Majority
of the course that the trial took, I am not disposed to PEP sICon preclude either party in a properly framed action litigating the question whether under section 28 (1) or otherwise respondent could apply for and secure registration of the Co. or compound word "Coca-Cola" although the same compound TDword in script form had already been registered by it as Kerwin j. a trade mark. The judgment on the counterclaim should, -therefore, declare that with respect to the respondent's second trade mark, the Court does not see fit to make any order.
The appellant should have its costs of the appeal and of the action, and the respondent its costs of the counterclaim.
Appeal allowed in part. Solicitors for the appellant: Creelman, Edmison & Beullac. Solicitors for the respondent: Osler, Hoskin & Harcourt DOUGLAS RICHMOND STREET AND
*Feb. 6,7,8.
NORMAN BROWNLEE (PLAINTIFFS)
*Nov. 30.
AND
OTTAWA
VALLEY
POWER
COM- RESPONDENT. PANY (DEFENDANT)
.........
.......
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Judgment of the Court
THE CHIEF JusTIcE-The appellants' claims are in two separate groups. The first of these is based upon the ground that for various reasons the works of the respondents are illegal; those in the second group are founded on the right to damages given by section 12 of the Quebec Watercourse Act.
It is convenient to deal first with these latter. Section 12 is in these words:
12. (1) The owner or lessee of any such work shall be liable for all damages resulting therefrom to any person, whether by excessive elevation of the floodgates or otherwise.
(2) Such damages shall be assessed and fixed by the Quebec Public Service Commission.
The works in question were constructed under authority of an order of the Lieutenant-Governor in Council of the 20th of June, 1930, purporting to be given pursuant to see- (1) (1938) Q.R. 65 K.B. 504.
tions 4 et seq. of The Watercourse Act. Admittedly, the water level of the river was not, in consequence of these smRE works, raised above the ordinary high water mark; but it is urged that the appellants as riparian proprietors are entitled to recover damages in virtue of section 12 on several grounds.
Duff CJ. The damages under that section are claimed in virtue of the allegations in paragraphs 13 to 18 inclusive in the declaration, and these paragraphs are textually as follows: 13. That since the erection and construction of the said dams as aforesaid the said defendant has caused the waters of the said river Ottawa to be raised thereby to a level corresponding to and exceeding the level of the said river in the spring time at high water mark notwithstanding the protests of the plaintiffs against such action and have since maintained said waters at said unnatural level throughout all periods of the year.
14. That the action and conduct of the defendant has. caused loss, damage and injury to the plaintiffs by the continuous presence of a large body of water adjoining their properties, because of the perpetual seepage, percolation and changes in the bank of the said river opposite the properties of plaintiffs by which the bank of the river has been weakened and destroyed and the flowing of the said river on to the property of the plaintiffs has ensued, especially after wind storms, and from the action of the ice on the shore and the breaking up of the ice in the spring time of the year; and the drainage of the said lots and the dwellings thereonfor sanitary and other purposes has been rendered impossible, and the shade and ornamental and useful trees growing thereon have been undermined and destroyed and their replacement rendered impossible. 15. That the defendant has neglected to strengthen the shores of the said river so altered by them so as to prevent such percolation and changes weakening in the said shores.
16. That the said property of the plaintiffs was naturally well adapted to the laying out of a summer resort.
17. Plaintiffs' property as a summer resort has been further damaged because the raising of the waters of the said river has interfered with boating, bathing, and landing facilities connected therewith, and has taken away all rights of accession and alluvion.
18. That the sales and the disposal of the lots of the plaintiffs have been lessened and the market therefor has been destroyed because of the degradations and changes which have been caused on the said lots of the plaintiffs by the above-mentioned acts and proceedings of the defendant in connection with the waters of the Ottawa river, and the said market in any event can never be reopened so long as the present state of affairs caused by the action of the defendant is allowed to continue.
By the plea these allegations are denied.
The trial lasted several days and evidence was given on both sides on the issue thus raised and the learned trial judge held S.C.R.]
that the evidence did not justify a finding that the plaintiffs were entitled to such damages. He found:
Having regard to the character of the allegations which are denied by the plea and which the learned trial judge thus found to be negatived by the evidence, it is plain that the learned judge was in an exceptionally advantageous position to pass upon the issues with which he was dealing; and, having fully considered that evidence, I am quite satisfied that we should not be justified in interfering with his findings.
