VOL. XII. EXCHEQUER COURT REPORTS. 289 IN THE MATTER of the Petition of Right of THE WESTERN ASSURANCE COM- } SUPPLIANTS 1909 PANY May 28. AND IlIS MAJESTY TIIE KING. RESPONDENT. Public work--Accident to vessel using canal—Negligence—Affirmative proof —Primd facie case. Held, that in order to bring himself within the remedy provided by section 20 (c) of R. S. 1906, c. 140, a party must prove affirmatively that there was negligence on the part of some officer or servant of the Crown ; to show merely that an accident had occurred is not sufficient to establish a prirnd facie case of negligence. Dubd v. The King (3 Ex. C. R. 147) followed. .McKay's Sons et al. v. The Queen (6 Ex. C. R. 1) referred to and explained. PETITION OF RIGHT for damages arising out of an accident to a scow while using the Lachine Canal. The facts are stated in the reaions for judgment. March 11th, 1909. The case came on for hearing at Montreal. E. Lafleur, K.C. 'and C. A. Pope for suppliants. J. L. Perron, K.C. and R. Taschereau for the respondents. After the evidence was closed and the case partly argued, on motion of Mr. Lafleur, counsel for the respondent consenting, the case was reopened for the taking of further evidence at Montreal on the 6th May following. May 6th, 1909. C. A. Pope for the suppliants; R Taschereau for the respondent. Mr. Pope contended that. the evidence sheaved a clear case of negligence actionable under The Exchequer Court 19
290 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 Act. The evidence as to the cause of the accident is un- THE controverted. The Crown invited the suppliants to use the WESTERN ASSURANCE canal, and the accident shows that there was negligence Co. V. in not keeping the canal free of logs. (Cites secs. 19 and THE KING. 20 of The Exchequer Court Act ; City of Quebec v. The Argumn e se n l , t of l:ou Queen (1) ; Mackay's Sons et al. v. The Queen (2).) The suppliants are entitled to all damages suffered, including the cost of surveying the bottom of the scow. (Cites Cedar Shingle Company v. Rimouski Assurance Company (3)•) Mr. Taschereau contended that affirmative evidence of negligence was necessary on the part of the suppliants ; it could not be presumed from the fact of an accident having happened. The remedy was statutory, and the negligence must be brought home to some officer or servant of the Crown while in the discharge of his duty. Mr. Pope replied, citing sec. 16 of the Canal Regulations, and Maxwell on Statules (4). CASSELS, J. now (May 28th 1909) delivered judgment. The petition of right is filed by the suppliants claiming the sum of $1,035.04 against the Crown for injury occasioned to the scow Dominion No. 2, while in the Lachine Canal, by a submerged log which penetrated through the barge causing it to sink. The barge was at the time of the sinking the property of the Dominion Bridge Company. The suppliants had insured the scow, and after investigation of the loss paid the claim, and have been subrogated to the rights of the Dominion Bridge Co. The petition was based on two grounds. That portion of the petition (par. 5) claiming damages by reason of the Turret Crown having struck the scow was abandoned by counsel for the suppliants at the opening of the trial. (1)2 4 S.C.R. 420. (3) Q.R. 2 Q.B. 379. (2)6 Ex. C.R. L (4) 4th ed. p. 360.
