Ryder v. The King

The single question for us to determine is whether the defendants had acquired a title by possession under the Statute of Limitations.

The Court of Appeal held that as the unregistered prior deed to the defendants from Sootheran was, by the Registry Act, made void, it could not be invoked by the subsequent registered mortgagees to shew that Sootheran, after its execution, had no right of entry to the lands in question.

They held that the Statute of Limitations did, consequently, apply to him. Being void they held that it was void under the statute ab initio, and that the defendants being in possession the Statute of Limitations began to run the day after Sootheran got his deed and became owner in fee of the lands, and that their possession had ripened into a statutory title before this action was begun. The fallacy underlying this reasoning lies in the ignoring of the words of the section making the unregistered prior conveyance void, only as against the subsequent conveyance registered. The unregistered deed to the defendants conveyed to them all Sootheran's title and interest. Such title and interest still remains, but it is made by the statute to rank after the mortgage subsequently executed but first registered. Sootheran had, after the execution of the deed to the defendants, no right of entry which any possession under the Statute of Limitations could bar. In fact the statute did not, and under the construction I place upon the Registry Act could not, apply to him.

It follows, therefore, that, as against the plaintiffs, the defendants have not acquired any statutory title, and the appeal should be allowed and the judgment of the Chancellor restored.

J. (dissenting).-I concur. The authorities seem to me to clearly establish that the only effect of the Registry Act is to give priority to.the registered over the unregistered instruments, leaving the interests of the parties otherwise unaffected. New Bruns- If, as suggested, no legal title ever passed from Sootheran to the mortgagee, as he had already conveyed the legal title to the defendants and, therefore, no right of entry ever accrued to the mortgagees, the Statute of Limitations never became applicable between the parties, and the Registry Act gives the mortgagees the priority they claim.

The result of the judgment of the Court of Appeal and the majority of this court is that a person who is the legal and equitable owner in possession of land, and as to whom the Statute of Limitations cannot have any application (who has, by his own act, in executing a conveyance which has been registered enabled an innocent party to bring into play the Registry Act), can defeat the plain language of that Act creating priority against him by invoking a statute which had admittedly no application prior to the registration, and add a term of years as running which, in fact, was not running. 0 plus 5 10 is an arithmetical calculation I fail to appreciate. would restore the judgment of the Chancellor. J.-It is asked by the appellants: did the right of entry accrue?

They set up the outstanding estate vested in the respondents by Sootheran's deed to them to shew that it stood in the way of making entry until the mortgage to the appellants was registered.

This deed is, by virtue of the Registry Act, made void as against the appellants. It is not made, it is said, absolutely void, but only as against the subsequent mortgage.

I grant that. But how far is it necessary to make it void to enable the mortgagee to assert a good title to the legal estate?

It must make it void back far enough to enable the mortgagee to shew a good paper title-and that means beyond the time when the unregistered title began.

Then, when it runs to that point, there is presupposed an absence of any other legal estate. There cannot be two at the same time.

There seems, therefore, no escape from the result that, in this case, by the assertion of their title, the appellants, of necessity, obliterate, by force of the Act that they invoke for their protection, any title that the court can, in this case, consider. The appellants cannot claim at one and the same moment a legal estate vested in them and also in their adversaries. This is, after all, only another way of saying and illustrating what the late Chief Justice Draper and others said in correct legal phraseology as to the unregistered deed being void ab initio.

I think the appeal should, for these and for the reasons assigned by the Court of Appeal, be* dismissed with costs.

The suppliant sued as administratrix of the estate and effects of her son, one William Edward Ryder, deceased, and for the benefit of the brothers and sisters of the said deceased as well as of herself, claiming the sum of .$5,000 damages for the loss and damage which she and various brothers and sisters of the deceased had sustained by reason of his death.

The deceased, William Edward Ryder, met his death on the 20th April, 1903, while in the employment of the Department of Public Works of Canada by an accident which occurred at the launching of a tug named "Sir Hector," the property of the Government of Canada.

