Ex. C.R. EXCHEQUER COURT OF CANADA 83 ON APPEAL FROM THE BRITISH COLUMBIA ADMIRALTY 1927 w~+ DISTRICT Sept. 27. THE SHIP CATALA (DEFENDANT) APPELLANT; 1928 AND Jan. 23. MARTHA DAGSLAND (PLAINTIFF) RESPONDENT. Shipping and seamen—Exchequer Court—Jurisdiction—Workmen's Compensation Act, B.C.—Maritime Conventions Act, 1914—Right of Action—Election of tribunal. Plaintiff's husband was killed in a collision between the C. and a boat in which he, with another man, was engaged in fishing. Following his death plaintiff applied. to the Board, under the Workmen's Compensation Act (B.C.) for compensation under the Act. Payments were made to her, from the date of her husband's death until about the time of the trial of this action, which she accepted. After judgment the Board ceased making payments pending the final result of this action. Upon application of the owners of the C. under sec. 12 (3), the Board " adjudicated and determined " that the owners were employers within the scope of part 1 of the Act; that the deceased was a workman in an industry covered by and within the scope thereof; that the accident arose out of and in the course of the employment; that plaintiff was one entitled to compensation under the Act, and that the action was one concerning which the right to bring was taken away by part 1 of the Act. After the application aforesaid, plaintiff took action in rem in the Exchequer Court in Admiralty to recover damages arising out of the death of her husband as above mentioned. Held (reversing the judgment appealed from) that the Exchequer Court had no jurisdiction to hear and determine the present action. (The Camosun, (1909) A.C. 598 and The Vera Cruz (1884-5) A.C. 59 referred to.) 2. That the Maritime Conventions Act, 1914, did not so enlarge the jurisdiction of the Exchequer Court in Admiralty, as existing under the Admiralty Court Act, 1861, as to give jurisdiction in actions like the present. 3. That even if this court had jurisdiction, the plaintiff, having elected to claim compensation under the Workmen's Compensation Act (B.C.), and having accepted it, could not thereafter renounce it and resort to an alternative remedy once open to her. APPEAL from the decision of the Honourable Mr. Justice Martin, L.J.A.' The appeal was heard before the Honourable Mr. Justice Maclean, President of the Court, at Vancouver. E. P. Davis, K.C., J. K. Macrae for appellant. W. E. Shannon for respondent. (1) For text of the judgment of Martin L.J.A. see at end of this report. 59319—lia
84 EXCHEQUER COURT OF CANADA [1928] 1928 The facts are stated in the reasons for judgment. THE SHIP Catala THE PRESIDENT, now (December 23, 1928) delivered v. DAasnAND. judgment:— This is an appeal from a decision of Honourable Mr. Justice Martin, Local Judge in Admiralty for British Col-umbia, in an action for damages against the ship Catala of the Port of Vancouver, brought by Martha Dagsland on behalf of herself and two infant children, the widow and children respectively of Erik Dagsland, who lost his life in a collision between the Catala and a boat in which the deceased with another were engaged in fishing operations, at the mouth of the Skeena River, B.C., and within the territorial waters of Canada. The learned trial Judgè found that the death of Dagsland was due to the negligence of the ship Catala, and he awarded damages against that ship in the sum of $20,000. As was said by Mr. May-ers of counsel for the Respondent, upon the trial, the case is one of importance and not free from difficulties. The respondent issued a writ addressed to the owners and parties interested in the ship Catala, and endorsed as follows:— The plaintiff as the widow of Erik Dagsland deceased, brings this action on behalf of herself and the children of the said Erik Dagsland deceased, to recover damages sustained by reason of the negligent navigation of the ship Catala, by the defendants or their servants, in or about the month of July, 1925, whereby the said ship came into collision with a fishing boat off the mouth of the Skeena river, and in consequence thereof the said Erik Dagsland lost his life, and for costs. The Catala was arrested but was subsequently released on a sufficient bail bond being given. Preliminary acts were filed on behalf of the respondent and the Catala, but no other pleadings were delivered or filed. From the endorsement to be found in the writ, it might appear as if the action was originally intended to be brought under the Families' Compensation Act 1911, R.S.B.C., cap. 85, which I might say is textually the same as the English statute known as Lord Campbell's Act, but apparently any contemplated action based upon the Families Compensation Act was abandoned, and the cause was professedly tried and disposed of by the learned trial judge as an action for damages in rem against the defendant
