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T-1070-78
La Société d'assurance des Caisses populaires (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Quebec City, January 17; Ottawa, January 22, 1979.
Practice Motion to strike out for no reasonable cause of action and motion for leave to amend statement of claim Packages deposited and registered for delivery containing bank notes belonging to plaintiff stolen from post office Plain tiffs allegation that theft made possible by gross negligence of postal employees Liability of Crown not applicable in view of s. 42 of Post Office Act Court without jurisdiction to rule on proposed amendment to introduce direct action against employees Crown Liability Act, R.S.C. 1970, c. C-38, s. 3(1)(a) Post Office Act, R.S.C. 1970, c. P-14, s. 42.
ACTION. COUNSEL:
Edouard Martin for plaintiff. Jean-Marc Aubry for defendant.
SOLICITORS:
Gagnon, de Billy, Cantin, Martin, Beaudoin & Lesage, Quebec City, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following is the English version of the reasons for order rendered by
MARCEAU J.: The Court has before it two relat ed motions, each submitted by the parties at the same time. The first asks that the statement of claim be dismissed on the ground that it discloses no cause of action: this is the primary motion which the Court is convened to hear. The second (submitted without adequate notice but by con sent) asks leave to amend the statement of claim, specifically in order to implead certain additional defendants: obviously prompted by the first, it is apparently intended to make the basis of the action more apparent. The issue before the Court is as follows.
Plaintiff is claiming the sum of $341,492.70 from defendant. This amount represents the value of packages containing bank notes which allegedly disappeared as the result of a theft; this occurred at the post office where they had been deposited and registered for delivery. Plaintiff contends that the theft was made possible by the serious fault, the gross negligence, of postal employees, and that defendant is accordingly obliged to compensate it for the loss it sustained as a result. The question to be answered is, assuming the facts alleged to be proven, is such an action admissible?
It is well established that the Crown may only be held liable, in any area, on the basis of a formal legislative enactment creating such liability. Plain tiff argues, quite simply, that such a provision is to be found in paragraph 3(1)(a) of the Crown Lia bility Act, R.S.C. 1970, c. C-38, which since 1953 has made the Crown liable in principle for torts committed by its servants. Further, in an effort to demonstrate the basis of this liability more clearly plaintiff seeks to join as co-defendants the employees who were allegedly guilty of serious fault, and against whom its initial remedy alleged ly lies. Defendant maintains, however, that the Crown Liability Act does not apply in the case at bar, regardless of whether defendant is sued alone or jointly with her employees, assuming that such a joint action could be brought in this Court. She relies on section 42 of the Post Office Act, R.S.C. 1970, c. P-14, according to which:
42. Neither Her Majesty nor the Postmaster General is liable to any person for any claim arising from the loss, delay or mishandling of anything deposited in a post office, except as provided in this Act or the regulations.
The Regulations adopted under the Post Office Act contain no provision relating to any liability, and in the event of the loss of "money packets" provide only for the payment of a fixed indemnity (Special Services and Fees Regulations, Parts II and III, especially section 8), which has been paid. It is thus clear that if section 42 of the Act applies, it raises a peremptory bar to the action; but the
question is, should the provision be applied in a case where the facts are as described?.
Defendant contended that section 42, enacted as part of a special Act which is in no way affected by the general law on Crown liability (Maxwell, The Interpretation of Statutes, 12th ed., pp. 196 et seq.), is absolute in scope, and this emerges unequivocally from the very words used by the provision; moreover, it has been recognized by a long line of authorities (The Queen v. Randolph [1966] S.C.R. 260; Bank of Montreal v. Bay Bus Terminal (North Bay) Ltd. [1963] 1 O.R. 561; Lendoiro v. The Queen [ 1962] Ex.C.R. 58; La Caisse Populaire de St -Calixte de Kilkenny v. The Queen [1968] S.C.R. 955). Plaintiff argued that the provision has no such absolute scope. Relying on an isolated decision of this Court (Simons v. The Queen [1974] 2 F.C. 549) and on the succinct reasoning of a commentator (Immari- geon, La responsabilité extra -contractuelle de la Couronne au Canada, Montreal, 1965, pp. 212 et seq.), it argued that section 42 should be given a strict and limiting interpretation, arrived at in light of the rule recognized by the courts that an exclusionary clause in a contract may not cover serious fault.
In my view, plaintiff's argument is untenable. First, contractual liability is not in question here (Bank of Montreal v. Bay Bus Terminal (North Bay) Ltd. cited above). Second, the rule of prece dent that an exclusionary clause covering serious fault would be contrary to public policy obviously could not give rise to a pseudo-rule limiting the legislative authority of Parliament. Third, the meaning of a legislative enactment cannot be dis torted under cover of strict interpretation, and I do not see how it is possible, from the wording used by the legislator in section 42, to classify cases of loss according to their "source", and to treat as covered by the exclusion only those in which the loss only resulted from the minor fault of the postal employees.
In my view, section 42 of the Post Office Act can only be given the general scope suggested by its wording and recognized by precedent. It does not matter whether the Crown is sued alone or jointly with its servants, whether it is impleaded as the employer or otherwise, or whether the loss complained of resulted from slight or serious fault: the provision raises a peremptory bar to any action based on liability. The action against defendant cannot be allowed.
Viewed in isolation, the motion to amend does not require any particular comment. The purpose of the amendment is to introduce a direct action against the employees who were presumably at fault. Such an action may exist under the Civil Code of the Province of Quebec, despite section 42 of the Post Office Act, but this Court in any case has no jurisdiction to decide it (McNamara Con struction (Western) Limited v. The Queen [1977] 2 S.C.R. 654; Quebec North Shore Paper Com pany v. Canadian Pacific Limited [ 1977] 2 S.C.R. 1054).
ORDER
The motion for leave to amend submitted by plaintiff is denied.
The motion of defendant to dismiss the state ment of claim is allowed with costs. The action is accordingly dismissed with costs.
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