Majority
HER MAJESTY THE QUEEN (Re- APPELLANT;
Judgment of the Court
J.:-The suppliant's husband, Sergeant-Major Kenny, a member of the armed forces, was killed in a motor car accident while travelling in the course of duty. The driver of the motor car, Lt. Arcand, was using his own car and was also travelling in the course of duty. He was properly authorized pursuant to the regulations to use his own car on military business and to carry Kenny as a passenger. The learned trial judge found that Kenny was killed as a result of the negligence of Arcand and the driver of an oncoming car. Arcand was a servant of the Crown as defined by s. of the Exchequer Court Act, R.S.C. 1927, c. 34, enacted by 1943-44, c. 25, s. 1 (now R.S.C. 1952, c. 98, s. 50). Unless deprived of this remedy by other legislation, Kenny's dependants, therefore, had a claim against the Crown under s. 19(1) (c) of the Exchequer Court Act, 1927 (since repealed by s. 25(2) of the Crown Liability Act, 1952-53, c. 30), which, as re-enacted by 1938, c. 28, s. 1, read: Dame Houle-Kenny, both personally and as tutrix to her two children, filed a petition of right. She obtained a judgment for $20,000 and the question now is whether her right to maintain these proceedings is affected either by the Pension Act, R.S.C. 1927, c. 38, now R.S.C. 1952, c. 207, or by s. 207(8) of the Pay and Allowance Regulations in force at the time of the accident. The problem of supposed conflict between s. 19(1) (c) of the Exchequer Court Act and the provisions of the Pension Act is in this Court for the THE first time but it has arisen on two previous occasions in the Hou et al. Exchequer Court.
Judson J. In Meloche v. Le Roil, Angers J. held that the dependants of a soldier killed in the course of duty had no claim against the Crown under ss. 19(1) (c) and 50A of the Exchequer Court Act since Parliament had created a special remedy by way of pension. In Oakes v. The King', Cameron J. stated that he would have reached the same conclusion but for the decision of this Court in The King v. Bender', where it was held that a servant of the Crown who was entitled to compensation pursuant to the Government Employees Compensation Act, R.S.C. 1927, c. 30, for injuries received in the course of his duty was not precluded from pursuing a claim for damages against the Crown under s. 19(1) (c) of the Exchequer Court Act. The learned trial judge in the case at bar was also of the opinion that the case was governed by the Bender case. I am of the same opinion. The relevant section of the Pension Act in force at the time of the accident (re-enacted by 1940-41, c. 23, s. 10; now s. 20) was as follows:
18. (1) Where a death or disability for which pension is payable is caused under circumstances creating a legal liability upon some person to pay damages therefor, if any amount is recovered and collected in respect of such liability by or on behalf of the person to or on behalf of whom such pension may be paid, the Commission, for the purpose of determining the amount of pension to be awarded shall take into consideration any amount so recovered and collected in the manner hereinafter set out. (2) In any such case the Commission may require such person or anyone acting on his behalf as a condition to the payment of any pension, to take all or any steps which it deems necessary to enforce such liability and for such purpose shall agree to indemnify such person or anyone acting on his behalf from all or any costs incurred in connection therewith. Who is the person referred to in s. 18(1) who has incurred a legal liability to pay damages for the death or disability? That person is clearly a third party wrongdoer and not the Crown. The Crown is not inviting or requiring proceedings to be taken against itself for the purpose of taking the recovery into account in fixing the amount of the pension. 1[19481 Ex. C.R. 321, [19481 4 D.L.R. 828.
2 [19511 Ex. CR. 133, [1951] 3 D.L.R. 442.
3119471 S.C.R. 172, [1947] 2 D.L.R.
S.C.R.
The submission of the Crown and of Arcand, on this appeal, is that because the section does not contemplate proceedings against the Crown, it follows that a claimant for a pension cannot have a remedy under ss. 19(1) (c) and 50A of the Exchequer Court Act. It seems to me that the fallacy in this submission is the same as the one pointed out in the Bender case with regard to the interaction of the Government Employees Compensation Act and the remedy under the Exchequer Court Act, namely, that the section does not deal with and leaves untouched the remedy under the Exchequer Court Act. The section is confined entirely in its operation to what may be done about recovery from a third party wrongdoer when a person seeks a pension. The obvious conclusion is that when the Exchequer Court Act was amended in 1943 by the addition of s. which made a member of the armed forces a servant of the Crown, the effect of the amendment on s. 18 of the Pension Act, which resulted to a certain extent in a duplication of remedies, was overlooked. The omission was dealt with by legislation in 1952 (after the date of the accident in question here) which provided that in cases where a pension was payable, there should be no other remedy against the Crown or a servant of the Crown (1952, c. 47, s. 3, enacting a new s. 69 of the Act).
Similar legislation had already been enacted to deal with the result in the Bender case (1947, c. 18, s. 9).
I turn now to para. 207 of the Pay and Allowance Regulations in force at the time of the accident. The first seven subparagraphs deal with the cases in which an officer or soldier may be authorized to use his own vehicle on military business and the allowances which may be made for this use. Then the last subparagraph provides:
The appellants submit that this regulation is a bar to any remedy under s. 19(1) (c) of the Exchequer Court Act. According to this submission the suppliant would have a remedy if her husband had been killed in a military vehicle but not, as in this case, where he was killed in a privatelyowned vehicle, even though its use on military business had been properly authorized by the regulations.
The apparent scope of the subparagraph is broad but the Juo opinion of the learned trial judge was that, in the context in which it appears, it applies only to regulate how the loss is to be borne as between the Crown and its servant who has been authorized to use his own vehicle on military business, and it does not affect the liability of the Crown under s. 19(1) (c) of the Exchequer Court Act. I agree with this opinion.
There is, according to this interpretation, no conflict between the regulation under consideration and the
Exchequer Court Act. If there had been, it is difficult to see how a right clearly given by one Act could be whittled away by a regulation made under another and unrelated Act.
The working of the subparagraph is illustrated by the actual conduct of this case. The Crown joined Lt. Arcand and Louis-Philippe Lacroix as third parties in the proceedings and claimed over, not only against Lacroix but also against its servant Arcand. The judgment of the Court was that the suppliant was entitled to recover against the Crown the sum of $20,000 and that the Crown was entitled to recover 30 per cent. of this against Arcand and 70 per cent.
against Lacroix. Merely by authorizing the use of the car and paying for it, the Crown, as between it and Arcand, did not accept responsibility for the consequences of negligent driving. That is the effect and meaning of the subsection as found by the learned trial judge.
There was ample evidence on which the learned trial judge found negligence against Arcand and Lacroix and his finding cannot be disturbed. Nor would I interfere with his division of the blame. I would dismiss all three appeals with costs.
Appeals dismissed with costs.
Attorneys for the suppliant: Taschereau, Cannon &
Frdmont, Quebec.
Attorney for Her Majesty the Queen: Paul Trepanier,
Montreal.
Attorneys for Albert Joseph Arcand: Letourneau, Quinlan, Forest, Deschenes & Emery, Montreal.
Attorney for Louis-Philippe Lacroix: Archibald J.
Cases cited
- 3 D.L.R. 442 3 D.L.R. 442