Mart Steel Corporation (Plaintiff)
v.
The Queen (Defendant)
Trial Division (T-597-71), Walsh J.—Montreal,
October 23, 24, 25; November 19, 1973; Febru-
ary 4, 1974.
Crown—Liability—Damage to steel from rust—Cause of
rust in grain dust carried from adjacent elevator—Crown
responsible for management of elevator—National Harbours
Board Act, R.S.C. 1970, c. N-8, s. 3(6) —Crown liability in
nuisance—Crown Liability Act, R.S.C. 1970, c. C-38, s.
3(1)(b).
The plaintiff corporation was engaged in buying and sell
ing steel at Montreal. From 1965 to 1970 the steel was
stored in premises leased near a gallery used to transport
grain from an elevator of the National Harbours Board. The
plaintiff claimed from the defendant damages resulting from
rust on its steel, caused by grain dust emanating from
openings in the gallery. The defendant was sued as being
responsible for the National Harbours Board: National Har
bours Board Act, R.S.C. 1970, c. N-8, s. 3(2).
Held, the case falls to be decided in nuisance, regarding
which the governing principles of English and French law
are the same. Where a person in managing his own property,
causes, however innocently, damage to the property of
another, it is just that he should be the party to suffer. The
Crown is liable in nuisance under the Crown Liability Act,
R.S.C. 1970, c. C-38, s. 3(1)(b).
The defence of prescription under s. 4(4) of the Act is met
by the provisions of s. 4(5). However, the plaintiff's claim is
prescribed as to damages accruing more than two years
before the date on which these proceedings were instituted:
arts. 2224, 2261 of the Quebec Civil Code. Total damages,
based on expenditures for cleaning the steel and for allow
ances to customers within the two year period, are assessed
at $80,230, plus interest and costs.
ACTION.
COUNSEL:
David Angus and Vincent Prager, for
plaintiff.
Robert Cousineau, for defendant.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier and
Robb, Montreal, for plaintiff.
Deputy Attorney General of Canada, for
defendant.
WALSH J.—The proceedings herein were
commenced in the name of Mart Steel & Metal
Corporation whose name was subsequently
changed to Mart Steel Corporation and a motion
to amend the style of cause accordingly was
granted at the opening of the hearing. A further
amendment was granted increasing the amount
of damages claimed from $57,208 to $96,328.
Plaintiff contends that the juridical basis of its
action is a claim for nuisance. From July 1965
until September 1970 plaintiff occupied leased
premises consisting of a warehouse with about
8,000 square feet floor area and a yard behind it
with an area of about 4,000 square feet at 870
Mill Street, Montreal near the gallery used to
transport grain from elevator No. 5, owned by
the National Harbours Board for whom defend
ant is responsible, by conveyor belt to the Ogil-
vie Flour Mills located near the far end of the
gallery, and occasionally to ships loading in the
canal from the opposite side of the gallery. The
gallery is separated by a roadway and railroad
tracks from the property occupied by plaintiff,
being perhaps 100 feet from it to the south.
Plaintiff, whose business consists of buying
structural steel abroad and from domestic mills
and selling it to contractors, stored this steel,
which comes in a variety of standard shapes,
partially indoors but mostly outdoors in the yard
of its property and also in a rented yard some
400 feet further east where the heavier tonnages
were stored. Plaintiff had been operating the
same business at another address on Roberval
Street which was expropriated in March 1965
forcing it to make the move to this new location
on Mill Street near the grain elevator and gal
lery. It soon noticed that its steel was covered
by a brownish-white substance which caused it
to flake and rust to a greater extent than was
usual. This would not readily wipe off and it
was necessary to scrape it off and in some cases
grind it before the steel could be delivered in an
acceptable condition to purchasers. Plaintiff's
President, Mr. I. Sacks, testified that a certain
amount of rusting is expected and is accepted
but that it would normally take steel two years
before it would rust to the extent that the steel
now did in three or four months. While the
average turnover of their stock was two or three
times a year, some of the less popular sizes
might remain on the property for eight months.
While some of the scraping and cleaning of the
steel was done by regular employees it was also
necessary to take on extra men to do this. It was
suggested to the witness by his employees that
this substance was coming from the grain galler
ies and in early 1966 he telephoned the National
Harbours Board who told him they would look
into the matter but despite repeated calls
nobody came until eventually Mr. Edmund Kris-
toffy, grain elevator engineer with the National
Harbours Board, went to the site in May or June
in 1968 and examined the steel. Mr. Kristoffy
did not take any of the substance for analysis
but in his view the colour of it did not indicate
that it consisted of grain dust alone although he
did not deny that there may have been some
grain dust among it. He suggested the hypothe
sis that it might be partially inorganic such as
asbestos dust from a ship which was unloading
this about 350 feet away across the canal at the
time of his visit. He testified that he was not
aware of previous complaints.
Meanwhile, during the two years he was
making his complaints, Mr. Sacks saw dust
coming from openings in the siding of the gal
lery on several occasions. Sometimes it was so
bad that his workers found it hard to breathe in
the yard and their eyes would hurt. Finally, on
May 8, 1968, after an unsatisfactory telephone
call to Mr. Lichtermote of the National Har
bours Board who told him that he had no justifi
able complaint since plaintiff had moved to the
Mill Street property only recently and the grain
elevators had been there for 50 years operating
in the same way, Mr. Sacks sent a registered
letter to S. C. Oppen, the Assistant Port Manag
er, advising that the substance being ejected
from the conveyor gallery was damaging plain-
tiff's steel and requesting an inspection to deter
mine the extent of the damage. On June 27,
1968, Mr. Oppen replied that the matter had
been studied, that dust is frequently blown not
only from the grain elevators but also from dry
bulk operations on Bickerdike Pier, that the
state of affairs had existed for many years and
it was not possible to stop it entirely, and finally
that he could find no evidence that grain dust
damaged the steel and that if it did petitioner
should have been aware of this and anticipated
it.
As a result of this letter Mr. Sacks then
communicated with the St. Lawrence Stevedor-
ing Company which was unloading the ships on
Bickerdike Pier and Mr. Stanley Krul, who was
at that time with that company and had formerly
been fourteen years with the C. D. Howe Com
pany as dock manager in which capacity he had
worked on the renovating of the National Har
bours Board galleries and is fully familiar with
same, came to the premises and inspected the
substance on the steel. He testified that
although St. Lawrence Stevedoring handled
bulk cargoes on Bickerdike Pier, no dusty ma
terials, such as sulphates, could be discharged
from there. He stated that he could see by
examining the substance that it was grain dust
and suggested that it be analyzed. The steel was
in poor shape as a result of this, and he could
see leaks in the siding of the grain galleries and
has himself seen the dust coming out of there
before on various occasions perhaps once a
week or every second week for half an hour at a
time. During the seven years when he worked in
the galleries for the C. D. Howe Company he
personally saw sweepers opening up holes in the
siding and sweeping the dust out, although he
cannot say that this was still done in 1965 or
1966 as he had left the C. D. Howe Company at
that time.
