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A-106-72
The Queen (Appellant) v.
Georgette Larochelle and Gaëtan Théberge, in their quality as testamentary executors of the estate of the late Emile Couture (Respondents)
Court of Appeal, Jackett C.J., Hyde and St-Ger- main D.JJ.—Montreal, March 14, 1974.
Practice—Prescription—Quebec law applicable—Amend- ment to petition permitted—Rule 496(2)—Quebec Civil Code, Articles 2224 and 2261.
Appeal from an interlocutory judgment of Pratte J. [1972] F.C. 1137. The respondents were executors of the estate of a petitioner who had sought damages from the Crown, appellant, for the refusal of the Crown's agent, the Canadian Radio-Television Commission (CRTC), to grant him a licence for the construction and operation of a television service in an area of the Province of Quebec. Negligence in the treatment of the petitioner's application was alleged against officers of the CRTC.
Pratte J. held that the petition, as based on the negligence of the CRTC officers, could not be sustained. He permitted amendment of the petition to plead the negligence of certain employees of the Department of Transport, who had taken part in the matter.
On appeal from this decision, the Crown contended that the amendment was barred by prescription under the law of the Province of Quebec.
Held, the appeal is dismissed. The applicable law is that of Quebec, and, although the departmental communications on which the petitioner relied may have emanated from Ontario, all of these, to the knowledge of their authors, concerned the petitioner's operations in Quebec. Under Article 2261(2) of the Civil Code, the action would be prescribed after two years. But, under Article 2224, second paragraph (added by S.Q. 1959-60 c. 98, s. 4) the filing of a judicial demand created a judicial interruption in the running of the prescriptive period. Even without that paragraph, the amendment was permissible as it did not change the nature of the action. The petitioner was seeking recovery of dam ages allegedly caused by the negligence of Crown servants. The amendment was necessary to extend to servants of the Crown in the Department of Transport the negligence alleged against servants of the Crown in the CRTC.
Moran v. Pyle National (Canada) Ltd. (1974) 43 D.L.R. (3rd) 239; Distillers Co. (Bio -Chemicals) Ltd. v. Thomp- son [1971] 1 All E.R. 694; Cordova Land Co. Ltd. v. Victor Brothers Inc. [1966] 1 W.L.R. 793 (Q.B.); Page v. Churchill Falls (Labrador) Corp. Ltd. [1972] F.C. 1141; Direct Motor Express Ltd. v. Sinkovitch [1969] Q.B. (Que.) 695; Arnault v. Jacques [1969] Que. S.C. 77, and La Ville de Montréal -Est v. Léonard (1937) 62 K.B. (Que.) 524, considered.
APPEAL. COUNSEL:
Denis Bouffard for appellant. William Hesler for respondents.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Ogilvy, Cope, Porteous, Hansard, Marler, Montgomery & Renault, Montreal, for respondents.
The following are the reasons for judgment delivered in English by
HYDE D.J.: Appellant is appealing from an interlocutory judgment of the Trial Division— Mr. Justice Pratte—rendered on May 18, 1972' granting respondent's motion for leave to amend his petition of right claiming damages of $154,- 295.16 allegedly caused him by agents of the Crown, in particular the Canadian Radio-Televi sion Commission (CRTC), which had refused to issue him, carrying on business under the firm name of Belle Rediffusion Enrg., a licence to construct and operate a "Community antenna television service" in a certain area in the Prov ince of Quebec, its Secretary F. K. Foster and its Chief, Applications and Licensing Bureau, H. L. Corbett "in misrepresenting the status of your Petitioner's undertaking before the said Commission and allowing those misrepresenta tions to continue until August 16, 1968" (see paragraph 18, petition of right—Appeal Book p. 5).
This judgment was given pursuant to an application made following a suggestion in Mr. Justice Pratte's reasons for judgment handed down on April 7, 1972 in which he said (Appeal Book p. 94):
If I confine my attention to the allegations of the petition of right and to the arguments submitted at the hearing, accord ing to which the negligence said to have caused the damage was that of which Foster and Corbett were guilty in writing the letter of May 7, I must therefore dismiss the petition of
[1972] F.C. 1137.
right. In so doing, however, I would have the feeling of displaying a strict legalism and not resolving the real dispute existing between the parties, for the evidence shows that suppliant was the victim of a mistake, that that mistake consisted in believing that the licence granted him by the Minister of Transport in March 1968 was valid, or in believ ing that that licence would be renewed almost automatically by the C.R.T.C., as is usual in the case of renewal of a validly issued licence. And while, as I have said, this mis take was not caused by the letter which the C.R.T.C. sent to suppliant on May 7, 1968,. it can certainly be claimed (though I do not wish to express an opinion on this point), that it was caused by the negligent acts allegedly committed by the employees of the Department of Transport in sending suppliant, on March 26, 1968, a licence which they should have known was invalid, and implying that the Minister of Transport was renewing this licence after April 1, 1968. It could perhaps also be contended that it was the duty of the C.R.T.C., in so far as it knew, or ought to have known that a licence had been issued to suppliant for the period from April 1, 1968 to March 31, 1969, to make clear to him that that licence was invalid.
He then concluded as follows: (op. cit. p. 94).
Because of this, and taking advantage of Rule 496(2), I shall not give judgment immediately in this case, so that suppliant, if he sees fit, may submit a motion for permission to amend his pleadings and reopen the hearing. If, however, such a motion is not presented within thirty days, I shall give judgment in the manner already indicated.
