T-3203-76
The Queen (Plaintiff)
v.
Saskatchewan Wheat Pool (Defendant)
Trial Division, Collier J.—Winnipeg, April 25 and
26; Vancouver, July 19, 1979.
Crown — Claim founded on breach of statutory duty —
Statutory prohibition against discharge of infested grain —
Defendant, unaware of any infestation, discharged infested
grain into ship — Canadian Wheat Board, agent for plaintiff,
was ordered to fumigate — Plaintiff seeking to recover
amount paid for fumigation — Canada Grain Act, S.C. 1970-
71-72, c. 7, ss. 38(1),(2), 61(1), 86(a),(b),(c),(d), 89(2).
This is an action to recover the amount paid for the fumiga
tion of part of a shipment of grain that had been discharged
from defendant's elevators into a vessel and was discovered to
have been infested (contrary to paragraph 86(c) of the Canada
Grain Act) after the ship had sailed. Defendant was unaware of
the infestation. The Canadian Grain Commission, pursuant to
its statutory powers, directed the Canadian Wheat Board to
fumigate the grain in the affected holds. As the destination port
could not handle the situation, the fumigation was carried out
at Kingston. The shipowners charged the Board for the hire of
a tug and for the time the vessel was held up. The latter charge,
calculated on a per diem basis equal to what the vessel was
expected to earn on a budget basis, was more costly than
demurrage calculated at an hourly rate. The plaintiffs claim is
founded, not on negligence, but simply on breach of statutory
duty imposed by paragraph 86(c) of the Canada Grain Act.
Defendant, however, contends that (a) the Canada Grain Act
does not create any rights enforceable by civil action by
individuals aggrieved by breach of some specified duty, (b) the
duty in paragraph 86(c) is not absolute but qualified and there
would be no breach if reasonable care were taken, and (c) the
damages are unreasonable or excessive, or both.
Held, the action is allowed. Considering the statute as a
whole, paragraph 86(c) points to a litigable duty on the defend
ant, enforceable by persons injured or aggrieved by a breach of
that duty. While the taking of reasonable care might possibly
be a defence to a criminal charge under paragraph 86(c), it
does not follow that it would be a defence to a civil breach of
the paragraph. The Court rejects the contention that the possi
bility of a good answer to a criminal charge reduces the civil
onus of an absolute duty to one of a qualified duty. The
legislators have imposed an absolute prohibition against dis
charging infested grain to ensure that grain is a dependable
commodity for domestic and export markets. It was not unrea
sonable for the Board to have paid the amount charged by the
shipowners. Nor was the amount itself, in the circumstances,
unreasonable. The Board and the vessel were faced with a novel
situation.
Potts or Riddell v. Reid [1943] A.C. 1, applied. Canadian
Pacific Air Lines, Ltd. v. The Queen [1979] I F.C. 39,
considered. R. v. City of Sault Ste. Marie [1978] 2 S.C.R.
1299, considered.
ACTION.
COUNSEL:
Henry B. Monk, Q.C., Edythe MacDonald,
Q.C. and Deedar Sagoo for plaintiff.
E. J. Moss, Q.C. for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Balfour, Moss, Milliken, Laschuk, Kyle,
Vancise & Cameron, Regina, for defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The Canadian Wheat Board (here-
inafter "the Board") is an agent of the federal
Crown (the plaintiff). In 1975 the defendant oper
ated two licensed terminal grain elevators at Thun
der Bay, Ont. One of those elevators was known as
terminal No. 8.
The Board was the holder of a number of termi
nal elevator receipts for grain issued by the
defendant. On September 19, 1975 it directed,
through an agent, that a cargo of wheat be shipped
on board a vessel, the Frankcliffe Hall. The cargo
was to be made up of a certain quantity of No. 3
Canada Utility Wheat and a certain quantity of
another grade of wheat. In this suit, only the No. 3
Canada Utility Wheat is relevant. The appropriate
elevator receipts were surrendered to the defend
ant. The defendant then caused No. 3 Canada
Utility Wheat to be loaded into holds 1, 3, 5 and 6
of the vessel. This procedure was pursuant to
subsection 61(1) of the Canada Grain Act'. Load
ing commenced on September 22, 1975. Some of
the wheat discharged from terminal 8 was infested
with rusty grain beetle larvae. The defendant was
not aware of this situation. The infestation was
S.C. 1970-71-72, c. 7.
discovered through inspection, by the Grain
Inspection Division of the Canadian Grain Com
mission, of samples taken by government inspec
tors during the course of loading.