Ex. C.R. EXCHEQUER COURT OF CANADA 85 ship, under the provisions of the Admiralty Court Act 1928 1861, and the Maritime Conventions Act, 1914 (4-5 Geo. V, Tas Sam c. 13). Catala v. Two important defences in law were raised upon the DAOSLAND. trial and on this appeal. One was, that there was no Maclean J. jurisdiction in the Exchequer Court of Canada, on its Admiralty side, to entertain an action for damages for loss of life; and that any right of action for damages in the circumstances obtaining here could only be maintained by virtue of the Families' Compensation Act, 1914, which action this Court was without jurisdiction to entertain. The second point I shall refer to later. The learned trial judge was of the opinion, that the Admiralty Court Act, 1861, which by s. 7 gives a Court of Admiralty jurisdiction over " any claim for damages done by any ship," and s. 6 of the Maritime Conventions Act, 1914, gave jurisdiction to this Court, and also a cause of action in respect of damages for loss of life or personal injury. Sec. 6 of the Maritime Conventions Act is as follows:— Any enactment which confers on any Court of Admiralty jurisdiction in respect of damages shall have effect as though reference to such damages included references to damage for loss of life or personal injury, and accordingly proceedings in respect of such damages may be brought in rem or in persona. The learned trial judge, reading together s. 7 of the Admiralty Court Act 1861, and s. 6 of the Maritime Conventions Act, 1914, held that those enactments gave jurisdiction to this Court to entertain an action in rem for damages for loss of life, and also constituted a new cause of action, and such jurisdiction and cause of action being created by Imperial and Federal statutes, the same could not be disturbed by any provincial law, such as the Workmen's Compensation Act. A brief reference to the jurisdiction of the Exchequer Court of Canada, on the Admiralty side is perhaps appropriate. It is certainly not greater than the Admiralty jurisdiction of the High Court in England. It has no general common law jurisdiction, apart from its Admiralty jurisdiction. See Bow, McLachlan & Co. v. The Camosun (1) . The Admiralty side of the High Court in England, is presided over by a Judge of the High Court, who exer- (1) (1909) A.C. 597, at p. 608.
86 EXCHEQUER COURT OF CANADA [1928] 1928 cises by virtue of the Judicature Acts of 1873, and 1875, THE SHIP what is frequently referred, to as a double jurisdiction, in Catala consequence of which litigants may invoke their common v. DAGSLAND. law remedies, in the Court of Admiralty. The Judicature Maclean J. Act 1873 amalgamated the English Courts, and transferred to the High Court all the jurisdiction which had been previously exercised by the different courts, but these changes conferred no new Admiralty Jurisdiction upon the High Court, and the expression " Admiralty Jurisdiction of the High Court " does not include any jurisdiction which could not have been exercised by the Admiralty Court, before its incorporation into the High Court, or which might be conferred by statute giving new Admiralty jurisdiction. A judge of the High Court sitting on the Admiralty Division thereof may, as a judge of the High Court, exercise any jurisdiction which is possessed by a judge thereof, but he does so by virtue of the general jurisdiction conferred upon him, and not by virtue of any alteration in his Admiralty jurisdiction, The Camosun (supra). The jurisdiction of the Exchequer Court of Canada, on the Admiralty side, with certain limitations, is the same as the Admiralty jurisdiction of the High Court in Eng-land, but it is limited to that; it however cannot entertain common law actions in the exercise of its Admiralty jurisdiction. I refer to this solely because it affords an explanation of the reason why certain actions are sometimes entertained by judges in the Admiralty Division of the High Court, in England. Dealing now with the legal defence mentioned, I have reached the conclusion that I am bound by the authorities, to hold that this contention of the appellant is correct, ,and that this Court is without jurisdiction in an action of this kind. There are many decisions upon the point, but perhaps the most important one is that of The Vera Cruz (1), in which the House of Lords held, affirming the decision of the Court of Appeal, that the Admiralty Court Act 1861, which by s. 7 gave the Court of Admiralty jurisdiction over " any claim for damage done by any ship," did not give jurisdiction in claims for damages for loss of life under Lord Campbell's Act, and that the Admiralty (1) (1884-5) 10 A.C. 59; 9 P. 88.