Respondent, within such 30 days, moved to amend his petition of right to allege negligent acts committed by certain employees of the Department of Transport. This motion was granted by Mr. Justice Pratte on May 18, 1972 and it is this judgment which is the subject of this appeal.
Appellant contends that the amendments pro posed allege new causes of action which are, under the law of Quebec applicable to this aspect of the case, prescribed after two years (Art. 2261(2) Civil Code), and that the Court's power to allow an amendment is subject to such prescription. I am of opinion that apart from such prescription the amendments proposed would be permissible.
Although we did not call on counsel for the respondent I incline to the view that on this point Quebec law is applicable, having regard to the recent decision of the Supreme Court of Canada in Moran v. Pyle National (Canada) Ltd. (1974) 43 D.L.R. (3rd) 239.
Mr. Justice Dickson, speaking for the Court, states (p. 250) that:
Generally speaking, in determining where a tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules.
such as "... the place of acting and the place of harm theories ...". He then goes on to formu late a rule based on the recent decision of the Privy Council in the thalidomide case of Distill ers Co. (Bio -Chemicals) Ltd. v. Thompson [1971] 1 All E.R. 694 and the earlier decision in Cordova Land Co. Ltd. v. Victor Brothers Inc. [1966] 1 W.L.R. 793 (Q.B.) in the following terms:
... where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important inter est a state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.
While in the present instance we are not deal ing with manufactured goods the rule is equally applicable by analogy. The communications on which respondent now desires to rely may all have emanated from Ontario but they all, to the knowledge of their authors, concerned his oper ations in Quebec which were "substantially affected" thereby if his contentions are accepted. 2
This being the case I now turn to the law of Quebec and in particular to Article 2224 Civil Code in chapter V which deals with the causes which interrupt or suspend prescription. After
2 One may also refer to the recent decision of this Court in Page v. Churchill Falls (Labrador) Corp. Ltd. [1972] F.C. 1141 where this question is discussed but not decided.
stating that the filing of a judicial demand cre ates a civil interruption it adds in the second paragraph:
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.
This paragraph was added in 1960 to settle conflicting judgments on the subject. The Quebec Court of Appeal in Direct Motor Express Ltd. v. Sinkovitch [1969] Q.B. (Que.) 695 relying on this provision permitted an amendment to an action, taken seven years ear lier for damages to the plaintiff's vehicle, to allege and claim additional damages for bodily injuries occasioned in the same accident.
In Arnault v. Jacques [1969] S.C. (Que.) 77 Mr. Justice Albert Mayrand allowed an amend ment, to a damage action, made after the expiry of the short prescription period to allege the fault of employees of the defendant (Art. 1054 C.C.) in addition to that of the defendant him self (Art. 1053 C.C.) as originally pleaded. Rely ing on the same paragraph of Art. 2224 C.C. he said at p. 80:
[TRANSLATION] The Court considers that plaintiff's right of action, based on the fault of employees of defendant, pro ceeds from the same source as the initial action, which was itself based on the personal fault of defendant. The common basis of the action is the accident complained of by plaintiff. For this reason, service of the writ on defendant, less than a year after the accident, interrupted the prescription.
Even without paragraph 2 of Art. 2224 C.C. it would seem that the amendments proposed would have been permissible. In La Ville de Montréal -Est v. Léonard (1937) 62 K.B. 524 (Que. C.A.) Mr. Justice Barclay, dissenting on other grounds, approved an amendment to an action, taken under both Arts. 1053 and 1054 C.C. charging fault of certain specified employees of the defendant, which would have added to the declaration at the conclusion of the enquête [TRANSLATION] " or by other persons under his control". Barclay J. said (at p. 544):
The appellant maintains that the motion to amend should not have been granted, as it added a new right of action at a time when such a right was prescribed. If in fact the amendment had that effect the appellant's contention would be upheld,
but such is not the case. The respondent's action is based on Articles 1053 and 1054 C.C., which latter article declares that every person "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". The article gives a number of cases of such responsibility, the last of which is: "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". The addition of the words, "ou par d'autres personnes sous son contrôle", does not change the nature of the action or, as this phrase has been interpreted, the basis of the claims. It merely gives a wider definition and was, in my opinion, unnecessary and of no particular significance.
The amendments allowed by the judgment a quo did little more than this. While the petition in its original form stated, as already noted, that the damages were due to the fault and negli gence of the CRTC and two of its officers it is quite clear that it was based on cumulative fault of such agents of the respondent and of those responsible for the regulation of television broadcasting operations, before the CRTC was set up, namely the Department of Transport and its officials. In fact petitioner alleges in para graphs 4 and 5 certain communications received from that Department and the two licences issued by it the continuing effect of which con stituted the basis for the alleged misrepresenta tions on which the claim is founded.
Reading this petition as a whole it is evident that petitioner is seeking to recover damages allegedly caused him by servants of the Crown, whether servants of the Department of Trans port or of CRTC, on the basis that their acts showed a lack of care in respect of petitioner which constitutes actionable negligence. The reason why an amendment was necessary is that the particulars of negligence given, which directed the course of the trial, limited the issues tried to lack of care on the part of CRTC servants.
I am, therefore, in full agreement with the concluding statement of Mr. Justice Pratte's judgment of May 18, 1972 reading, at page 1140:
By bringing an action suppliant interrupted the prescription; in other words, he took the necessary step to protect the claim which by his petition of right he is seeking to have
enforced. Suppliant is not seeking to amend his petition of right so as to assert a right other than that on which prescription was interrupted; he only wants to allege new facts establishing the existence of the same right.
I would, accordingly, dismiss this appeal with costs.
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