Following this visit Mr. Sacks then called the
City of Montreal Health Department and as a
result of this a Mr. Marc Roberge, from the
City, went to the property with one Emilien
Lalonde on July 12, 1968. He testified that he
could see the dust on the steel which would
retain humidity. What they saw corresponded
with the photographs which they were shown
but although he saw dust coming from the gal
lery there was no wind that day blowing it
toward the plaintiff's property. He made a
report as a result of which it appears that the
City of Montreal communicated by telephone
with officers of the National Harbours Board to
complain of a nuisance caused by the cleaning
of the grain galleries, requesting that they cor
rect the situation. As Mr. Roberge explained,
this was all they could do as they had no juris
diction over National Harbours Board property.
Mr. Roberge stated that the substance he saw
coming from the gallery on the day of his visit
came in intermittent gusts of dust but he did not
recall whether it came from windows or from
holes in the walls.
Mr. Sacks had also called the Warnock
Hersey laboratories which took four samples of
the material on the steel. Mr. Robert Bergeron,
a metallurgical technician, took the samples on
May 21, 1968, these being samples of the rust
on the steel. He did not make the analysis which
was made by Mr. E. Nyman, the Chief Chemist
of that company who unfortunately due to seri
ous illness was unable to testify. His report
dated July 5, 1968 was filed as an exhibit,
however, and was explained by Mr. Christopher
Mapp, a department manager of the metallurgi
cal and chemical departments of Warnock
Hersey. The report uses the term "protein cal
culated as flour" apparently on the assumption
that the substance was flour. The use of the
word "flour" may have resulted from some
language difficulty. Mr. Bergeron, who is
French speaking used the word "farine" in a
general sense which would cover both grain
dust and flour properly speaking with no inten
tion of identifying the substance as flour as
opposed to grain dust, whereas Mr. Nyman,
being English speaking, translated the word
"farine" as flour and refers to it as such in his
analysis. Dr. Solomon Lipsett, plaintiff's expert
witness, testified that both flour and grain dust
would contain about the same amount of protein
and subsequently, after the case had been
adjourned to enable defendant to have an expert
analysis made of grain dust collected in the
gallery on the occasion of a visit to it by the
Court with counsel for both parties, defendant
indicated that it would not be necessary to call
the witness who made this analysis as his find
ings would not differ substantially from the
figures submitted in Dr. Nyman's report. There
is no scientific basis, therefore, for concluding
that the substance on the steel was flour, prop
erly speaking, rather than grain dust which
could have come from the elevator gallery
whereas flour would not have.
Whatever the substance was, Mr. Bergeron
agreed with Mr. Sacks that corrosion of steel
results from moisture and that covering the steel
in the yard with a tarpaulin would in no way
have helped the condition as this would have
tended to retain moisture. The flaking steel
could not be painted as the paint would lift very
quickly and the steel in the condition in which
he saw it would definitely be unacceptable to a
customer without cleaning first to remove most
of the rust. Mr. Sacks had testified that as
various sizes and shapes of steel were located in
different areas in the main yard and the rented
property and had to be moved, often a few
pieces at a time, to fill customers' orders it
would have been totally impracticable to cover
the steel in any way, as the tarpaulins would
have had to be moved every day, and they
would freeze in winter and cease to be pliable.
The cost of removing and replacing them would
have been greater than the cost of cleaning the
rust from the steel.
On July 17, 1968 Mr. Sacks sent the City of
Montreal Health Department a copy of the War-
nock Hersey report on the four rust samples. A
ninety day notice was given to defendant on
behalf of plaintiff on November 5, 1968 advis
ing of a claim for $57,208 for damages occur
ring between 1967 and 1968 and that proceed
ings would be instituted in due course. A
number of photographs were produced of the
steel and of the gallery. Some of these were
taken recently when preparing the case for trial,
others by Mr. Walter Sacks in April and May
1968, and some by a professional photographer.
The most significant are those taken by Mr.
Sacks in 1968 showing dust actually coming out
of the gallery in substantial quantities. Although
he testified that he had never actually followed
the course of the dust in the air to see it land on
the steel, he had frequently seen it come from
the gallery and he saw the dust on the steel.
Approximately three men were constantly
engaged in cleaning the steel in the yard, and
when plaintiff finally moved to a different loca
tion it was able to release these men and had no
further trouble with the steel as had been the
case before it moved to Mill Street. The clean
ing is a costly process because a crane has to
pick up each piece of steel to be scraped and
perhaps cleaned further with a grinding
machine. It then has to be turned to clean the
sides as the dust gets down between the pieces
of steel so it is found on the sides as well as on
the top surface, with the result that perhaps four
crane handlings are involved before one piece
of steel is cleaned. Perhaps 15% of all the steel
had to be cleaned in this way.
It was explained by Mr. Sacks and other
witnesses, including the expert Dr. Lipsett, that
rain or snow mixed with the dust would make it
cake and cling to the steel and that moisture
would then be retained by it instead of drying
out, increasing the rusting process. While Mr. I.
Sacks stated that he could not swear that he
could see the dust blowing from the galleries
every day, he noticed it in late 1965 and certain
ly by early 1966 coming through the apertures
of the corrugated steel siding and subsequently
out of windows when they were open.
The samples of the scrapings which were
given to Dr. Lipsett of the J.T. Donald Labora
tory for analysis after the proceedings were
started in 1970 were samples which Mr. Sacks
claimed to have taken in 1968. Dr. Lipsett's
report as an expert witness was taken as read
and he testified. His report indicated that the
substance showed the cellular structure of plant
fragments with numerous starch granules and
from its appearance consisted principally of
chaff from grain. A small amount of water
soluble sulphate was present but no chloride
was detected. The report quotes from textbooks
on the subject and states:
It is our opinion that the unusually severe rusting you have
experienced could be due to the deposition of the chaff or
fine powder of vegetable origin (probably from grain) on the
steel.
In his evidence he indicated that he would not
expect that there would be much sulphur con
tamination in the area so that the steel should
have suffered no more contamination than it
would have anywhere else but for the grain dust
on it. In examining the figures given by the
chemical analysis in the Warnock Hersey report
he stated that the sulphate is within normal
limits and the chloride too low for it to have
resulted from corrosion from the salt water. The
nitrogen is established and then multiplied by a
factor to determine the protein. The nitrogen
would not be part of the steel itself or have
come from the atmosphere but grain dust would
contain 12-14% protein. He had made some
chemical analysis of the substance submitted
for sulphate and found it contained 12.89% ash
whereas ordinary flour would contain less than
one-half of 1% while the ash content of grain
dust would be about 5.6%, from which he con
cluded that if there were any flour as such
present in the substance it would have to be a
very small quantity. He also examined the sam
ples taken from the gallery on the day the
inspection was made during the trial and stated
that the sample which he had analyzed in 1970
corresponded with three of these samples. The
material would carry some distance in wind
current but it would take quite a quantity which
he calculates as about 668 lbs. to cover an area
of 4,000 square feet (the approximate area of
the yard) with a layer one-twentieth inch thick.