Ex. C.R. EXCHEQUER COURT OF CANADA 87 Court as such, could not entertain an action in rem for 1928 damages for loss of life under Lord Campbell's Act. If THE SHIP therefore the cause now under consideration, had been Catala taken under the Families' Compensation Act, then it is DAGSLAND. already established I think, that this Court could not en- Maclean J. tertain an action in rem for damages for loss of life. It will of course remain to be considered whether the Maritime Conventions Act 1914, so extends the jurisdiction granted by the Admiralty Court Act 1861, as to give jurisdiction or a new right of action, in the facts of this case. In the case of The Vera Cruz (ubi supra) the action was against its owner and in rem, claiming damages for loss of life resulting from a collision between two ships. The judgment of the House of Lords was delivered by Lord Selborne L.C., and Blackburn and Watson L.J.J., and I might usefully quote from the opinions of their Lordships. The Lord Chancellor in his speech said:— * * * Inasmuch as there can be no right of action whatever unless it comes within the terms of Lord Campbell's Act, let us see whether those are terms which can be brought reasonably and naturally and consistently within the interpretation sought to be imposed on the 7th section of the Act of 1861, which statute turns the action into an action in rem at the option of the plaintiff. Now what are the words? " Whensoever the death of a person shall be caused by wrongful act, neglect, or default "—all words plainly applicable only to a person doing an act or guilty of a neglect or default, and not to an inanimate instrument or thing like a ship—" and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof." " To maintain an action and recover damages " plainly points to a common law action—" then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured." Well it is to my mind, as plainly as possible, a personal action given for personal injury inflicted by a person who would have been liable to an action for damages, manifestly in the common law courts, if the death had not ensued. Lord Campbell's Act gives a new cause of action clearly, and does not merely remove the operation of the maxim, actio personalis moritur cum persona, because the action is given in substance not to the person representing in point of estate the deceased man, who would naturally represent him as to all his own rights of action which could survive, but to his wife and children, no doubt suing in point of form in the name of his executor. And not only so, but the action is not an action which he could have brought if he had survived the accident, for that would have been an action for such injury as he had sustained during his lifetime, but death is essentially the cause of the action, an action which he never could have brought under the circumstances which if he had been living would have given him for any injury short of death which he might have sustained, a right of action, which might have been barred either by contributory negligence, or by his own fault, or by his own release, or in
88 EXCHEQUER COURT OF CANADA [1928] 1928 various other ways. Every word of that legislation being as it appears to legislation for the general case and not for particular injury by ships, Ta' SHIP Catala points to a common law action, points to a personal liability and a personal v. right to recover, and is absolutely at variance with the notion of a pro- DAGSLAND. ceeding in rem. Maclean J. Blackburn L.J., said:— But the question raised here being exclusively whether the liability of a ship owner as a person, under Lord Campbell's Act, to make good damages for negligence of his servants, who happens to be the master of the ship, comes within the words " damage done by any ship." I decidedly say that I do not think it does. The legislature in using such general words as those cannot have had in contemplation all the numerous and important subjects which, had they been considering Lord Campbell's Act, they would have had. Bowen L.J. in the Court of Appeal (1), in the same case said :— I am confident that there is no right of action under Lord Campbell's Act in the Admiralty Division, and I agree with the judgments of Lord Bramwell and the Master of the Rolls delivered in the Franconia. Shortly the question is whether this is a claim for damages done by a ship and I think that the history of the law on this point proves that it is not. The reasoning supporting the conclusions reached in The Vera Cruz case by both the Court of Appeal and the House of Lords, is that in the case of loss of life, any right of action dies with the deceased, and no cause of action in consequence of the loss of life exists except under Lord Campbell's Act, and that any right of action which existed under that Act was not a claim " for damage done by any ship," but was an entirely new and different cause of action. As was stated in The Vera Cruz case by Blackburn L.J..— Before Lord Campbell's Act, where a person had been injured from any of the causes mentioned in the first section of that Act and had died, the maxim actio personalis moritur cum persona applied, he could not sue for he was dead, and it did not survive to anybody whomsoever to sue for the damages occasioned by the accident which had caused injury to him, resulting in death. That Lord Campbell, or rather the legislature at the instance of Lord Campbell, thought fit to alter; and I think that when that Act is looked at, it is plain enough that if a person dies under the circumstances mentioned, when he might have maintained an action if it had been for an injury to himself which he had survived, a totally new action is given against the person who would have been responsible to the deceased if the deceased had lived; an action which, as is pointed out in Pym v. Great Northern Railway Co. is new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who under such circumstances suffers pecuniary loss by the death. (1) 9 P. at p. 100.