The infestation was confined to the grain in
holds 5 and 6. It was not discovered until after the
vessel had set out, on September 23, 1975, from
Thunder Bay. The Canadian Grain Commission,
pursuant to its statutory powers, directed the
Board to fumigate the 237,569 bushels loaded into
holds 5 and 6. This was done.
The facts, recited above, are not in dispute.
The Board alleges it incurred expense of
$98,261.55 in connection with the fumigation of
the infested grain. The plaintiff, as principal, now
seeks to recover that amount from the defendant.
The plaintiff's claim is founded, not on negli
gence, but simply on breach of statutory duty. The
plaintiff asserts the defendant did not discharge
into the vessel grain of the same kind and grade as
the grain referred to in the elevator receipts, as
required by subsection 61(1) of the Canada Grain
Act; the infested grain was not No. 3 Canada
Utility Wheat. Secondly, the plaintiff says the
defendant violated paragraph 86(c) of the statute
in that it discharged from its elevator grain that
was infested.
I set out the statutory provisions relied on:
61. (I) Where the holder of an elevator receipt for grain
issued by the operator of a licensed terminal elevator or a
licensed transfer elevator who may lawfully deliver grain
referred to in the receipt to another elevator or to a consignee
at a destination other than an elevator
(a) requests that the grain be shipped,
(b) causes to be placed at the elevator to transport the grain
a conveyance that is capable of receiving grain discharged
out of the elevator and to which the grain may lawfully be
delivered, and
(e) surrenders the elevator receipt and pays the charges
accrued under this Act in respect of the grain referred to in
the receipt,
the operator of the elevator shall, subject to subsection (7) of
section 70, forthwith discharge into the conveyance the identi
cal grain or grain of the same kind, grade and quantity as the
grain referred to in the surrendered receipt, as the receipt
requires.
86. No operator of a licensed elevator shall
(a) issue a cash purchase ticket acknowledging the purchase
of any grain or an elevator receipt or other document pur
porting to acknowledge the receipt of any grain if the grain
has not been purchased or received into the elevator;
(b) permit to be outstanding in respect of a quantity of grain
in the elevator more than one cash purchase ticket or more
than one elevator receipt or other document acknowledging
receipt of the grain;
(c) except under the regulations or an order of the Commis
sion, receive into or discharge from the elevator any grain,
grain product or screenings that is infested or contaminated
or that may reasonably be regarded as being infested or
contaminated; or
(d) except with the permission of the Commission, mix with
any grain in the elevator any material other than grain.
Paragraph 9 of the statement of claim essential
ly sets out the cause of action averred:
9. The Defendant wrongfully and contrary to the terms of the
elevator receipts and the contracts made thereby and the
Canada Grain Act failed to deliver wheat of the grade No. 3
Canada Utility from its terminal elevator No. 8 at Thunder
Bay into the holds Nos. 5 and 6 of the vessel aforesaid, but
wrongfully and contrary to the terms of the elevator receipts,
the said contracts and the said Act discharged into the holds
Nos. 5 and 6 aforesaid 122,017.8 bushels of wheat infested by
rusty grain beetle larvae which was not of the grade No. 3
Canada Utility but was infested wheat.
During argument Mr. Monk, counsel for the
plaintiff, conceded the evidence did not support a
breach, by the defendant, of subsection 61(1); he
said the plaintiff would not therefore rely on a
breach of that portion of the statute. I shall not,
therefore, deal further with it.
The defendant puts forward a number of
defences:
(a) the Canada Grain Act does not create any
rights enforceable by civil action by individuals
who say they have been aggrieved by breach of
some specified duty or duties.
(b) the duty set out in paragraph 86(c) is not
absolute, but qualified; if reasonable care was
taken, as it is alleged here, then there was no
breach by the defendant.