Mr. Francesco Ricciotti, yard foreman of
plaintiff, testified that he frequently saw the
dust coming from the elevator gallery and used
to shout to the elevator employees when it came
toward his head. On some occasions there was
so much dust coming from the elevator gallery
that they had to put handkerchiefs over their
mouths. He stated that they had had no similar
trouble with the steel before moving to Mill
Street or after plaintiff left there. While he saw
the dust occasionally coming from the windows
when they were open in the summer, it came
mostly from the holes at floor level in the siding
of the gallery. While he could not actually see
anyone sweeping the dust out, he saw it coming
out.
Mr. Ivring Weisberg, a steel broker who
imported steel from Europe, which was sold to
plaintiff and other customers, had occasion to
visit the yard frequently as he did other steel
warehouses throughout the city. He noticed the
dust on the steel which he considered to be very
unusual and himself took some of the photo
graphs of the steel in July 1968. He noticed that
there was heavy rust and pitting and flaking so
that particles would fall off when a beam was
tapped.
Mr. Kristoffy, the grain elevator engineer of
the National Harbours Board who, as already
indicated, made a brief visit to the site on June
21, 1968, testified that the prevailing winds are
from the west about 85% of the time so they
would tend to blow away from plaintiff's place
of business and toward the canal. He also stated
that grain dust is light and the particles would
travel as far as two or three miles in a ten to
fifteen m.p.h. wind. He testified that the aver
age loss on the conveyor belt is about three-
tenths of a pound per 1,000 lbs. and theorized
that even if 10 million bushels were conveyed
on the belt, this would only result in a very thin
distribution of dust if it were distributed over an
area of say 50 acres. Plaintiff's property was
much smaller in area than this, however, and
while it may be that some particles can be
carried as far as two or three miles, it is reason
able to assume that the major portion of the
dust falling would fall in close proximity to the
elevator and gallery with the quantities falling
diminishing rapidly as the distance increased. I
do not believe that theoretical calculations of
this nature, any more than a similar theoretical
calculation which Dr. Lipsett was asked to
make which concluded that it would take about
668 lbs. to deposit a one-twentieth inch layer on
the area of plaintiff's property are very helpful
as against the positive evidence of all the wit
nesses as to the presence of the powdery sub
stance on the steel. Mr. Kristoffy's theorizing
that it might be asbestos dust from a ship
unloading across the canal on the day he was
there, or other substances carried by the wind in
an industrial area was not borne out by the
analysis of the material collected and it is not
without significance that Mr. Kristoffy made no
attempt to collect any of the substance he saw
on the steel on the day of his visit for analysis
by the National Harbours Board to substantiate
his opinion that it was not grain dust alone.
Mr. Luigi DiCesare, who was a belt loader,
testified that he worked in the No. 5 gallery
sometimes three or four days a month during
the period in question. When the gallery was
cleaned two or three men at a time might work
on it, the procedure being to gather the dust
from under the belt which would not be moving
at the time and put it on the belt to go to a
reservoir at the end. He never threw any out of
the windows or through the holes between the
floor and the walls but admitted that in the
course of sweeping some might go out. He
would wear a mask when cleaning and would
use a scraper, shovel or broom. The dust would
be one or two inches deep in places and some
times under the belt as deep as three or four
inches but this might be a month's accumula
tion. Another defence witness Benny Carp testi
fied to the same effect saying that he never
swept dust out through the windows or holes or
saw anyone else do it, although conceding that
sometimes a small quantity might be so swept
out. Roland Boulay testified that the belts nor
mally ran from about 8 a.m. to 4.30 p.m. and the
cleaning would be done after they stopped. If,
for some reason, the belts were stopped at 3.30
p.m. they would start cleaning then. The
accumulation would be particularly at the joints
where the grain was transferred from one belt to
another to proceed on its way. There would
only be a complete cleaning of the gallery about
twice a year, and except for this cleaning would
not be done on the area outside the belts, that is
between the belt and the wall. Emile Roy and
Gerard Fiorelli also testified that the cleaning
was not done while the belt was running, that
the dust was never thrown out the windows and
that it went to a tank at the end for collection.
Marcel Robitaille, the superintendent of
elevator No. 5, testified that only 3 to 5 ships a
year _use _this_area oî_the harbour_ow for load
ing grain. Most of it is for domestic use being
supplied to Ogilvie Flour, Canada Malt, and
Maple Leaf Milling for example. The gallery in
question led to the Ogilvie Flour plant which
consumes about 10 million bushels a year, deliv
eries being made constantly except possibly for
two or three days a month and for about a week
in winter when that company is stock-taking.
Canada Malt also takes delivery possibly one
day a month. All cleaning is done after 4.30
p.m. except on days when no deliveries are
being made so the belt is not running. The dust
when swept from the floors is put on the belt
and delivered to bins at the end and sold for $10
a ton for use with other substances in cattle
feed. In 1972, 892,960 lbs. of this dust was
sold, of which about 70,700 lbs. would come
from the gallery of elevator No. 5. He admitted,
however, that during the partial cleaning two or
three times a week grain is sometimes swept to
the middle and not always put on the belt to go
to the bin. He conceded that some dust inevit
ably escapes from the gallery which is perhaps
800 to 1,000 feet long. Even the 32 elevators at
Thunder Bay are not dust-proof. It is necessary
to open the windows of the galleries to see
signals from the ships when they are being
loaded. He conceded that the holes in the siding
of the gallery are not constantly repaired or
blocked with rags.
A visit to the premises during the course of
the trial by the Court with representatives of
both parties and their counsel was most helpful
in enabling a proper appreciation to be made of
the evidence given by the various witnesses and
of the location of the grain elevator and gallery
in relation to plaintiff's former business prem
ises on Mill Street. The belt was in operation
when the visit to the gallery was made and it
was evident that a great deal of dust is unavoid
ably created by this operation to the extent that
it is unpleasant and difficult to breathe in the
gallery. Quite evidently it would not be safe to
attempt to clean the gallery except to a very
limited extent while the belt is in operation. It
was also evident that substantial quantities of
dust accumulate on the floor frequently to a
depth of two or three inches especially in the
areas where the grain is transferred from one
belt to another. Sweeping and cleaning at fairly
regular intervals would appear to be necessary
and it is difficult to accept Mr. Boulay's evi
dence to the effect that the cleaning is only
done on the outside or wall side of the belt once
or twice a year, as the dust would accumulate to
about the same extent on both sides of the belt
and unless the outside area was swept with
some regularity, it would soon become much
deeper there than on the inner side of the belt
where the walkway is located, although the dust
was certainly less deep on the walkway area on
the day of the visit. There would seem to be no
reason why the outside of the belt should not be
swept with some regularity when the belt is not
running as there is sufficient space to work on
that side after climbing over the belt. A number
of gaps between the metal siding and the floor
accompanied by openings in the siding could be
observed through which it would be possible to
shovel or sweep grain dust although at least
some of them were stuffed with rags on the day
of the inspection. On the whole the gallery
would appear to be relatively well maintained
and the siding in a reasonable state of repair.