The said tug was used in connection with certain dredging operations carried on by the Department of Public Works at the mouth of the Red River in the Province of Manitoba, and had been hauled out of the water for repairs on to the bank of a slough, part of the Red River.

On the said 20th of April, 1903, preparations were being made for launching the "Sir Hector" under the direction of Robert Francis Sweet, a dredge master in the employ of the Dominion Government, who was entrusted with the operation by Zepherin Malhoit, the resident engineer of the Department of Public Works in charge of the dredging operations.

Mr. Sweet had under him a foreman named John Davis, who was the foreman in charge of the launching, and about ten other men, including the deceased William Edward Ryder, were engaged under the foreman John Davis in the launching.

While the preparations were still going on the vessel, by some accident, was prematurely launched, and John Davis, the foreman, and William Edward Ryder, were caught and crushed to death under her side as she moved down to the water.

The court gave judgment that the suppliant was not entitled to the releif sought by her petition of right.

Under the Exchequer Court Act a provincial statute may apply to the Crown, though the latter is not named therein.

The. Workmen's Compensation Act of Manitoba so applies. Letourneum v. The King The Queen v. Martin,(2) ; Penny v. The Queen(3); McDonald v. The King ( ).

:

J.-This action was brought for the death of a servant of the Crown while engaged in the work of launching the Dominion steam tug "Sir Hector," at or near Selkirk, in the Province of Manitoba. The judge of the Exchequer Court stated the defences as follows:

The learned judge dealt only with the third and fourth defences. and I understood in the argument it was agreectunm, u

In my view the cases of City of Quebec v. The Queen(5) ; The Queen v. Filion,(6) ; The Queen v. Grenier(7) ; and Letourneux v. The King(1) ; establish the doctrine that the Crown is liable to any person suffering injury in person or property or 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, such redress being sought for in the Court of Exchequer.

The liability is created according to those cases by the statute itself, and evidence that such injury resulted on a public work from the negligence of an officer or servant while acting within the scope of his duties, etc., is all that is necessary for the proof of the plaintiff's case. The action lies in law by force of the statute.

It assumes, according to the reasoning contained in those cases, that the Crown can be guilty of negligence creating liability if such negligence is that of an officer or servant. It does not, however, deprive the Crown of the defences open; see

The Queen v. Martin (1).

What defences (at the date of the statute) would then have ieen open to an employer guilty of negligence?

Since the decision of Priestley v. Fowler (2), it has been the established law of England that the employer could answer to his servants' negligence that such negligence was a risk assumed by the employed and so arose the doctrine known as "common employment."

I have dealt so fully with the authorities in the recent case of

Canada Woollen Mills v. Traplin (3), that I need not reiterate.

The statute does not take away this defence from the Crown.

The Workmen's Compensation Act was passed not to create any new right of action, but to take away certain defences which were open under the authorities to the employer. The

Manitoba statute does not purport to apply to the

Crown even as represented in Manitoba, and in my view until the Crown is deprived by competent authority of such defence it is still open to it. -I think Nesbitt J this must have been the view of the Chief Justice of this court in the Filion Case (1), else the latter part of his judgment in that case is unexplainable, also his language in the Grenier Case(2), at p. 51. Appellant's counsel argued that this defence was not open, as he claimed the Crown would be liable in the cases where an employer would be, namely, for defective system or non-supply of adequate materials or proper machinery. I express no opinion as to what might be held in a proper case. Many considerations arise pro and con. This is not defective system. At the highest it is a negligent isolated act of the superintendent in not properly staying the boat, so that it slipped when the blocks were removed. I would dismiss the appeal. J.-The question raised by this appeal is whether or not the Exchequer Court Act, 50 & 51 Vict. ch. 16, sec. 16, created a liability or merely constituted a jurisdiction in the Exchequer Court to determine in regard to claims for or in respect to which liability existed already or might thereafter be created. It is as follows:

Every claim against the Crown arising under any law of Canada or any regulation made the Governor in

Council; (R.S.U.S.

sec. 1059(1)).