(c) the damages are unreasonable or excessive,
or both.
I turn to the first defence raised.
In determining whether a breach of paragraph
86(c) confers a civil right of action on individuals
one must look at the whole of the Canada Grain
Act. This statute provides for prosecution of, and
penalties against those who violate or fail to
comply with, its provisions. I reproduce, as an
example, subsection 89(2).
89....
(2) Every person who violates or fails to comply with any
provision of this Act, other than section 59, or of the regula
tions or any order of the Commission, other than an order for
the payment of any money or apportionment of any loss, is
guilty of an offence and
(a) if an individual, is liable
(i) on summary conviction, to a fine not exceeding two
thousand dollars or to imprisonment for a term not exceed
ing one year or to both, or
(ii) on conviction upon indictment, to a fine not exceeding
four thousand dollars or to imprisonment for a term not
exceeding two years or to both; or
(b) if a corporation, is liable
(i) on summary conviction, to a fine not exceeding three
thousand dollars, or
(ii) on conviction upon indictment, to a fine not exceeding
six thousand dollars.
But that does not end the matter, nor necessarily
lead to the conclusion civil remedies by persons
injured are excluded.
Part III of the Act deals with the licensing of
elevator operators and grain dealers, and the
resulting rights and duties. Before licenses are
issued the applicants must satisfy the Canadian
Grain Commission ("the Commission") they are
financially able to carry on the particular type of
operation, and must post security to ensure that all
obligations "for the payment of money or delivery
of grain" are met (section 36). Additional security
can be demanded during the term of the licence
(subsection 38(1)). Subsections 38(1) and (2) are,
on the question of civil liability, relevant:
38. (1) Where, at any time during the term of a licence, the
Commission has reason to believe and is of opinion that any
security given by the licensee pursuant to this Act is not
sufficient to ensure that all obligations to holders of documents
for the payment of money or delivery of grain issued by the
licensee will be met, the Commission may, by order, require the
licensee to give, within such period as the Commission consid
ers reasonable, such additional security by bond, insurance or
otherwise as, in the opinion of the Commission, is sufficient to
ensure that those obligations will be met.
(2) Any security given by a licensee as a condition of a
licence may be realized or enforced by
(a) the Commission; or
(b) any person who has suffered loss or damage by reason of
the refusal or failure of the licensee to
(i) comply with this Act or any regulation or order made
thereunder, or
(ii) pay any money or deliver any grain to the holder of a
cash purchase ticket or elevator receipt issued by the
licensee pursuant to this Act on presentation of the ticket
or elevator receipt for payment or delivery.
It seems to me the logical way in which a
person, who has suffered loss or damage by reason
of the failure of a licensee to carry out duties
imposed on him by the Act, may realize on the
posted security, is to first establish civil liability
against that licensee. That goes to the question
whether a civil right of action was contemplated or
conferred.
The legal aspects of that general problem were
recently canvassed by the Federal Court of Appeal
in Canadian Pacific Air Lines, Ltd. v. The Queen 2 .
Le Dain J. said at pages 47-48:
Whether a breach of statutory duty gives rise to a civil right
of action in persons injured by it has been said to be a question
of statutory construction that depends on "a consideration of
the whole Act and the circumstances, including the pre-existing
law, in which it was enacted": Cutler v. Wandsworth Stadium
Ld. [1949] A.C. 398 at page 407. There would appear to be
two questions involved: (a) Was the duty imposed, at least in
part, for the benefit or protection of the particular class of
persons of which the appellant forms part? (b) If this be the
case, is a right of action excluded by the existence of other
sanction or remedy for a breach of the duty, or on general
grounds of policy? It would appear to be, in the final analysis, a
question of policy, particularly where the liability of the Crown
is involved. A distinction is to be drawn between legislation very
clearly directed to the benefit or protection of a particular class
of persons, such as that which imposes safety standards for the
benefit of workmen, of which the case of Groves v. Wimborne
(see note 6 below) is an example, and legislation which imposes
a general duty to provide a public service or facility. The
2 [1979] 1 F.C. 39, affirming [1977] 1 F.C. 715.
