T-1437-77
Conrad Desjardins (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Montreal, August 14;
Ottawa, August 18, 1978.
Practice — ln action for damages for bodily injury and
material loss as result of highway accident in Quebec, motion
to strike out part of statement of claim on ground that remedy
in part prescribed — Defendant-applicant arguing portion of
action dealing with damages for bodily injury statute-barred
by Civil Code — Plaintiff-respondent contending prescription
provisions of subs. 19(2) of Crown Liability Act applicable and
complied with — Crown Liability Act, R.S.C. 1970, c. C-38, s.
19(1),(2) — Quebec Civil Code, art. 2262 — Federal Court
Rule 419.
APPLICATION.
COUNSEL:
G. Tremblay for plaintiff.
Yvon Brisson for defendant.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: This is a motion to strike out part
of a statement of claim (Rule 419 of the General
Rules of this Court) on the ground that the
remedy which it seeks is in part prescribed.
The action is in damages for the sum of
$24,290, for bodily injury and material loss suf
fered as the result of a highway accident which
occurred on January 22, 1976 in the Province of
Quebec. It was not formally instituted until April
12, 1977.
The action is of course based on the Crown
Liability Act, R.S.C. 1970, c. C-38, which con
tains specific provisions regarding prescription.
These are found in section 19, which reads as
follows:
19. (1) Unless otherwise provided in this Act, the laws
relating to prescription and the limitation of actions in force in
any province between subject and subject apply to any proceed
ings against the Crown under this Act in respect of any cause
of action arising in such province, and proceedings against the
Crown under this Act in respect of a cause of action arising
otherwise than in a province shall be taken within and not after
six years after the cause of action arose.
(2) In any proceedings under this Act, for the purposes of
any laws relating to prescription and the limitation of actions,
the day on which the notice mentioned in subsection 10(1) was
served on or received by the Deputy Attorney General of
Canada shall be deemed to be the day on which the proceedings
were commenced, if the proceedings are commenced within one
hundred days after such notice was so served or received.
Defendant-applicant relied on subsection (1) of
the section; reminding the Court that article 2262
of the Civil Code of the Province of Quebec limits
to one year the prescription of a remedy in dam
ages for bodily injury resulting from a delict or
quasi-delict, it concluded that the action was
barred as it concerns a claim for bodily injury.
Plaintiff-respondent referred to subsection (2) of
section 19, and submitted that on December 17,
1976 he sent the Deputy Attorney General of
Canada a detailed notice of his claim, specifically
in order to satisfy the prescription requirements of
the Act, and he instituted his action within the
following hundred days.
It is clear from reading the correspondence
which counsel for the plaintiff exchanged with the
Deputy Attorney General and his representative
that he assumed from the outset that subsection
(2) of section 19 was applicable, that his notice
was designed to comply with it and that he subse
quently acted in accordance with this. Was he
right? Counsel for the defendant referred to the
essential and traditional strictness of the rules of
prescription, and felt it his duty to oppose the
introduction of subsection 19(2) in this situation.
At first sight the issue is a simple one. It is
necessary to know that subsection 10(1), referred
to in subsection 19(2), is contained in Part II of
the Act, which governs "Proceedings in Provincial
Courts"—proceedings permitted when the claim is
less than $1,000—and that it reads as follows:
10. (1) Except in the case of a counterclaim, no proceedings
shall be commenced under this Part unless the claimant has at
least ninety days before the commencement of the proceedings
served on the Deputy Attorney General of Canada or sent to
him by registered post a notice of the claim together with
sufficient details of the facts upon which the claim is based to
enable him to investigate it.
These two provisions taken together naturally tend
to limit the application of subsection 19(2), and
suggest at first sight that defendant's argument is
correct. However, the initial conclusion suggested
by the provision becomes less apparent and certain
on a closer reading of the text. It must not be
overlooked, to begin with, that section 19 is not
found in the Part devoted to proceedings in the
provincial courts, but in that concerned with gen
eral provisions applying to the Act as a whole, and
secondly, that the very language used by the legis
lator in the provision is as broad as possible: "In
any proceedings under this Act, for the purposes of
any laws relating to prescription and the limitation
of actions ...". It is clear, because of the condi
tions which it must meet, that the notice subsec
tion 10(1) is more than a mere forrr..Ai notice
between individuals, and it is no less clear that this
notice is given solely in order to facilitate the
Crown, because of the special position it occupies
as a result of the wide range of possible causes of
liability that may involve it; can it not be argued
that although Parliament saw fit to require the
special notice only in the case of proceedings in the
provincial courts (probably because of the smaller
quantum and the multiplicity of possible actions),
it intended the same effect of interrupting pre
scription to apply to the notice in all cases, wheth
er required or not?
In my opinion the position of the provision in the
Act as a whole and the apparent scope of the
language employed create an ambiguity. Some
doubt subsists as to its application—a doubt
which, be it noted in passing, has not been resolved
to my knowledge by any earlier decision. In my
view this doubt must be interpreted in favour of
maintaining the right affected rather than rescind
ing it, and must be resolved in favour of the
extension (for the in any case short period of a
hundred days) of these prescriptive time limits,
which may sometimes be of a brevity difficult to
understand or justify, as in the case at bar.
I therefore consider that under subsection 19(2)
of the Crown Liability Act, January 7, 1977, the
date on which the notice that plaintiff sent to the
Deputy Attorney General of Canada through his
counsel was received (a notice admitted to be in
the form required by subsection 10(1) of the said
Act), shall be deemed to be the date on which the
proceedings commenced, the action itself having
been served on April 12, 1977.
The remedies sought by the action are therefore
not prescribed, and defendant's motion to strike is
without basis.
ORDER
The motion is dismissed with 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.