VOL XII.} EXCHEQUER COURT REPORTS. 291 The case came on for trial at Montreal on the 1 i th 1909 March, 1909 and the evidence was closed. THE ES Mr. Lafleur relied on the case of the Acadia: Mackay's ASSURANCE Sons et. al. y. The Queen (1). The judgment in that V. case was an oral judgment, and might lead to the THI KIND. imp P ression that the sup P p P liant mig g h t succeed in an action Reasons for Judgment. without proof of actual negligence. The facts in that case when the record is examined shew that there was actual negligence on the part of an officer of the Crown committed by such officer while acting within the scope of his duty. On mentioning my doubt as to the correctness of this decision as reported, without the facts of the case being considered, Mr. Lafleur asked to have the case reopened, and counsel for the Crown not objecting, leave was given the suppliant to adduce further evidence, and by consent of counsel the trial was adjourned until the 6th May, 1909, when further evidence was adduced and argument concluded. There is but little dispute as to the main facts, or as to the amount of damages. The only difference as to the amount of damages is as to the right of the suppliants to add to the claim for damages the expense the suppliants incurred in investigating the claim fo the Dominion Bridge Co. Zepherin Clement was captain of the scow porninion No. 2 when the accident occurred. He was proceeding from Montreal to Lachine in tow of the tug Le Fred, the scow being lashed to the side of the tug. The scow was 100 feet in length and 26 feet in width. She was laden with coal, about 300 tons, and was drawing about six feet of water. The scow and tug left the lock at Cote St. Paul about six o'clock. From this point to the bridge at La Cote St. Paul is about six miles. Having arrived at the bridge, a sunken log pierced the side of the scow (1) 6 Ex. C.R.I. 192
292 EXCHEQUER COURT REPORTS. [VOL XII. 1909 causing her to sink. It is stated and not contradicted THE that this log was about 15 inches in diameter at the e`SESSUTREARNNC E upper end.. It is admitted that the log in question was C V o . . so far below the level of the water at the time of the THE KING. accident as to be invisible to the eye. Reasons for Judgment. The case for the sup p p p l iants is based on the fact that --- about three days before the accident in question a scow called the Champlain was struck by a log similar in appearance to the log in question, about two acres further west than the place where the accident in question happened. The scow Champlain was also owned by the Dominion Bridge Co. Sigouin was in charge of the scow Champlain, and reported the fact as to the Champlain being struck by the log to the officials of the Dominion Bridge Co. No one considered it of consequence to notify those in charge of the canal of a dangerous log being in the canal. The argument for the suppliants is that the Crown is liable because the fact of a log dangerous to navigation should have been known to the officers in charge of the canal. Clement, the captain of the scow Dominion No. 2, states in. the course .of his evidence that at the time of the accident he was having the following conversation with his brother-in-law, who was with him on the barge, viz : " Tout d'un coup on rencontre le billot-là de la lock qui descendait la semaine dernière,' j'ai dit : Tout d'un coup on le rencontre et on frappe pareil '. Mon beau-frère dit : ' Cela ne serait pas rien' ; on le disait, mon beau-frere était assis sur ce qu'on appelle un cabestan qui tourne." And again speaking of the log, he says : " Il pouvait être à peu près deux, trois pieds. d'eau par-dessus parce qu'on ne le voyait pas. Qui aurait vu le billot on aurait dit ` voilà un billot ', on aurait pas été
VOL. XII.) EXCHEQUER COURT REPORTS. 293 capable de s'en empêcher quand on pent voir une affaire • 1909 de même, quand le billot a ressout travers du chaland." THE He did not report to the canal officials the fact of there Ss RAN E. being a log. c v o . At the time the barge Champlain was struck the TB.E KING. log was apparently visible bobbing up and down. At Reasons for Judgment. the time of thé accident on the 23rd May, 1904, three days later, the log was invisible. When it sank, if the same log, is not shown. It is sworn to by Mr. O'Brien, the superintendent or overseer of the Lachine Canal that he had no knowledge of the fact of the log being in the canal. That no one informed him of the fact. He also states that had he been informed it would have been his absolute duty to remove it. The written regulations produced have no bearing on the case. In 'order to succeed the suppliants must bring their case within the provisions of Section 16, sub-sec. (c) of 50-51 Vict., Ch. 16. They must prove : . (1) That - the suppliants suffered injury in person or to property on a public work. (2) That the injury resulted from the negligence of an officer or servant of the . Crown while acting within the scope of his duties or employment. See Ryder v. The King (1) ; The King y. Arnistrong'(2). In the case of Dub4 v. The Queen (3), it is laid down that the suppliant must prove affirmatively that there was negligence. The fact of the accident is not sufficient to establish a prima facie case of negligence. Mr. Pope relied strongly on the reasons of Sir Henry Strong, C. J., in the case of The City of Quebec v. The Queen (4), but this opinion was not concurred in by a majority of the Court. (1) 36 S. C. R. 462. (3) 3 Ex. C. R, 147. (2) 40 S. C. R. 229. (4) 24 S. C. R. 420.
4 294 EXCHEQUER COURT REPORTS. [VOL XII. 1909 I think the suppliants have failed to prove a case of THE negligence as required by the statute, and the petition is WESTERN ASSURANCE therefore dismissed with costs. Co. v. Judgment accordingly. THE KING. Reasons for Solicitors for suppliant : Lafleur, McDougall, Macfarlane Judgment. • and Pope. Solicitor for respondent : E. L. Newcombe.
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.