See also: Orpen v. Roberts [1925] S.C.R. 364, per Duff J. at
370. Direct Lumber Co. Ltd. v. Western Plywood Co. Ltd.
[1962] S.C.R. 646 at 648. Cutler v. Wandsworth Stadium Ld.
[1949] A.C. 398. Phillips v. Britannia Hygienic Laundry Co.,
Ltd. [1923] 2 K.B. 832.
opinion has been expressed that in the latter case the courts will
be more reluctant to recognize a private right of action.
The objectives of the statute are to my mind,
substantially those of the Canadian Grain Com
mission as specified in section 11 of the statute:
Objects of the Commission
11. Subject to this Act and any directions to the Commission
issued from time to time under this Act by the Governor in
Council or the Minister, the Commission shall, in the interests
of the grain producers, establish and maintain standards of
quality for Canadian grain and regulate grain handling in
Canada, to ensure a dependable commodity for domestic and
export markets.
Considering the statute as a whole, I conclude
paragraph 86(c) points to a litigable duty on the
defendant, enforceable by persons injured or
aggrieved by a breach of that duty.
The second defence is that the duty created by
paragraph 86(c) is not absolute, but qualified. The
proper construction of the paragraph is, it is said,
that the licensed elevator operator is only bound to
exercise reasonable care not to discharge infested
grain; the mere discharging of infested grain, with
out more, is not sufficient to impose civil liability.
The defendant relied on cases such as Hammond
v. The Vestry of St. Pancras, where this was said 3 :
The question therefore is, what is the proper construction of the
Act of Parliament. That, as it seems to me, will dispose of both
points; for, both turn upon the construction of s. 72. The
declaration does not charge the defendants with having been
guilty of negligence. It discloses no common-law liability in the
defendants, and can only be a valid declaration if it can be
supported upon the statute. The words of s. 72 are susceptible
of either meaning,—that an absolute duty is cast upon the
defendants, or that they are only bound to exercise due and
reasonable care. What, then, is the proper rule of interpreta
tion? The defendants are a public body having a duty imposed
upon them by parliament to do a thing which even with the
exercise of the utmost care and diligence may not always be
capable of being done. It is obvious that circumstances may
arise in which a sewer notwithstanding the exercise of reason
able care may be obstructed. The terms of the finding in this
case assume that. The jury find in effect that the brick drain
was obstructed, but that the obstruction was not known to the
defendants and could not by the exercise of reasonable care
3 (1873-74) L.R. 9 C.P. 316 at 322.
have been known to them. It would seem to me to be contrary
to natural justice to say that parliament intended to impose
upon a public body a liability for a thing which no reasonable
care and skill could obviate. The duty may notwithstanding be
absolute: but, if so, it ought to be imposed in the clearest
possible terms. The intention of the legislature is to be gathered
from the language used and the subject-matter. Where the
language used is consistent with either view, it ought not to be
so construed as to inflict a liability, unless the party sought to
be charged has been wanting in the exercise of due and
reasonable care in the performance of the duty imposed.
According to my view of s. 72, therefore, the vestry or district
board are not to be held liable for not keeping their sewers
cleansed at all events and under all circumstances; but only
where by the exercise of reasonable care and diligence they can
and ought to know that they require cleansing, and where by
the exercise of reasonable care and skill they can be kept
cleansed.
Professor Fleming 4 points out that the Ham-
mond decision was made in the infancy of the
doctrine of liability for statutory negligence; that
the modern tendency is to impose, in particular
fields, if not absolute liability, at least stricter
liability.
The plaintiff, on the other hand, referred to
decisions where a statutory duty imposed liability
despite the exercise by the defendant of reasonable
cares. The law is, to my mind, accurately stated in
the 3rd edition of Halsbury 6 as follows:
693. Absolute and qualified duties. The duty imposed by a
statute is in many cases absolute, that is to say, all that is
requisite to prove a breach of the duty is to show that the
requirements of the statute have not in fact been complied with,
and it is not necessary for the plaintiff in an action for breach
of duty to show how the failure to comply arose or that the
defendant was guilty of any failure to take reasonable care to
comply, nor is it normally a defence for the defendant to show
that he took all reasonable precautions to secure compliance. In
certain instances the duty imposed by a statute is subject to
express qualifications. In general, however, the answer to the
question whether a duty imposed by a particular statute is
absolute in the sense previously mentioned, or is such that it
would be a defence to an action founded on breach of it to show
that the defendant had been unable by the exercise of reason
able care to avoid the breach, is a matter of the construction of
4 Fleming, The Law of Torts (4th ed.—I971, The Law Book
Co. Ltd.) p. 131.
