The King v. Schrobounst

MIGNAULT J.-This is an appeal from the judgment of the learned President of the Exchequer Court dismissing a demurrer which the Crown pleaded to the petition of right of the suppliants.

PRESENT:-Anglin CJ.C. and Duff, Mignault and Rinfret JJ. and Magee J. ad hoc.

(2) [1899] 1 Q.B. 1003. (3) [1906] A.C. 325.

r1925] In substance, the suppliants alleged that, on or about the

15th day of January, 1924, owing to the negligence of a servant of the Crown, to wit the driver of a motor truck, the property of the Crown and which was used at the time of the accident in transporting workmen in the employment of the Department of Railways and Canals to the public work carried on at Thorold, Ontario, the suppliant Dominica Schrobounst was struck and seriously injured by the said motor truck.

The demurrer of the Crown set forth that the petition of right did not allege or disclose any facts giving rise to any obligation or liability on the part of His Majesty to pay to the suppliants the damages claimed.

The question turns on the proper construction of subsection (c) of section 20 of the Exchequer Court Act, as amended in 1917.

This subsection reads as follows:

We are of the opinion that the words " upon any public work " in subsection (c) qualify not necessarily the presence but the employment, of the negligent servant or officer of the Crown. The driver of the motor truck was employed upon the public work in question; and this is sufficient to give the suppliants the right of action they assert.

If it had been intended to restrict the application of the subsection to the case in which the person causing the injury was at the time physically present "upon any public work " these latter words would more properly have been inserted immediately after the word " while," where their significance would have been unmistakable. The construction placed on the words " on any public work " in Piggott's

Case (1) and other cases decided on the subsection as it stood prior to 1917, proceeded upon and was necessitated by their collocation with the words " person or property."

The appeal should be dismissed with costs.

Appeal dismissed with costs.

S.C.R.