There is one topic upon which it is desirable, perhaps, to make an observation, and that concerns the claim based upon the alleged reduction in the width of the beach. It is quite clear that the right of accks and sortie to the river as a navigable river is in no way interfered with. It should also be noticed that in the province of Quebec the beds of navigable rivers, as well as the banks, are the property of the Crown (article 400 C.C.); and the appellants, whose property is bounded on the southerly side by the Ottawa river, have no title to any of the soil below high water mark. The learned trial judge has found, and this is not now disputed, that the respondents' works have not the effect of elevating the waters of the river above ordinary high water mark and that the property of the appellants has, therefore, not been inundated; and it seems indisputable that the respondents, who ex hypothesi in virtue of the Order in Council, have authority from the Crown for raising the waters of the river, are not in consequence alone of this inundation of Crown property answerable at the suit of the appellants. They could have no claim as against anybody acting for the Crown for prejudice suffered by reason of the deepening of the channel or by reason of the penning back of the waters of the river on Crown property; and, if there were any prejudice arising from the sole fact that as a result of the work constructed by the respondents under contract with the Crown, the beach became covered with water at seasons when it would otherwise be bare, that prejudice could, in my opinion, not be the basis of a claim for damages under section 12.
I rest my judgment, however, in this respect upon the finding of the learned trial judge that no such damages were sustained and that this finding is amply supported by the evidence.
As to illegality, the grounds of complaint, including the claim in respect of the lodging of the plans and other documents in the Registry Office have, I respectfully think, been satisfactorily dealt with in the Court of King's Bench and I say nothing further about any of them with the exception of one which was raised in this court for the first time.
The appellants sought to advance a contention not mentioned in the courts below that the dam of the respondents is part of a single work connecting the province of Quebec with the province of Ontario and is, therefore, part of a work which the former province is without legislative competence to authorize.
This is a contention which is clearly not open to the appellants in this court.
As the facts appear from the record before us, the respondents' dam is a work wholly situated within the province of Quebec, constructed there under the authority of a provincial statute, and the property in relation to which the appellants allege they have suffered prejudice is also situated in that province. Prima facie, therefore, the reciprocal rights and liabilities of the parties must be governed by the law of that province. It is not alleged in the pleadings that this dam affects the flow of the river south of the interprovincial boundary, and the issues of fact which might have to be considered for the purpose of examining this contention of the appellants are not among the issues to which evidence was directed, or which were considered by the courts below, or presented to those courts by the pleadings or otherwise. Another question of law of great importance was raised and argued which, in the views above expressed, it is strictly unnecessary to pass upon. I think, however, it is inadvisable to put it aside without comment.
Section 12 of the Watercourse Act has already been quoted. The Court of King's Bench has held, acceding to the contention of the respondents, that this enactment must be interpreted according to the generally recognized sT= rule that, where a right of compensation is given by sta- OV.
tute, in respect of something the statute authorizes, and by the same enactment extrajudicial machinery is provided for ascertaining the amount, the matter of compensation is not cognizable by the courts, until, at all events, the amount has been determined in accordance with the statutory method; and accordingly that the Superior Court had no jurisdiction to entertain the claim for damages arising under section 12.
Section 12 is not new legislation. In 1856, the legislature of the old province of Canada passed a statute, restricted in its operation to Lower Canada which, in its title, is described as An Act to authorize the improving of Watercourses. Thereby (sections 3 and 4) riparian proprietors were authorized to improve any watercourse bordering upon or passing through their property for industial purposes, subject to the payment of such damages as might result from these improvements to other persons in the ordinary manner.
This statute, which was chapter 104 of 19-20 Vict. appeared as chapter 51 of the Consolidated Statutes of Lower Canada of 1861, and again as articles 5535 and 5536, R.S.Q. (1888).