5 See, for example: Galashiels Gas Co., Ld. v. O'Donnell or
Millar [1949] A.C. 275, at 282-285. Potts or Riddell v. Reid
[1943] A.C. 1 at 24-25.
6 Halsbury's Laws of England (3rd ed.-1961) vol. 36, para.
693 at pp. 455-457.
the particular statute. In particular, it has been held in a
number of cases relating to the statutory duty of local authori
ties to maintain works that this duty is not absolute; how far
these decisions can be extended to other statutory undertakers
is doubtful. On the other hand duties to take safety precautions
imposed by the factories legislation, the legislation relating to
mines and quarries and similar protective statutes and statutory
instruments made thereunder have been held in many instances
to be absolute. The effect may be that an employer warrants
that machinery or equipment which he is obliged to maintain
will never be out of order. The absolute nature of the statutory
liability of a shipowner for damage caused to a harbour by his
vessel is considered elsewhere in this work.
But the defendant took a further position. If the
defendant had been charged, the argument ran,
with an offence in the terms of paragraph 86(c),
the prosecution would have been required to prove
mens rea on the part of the defendant; the taking
of reasonable care would have been a defence to
such a charge; the same theory should apply where
civil liability is sought to be imposed. The decision
of Nay D.C.J. in Regina v. Schneider' was
referred to. There the accused was charged with
an offence under subsection 16(1) of the Canadian
Wheat Board Act. It was held mens rea was
required, and proof had not been made.
There are recent decisions of the Supreme Court
of Canada dealing with categories of criminal
offences, and possible defences, if any. The defini
tive case is R. v. City of Sault Ste. Marie'.
Dickson J. gave the judgment of the Court. He
said at pages 1324-1326:
We have the situation therefore in which many Courts of this
country, at all levels, dealing with public welfare offences
favour (i) not requiring the Crown to prove mens rea, (ii)
rejecting the notion that liability inexorably follows upon mere
proof of the actus reus, excluding any possible defence. The
Courts are following the lead set in Australia many years ago
and tentatively broached by several English Courts in recent
years.
It may be suggested that the introduction of a defence based
on due diligence and the shifting of the burden of proof might
' (1958) 26 W.W.R. 267.
8 [1978] 2 S.C.R. 1299 at 1324-1326.
See also: The Queen v. Prue; The Queen v. Baril (S.C.C.—
[1979] 2 S.C.R. 547) and R. v. Gulf of Georgia Towing Co.
Ltd. [1979] 3 W.W.R. 84 (B.C.C.A.).
better be implemented by legislative act. In answer, it should be
recalled that the concept of absolute liability and the creation
of a jural category of public welfare offences are both the
product of the judiciary and not of the Legislature. The de
velopment to date of this defence, in the numerous decisions I
have referred to, of courts in this country as well as in Australia
and New Zealand, has also been the work of judges. The
present case offers the opportunity of consolidating and clarify
ing the doctrine.
The correct approach, in my opinion, is to relieve the Crown
of the burden of proving mens rea, having regard to Pierce
Fisheries and to the virtual impossibility in most regulatory
cases of proving wrongful intention. In a normal case, the
accused alone will have knowledge of what he has done to avoid
the breach and it is not improper to expect him to come
forward with the evidence of due diligence. This is particularly
so when it is alleged, for example, that pollution was caused by
the activities of a large and complex corporation. Equally, there
is nothing wrong with rejecting absolute liability and admitting
the defence of reasonable care.
In this doctrine it is not up to the prosecution to prove
negligence. Instead, it is open to the defendant to prove that all
due care has been taken. This burden falls upon the defendant
as he is the only one who will generally have the means of
proof. This would not seem unfair as the alternative is absolute
liability which denies an accused any defence whatsoever.