Every set-off, counterclaim, claim for damages, whether liquidated or unliquidated, or other demand whatsoever, on the part of the Crown, against any person making claim against the Idington J, Crown.

(R.S.U.S.

sec. 1059(2).)

Shortly after this enactment came into force Sir

Henry Strong, then Chief Justice of this court, in a most luminous and comprehensive judgment, if I might be permitted to say so, in The City of Quebec v.

The Queen(1), dealt with this question.

I cannot do better than adopt the exposition of the law as given in that judgment from pp. 426 to 430 of

24 Can. S.C.R., as applicable to the case now in hand.

It reads as follows:

This subsection which gives jurisdiction to the Exchequer

Court to hear and determine "every claim against the Crown arising under any law of Canada" would indubitably and upon the direct authority of two recent decisions of the Privy Council, if the words

"under any law in Canada" were eliminated, have the effect giving a remedy to the subject against the Crown in all claims for damages for torts or delicts. In the case of Farnell v. Bowman(2), an appeal from New South Wales, it was held that the Government of that colony was liable to sued in an action ex delioto under a statute providing "that any person having or deeming himself to have any just claim or demand whatever against the Government"

might set forth the same in a petition to the governor, upon which petition a certain prescribed procedure being followed judicial relief might obtained as in the case of an ordinary action between subject and subject.

In this judgment it is said with reference to the proper construction of the statute:

"Thus unless the plain words are to be restricted, for any good reason, a completi remedy is given to any person having or deeming himself to have any just claim or demand whatsoever against the Government.

These words are amply sufficIent to include claim for damages for a tort committed the local Government by their servants."

In the case of the ttorney-GeneraI of the Straits Settlement v.

App. Cas.

Wemyss(1), the words of an ordinance authorizing a remedy petition of right against the Crown for tortious acts were in words V* even more opposite to the case before us; these worde were: "Any claim against the for damages or compensation arising in the colony shall a claim cognizable under this ordin- The Judical Committee in their judgment make the following observations upon tie meaning this provision: -"Their Lordships are of opinion that the expression "claims against the Crown for damages or compensation"

is an apt expression to include claims arising out of torts, and that as claims arising out of contracts and other classes of claims are expressly mentioned, the words ought to receive their full meaning.

In the case of Farnell Bowman (2), attention was directed this committee to the fact that in many colonies the Crown was in the habit undertaking works which in England are usually performed private parsons, and to the consequent expediency providing remedies for injuries committed in the course of these works.

The present case an illustration that remark.

And there is no improbability, but the reverse, that when the legislature a colony in such circumstances allows claims against the Crown in words applicable to claims upon torts, it shoud mean exactly wh it it expresses."

These two cases have a two-fold app!ication here, first as shewing that the words "any claim against the Crown" are sufficiently comprehensive to include torts, more especially as the 15th section makes express provision for the case of claims arising from contracts; secondly, these judgments the Privy Council lay down a rule or canon for the construction of colonial enactments by which the remedy of the subject against the Crown is enlarged, which is the duty of this court to apply, as far as possible, to the Acts Parliament now under consideration.

It being then established the cases cited that the language of section sub-section(d) "every claim against the Crown" is to have the wide construction before stated applied to it, which would include claims for damages arising ex delicto, we are next to inquire whether any and what restriction on the meaning which would be thus attributable to the expression in question, if it had stood alone, is imposed by the words "arising under any law of Canada," which immediately follow.

It may said that these are words limitation which confine the clause to claims in respect of which some pre-existing law had imposed a liability on the part of the Crown.

Again, it may be said that a "law of Canada" necessarily means not only some prior law of Canada, but must also exclusively refer to statute law. In support of this last proposition it might said that there is no common law prevailng throug.10ut the Dominion Canada, (1) App. Cas.

Cas. that each of the several provinces possesses its own private common law, and that the common law of the territories not included within a any of the provinces depends on the enactments of the Dominion Parliament.

