Majority
MORRIS ROBERT PALMER and
NATHAN
PALMER, carrying on
*Jan.29 business under the name of HULL
APPELLANTS; Feb.26 PIPE and MACHINERY COM-
Judgment of the Court
J.:-I have today given my reasons why the appeal of the present appellants in another case against Miron & Freres- fails, and while the evidence is not identical, it is unnecessary to restate the salient facts. However, it may be stated that the appellants claim from the present respondent, the same amount of $33,540 which they claimed from Miron & Freres in the other case before the Superior Court of the Province of Quebec. The learned President of the Exchequer Court dismissed the petition of right with costs, and I agree with the conclusions which he has reached.
It is first of all claimed that the payment by the apellants to the respondent of the rents, namely, $15 a month, for July, August and September, 1949, made them monthly tenants, and that they were entitled to a month's notice, and therefore should have had the enjoyment of the land until the end of September. I believe that this argument cannot support the claim of the appellants. Of course, if there is a breach of contract, a petition of right will lay against the Crown to recover damages, but here there was no lease between the parties and no valid consent has ever been given to bind the respondent. Section 18 of the Public Works Act says:
Vide: St. Ann's Island Shooting and Fishing Club Limited v. The King', where it was held that the authorization of the Governor General in Council was an essential requisite for a valid lease entered into by a department of the Crown. Here, no such authority has ever been obtained. Moreover, the appellants knew of the expropriation proceedings, they had been notified several times that they would have to leave the premises they were occupying from day to day, precariously and by mere tolerance.
Under these conditions, they were bound to leave at a moment's notice. They in fact received several notices, and their refusal to vacate the property is marked with the utmost bad faith. Even after having been notified, and after having, at the request of their lawyer, obtained a few days delay to clear the way, they deposited some additional scrap, indicating their determination to scorn the notices they had received.
The other submissions of the appellants based on old ss. 18 and 19 (b) and (c) of the Exchequer Court Act, have been rightly ruled out by the learned trial judge.
Under s. 18, the Exchequer Court has exclusive original jurisdiction . . . in all cases in which the land, goods money of the subject, are in the possession of the Crown.
This is not a case where the Crown had possession of land, goods or money belonging to the appellants. Not only did the Crown not have possession of these goods, but it requested several times that they be taken away from its premises. There was no actual possession and no possession in law within the meaning of the Act.
As to s. 19 (b) and (c), it seems sufficient to say that they do not apply. Section 19 (b) deals with the case of a subject whose property has been injuriously affected by the construction of a public work, and s. 19 (c) as it then was, is to the effect that the subject has a claim against the Crown arising out of any death or injury to the person or to property, resulting from the negligehce of any officer or servant of the Crown while acting within the scope of his duties or employment.
Section 19 (b) does not apply, because no property belonging to the appellants has been injuriously affected by the construction of the Printing Bureau. Nor does s. 19 (c) apply. As pointed out in the Exchequer Court, there is no allegation of the negligence of any particular officer or servant of the Crown, but in any event, counsel for the appellants stated that the only suggested officers or agents were Miron & Freres, and they were independent contractors.
S.C.R.
Statutes and regulations cited
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- s. 18
- s. 19
- Section 19
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Unresolved citations
- Section 18 of the Public Works Act
- ss. 18
- 19