While the prosecution must prove beyond a reasonable doubt
that the defendant committed the prohibited act, the defendant
must only establish on the balance of probabilities that he has a
defence of reasonable care.
I conclude, for the reasons which I have sought to express,
that there are compelling grounds for the recognition of three
categories of offences rather than the traditional two:
1. Offences in which mens rea, consisting of some positive
state of mind such as intent, knowledge, or recklessness, must
be proved by the prosecution either as an inference from the
nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution
to prove the existence of mens rea; the doing of the prohib
ited act prima fade imports the offence, leaving it open to
the accused to avoid liability by proving that he took all
reasonable care. This involves consideration of what a
reasonable man would have done in the circumstances. The
defence will be available if the accused reasonably believed in
a mistaken set of facts which, if true, would render the act or
omission innocent, or if he took all reasonable steps to avoid
the particular event. These offences may properly be called
offences of strict liability. Mr. Justice Estey so referred to
them in Hickey's case.
3. Offences of absolute liability where it is not open to the
accused to exculpate himself by showing that he was free of
fault.
Offences which are criminal in the true sense fall in the first
category. Public welfare offences would, prima facie, be in the
second category. They are not subject to the presumption of full
mens rea. An offence of this type would fall in the first
category only if such words as "wilfully," "with intent,"
"knowingly," or "intentionally" are contained in the statutory
provision creating the offence. On the other hand, the principle
that punishment should in general not be inflicted on those
without fault applies. Offences of absolute liability would be
those in respect of which the Legislature had made it clear that
guilt would follow proof merely of the proscribed act. The
overall regulatory pattern adopted by the Legislature, the
subject matter of the legislation, the importance of the penalty,
and the precision of the language used will be primary con
siderations in determining whether the offence falls into the
third category.
In my view, while the taking of reasonable care
might possibly be a defence to a criminal charge
under paragraph 86(c), it does not follow it would
be a defence to a civil breach of the paragraph. To
put it another way, the possibility of a good answer
to a criminal charge does not reduce the civil onus
of an absolute duty to one of a qualified duty. That
type of contention was specifically rejected in
Potts or Riddell v. Reid 9 . Lord Wright said:
Reg. 7 imposes not merely an obligation in respect of the
original construction of the platform, but as to its maintenance.
It "shall be "supported"; no board or plank "shall project"
beyond the permitted distance. If the duty is not fulfilled, the
employer is liable for the consequences to his workmen, how
ever blameless he may be, at least in the absence of some
qualifying words in the Act or regulation. Even then the onus is
on the employer to prove that he is entitled to rely on the
qualification: Britannic Merthyr Coal Co., Ld. v. David
([1910] A.C. 74); Black v. Fife Coal Co., Ld. ([1912] A.C.
149). The statutes, however, there in question, like the Factory
Acts, deal with criminal liability. The common law duty is
superimposed on that. Hence the words qualifying the criminal
offence are added in reference to criminal liability, and there is
still the question whether they afford a defence against claims
in respect of civil liability, which may depend on the particular
words of the statute or statutory order. In Watkins v. Naval
Colliery Co. (1897), Ld. ([1912] A.C. 693, 705), Lord Atkin-
son says that they do, though it is for the employer "to prove
the facts which relieve him from liability "for the acts done by
one of his workmen in violation of the "general rules." To the
same effect Lord Kinnear, in Black v. Fife Coal Co., Ld.
([1912] A.C. 149, 165), treats the qualifying words in the Coal
Mines Regulation Act, 1887, as "an essential part of the
"definition of the offence" and suggests that, if the employer
can prove that he is not in fault, he has committed no offence
and is guilty of no breach of duty. The point has not arisen
precisely for decision, but I should be disposed to think that
prima facie qualifying words in the statute which are directed
to affording a defence against criminal responsibility do not
9 [1943] A.C. 1 at 24-25. See also Lord Russell of Killowen
at pp. 17-18.
affect civil liability to answer for damages caused by a breach
of the duty to the workman.
I adopt, in this case, the view expressed by Lord
Wright.