This may true, and is a necessary incident and result under every system of federal government where the several provinces or states forming the confederation have each its own Idington J. separate and different system of private law.

This has been recognized as a necessary consequence under the federal constitution of the United States, and that for a reason which would equally applicable to Canada.

It can make no difference that all the provvinces, save one, derive their common law from that of England; the circumstance that the private law of one province, that Quebec, is derived from a different source, makes it impossible to say that there is any system of law, apart from statute, generally prevalent throughout the Dominion.

No inconvenience can result from this, since every case which could arise would be provided for the law of some one or other of the provinces.

Were I obliged to determine this question of construction as one on which the decision of this appeal depended I should probably come to the conclusion that the clause in question ought not to interpretel as to exclude claims in respect of torts and delicts, not referable to any prior statute of the Dominion, but being such as would, under the law of any of the provinces of Canada, have entitled parties to relief as between subject and subject.

Taking the rule so clearly and emphatically laid down the Privy Council in the cases before cited as a guide which we are bound to follow, it would appear to proper that a wide and liberal construction, what is called a beneficial construction, should be placed upon the language of the legislature; a construction calculated to advance the rights of the subject giving him an extended remedy.

Proceeding upon this principle, we should, I think, required to say that it was not intended merely to give a new remedy in respect some pre-existing liability of the Crown, but that it was intended to impose a liability and confer a jurisdiction by which a remedy for such new liability might administered in every case in which a claim was made against the Crown which, according to the existing general law, applicable as between subject and subject, would be cognizable the courts.

Further, I am of opinion that it would right to hold that the words "law Canada" did not mean exclusively a statute the Dominion Canada, but might interpreted as meaning the law any province of Canada which would have been appropriate for the decision of a particular claim in respect a tort or delict if it had arisen between subjects of the Crown.

It would not, I think, be taking any unwarrantable liberty with the language of the legislature to interpret the words "any law of Canada," for in a non-technical and popular sense the laws of the several provinces of Canada are laws Mr. Justice Gwynne, in the same case, recognized almost as distinctly, though not using express words to that effect, that this legislation created a liability as well as established a jurisdiction. The judgment of the court in that case, by reason of the facts in the opinion of the court falling short of bringing the case within the Act, even if it were to be assumed capable of the construction that it created a liability, left no binding decision in accord with the opinions thus expressed. The head-note in the report is in accord with the opinions expressed, but obviously is misleading in this regard if taken as the decision.

A few months later, in The Queen v. Filiora (1), the majority of this court decided that the Crown, at all events as to the Province of Quebec, had become liable for the negligence of its officers in a case within the Act. Chief Justice Strong and the late Mr. Justice Gwynne clearly treated the case as if liability had been created as well as jurisdiction given by this Act. The Chief Justice and Mr. Justice Sedgewick assumed that that had been decided in the former case. Mr. Justice Gwynne does not refer to the former case, but is most explicit in his language in expressing the opinion that the Act created a new liability and that thereby the Crown had become responsible, for he says:

Mr. Justice Sedgewick, whilst adopting the opinion of Mr. Justice G-wynne in the former case, incidentally points out that in Quebec the doctrine of collaborateur did not obtain as it had in England. J This adoption of the prificiple thus reached and acted upon, I think, binds us now. It has been recognized in many cases since, needless to refer to, except in the case of Letourneux v. The King (1), where the present Chief Justice of the court delivering the judgment of the court (from which only Mr. Justice Davies dissented, although, I take it, not on the ground of the principle I have referred to being wrong, but on other grounds) expressly says:

And again he says:

This is important not only as the deliverance of the majority of the court, but as coming from the present Chief Justice, who had originally dissented from the rest of the Court in the case of The Queen v. Filion Because of the result having been reached in this indirect way, I have set forth at length the process of reasoning and facts so that what was meant, and what follows, may be better understood.