While it would certainly be normal, since the
grain dust can be sold, for the sweepers to be
instructed to sweep it into piles and then shovel
it on to the belt which would be stationary at
that time, for eventual delivery by it to a bin at
the end where it was collected, it is not difficult
to understand that a certain amount of the grain
dust, although perhaps relatively small in pro
portion to the total accumulation, would be
swept or pushed out through the openings in the
side, especially when the accumulation at a
given point was not sufficient for the sweeper to
feel justified in gathering and shovelling it on to
the belt. While none of the employees of the
National Harbours Board who testified would
admit that this was done, it was evident that
since-the-ga-ller-y-is-800-to 1 ; 000-feet long—with-
only two or three sweepers working at a time,
they would frequently be working on their own
without too much supervision. This would seem
to be the only reasonable way of accounting for
the gusts of dust which were seen emanating
from the openings in the siding of the gallery
from time to time by a number of credible
witnesses, corroborated in one instance at least
by photographs taken of this dust. Furthermore,
it is evident that in the atmosphere of the gallery
where breathing is difficult because of the quan
tities of dust in the air, the windows would
frequently be opened especially in summer
when workmen were present in the galleries and
that with a cross draught some quantities of
dust could blow out through the open windows
even if it appears unlikely that any was deliber
ately shovelled out as plaintiff suggests.
Some grain dust, although not in large quanti
ties, could be observed on the land nearby for
merly occupied by the plaintiff and in fact some
grain was growing there, having apparently
seeded itself. An experiment performed on the
day of the visit whereby some grain dust was
deliberately pushed out through the holes in the
siding produced gusts of grain dust observable
outside similar to those shown in the photo
graphs produced as an exhibit, and I am satis
fied that on occasions when the wind would be
blowing toward plaintiff's property (even
although this is not the most common wind)
some of this grain dust would have reached
same. While it is difficult to conceive that the
quantity would have been sufficient to do the
damage which was apparently done to plaintiff's
steel, there appears to be no other reasonable
explanation as to where else the dust, which had
undoubtedly accumulated on the steel, could
have come from, and it must be remembered
that the film of dust found on the steel which
caused the rusting was an accumulation over a
period which might run from three months to
six months or even a year. Plaintiff conceded
that only fifteen per cent of its steel had to be
scraped so it may well be that this was the steel
which remained longest in the yard and was
most exposed to the accumulation of dust.
This claim must of necessity be based on the
provisions of the Crown Liability Act, R.S.C.
1970, c. C-38. Section 3(1) of the Act reads as
follows:
3. (1) The Crown is liable in tort for the damages for
which, if it were a private person of full age and capacity, it
would be liable
(a) in respect of a tort committed by a servant of the
Crown, or
(b) in respect of a breach of duty attaching to the owner
ship, occupation, possession or control of property.
and liability under section 3(1)(a) is dependent
on the applicability of section 4(2) which reads
as follows:
4. (2) No proceedings lie against the Crown by virtue of
paragraph 3(1)(a) in respect of any act or omission of a
servant of the Crown unless the act or omission would apart
from the provisions of this Act have given rise to a cause of
action in tort against that servant or his personal
representative.
While plaintiff relies partially on what it consid
ers to be positive acts of negligence by way of
acts or omissions of servants of the National
Harbours Board for whom defendant would be
responsible in that it contends that:
(a) grain dust was negligently swept out
through openings in the side of the gallery as
a means of ridding the gallery of same;
(b) those responsible for the supervision of
these employees did not effectively prevent
this; and
(c) those responsible for maintenance of the
gallery did not see to it that no such openings
were created or allowed to remain in exist
ence after they were observed,
the proof of the sweeping of the grain dust out
through the openings is inferential rather than
direct (save for the evidence of the witness Krul
who testified that he saw sweepers opening up
holes in the siding and sweeping the dust out,
which evidence however related to a previous
time and not the period in question in the
present proceedings) and again there is no direct
evidence that normal and proper maintenance
was not carried out in the galleries, nor are the
servants of the Crown who allegedly created
openings in the siding of the gallery, swept dust
out through them, failed to properly supervise
the other servants who were allegedly doing
this, or failed to properly maintain the gallery,
identified, making a finding under subsection
4(2) of the Act on which 3(1)(a) depends more
difficult. Plaintiff's claim must be based primari
ly, therefore, on section 3(1)(b) and rests on the
application of the law relating to nuisance. As
plaintiff's counsel pointed out, this goes farther
than the law based on the doctrine of res ipsa
loquitur which merely shifts the burden of proof
and creates a presumption which is, however,
rebuttable in that if the operation of a business
on a property causes a nuisance to a neighbour
ing property, this nuisance may in some circum
stances be actionable even if the owner of the
property establishes that he has taken all proper
measures to prevent or abate it and has been
unable to eliminate it entirely. It will therefore
be necessary to examine the jurisprudence relat
ing to the law of nuisance and whether this can
be applied to the Crown under the provisions of
the Crown Liability Act.
The law of nuisance, which is based on the
maxim sic utero tuo ut alienum non laedas, is
very old and it is possible to go as far back as
the Case of the Thorns (1466), Y.B. 6 Ed. IV,
7a. pl. 18 which held:
In all civil acts the law doth not so much regard the intent of
the actor as the loss or damage of the party suffering ... for
though a man doth a lawful thing, yet if damage do thereby
befall another, he shall answer for it if he could have
avoided it.
The fact that the damage can only be avoided
by cessation of the activity itself is no defence
to the action according to the judgment in the
case of Rapier v. London Tramways [1893] 2
Ch. D. 588 at p. 602 where it is stated:
If they cannot have 200 horses together, even when they
take proper precautions, all I can say is, they cannot have so
many horses together.
The frequently cited case of Rylands v.
Fletcher (1868) E. & I. App. 3 H.L. 30 states
the principle at page 340:
The person whose grass or corn is eaten down by the
escaping cattle of his neighbour, or whose mine is flooded
by the water from his neighbour's reservoir, or whose cellar
is invaded by the filth of his neighbour's privy, or whose
habitation is made unhealthy by the fumes and noisome
vapours of his neighbour's alkali works, is damnified with
out any fault of his own; and it seems but reasonable and
just that the neighbour who has brought something on his
own property (which was not naturally there), harmless to
others so long as it is confined to his own property, but
which he knows will be mischievous if it gets on his neigh
bour's, should be obliged to make good the damage which
ensues if he does not succeed in confining it to his own
property. But for his act in bringing it there no mischief
could have accrued, and it seems but just that he should at
his peril keep it there, so that no mischief may accrue, or
answer for the natural and anticipated consequence. And
upon authority this we think is established to be the law,
whether the things so brought be beasts, or water, or filth, or
stenches.
