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T-939-76
The Queen in right of Canada (Plaintiff) v.
Montreal Urban Community Transit Commission (Defendant)
Trial Division, Decary J.—Montreal, May 8 and 9; Ottawa July 17, 1979.
Jurisdiction — Torts — Right of subrogation — Plaintiff subrogated, pursuant to Government Employees Compensation Act, to rights of an employee in an action for damages — Whether or not plaintiff has right to sue in this Court — Action dismissed — Government Employees Compensation Act, R.S.C. 1970, c. G-8, s. 8(3).
ACTION. COUNSEL:
J. Ouellet, Q.C. for plaintiff. R. Roy for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Pépin, Létourneau & Associés, Montreal, for defendant.
The following is the English version of the reasons for judgment rendered by
DECARY J.: Plaintiff is subrogated to the rights of one of her employees for damages alleged to have been caused by a Montreal Urban Commu nity Transit Commission bus.
Before deciding on the question of liability, the Court must decide whether it has jurisdiction to hear the case at bar.
Plaintiff was subrogated pursuant to section 8(3) of the Government Employees Compensation Act, R.S.C. 1970, c. G-8, which reads as follows:
s....
(3) If the employee or his dependants elect to claim compen sation under this Act, Her Majesty shall be subrogated to the rights of the employee or his dependants and may maintain an action in his or their names or in the name of Her Majesty against the person against whom the action lies and any sum recovered shall be paid into the Consolidated Revenue Fund.
As plaintiff's employee exercised the right of being compensated by the employer, in my opin ion, under the provisions of section 8(3) the pay ment of the compensation had the effect of subro- gating the employer to her employee's rights, but did not have the effect of creating a right not possessed by the employee.
The employee never had a right to sue in this Court, and plaintiff cannot be subrogated to a right the subrogor did not have.
The action is dismissed with costs.
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