The Queen (Plaintiff)
v.
City of Montreal (Defendant)
Trial Division, Pratte J.—Ottawa, March 15,
1972.
Crown—Action by Crown—Limitation of actions—Crown
vehicle damaged by negligence of Montreal—Montreal
Charter—Requirement for 2 days notice of damage to City—
Whether action prescribed in six months—Civil Code, Arti
cles 2215, 2263.
A Crown vehicle was damaged in Quebec by the negli
gence of an employee of the defendant city. The Crown did
not give the city 48 hours notice of the damage to the
vehicle, as required by section 1089 of the City Charter,
and brought action for the damage more than one year later
(though before the coming into force of the Federal Court
Act on June 1, 1971).
Held, the City of Montreal was liable for the damage.
1. Section 1089 of the City Charter requiring 48 hours
notice to the City of damage to a vehicle is in derogation of
the Crown's prerogatives and since it does not expressly
provide that it applies to the Crown is not binding on the
Crown.
2. The six months prescription period specified by sec
tion 1090 of the City Charter does not derogate from
Article 2215 of the Civil Code which provides that debts to
the Crown are prescribed by 30 years. Article 2263 of the
Civil Code does not affect this rule.
Att'y Gen. of Can. v. Dallaire [1949] Que. Q.B. 365,
referred to.
ACTION for damages.
Robert Cousineau for plaintiff.
N. Lacroix for defendant.
PRATTE J.—Plaintiff is claiming the sum of
$336.40 as compensation for damages she
incurred when, on December 29, 1969, a truck
belonging to her, which was being driven by
Claude Robitaille, an employee of the Post
Office Department, was hit by another truck
owned by the defendant City and driven by its
employee Henri Pesant.
At the opening of the hearing counsel for the
defendant admitted, without prejudice to his
other lines of defence, that the amount claimed
represented a fair assessment of the damage
suffered by the plaintiff. Counsel for the plain-
tiff admitted that plaintiff had sued the City
without giving it the notice required by section
1089 of its Charter S.Q. 1959-60, c. 102, which
reads as follows:
1089. If the claim is for damages caused to a vehicle, the
claimant shall also give to the city, by registered letter, a
notice allowing it at least forty-eight hours in which to
examine such vehicle, and no repairs, shall be commenced,
without reasonable excuse, nor shall the vehicle be sold,
prior to expiry of such delay, the whole on pain of forfei
ture of the claimant's right of action.
Finally, I must add that this action was
instituted more than a year after the accident,
so that the question arises whether it was not
prescribed since, under section 1090 of the
Charter of the City of Montreal.
1090. No action against the city for damages or for com
pensation shall be admissible unless the same be instituted
within six months from the date when the right of action
originated.
This case thus presents three problems:
(1) were the circumstances in which the acci
dent occurred such that defendant must be
held liable?
(2) was plaintiff's remedy prescribed at the
time the action was instituted?
(3) since plaintiff failed' to observe the
requirements of section 1089 of defendant's
Charter, has she thereby forfeited the right to
claim compensation for the damages she
suffered?
1. Liability.
The circumstances of the accident which
resulted in this claim are not in dispute. The
testimonies of the two truck drivers, the only
two witnesses heard, are complementary and do
not conflict.
The accident occurred on Molson Street, near
Jarry Street, in Montreal, after a violent snow
storm had hit the city. Molson Street is a one-
way street, from north to south, starting from
the south side of Jarry Street, which runs in an
east-west direction. Defendant's truck, driven
by its employee Pesant, was starting to clear the
centre of Molson Street of the snow which was
blocking it, when it was forced to stop not far
from Jarry Street by a heap of snow and ice. At
this moment plaintiff's truck, which was travel-
ling west on Jarry Street, turned left into
Molson Street. Its driver, Robitaille, saw
defendant's truck, which was stuck in the snow
and blocking his way. Robitaille therefore
stopped about fifteen feet behind defendant's
truck. He had just done so when he saw that
defendant's truck, to free itself from the snow,
was backing up; he sounded his horn to warn of
his presence, but in spite of this defendant's
truck hit the front of his vehicle.
Pesant, the driver of defendant's truck, stated
that before backing up he had looked in the
rear-view mirrors located outside on either side
of the truck, and had seen no obstacle behind
him; he added that he had also asked his fellow-
workman, who was probably seated beside him,
to make sure there was nothing behind the
truck; Pesant contends that it was only after
this double check that he backed up, with the
above results.