This case was referred to with approval in the
Supreme Court in The Chandler Electric Com
pany v. H. H. Fuller & Co. (1893) 21 S.C.R. 337
where the pipe from a condenser attached to a
steam engine used in the manufacture of elec
tricity discharged steam some 20 feet from an
adjoining warehouse which it entered and
damaged the contents. It was held that the
owner of land cannot do on it anything lawful in
itself which necessarily injures another. In ren
dering judgment Patterson J. at page 340
referred to another very old British case of
Lambert v. Bessey (1680) Sir T. Raym 421; 83
E.R. 220 which quoted the passage cited from
the Case of the Thorns (supra). He also quotes a
passage from the judgment of Mr. Justice
Denman in Humphries v. Cousins (1877) 2
C.P.D. 239 at p. 243 which held:
The prima facie right of every occupier of a piece of land
is to enjoy that land free from all invasion of filth or other
matter coming from any artificial structure on land adjoin
ing. Moreover, this right of every occupier of land is an
incident of possession, and does not depend on acts or
omissions of other people; it is independent of what they
may know or not know of the state of their own property,
and independent of the care or want of care which they may
take of it. That these are the rights of an occupier of land
appears to me to be established by the cases of Smith v.
Kenrick (7 C.B. 515); Baird v. Williamson (15 C.B.N.S.
376); Fletcher v. Rylands (3 H. & C. 774; L.R. 1 Ex. 265;
L.R. 3 H.L. 330) and the older authorities there referred to;
and the recent decision of Broder v. Saillard (2 Ch. D. 692).
This same case of Humphries v. Cousins also
stated at page 245:
Indeed, if it be once established that the plaintiff's rights
have been infringed by the defendant, and that the plaintiff
has been thereby damnified, the fact that the defendant
infringed themunknowingly and without negligence cannot
avail him as a defence to an action by the plaintiff... .
The Ontario case of Russell Transport Ltd. v.
Ontario Malleable Iron Co. Ltd. [1952] 4 D.L.R.
719 arose out of damages by pitting, corroding
and rusting of the metal of plaintiff's cars result
ing from the operation of a foundry on a neigh
bouring property which emanated sulphur diox
ide gas. McRuer C.J.H.C., in rendering
judgment in favour of plaintiff, referred to his
extensive consideration of the general law appli
cable to cases of this nature in Walker v.
McKinnon Industries Ltd. [1949] 4 D.L.R. 739
which was affirmed by the Privy Council [1951]
3 D.L.R. 577 and at page 728 also refers to
Salmond on Torts, 10th ed., pages 228-31 as
giving a comprehensive summary of ineffectual
defences as follows:
1. It is no defence that the plaintiffs themselves came to
the nuisance.
2. It is no defence that the nuisance, although injurious to
the plaintiffs, is beneficial to the public at large.
3. It is no defence that the place from which the nuisance
proceeds is a suitable one for carrying on the operation
complained of, and that no other place is available in which
less mischief would result.
4. It is no defence that all possible care and skill are being
used to prevent the operation complained of from amount
ing to a nuisance. Nuisance is not a branch of the law of
negligence.
5. It is no defence that the act of the defendant would not
amount to a nuisance unless other persons acting independ
ently of him did the same thing at the same time.
6. He who causes a nuisance cannot avail himself of the
defence that he is merely making a reasonable use of his
own property.
At page 733 he states:
... I cannot find that the storing of automobiles in the open
air on the lots in question is a particularly delicate trade or
operation. The finish of an automobile is designed to resist
reasonable atmospheric contamination and it would be mani
festly unjust to hold that property-owners in the vicinity of
the defendant's plant have no legal right to have their
automobiles protected from the emissions from the defend
ant's foundry simply because they do not keep them under
cover.
At pages 730-31 he states:
Even if on any argument a doctrine of reasonable use of
the defendant's lands could be expanded to cover a case
where there is substantial and material injury to the plain
tiffs' property I do not think it could be applied to this case.
"Reasonable" as used in the law of nuisance must be
distinguished from its use elsewhere in the law of tort and
especially as it is used in negligence actions. "In negligence,
assuming that the duty to take care has been established, the
vital question is, Did the defendant take reasonable care?'
But in nuisance the defendant is not necessarily quit of
liability even if he has taken reasonable care. It is true that
the result of a long chain of decisions is that unreasonable
ness is a main ingredient of liability for nuisance. But here
`reasonable' means something more than merely `taking
proper care'. It signifies what is legally right between the
parties, taking into account all the circumstances of the
case, and some of these circumstances are often such as a
man on the Clapham omnibus could not fully appreciate":
Winfield on Torts, 5th ed., p. 448. "At common law, if I am
sued for a nuisance, and the nuisance is proved, it is no
defence on my part to say, and to prove, that I have taken
all reasonable care to prevent it": per Lindley L.J. in Rapier
v. London Tramways Co., [1893] 2 Ch. 588 at pp. 599-600.
This is not to be interpreted to mean that taking care is
never relevant to liability for nuisance. In some cases if the
defendant has conducted his trade or business as a reason
able man would have done he has gone some way toward
making out a defence, but only some of the way: Stockport
Waterworks Co. v. Potter (1861), 7 H. & N. 160, 158 E.R.
433.
The law is substantially the same in Quebec. In
the rather old case of Dame Chartier v. British
Coal Corporation (1938) 76 S.C. 360 McDou-
gall J. found for the plaintiff in circumstances
very similar to those in the present case where a
company operating a coal unloading station and
yard in the area of the harbour of Montreal
injuriously affected a neighbouring property,
committing an unlawful nuisance by permitting
the escape of coal dust and other impurities. In
rendering judgment he referred to the leading
case of Drysdale v. Dugas decided by the
Supreme Court in 1896 (26 S.C.R. 20) which
held:
Though a livery stable is constructed with all modern
improvements for drainage and ventilation, if offensive
odour therefrom and the noise made by the horses are a
source of annoyance and inconvenience to the neighbouring
residents, the proprietor is liable to damages for the injury
caused thereby.
At page 23 of that report Sir Henry Strong C.J.
remarked that the governing principles of Eng-
lish and French law are the same, and summa
rized them as follows:
As a general proposition, occupiers of land and houses
have a right of action to recover damages for any interfer
ence with the comfort and convenience of their occupation.
In applying the law, however, regard is to be had, in deter
mining whether the acts complained of are to be considered
nuisances, to the conditions and surroundings of the prop
erty. It would be of course absurd to say that one who
establishes a manufactory in the use of which great quanti
ties of smoke are emitted, next door to a precisely similar
manufactory maintained by his neighbour whose works also
emit smoke, commits a nuisance as regards the latter,
though if he established his factory immediately adjoining a
mansion in a residential quarter of a large city, he would
beyond question be liable for damages for a wrongful use of
his property to the detriment of his neighbour.
Dealing with the contention that every precau
tion was taken to prevent the damage, the Chief
Justice stated at pages 25 and 26 of the report:
It was much insisted upon at the argument here and in the
courts below also, that the fact that the appellant acted with
extreme care and caution in carrying on his business con
stituted a justification of the acts complained of. This con
tention is, however, met and shown to be entirely without
foundation in Bamford v. Turnley (3 B. and S. 62) before
referred to.
