Muscovitz was the widow of the deceased and was executrix of his estate. The suppliant Anna Moscovitz was step-mother of the deceased.
The deceased's death ensued from a collision between a motor truck in which he was a passenger, and a motor truck, the property of the Crown, driven on the occasion in question by Private Kelly, a soldier in a detachment of the Canadian Army Service Corps, stationed just outside the city of Kingston, Ont. Kelly's duties were those "of driver of a mechanical transport vehicle."
The truck he was driving on the occasion in question was, when not in use, ordinarily stored in a garage at Kingston, which garage was owned or rented by the Crown and was occupied by the Royal Canadian Army Service Corps, and served as a depot for mechanical transport vehicles.
The truck, driven by Kelly, had been carrying certain military stores, sent by the Canadian Army Service at Kingston to a detachment of the Royal Air Force airport at Trenton, Ont. The stores had been delivered at Trenton, and the truck was on its return to Kingston, when the collision occurred. The trial judge found that the accident was owing to the negligent driving of Kelly.
The trial judge held that on the occasion in question Kelly was engaged upon a public work (within the meaning of the Exchequer Court Act), the transporting of military stores belonging to the Crown, from one point to another, from one public service to another, by a motor truck belonging to the Crown; also that Kelly was acting within the scope of his duties as a servant of the Crown at the time of the accident; and that the Crown was liable in damages to the suppliants.
By the judgment of the Supreme Court of Canada, now reported, the appeal was allowed and the petition of right dismissed.
P. Varcoe K.C. and C. A. Payne K.C. for the appellant.
B. C. Donnan, K.C. and N. Borins for the respondent.
C.J.-The learned President of the Exchequer Court has held that the Crown is responsible under section 19 (c) of the Exchequer Court Act (R.S.C. 1927, ch. 34) for the consequences of the negligence of Private Kelly in driving a motor truck, the property of the Crown, in the exercise of his functions as a private in the Canadian Army Service Corps. This negligence, it has been found, was the cause of the death of the deceased Himan Moscovitz in respect of which his widow and his stepmother, the respondents, claim compensation under Lord Campbell's Act. The learned President says:
Kelly's duties were those " of driver of a mechanical, transport vehicle."
In pursuance of those duties, on the 8th of November, 1932, he drove a truck from the garage at Kingston to the airport at Trenton for the delivery there of military supplies for the use of the " personnel of the airport." Kelly was not in any way attached to the airport, had no connection with the Air Force, and was not subject to the orders or instructions of any Air officer at the airport. The stores in the truck were in charge of Private Batty who had been detailed for that purpose. Batty's truck was accompanied by another engaged on the same service in charge of Corporal Cherry.
After unloading at Trenton, the trucks did not return to Kingston direct but proceeded to Belleville, where, as he explained, Corporal Cherry "had business."
At Belleville they stopped for an hour and a half or two hours, leaving, about seven o'clock in the evening, on their return to Kingston. It was on this stage of their journey that the collision occurred in which the decea.sed Himan Moscovitz unhappily lost his life.
The question of substance on the appeal is whether or not the negligence of Kelly, in the language of section 19 (c), is or, in the French version,
CJ. It will be clear, from what has been said in the judgment in The King v. Dubois (1), that the airport at Trenton, as well as the garage at Kingston, may well fall within the description " public work " or " chantier public," in the meaning of this enactment.
The precise point for determination is whether or not Kelly, in driving a truck belonging to the Army Service Corps, was in the sense of the enactment "acting within the scope of his duties or employment upon" such " public work "; or " dans " the " chantier public " in question. The phrases " public work " and " chantier public" contemplate, as has been fully explained in Dubois' case (1), not public services, but physical things. Nevertheless, the phrase " upon any public work," " dans tout chantier public," has received a liberal construction in the decisions of this court in The King v. Schrobounst (2) and The King v. Mason (3).
It is not essential that the act of negligence should be committed by the negligent officer or servant during his presence on the public work. The duties of the officer or servant, in the execution of which the negligence occurs, may be so connected with the public work (in or in relation to the construction, repair, maintenance, working or care of it) as to bring negligence in their performance elsewhere within the scope of the statute. The ground upon which such a construction may be supported has been explained in the judgment in Dubois' case (1).
I cannot find here any such connection between the duties or employment in which Kelly was engaged at the time of the collision, and either the garage at Kingston which served as a depot for mechanical transport vehicles, or the Trenton airport, as to bring Kelly's negligence within the scope of the words quoted. Kelly was, in truth, simply the driver of an automobile the property of the Crown un- S.C.R.]
Statutes and regulations cited
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- section 19 of the Exchequer Court Act
- s. 16
- section 19
- s. 19
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Unresolved citations
- Sections 4
- 5
- 8