Ex. C.R. EXCHEQUER COURT OF CANADA 89 The same point was considered in 1916, in the case of 1928 The Amerika, 1 by the House of Lords. It is not neces-THE SHIP sary to state the facts in this case, but their Lordships Catala V. upheld the principle long ago established by the rule ex-DAGSLAND. pressed by Lord Ellenborough in Baker vs. Bolton,2 that Maclean J. in a civil court the death of a human being cannot be complained of as an injury, and that the only modification of that common law principle was brought about by Lord Campbell Act, which first introduced into the law of Eng-land a remedy in case of injury attended with loss of life, the law up to the time of the passing of that Act being, that in case of death resulting from injury the remedy for the injury died with the person, and that Act provided a new cause of action and did not merely regulate or enlarge an old one. Therefore one may safely conclude that under the Admiralty Court Act, 1861, a Court of Admiralty, did not possess jurisdiction to entertain a claim for damage for loss of life under Lord Campbell's Act because that was not a claim, " for damage done by any ship." Turning now to an inquiry whether s. 6 of the Maritime Conventions Act enlarges the jurisdiction of the Admiralty Court, or by itself gives a new right of action, in such a case as the one under consideration, I might observe that s. 6 of the Maritime Conventions Act (Can-ada) is an exact reproduction of s. 5 of the Maritime Conventions Act enacted in England. The language of s. 6 of the Canadian Act gives rise to some doubt, and it is difficult to understand exactly what was in the mind of the legislature when enacting this provision. It is not clear in what manner it has changed the case law on the subject. If the words " damage done by any ship," in the Act of 1861, did not give jurisdiction in an action under Lord Campbell's Act, it is a little difficult to perceive how s. 6 of the Canadian Act of 1914 does, because the words, " damage done by 'any ship " still remain as they were. The act of 1861 s. 7 relates expressly to damage done by ships; or as was said by Lord Selborne in The Vera Cruz case, maritime damage by ships is the subject of that legislation. The Maritime Conventions Act, s. 6 in providing (1) (1917) A.C. 38. (2) (1808) 1 Campbell's R. 493.
90 EXCHEQUER COURT OF CANADA [1928] 1928 that any enactment conferring on the Admiralty Court THE SHIP any jurisdiction in respect of damages, shall have effect Catala V. as though references to such damages included references DAGSLAND. to damages for loss of life or personal injuries, does not Maclean J. qualify in any way the active instrument of damage " any ship." That is to say, that even if it more specifically enlarges the scope of damages recoverable so as to include damages for loss of life or personal injury, still under any construction it seems to me, the right of action still relates to " damage done by any ship," and by binding authority it has been held, that this does not give a right of action for damages for loss of life against a ship, in a Court of Admiralty. There is not I understand any other enactment except s. 7 of the Act of 1861, to which s. 6 of the Act of 1914 can relate, when it refers to " any enactment " which confers on any Court of Admiralty jurisdiction in respect of damages. This enactment has been judicially considered. In the case of The Moliere (1), Roche J. held that no change was made by the statute of 1911, that is the Maritime Conventions Act of England, and he reached the conclusion that the law remained as it was before the Maritime Conventions Act. It may be true that the exact point for determination in this case is distinguishable from the facts of the case under consideration, but nevertheless Roche J. expressed the view I have just stated, and I think he could not well avoid expressing an opinion one way or the other upon that 'particular point, because it was urged upon him by counsel, that the Maritime Conventions Act (Eng-land) and the prevalence of Workmen's Compensation Acts, or its equivalent, in most countries of the world, had changed the law, and that any sum paid to dependents as a consequence of loss of life following a collision between two ships, under a Swedish statute in that case, was as much an item of damage as the amount of the injury to the ship, and was damages within the meaning of the Maritime 'Conventions Act. Then there is the case of The Kwasind2. This was an action in rem for damages brought by the dependents of a deceased person against the ship Kwasind. The defendant's solicitors having ac- (1) (1925) P. 27. (2) (1915) 84 L.J. Adm. 102.