At page 413 (supra), I have set out what I
considered to be the objectives of the Canada
Grain Act. To ensure that grain is, indeed, a
dependable commodity for domestic and export
markets, an absolute prohibition against discharg
ing infested grain has, in my view, been imposed
by the legislators.
The rationale of the legislators in this case may
perhaps be adapted from the words of Lord Rad-
cliffe in Brown v. National Coal Board dealing
with statutory provisions for the protection of
workmen 10 .
No doubt, when such matters as public health or the safety
and protection of workmen are in question, the legislature has
again and again imposed absolute obligations in the contempla
tion that offences against them may be committed without the
presence of mens rea or even though the offender could by no
means have complied with the obligation imposed. He has not
so much a duty to perform as a responsibility for circum
stances. Such obligations are typically created by requiring that
a certain state or condition of things is at all times to persist, or
that a person is to do some specified thing without qualifica
tion. [My underlining.]
The second defence, therefore, fails.
Finally, the defendant contends that the dam
ages claimed are unreasonable or excessive, or
both.
When the Frankcliffe Hall left Thunder Bay
she was bound for a St. Lawrence River port. On
September 26, Port Cartier, Que. was designated.
The cargo was to be unloaded at the grain elevator
there. When the infestation was discovered, the
Canadian Grain Commission, as earlier recounted,
ordered the grain in holds 5 and 6 to be fumigated.
The elevator at Port Cartier could not handle the
matter. The capacity and ability of other elevators
on the St. Lawrence, to fumigate the grain, was
checked out by Board personnel. A decision was
then made to have the fumigation done at the port
10 [1962] A.C. 574 at 592. In that particular case, the duty of
the mine manager was held to be a qualified one.
of Kingston. The vessel was, on September 29,
1975, directed to deviate to that port. The fumiga
tion took place there. The vessel was delayed in
Kingston from 14:20 hours September 29 until she
resumed her voyage at 17:40 hours October 5.
The shipowners charged the Board $75,437.50.
All but $500 was based on a charge of $11,000 per
day for the time the vessel was held up. The
remaining $500 was paid for the hire of a tug. The
vessel owners' representative, who testified at trial,
said the amount of $11,000 per day was what the
vessel was expected, on a budget basis, to earn.
Normal demurrage and lay day charges would
have been $400 per hour. The difference in the
figures is $1,400 per day.
I do not think it was unreasonable for the Board
to have paid the amount charged by the shipown-
ers. Nor do I think the amount itself was, in the
circumstances, unreasonable. The Board and the
vessel were faced with a novel situation.
The defendant contends it was unreasonable for
the Board to direct the fumigation be carried out
at Kingston, and the cargo then re-loaded and sent
to Port Cartier. The vessel, it is said, ought to have
been directed to Port Cartier or Sorel, and the
cargo unloaded there. The vessel would not then
have been detained; the grain would have been
fumigated at either of those ports. The defendant
points out that after this occurrence the new proce
dure is to allow an infested vessel to proceed to the
original port of destination, unload, and fumigate
the grain there (see Ex. 11). The Board, so the
argument runs, ought to have done that in this
case.
But this was the first encounter, according to
the evidence, with infestation on vessels. Previous
experience had only been on rail cars. In this novel
situation, the Board's personnel, in my view, acted
reasonably in the circumstances. Port Cartier
elevator could not handle the problem. The Board
personnel made inquiries as to other facilities.
They ultimately decided on Kingston.
The defendant suggested the elevator at Sorel
should have been picked. All that can be said is
that now, in hindsight, it was a possibility. The
Board cannot, to my mind, be faulted in that
respect. The defendant further contended the
Board should have applied to the Canadian Grain
Commission to make an order, pursuant to para
graph 100(c) or (d) of the statute, requiring the
elevators at Port Cartier or Sorel to treat the
contaminated grain. Again, this is all hindsight.
Further, there is no evidence the Commission
would likely have made such an order.
In my view, the damages claimed by the plain
tiff are, in the circumstances, reasonable. The
defendant is liable for them.
The plaintiff will recover from the defendant the
sum of $98,261.55, 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.