On this evidence, I feel it is clear that defend
ant and its employee must be held responsible
for this accident. It was defendant's truck
which, by backing up, hit plaintiff's truck. It
was up to defendant's employee, before doing
this, to make certain he could do so safely. The
mere fact that the accident occurred shows, in
my opinion, that the steps which defendant's
employee said he took were not enough to
ensure that he could back up safely.
Having said this, the two other grounds put
forward by defendant must now be examined.
2. Prescription under section 1090 of the
Charter.
Defendant contends that plaintiff's action is
prescribed, because it was not brought within
the six-month time limit set by section 1090 of
defendant's Charter. It is alleged that this short
prescription may be pleaded against plaintiff
under Article 2263 of the Civil Code of Quebec
and s. 38 of the Federal Court Act.
I feel there are no grounds for this line of
defence: in spite of section 1090 of the City of
Montreal Charter, plaintiff's action, in my view,
was only prescriptible by thirty years, and was
therefore instituted within the time limit. My
reason for saying this is that under Art. 2215 of
the Civil Code debts to the Crown are pre
scribed by thirty years, except those not
expressly declared to be imprescriptible. This
rule applies to all Crown debts whatever their
nature, even if they are debts which, according
to general rules, would be prescriptible by a
shorter period. This means that if Quebec legis
lation enacts a short prescription for certain
debts, such prescription does not apply to
Crown debts unless the statute expressly says
so. If this were not the case, the rule laid down
in Art. 2215 would have no meaning. Nor may
Art. 2263 of the Civil Code or s. 38 of the
Federal Court Act be invoked to avoid this
conclusion.
According to Art. 2263:
Short limitations and prescriptions established by acts of
parliament, follow the rules peculiar to them, as well in
matters respecting the rights of the crown as in those
respecting the rights of all others.
This provision does not mean, as defendant
contends, that all short prescriptions enacted in
statutes of the Quebec legislature apply to the
Crown. Its scope is much more limited. Before
the Civil Code, prescription in Quebec was gov
erned by the old French law, and also by specif
ic statutes which had established certain short
prescriptions. Because of the general language
in which the rules of the Code are expressed, if
Art. 2263 had not been inserted in it the enact
ment of the Code would have had the effect of
abrogating all statutes previously adopted in
order to make certain special classes of debts
subject to short prescriptions. It is this result
which Art. 2263 was intended to avoid. As
Casey J. said in Attorney General of Canada v.
Dallaire [1949] Que. Q.B. 365 at page 370:
In my view C.C. 2263 was enacted for the purpose of
preserving short limitations and prescriptions created by
Statutes other than the Civil Code.
Section 38 of the Federal Court Act, which is
new law, enacts that rules relating to prescrip
tion in force "between subject and subject" in
any province apply to any proceedings institut
ed by or against the Crown. By its very terms
this new provision applies only "except as
expressly provided by any other Act". It may
therefore be doubted that it applies in Quebec,
since the Civil Code (which, it must be remem
bered, is a statute antecedent to the British
North America Act) contains a provision by
which the Crown's debts which are not declared
imprescriptible are prescribed by thirty years.
However, even if s. 38 had to be interpreted, in
so far as the Crown in right of Canada is
concerned, as having amended the rule estab
lished by Art. 2215, it would not apply here, for
the Federal Court Act came into force on June
1, 1971, after plaintiff had brought her action
against defendant. When plaintiff instituted pro
ceedings, her action was therefore not pre
scribed. Applying s. 38 here would give it
retroactive effect.
If, for these reasons, the six-month prescrip
tion enacted in section 1090 of the Charter of
the City of Montreal cannot be pleaded against
plaintiff, can the forfeiture provided in section
1089 of the same Charter be pleaded? This is
the final question which I must answer.
3. Has plaintiff forfeited her right to make the
claim?
Defendant's Charter is clear: any person
wishing to claim compensation from the City of
Montreal for damages caused to a vehicle shall
give to the City the notice referred to in section
1089, on pain of forfeiture of his right of action.