McDougall J. also refers to the Supreme Court
case of Canada Paper Co. v. Brown (1922) 63
S.C.R. 243 where it was held:
Nauseous and offensive odours and fumes emitted by a
pulp mill to the detriment of a neighbouring property, caus
ing to its occupants intolerable inconvenience and rendering
it, at times, uninhabitable, are a proper subject of restraint;
and, in such a case, the courts are not restricted to awarding
relief by way of damages but may grant a perpetual injunc
tion to restrain the manufacturer from continuation or repe
tition of the nuisance.
Although the entire neighbouring population is affected by
such nuisance and the municipal authorities have not
thought proper to interfere on its behalf, even if the
respondent is the only person objecting, he is entitled to
maintain a demand for injunction, if the injury suffered by
him is sufficiently distinct in character from that common to
the inhabitants at large.
This would appear to be particularly applicable
to the present case where the only person suf
fering serious injury from the grain dust, as the
result of the nature of its business, is plaintiff.
McDougall J. further states at pages 365-66:
The injury here charged is not merely temporary or occa
sional. The continued, repeated and substantial character of
the damage has been shewn. Proceedings to restrain the
nuisance, at the instance of the civic authorities, have been
instituted, but without apparent result in bringing about an
amelioration of the situation. The defendant offers no solu
tion to the problem, suggests no remedy and appears to take
the passive stand that the plaintiff must tolerate the invasion
of her clear right to the free and untramelled enjoyment of
her property. There is nothing in the record to shew that the
nuisance will or may be abated in whole or in part.
Jackett P., as he then was, considered a simi
lar question in the case of Duncan v. The Queen
[1966] Ex.C.R. 1080. In that case suppliants'
well was contaminated by sewage discharging
from a leak in a sewer main constructed for the
Department of National Defence. The headnote
reads in part as follows:
11. That a private person would be liable to the suppliants
by virtue of the doctrine in Rylands v. Fletcher, as that
doctrine is based on a legal duty arising out of the concept
that one must so use his property as not to injure the
property of others (Rylands v. Fletcher, L.R. 3 H.L. p. 341,
per Lord Cranworth: "For when one person, in managing
his own affairs, causes, however innocently, damage to
another, it is obviously only just that he should be the party
to suffer. He is bound sic uti suo ut non laedat alienum".)
12. That this is clearly a case in which "if it were a private
person of full age and capacity" the Crown would be liable
"in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property". That the
Crown is therefore liable by virtue of paragraph (b) of
subsection (1) of the Crown Liability Act.
In a recent Quebec case of Katz v. Reitz
[1973] C.A. 230 action had been brought against
the proprietors of a property who had engaged
an independent contractor to do excavation
work endangering a neighbouring property
because of the presence of water. Although the
owners could not be held responsible for the
fault of their independent contractor, they could
be held responsible for their own fault. The
Court held that there might be some hesitation
to state that excavation works near a neighbour
ing property constitute an inherent risk of
damage. It was held, however, on page 237:
[TRANSLATION] If it is true that by virtue of article 406
C.C., the appellants, owners of the property adjacent to that
of Reitz, had the right to enjoy and dispose of their property
in the most absolute manner, this right was limited by the
provision contained in the same article that they must not
make a use of it prohibited by the law or regulations. Reitz
had the same rights; those of Katz and Centretown ceased
at the point where those of Reitz began.
If it is true that neminem laedit qui suo jure utitur, it is
also true that sic utero tuo ut alienum non laedas.
The exercise of the right of ownership, however absolute
it is, comprises the obligation not to injure a neighbour and
to indemnify him for damages which the exercise of this
right can cause him. This obligation exists even in the
absence of fault and results therefore from the right of the
neighbour to the integrity of his property and to reparation
for any prejudice which he suffers against his will from
works made by another for his advantage or profit.
In the case of Nord-Deutsche Versicherungs-
Gesellschaft v. The Queen [1969] 1 Ex.C.R. 117,
Noel J., as he then was, rejected the argument
that since section 3(1)(a) of the Crown Liability
Act uses the word "tort" it is intended to apply
only to such actions as are torts under the
common law and that article 1054 of the
Quebec Civil Code, which has no counterpart
under the common law, would not apply against
the Crown. The said article 1054 reads as
follows:
1054. He is responsible not only for the damage caused
by his own fault, but also for that caused by the fault of
persons under his control and by things he has under his
care;
The father, or, after his decease, the mother, is respon
sible for the damage caused by their minor children;
Tutors are responsible in like manner for their pupils;
Curators or others having the legal custody of insane
persons, for the damage done by the latter;
Schoolmasters and artisans, for the damage caused by
their pupils or apprentices while under their care.
The responsibility attaches in the above cases only when
the person subject to it fails to establish that he was unable
to prevent the act which has caused the damage.
Masters and employers are responsible for the damage
caused by their servants and workmen in the performance
of the work for which they are employed
and establishes a rebuttable presumption against
the owner of the property establishing that he
took all reasonable means to prevent the
damage. (See Quebec Railway, Light, Heat &
Power Co. Ltd. v. Vandry [1920] A.C. 662.)
There is no such legal presumption in the
common law. Since the definition section of the
Act, however, defines "tort" as being a delict or
quasi-delict in Quebec; Noël J. concluded that
this must encompass a recourse based on article
1054. After reviewing the earlier jurisprudence
under the old section 19 of the Exchequer Court
Act he concluded that under it negligence had to
be proved and no legal presumption such as the
one contemplated in article 1054 of the Quebec
Civil Code could replace this proof, but that,
since "Under the new Act, - however, there is no
restriction and as it is stated that the Crown can
be held liable as a person of full age and capaci
ty, there would seem to be' no reason why the
legal presumption ..of article 1054 of the Civil
Code should not apply in a proper case to the
Crown as it applies to all persons of full age and
capacity in Quebec", ([1969] 1 Ex.C.R 117 at
pp. 170-71.) Although the action before him was
not based on nuisance, Noël J. had this to say at
page 201:
In dealing with the liability of the Crown so far, I have
considered only a number of decisions under the common
law. The law applicable under the civil law is, I believe, no
different. Under the law which prevails in Quebec, absten
tion or an omission to act can also attract liability.
It may be noted that even under the former
law it had been held in some cases that a duty
was owed by the Crown servant to a third party
engaging the liability of the Crown. See, for
example, Grn.csman v. The King ([1952] 1
S.C.R. 571). This case may be distinguished
from The King v. Anthony ([1946] S.C.R. 569)
and The Cleveland-Cliffs Steamship Company v.
The Queen ([1957] S.C.R. 810) which held that
there was no duty of the servant of the Crown
to third parties on the facts of these cases.
While there may have been no duty as such
by the servants of the National Harbours Board
to protect plaintiff's steel from damages as a
result of grain dust emanating from the gallery,
the cases based on nuisance would indicate that
even in the absence of any such specific duty
toward third persons, the Board is liable arising
out of its mere ownership of the property which
has caused the nuisance, and cannot as a
defence be permitted to establish, even if it
could do so, that it was unable to prevent the
act which caused the damage within the mean
ing of the provisions of article 1054 of the
Quebec Civil Code. It would appear, moreover,
that the common law jurisprudence relating to
claims for nuisance arising out of ownership of
property would be equally applicable to claims
arising in the Province of Quebec.
