The Queen v. Fillion

G-WYNNE J.-It is unnecessary, in my opinion, to discuss the questions whether a petition of right could have been maintained in a case like the present prior to the passing of the Dominion statute 50 & 51 Vic. ch. 16, or how far the judgment of their Lordships of the Privy Council in the case of the Windsor 4- Annapolis Railway Co. v. The Queen has shaken the ancient doctrine that the subject had no remedy against the Crown for torts committed by its servants, for I am of opinion that the language of the above Dominion statute is sufficient to give to persons suffering injury in person or property on any public work-resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment, a right to redress, even though they may have had none before, such redress being sought for in the Court of Exchequer.

The only question raised by the argument in appeal Jwhich is necessary to be determined in the present case, in my opinion is, whether the persons whose negligence (as the learned judge of the Exchequer has, as a matter of fact found) caused the death of the young man for whose death the proceeding by petition of right has been instituted by his father, came within the description of the persons named in subsection of sec. 16 of the above Act, that is to say, " officers or servants of the Crown acting~within the scope of their duties or employment," and I am of opinion that they do.

I cannot see anything in the evidence which would justify me in pronouncing the judgment of the learned judge of the Exchequer Court to be erroneous upon the matter of fact found by him that the death was caused by their negligence or the negligence of one of them. No objection was taken to the effect that to qualify the father to maintain the petition of right he should have been shown to have taken out letters of administration and have been a suppliant in the character of personal representative of the deceased, and as no objection was taken upon that point, I do not deal with it; dealing with the case as argued I am of opinion that the appeal must be dismissed.

J.-This appeal was asserted before the decision of this court in The City of Quebec v. The Queen An important question involved in that case was as to the construction that was to be given to the Dominion statute 50 & 51 Vic. ch. section 16, paragraph c, which enacts that:

It had been contended by the Crown that that section did not create a liability but only gave jurisdiction in claims against the Crown existing aliunde that:! statute. In The City of Quebec v. The Queen as well as in several other cases, the Court of Exchequer had decided against the Crown's contention, and my learned brother Gwynne in delivering the judgment of the court (since this case was argued), says:

I consider myself bound by that judgment, and if so the principal ground of this appeal has disappeared. I entirely concur in the view which was taken by the learned judge below upon the facts. In my view there was negligence on the part of the officers of the Crown in not testing the strength and capacity of the derrick which caused the injury before it was put into operation, and it is further clear, as pointed out by the learned judge in the court below, that the doctrine of collaborateur, until recently the law of England and of Ontario, does not obtain in the province of Quebec. I am therefore of opinion that the appeal must be dismissed with costs.

J.-Concurred.

Coderre.