I need not stop to discuss the wisdom of this
provision which, by its terms, must even be
applied when, as here, the quantum of damages
claimed is not in dispute. The only problem I
must decide is whether it is true that, as plain
tiff's counsel contends, Her Majesty the Queen
in right of Canada is not bound by this provi
sion. In support of this contention, counsel for
the plaintiff relied on the well-known rule by
which no statute affects the rights and preroga
tives of the Crown unless they are expressly
included, and on certain precedents where this
rule was applied (Province of Bombay v. City of
Bombay [1947] A.C. 58; Gauthier v. The King
(1918) 56 S.C.R. 176; The Queen v. Breton
[1967] S.C.R. 503; and The Queen v. City of
Verdun [1945] Ex.C.R. 1).
Counsel for the defendant contended that
plaintiff was bound by section 1089 of the
Charter of the City of Montreal. He claimed
that since the decision of the Supreme Court of
Canada in The Queen v. Murray [1967] S.C.R.
262, there was no question that should Her
Majesty in right of Canada institute an action in
tort, her rights must generally be determined by
the law of the province in which the tort.
occurred. To this argument counsel for the
plaintiff replied, if I have correctly understood
the statement he submitted to me, that this rule
only applied to general laws governing liability,
and not to special statutes like the one in ques
tion here.
I may say at once that I consider that an
action in tort instituted by Her Majesty in right
of Canada is, as a general rule, governed by the
same law that would apply if a similar action
were instituted by an ordinary citizen. How
ever, this statement must be coupled with a
reservation, for unless there is legislative provi
sion to the contrary enacted by the competent
authority, statutes in derogation of the Crown's
rights or prerogatives may not be pleaded
against it.
To solve the problem submitted to me, I must
therefore decide whether section 1089 of the
Charter of the City of Montreal is in derogation
of either the Crown's rights or prerogatives.
A statute of general application is not in
derogation of the Crown's rights merely
because it is likely to be prejudicial to it, as, for
example, a law providing that the victim of an
offence may no longer claim as much compen
sation as he could recover under the previous
law (Dominion Building Corp. v. The King
[1933] A.C. 533). On the other hand, a statute
affects the Crown's rights not only when it
deprives the Crown of a vested right, but also
when it imposes an obligation on the Crown, as,
for example, that of maintaining a municipal
facility of which it has neither the enjoyment
nor the possession (The Queen v. Breton [1967]
S.C.R. 503). In my view, these considerations
indicate that section 1089 of defendant's Chart
er is not a statute in derogation of the Crown's
rights and which for this reason, may not be
pleaded against the Crown.
Is not section 1089, however, in derogation
of the Crown's prerogatives? If this were the
case, it would follow that the Crown is not
bound by this provision because, on the one
hand, the wording of section 1089 does not
expressly provide that it shall apply to the
Crown, and, on the other, because it is not
within the power of the legislature of a province
to limit or revoke the prerogatives of Her
Majesty in right of Canada.
If this were a provision establishing a pre
scription, it would certainly not apply to plain
tiff. Unless there is legislation to the contrary
enacted by the competent authority, the Crown
is not bound by legislative provisions specifying
that an action will be dismissed if it has not
been brought within the required time limit.
Since section 1089 of defendant's Charter does
not establish a prescription, does it follow that
the Crown must be subject to the forfeiture
stated in that provision? — I do not think so.
The traditional rule by which the Crown may
not lose a right merely because it was slow to
exercise it is based, at least in part, on the
principle that the Crown may not suffer loss as
the result of the omissions and negligent acts of
its officers and employees (Chitty, A Treatise
on the Law of the Prerogatives of the Crown,
page 379, Halsbury's Laws of England, 3rd ed.,
vol. 7, pages 247, 540). The scope of this princi
ple has been reduced, for example by the
Crown Liability Act, but the principle still
applies to the extent that it has not been set
aside by competent legislative authority. If I
held that section 1089 of defendant's Charter is
binding on the Crown, I would be deciding in a
case where Parliament has not so specified, that
Her Majesty in right of Canada must lose a
right because of the negligence of one of her
officers or employees. This I cannot do.
For these reasons, I feel that section 1089
cannot be pleaded against plaintiff, who is
consequently entitled to recover, from defend
ant, the sum she is claiming.
The action will therefore be allowed and
defendant will be ordered to pay plaintiff, in
addition to costs, the sum of $336.40 with inter
est since the date of the summons.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.