If plaintiff's claim is to be based on section
3(1)(b) of the Act, defendant argues that it does
not lie against the Crown because there is no
"duty" toward third persons arising out of the
ownership, occupation, possession or control of
the property in question. I do not think that the
jurisprudence on nuisance sustains this defence.
If a person builds a building, in this case grain
elevators and galleries, on his property and
operates a lawful business therein he owes a
duty to the occupants of neighbouring property
not to cause any damage to them as a result of
the use which he is making of his property. The
fact that he is there first and that the neighbour
came to the area only subsequently is no
defence unless it can be established that the
neighbour knew that he was coming to an area
where a condition existed which would cause
damage to his business or property. There is
nothing in the evidence in this case to indicate
that plaintiff could have foreseen the damage
which would be caused to its steel by the grain
dust when it established its business on Mill
Street in the vicinity of the elevator and gallery.
Neither is it any defence to say that this was in
an industrial area where the existence of some
dust in the atmosphere could be anticipated, or
that the grain elevators have been operating in
the same way for a great many years without
any complaint or claims from neighbouring pro
prietors. The fact that no one else may have an
enforceable claim against defendant does not
preclude plaintiff from making its claim, since it
has been established that grain dust which might
not have caused more than minor inconvenience
to neighbouring proprietors did cause actual
physical damage to its steel and I am satisfied
on the evidence before me that the substance
causing this damage must have emanated from
the elevator and gallery in question. It is also no
defence to say that defendant could not have
prevented these emanations of grain dust from
its elevator and gallery, even if this were the
case, and I am not so deciding since I am by no
means satisfied that this nuisance could not
have been eliminated by more careful mainte
nance of the gallery and supervision over the
cleaning operations conducted therein, and it
would not be impossible to make the gallery
virtually airtight, although this might be costly
and result in added discomfort to employees
forced to work therein unless improved ventilat
ing equipment were installed.
If the claim is to be based on section 3(1)(b)
of the Crown Liability Act, however, then
defendant claims it is prescribed in whole or in
part by virtue of section 4(4) of the Act which
reads as follows:
4. (4) No proceedings lie against the Crown by virtue of
paragraph 3(1)b) unless, within seven days after the claim
arose, notice in writing of the claim and of the injury
complained of
(a) has been served upon a responsible official of the
department or agency administering the property or the
employee of the department or agency in control or
charge of the property, and
(b) a copy of the notice has been sent by registered mail to
the Deputy Attorney General of Canada.
This notice can be dispensed with, however, if
the Court is of the opinion that the Crown was
not prejudiced in its defence by the want or
insufficiency of the notice and that to bar the
proceedings would be an injustice even if a
reasonable excuse for the want or insufficiency
of the notice is not established. This results
from section 4(5) which reads as follows:
4. (5) In the case of the death of the person injured,
failure to give the notice required by subsection (4) is not a
bar to the proceedings, and, except where the injury was
caused by snow or ice, failure to give or insufficiency of the
notice is not a bar to the proceedings if the court or judge
before whom the proceedings are taken is of opinion that
the Crown in its defence was not prejudiced by the want or
insufficiency of the notice and that to bar the proceedings
would be an injustice, notwithstanding that reasonable
excuse for the want or insufficiency of the notice is not
established.
This provision was invoked by Noël J., as he
then was, in the case of Dame Deslauriers-
Drago v. The Queen [1963] Ex.C.R. 289. At
pages 301-02 he states:
[TRANSLATION] It appears clear that in the present case the
respondent suffered no prejudice as a result of this omis
sion. In effect, the proof reveals that a few minutes after the
accident the manager of the airport, or at least one of his
employees in charge, was immediately notified so that if an
investigation were necessary it could have taken place
immediately. I am also of the opinion that in the present
case preventing the procedures would, under the circum
stance, constitute an injustice to the petitioner. I therefore
come to the conclusion that the default to comply with this
important formality of the law does not prevent the petition
er from obtaining compensation from the respondent if she
otherwise has this right.
The present claim does not arise from a single
act causing the damage but from a condition
causing continuing damage over a long period of
time. Plaintiff commenced to complain by tele
phone to the National Harbours Board early in
1966, and the evidence of Mr. Sacks to this
effect was not satisfactorily disputed except to
the extent that Mr. Kristoffy stated that when
he first went to the site in May or June 1968 he
had no personal knowledge of complaints prior
to his visit, which seems to have resulted from a
registered letter sent by plaintiff to Mr. Oppen
on May 8 following a further unsatisfactory
telephone call to Mr. Lichtermote. Even when
Mr. Kristoffy did finally make his visit he
attempted to brush off the complaint as being
without substance, suggesting that it might
result from asbestos dust from a ship unloading
across the canal. He did not take any of the
substance for analysis but stated that in his view
the colour did not indicate that it was primarily
grain dust. Mr. Oppen's letter of June 27, 1968
following Mr. Kristoffy's visit continued to
deny any responsibility for the damage to the
steel and reiterated that in any event the state of
affairs had existed for many years and it was
not possible to stop it entirely. Mr. Sacks was
more open-minded and following Mr. Kris-
toffy's visit called in Mr. Krul of the St. Law-
rence Stevedoring Company which was unload
ing the bulk cargoes, and he examined the
substance to determine whether Mr. Kristoffy
was right and it could be something other than
grain dust. He gave his opinion that it was grain
dust and suggested that it be analyzed. It was
following this analysis which resulted in the
report of July 5, 1968, that Mr. Sacks was
finally convinced, as he had suspected all along,
that the substance was the same as had been
seen emanating from the gallery of the grain
elevator, namely grain dust.
Representatives of the National Harbours
Board could have investigated much earlier as a
result of the telephone calls complaining of the
nuisance, and even when they finally did so in
May or June 1968 their investigation was a very
superficial one -resulting in Mr. Oppen's letter
indicating in effect that they had no responsibili
ty and had no intention of doing anything about
it. There is certainly nothing in the evidence to
indicate that had they received formal notice
earlier they would have acted any differently
than they did following plaintiff's registered
letter of May 8, 1968. I do not believe that
defendant suffered any prejudice therefore as a
result of lack of a seven day notice under sec
tion 4(4) of the Act which, in any event, appears
to be intended primarily for the case of a single
act causing damage which requires immediate
investigation to avoid prejudice to the defence,
unlike the present case where the conditions of
the elevator and gallery remained the same
throughout the entire period, and plaintiff's steel
could have been examined and samples of the
substance on it taken for laboratory analysis at
any time both up to and subsequent to the
registered letter. On the other hand, to bar the
proceedings for insufficiency of notice would be
a serious injustice to plaintiff. I therefore do not
consider the absence of written notice until May
8, 1968, although the condition complained of
had existed for some two years prior to this, as
a bar to proceedings by virtue of section 4(4) of
the Act and instead apply the provisions of
section 4(5) to permit them to proceed.
