Furlan v. City of Montreal

The husband of S, while working in the course of his employment by one D, in the province of British Columbia, was the victim of an accident through which he died, which accident was caused by the negligence of a member of the Canadian military forces while acting within the scope of his duties or employment. S was awarded compensation for herself and her infant son by the Workmen's Compensation Board of British Columbia under the Workmen's Compensation Act, R.S.B.C. 1936, c. 312. She brought the present action (by petition of right) for the benefit of herself and her son under the Families' Compensation Act, R.S.B.C.

1936, c.

93, claiming damages against the Crown by virtue of ss. 19 (c) and 50A of the Exchequer Court Act, R.S.C. 1927, c. 34 (as amended in 1938, c. 28, and 1943, c. 25). S. of said Workmen's Compensation Act provides for cases where an accident happens in such circumstances as entitle the workman or his dependents "to an action against some person other than his employer", and subs. 3 thereof provides in effect that, if a workman or dependent claims compensation from said Board, the Board shall be subrogated to the rights of the workman or dependent as against such other person.

In the present action the Board was a co-suppliant, pleading its statutory right of subrogation, and also an equitable assignment in writing from S to it. Held: The claiming and acceptance by S of compensation under said Workmen's Compensation Act did not bar her right to recover, nor affect the amount recoverable, from the Crown in the present action. S. 11(3) of that Act only affected rights as between the dependents and the Board.

The direction by the Exchequer Court that the amount it awarded as damages to S should be payable to the Board and the amount it awarded as damages to her son should be paid into court to abide the Court's order, with liberty to the Board to apply for a declaration as to its rights, was unobjectionable. Judgment in the Exchequer Court, [1945] Ex. C.R. 250, affirmed. *Present:-Kerwin, Taschereau, Rand, Kellock and Estey JJ. 88660-41