The way in which Sir Henry Strong puts the matter when he implies, rather than says, that the whole of the sub-sections must be read as parts, of which each depends for its operative force upon the reference by the sub-section (d), to the "law of Canada," may lead to different results from following that on Jwhich the late Mr. Justice Gwynne apparently puts as resting, for each class of injury or compensation, upon each independent sub-section respectively giving a right and a remedy appropriate thereto.

The case of Attorney-General of the Straits Settlement v. Wemyss (1) seems expressly in point as upholding the latter view, and applicable here, and the necessity for relying upon the Manitoba Workmen's Compensation for Injuries Act need not in that way be resorted to.

The Crown is, by the other way, made liable whensoever and wheresoever the negligence of a servant would have rendered a private individual master liable therefor.

I think it must be taken in either case as the result of this history that it has been deliberately determined after full consideration that, in the words of Sir Henry Strong already quoted:

If the question should be again agitated and be determined differently from the result about to be declared in this case, the final consideration may call for a determination of the exact legal results that I am not called upon to decide.

The Workmen's Compensation Acts in Manitoba and in Ontario and elsewhere have restrictions upon the amount to be recovered, and otherwise. These restrictions would probably be inoperative if the liability as well as remedy is created independently of any provincial legislation and merely by force of sub-section (c) itself.

It may be that by a consideration of the whole leg islation under review and having regard to the object aimed at, of removing the historical distinction in favour of the Crown and the desirability of removing a distinction in results derivable from intrinsically the same relations under another or different form the way may be found to interpret so as to effect these objects.

The policy of this section 16 (as a group or as independent sub-sections) of the Exchequer Act is, clearly, to put the relation between the Crown and its subjects, and all issues springing therefrom, in regard to the several matters dealt with by such legislation, upon the same footing as between subject and subject. This result may not be exactly obtained by adopting either of such interpretations as I have adverted to.

No canon of construction is violated, however, in adopting either.

The modern trend of legislation seems in accord with some such construction.

I do not understand that the opinion of the majority of the court now denies this principle of liability as having been created by the Act and as still existing.

It.,would seem rather as if they found such limitations of the liability as to exclude servants, suffering from the negligence of fellow-servants, from the benefits of the Act, unless where brought within its beneficial operations by reason of special legislation or the state of the law at the time of the enactment under consideration.

I am unable to concur in this.

I cannot think that the suggestion to look upon the doctrine of common employment simply as a defence is a sound one.

With great respect I am bound to say that the sug- J. gestion seems to me to spring from a misconception of and misapplication of the legal principles involved. At least ever since Priestley v. Fowler(1), it had been, until remedied by legislation, English law that no action would lie against the master for injuries arising fromi the negligence of a competent fellow-servant.

There was by that case, if not before, held to be an implied contract that the suffering servant had assumed that responsibility and risk and that the master had not to answer for the others of his servants in that regard.

It is not a matter of defence such a payment; as accord and satisfaction; as release; or as the Statute of Limitations, which had to be pleaded in bar. If sued by a servant for negligence of a competent fellow-servant, the master could plead "not guilty," but required no other defence.

Sometimes, even before the modern loose system of pleading, pleas can be found (where the declaration had not truly and explicitly set the facts forth), in answer to such a declaration alleging that the accident arose from the neglect of such a fellow-servant, but in cases where the facts and cause of action had been properly set out in the declaration and were not complicated with other considerations such as the incompetence of the fellow-servant or like consideration, a demurrer or the simple plea of "not guilty," would have been all that was required. See Deverill v. The Grand Trunk Railway Co.(2), and Degg v. Midland Railway Co.(3). Hence when the Employers' Liability Act in England and the Workmen's Compensation Acts of Ontario, Manitoba and elsewhere came to be enacted, each of them proceeded not by removing a defence, but Idingtn by creating a liability.

So far as the cases covered by sub-sec. (c), see. 16, now in question, are concerned, the liability of the

Crown was created thereby and unlimited if no other legislation, local or general, imposed a barrier.

I think the appeal should be allowed and the matter referred back to the Exchequer Court for trial or completion of trial.

Appeal dismissed with costs.