Plaintiff sent defendant a 90 day notice of
intention of claiming $57,208 damages on
November 5, 1968 but it was not until February
19, 1969 that proceedings were instituted for
this amount. A motion was made before me at
the opening of the hearing on October 23, 1973
by virtue of Rule 424 to increase the amount of
the claim to $95,148 1 . Although plaintiff did
not, in its original petition of right produced on
February 19, 1969, nor in its amended petition
of right produced on March 13, 1969, reserve
its claim -for additional damages, but rather
1 Evidence subsequently given calculated the claim at
$96,328.
based its claim on the amount of $57,208
claimed in its 90 day notice of November 5,
1968, the explanation for the increase is that at
the time of that notice damages were only cal
culated on the cost of cleaning the steel up to
the end of June 1968. There was still at that
time, of course, considerable steel remaining in
the yard which had not yet been cleaned and the
grain dust continued to accumulate up to the
institution of proceedings so the additional
claim for damages sought to be added by
amendment was for continuing costs of cleaning
from July 1968 to February 1969 and for clean
ing damaged steel after it was moved from the
yard known as 940 Mill Street to the yard
known as 1153 Mill Street to get it further from
the source of the grain dust which cleaning took
place after June 1968. The amendment there
fore does not seek to add a new cause of action
but merely to increase the amount of the claim
for damages already incurred up to the institu
tion of proceedings even though the determina
tion of these amounts was only calculated
subsequently. The amendment is therefore
granted.
The question of whether the claim of plaintiff
was prescribed in part at the time of the institu
tion of the proceedings was also argued. Article
2261 of the Quebec Civil Code provides that an
action is prescribed by two years when it is "for
damages resulting. from offences or quasi-
offences, whenever other provisions do not
apply". As the condition which caused the dam
ages was a continuing one, the prescription in
question would always date back to claims more
than two years prior to the date on which it was
interrupted. Article 2224 of the Quebec Civil
Code provides in part as follows:
2224. The filing of a judicial demand in the office of the
court creates a civil interruption provided that demand is
served within sixty days of the filing in accordance with the
Code of Civil Procedure upon the person whose prescription
it is sought to hinder.
Such interruption shall continue until final judgment and
shall be effective for every party to the action for any right
and recourse arising from the same source as the demand.
No extra-judicial demand, even when made by a notary or
bailiff, and accompanied with the titles, or even signed by
the party notified, is an interruption, if there be not an
acknowledgment of the right.
Prescription was not interrupted, therefore, by
the registered letter of May 8, 1968 nor by the
90 day notice of November 5, but only by the
service of proceedings on February 19, 1969.
Since I have decided that the notice under sec
tion 4(4) of the Act can be dispensed with under
the circumstances of this case, I cannot in view
of the foregoing articles of the Civil Code accept
defendant's contention that no claim can be
made for any damages prior to the written
notice of May 8, 1968, but I do find that dam
ages which occurred more than two years prior
to the date of institution of proceedings on
February 19, 1969, that is prior to February 19,
1967, are time barred. There is no break-down
in the calculation of damages claimed by plain
tiff as calculated by Mr. Bernard Leebosh, the
company's auditor, but it included a labour
claim for cleaning done in the last six months of
1966 in the amount of $7,200 which must be
rejected and in the amount of $17,600 for the
whole of 1967. If we reject the first 50 days of
1967 prior to February 19, this would represent
13.7% of the year and taking this percentage of
$17,600 would eliminate $2,411.20 of the
labour claimed for 1967. Adding this to the
$7,200 rejected for 1966 makes a total of
$9,611.20. Since 10% is added to the total
labour claim for overhead, another $961.12
would be eliminated from the calculation
making a total deduction of $10,572.32 on
account of the labour claim. The next heading is
for equipment used in connection with the
cleaning consisting of the crane rental charge at
$15 an hour for which $3,375 is claimed for
1966 which must be rejected and $8,250 for the
whole of 1967. Deducting 13.7% of this $8,250
leads to a reduction in the claim of $1,130.25
which together with the $3,375 rejected for
1966 makes a total reduction of $4,505.25 for
the equipment claim. A third and final item in
the claim is allowances for customers for which
$765 is claimed for 1966, and $1,869 for the
whole of 1967. Again, taking 13.7% of $1,869
results in a reduction of $256.05 which, when
added to the $765 for 1966 makes a total reduc-
tion of $1,021.05 under this heading. Adding the
total time barred portion of the labour claim
amounting to $10,572.32 to the total time
barred portion of the equipment claim amount
ing to $4,505.25 and the total time barred por
tion of the claim for allowances to customers of
$1,021.05 makes a total of $16,098.62 which
can be rounded off at $16,098 which, when
deducted from the total of $96,328 in the
amended claim, leaves a balance of $80,230
which I find plaintiff is entitled to claim.
During the course of his evidence, Mr. Lee-
bosh stated he could ascertain the tonnages sold
from plaintiff's books as he knew the mark up
and could work back from there, and that inven
tory documents would show the percentage of
steel which was outside. There were no specific
documents to support his figures for the ton
nage cleaned and the time cards of employees
did not break down what the men were doing at
any given time. There were no specific docu
ments to verify that three less men could have
been used by plaintiff, but for the cleaning, out
of the approximately ten men who worked in
the yard in the latter part of 1966 and 1967, nor
were there any detailed figures to support the
cleaning cost of $16 a ton, or that the crane
costs would have amounted to about one-half
hour for each ton cleaned, all of which figures
he used as a basis of his calculations. He point
ed out, however, that the figure of $17,600
arrived at in 1967, for example, for the labour
claim on the basis of the cleaning of 15% of the
outside tonnage at $16 a ton corresponds very
closely with the wage costs for three employees
which tends to confirm the information given to
him by management that the cleaning represent
ed fulltime work for about three employees. His
evidence as to the use of three men on the
cleaning was, moreover, corroborated by Mr.
Walter Sacks as was the assumption that about
two-thirds of the stock was stored outside. Mr.
I. Sacks provided the figure that perhaps 15%
of the steel had to be cleaned and none of this
evidence was contradicted by defendant. Mr.
Leebosh's claim was calculated on a basis that
two-thirds of the tonnage was stored outside
and that 15% of this would have to be cleaned
at a cost of $16 per ton, that the cost for the
crane, including an operator, was $15 an hour
and that it would take one-half hour to clean a
ton of steel. On the tonnage which was neither
stored inside nor cleaned, that is to say, the
remaining 85% of the tonnage stored outside,
an estimate was made that an allowance of $3 a
ton was made to customers on about 10% of it
following customer complaints, and this was the
third element in the claim although a relatively
small one. On the whole, therefore, I believe
that the claim was calculated in a reasonable
manner, and no evidence having been brought
to dispute this, I find that plaintiff is entitled to
recover the amount of $80,230 with interest
from the date of institution of the proceedings
on February 19, 1969 and costs.
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.