Since the first enactment of this legislation in 1861 there had been a series of decisions in the province of Quebec in which it was held that the right to damages given by the statute was one which could be enforced by action in any competent court. This appears to have been first held in 1869 in the case of Nesbitt v. Bolduc (1); Loranger Commentaires du Code Civil, vol. I, p. 140, no. 25. This decision was followed in Jean v. Gauthier (2); and in Breakey v. Carter (3).
In 1885 the Supreme Court of Canada held (in Breakey v. Carter) (4) that the mode of assessing damages prescribed by chapter 51 of the Consolidated Statutes of Lower Canada did not exclude the right to proceed by ordinary action; and after this decision the legislation was re-enacted by R.S.Q. (1888), articles 5535 and 5536. Later, the construction of these articles of R.S.Q. (1888) came before this Court in Gale v. Bureau (1); and it was there held that, in view of the previous course of jurisprudence in the province of Quebec and the decision of this Court in Breakey v. Carter (2) (and the subsequent re-enactment of the legislation in identical terms) the statute must be construed and applied conformably to those decisions; and, consequently, that the Superior Court of the province of Quebec had jurisdiction to entertain an action for damages and to assess the damages under article 5536, R.S.Q. During the progress of the litigation in Gale v. Bureau (1) through the Courts the legislation was again re-enacted in identical terms by articles 7295 and 7296 of R.S.Q. (1909).
There appears to be no room for doubt that, under these articles of the Revised Statutes of 1909, the Superior Court possessed jurisdiction to entertain an action for damages such as the present and to give judgment for such damages as might be assessed.
The legislature of Quebec, by re-enacting in 1888 and again in 1909 the legislation first passed in 1856, and later embodied in the provisions of chapter 51, C.S.L.C. (1861), must be taken to have given statutory sanction to the course of decision culminating in Breakey v. Carter (2), decided by this Court in 1885. The rule in such a case is stated by Lord Halsbury in Webb v. Outrim (3) in a passage quoted from the judgment of Griffith C.J. in these words:
This rule was affirmed afresh and applied in Barras v. Aberdeen (4).
In that case, three of the Law Peers, Lord Buckmaster, Lord Warrington of Clyffe and Lord Russell of Killowen, adopted and applied the rule as laid down by Lord Halsbury and also as laid down by James L.J. in Ex parte Campbell (5).
Lord Blanesburgh and Lord Macmillan would appear to have thought that the language of James L.J. required some qualification, but neither of them would, as their judgments shew, have had any doubt about the application of the rule in a case like the present; where a course of decision in the province of oV
Quebec, beginning in the year 1869, culminated in a decision of this Court in 1885 and the statute, which was the subject of these decisions, was thereafter re-enacted without modification in its terms.
It is evident, I think, that Lord Blanesburgh, who thought the rule not applicable in Barnes v. Aberdeen (1), would have had no hesitation in applying it in the circumstances now under consideration. That, I think, sufficiently appears from his observations at page 433.
We start from the premise then that, by force of articles 7295 and 7296 of R.S.Q. (1909), the Superior Court would have been, so long as that legislation remained unchanged, competent to entertain such an action as the present. It must be taken that, by these articles, the Legislature declared an action for damages under article 7296 (1) to be competent in the Superior Court.
The question raised by the contention of the respondents is this: by the change embodied in subsection 12, as it now appears in the Revised Statutes, has the Legislature taken away this jurisdiction?
For subsection 2 of article 7296 R.S.Q. (1909) providing for the ascertainment of damages by experts, the following is substituted:
I am very much disposed to think that something more explicit than this is required to deprive the courts of Quebec of the jurisdiction they possessed under the existing statute. The legislature is conclusively presumed to have known the effect of the re-enactment of the statute after the earlier decisions,-to have known, that is to say, that by the statute, as it stood before it was amended, the Superior Court had jurisdiction, but that the proceeding by way of assessment by experts was also available. There is at least much to be said for the view that the more natural interpretation of the action of the Legislature in amending subsection 2 is that recourse to experts is being replaced by the Public Service Commission, and that the courts have not been deprived of iurisdiction.
Statutes and regulations cited
-
Unresolved citations
- section 28
- section 12 of the Quebec Watercourse Act
- Section 12
- section 12
- Section 12 of the Watercourse Act
- sections 3
- 4