Ex. C.R. EXCHEQUER COURT OF CANADA 91 cepted the service of the writ and undertaken to put in 1928 bail, subsequently filed an admission of liability. The THE SHIP plaintiffs thereupon asked for leave to enter up interlocu-Catala V. tory judgment, for damages to be assessed. The President DAGSLAND. of the court in the end directed that the action should be Maclean J. tried by the judge, assisted by a common jury in the Admiralty division of the High Court of Justice, from which an appeal was taken, Counsel for the appellants contended that the damages should be assessed by the Registrar of the Admiralty Division rather than by a jury, and that an action in rem to recover damages in respect of loss of life caused by collision could now be brought in the Admiralty Division by virtue of s. 5 of the Maritime Conventions Act 1911, and s. 7 of the Admiralty Act of 1861, but the Court of Appeal was of a different opinion. This was an instance I think where a judge presiding in the Admiralty Division of the High Court was exercising his common law jurisdiction. Buckley L.J. delivering the judgment of the Appeal Court said: This is an action for damages brought by the dependents of a deceased person. It is brought in rem against the ship. The President has directed that the action be tried by " The Judge assisted by a common jury in this " (that is to say, the Admiralty) " Division of the High Court of Justice" Counsel for the defendants has addressed an argument to us for the purpose of skewing that this is not an action under Lord Campbell's Act. He suggests that section 7 of the Admiralty Court Act, 1861, and section 5 of the Maritime Conventions Act, 1911, have created a liability for damages for loss of life, and that an action can now be brought to recover such damages, not under Lord Campbell's Act, but under the provisions of these other Acts. It appears to us that that is not so. Lord Campbell's Act is the only Act which creates this sort of liability for the death of persons to their widows or dependents, a limited class. No liability was created under the Admiralty Court Act, 1861, or the Maritime Conventions Act, 1911. This, then, is an action under Lord Campbell's Act. Now, in the Court of Admiralty, it is said, and said with truth, where the only question is the assessment of damages, it is usual to refer that to the Registrar and Merchants. What has happened in this case is that the ship has delivered an admission of liability, so that there is nothing to try except damages, and it is contended that according to the practice, not only is it usual for that to go to the Registrar and Merchants, but it must,—or perhaps it is not put quite so high as that—but it ought to go to the Registrar and Merchants. To my mind, the question is one of discretion for the judge. That he can sit with a jury is beyond dispute, and he has directed that the assessment should be made not by the ordinary subordinate officer, but by himself sitting with a jury. I think that is an order within his discretion, one which it was competent for him to make, and one which we ought not to review.
92 EXCHEQUER COURT OF CANADA [1928] 1928 If it was intended by the Canadian Maritime Conven- THE SEEN tions Act, 1914, to give to the Admiralty Court, j urisdic- Catala v. tion in the case of damages for loss of life, under such DAGSLAND. provincial enactments as the British Columbia Families' Maoleaa J. Compensation Act, or by virtue of it or in addition to it, it is unfortunate that this was not made clear. If such an important departure from the law as existing and known in this country prior to 1914 were in contemplation, one would think it would have been dealt with by the legislature in very exact terms, and express or specific words indicating such a change is certainly not to be found in the legislation. In the Vera Cruz case, Lord Selborne said it was impossible not to see, and the proposition was too clear to admit of dispute, that if the 7th section of the Act of 1861 had the effect of transferring that action to the Court of Admiralty to be brought under the Admiralty rules and system, to be tried without a jury, to be enforced in rem and not in personam, without making any person individually a defendant on the record, and so on, the Act of 1861 had materially varied the effect of Lord Campbell's Act, which gave the right of action. He further said that if anything were certain it was this, that where there are general words in a later Act capable of reasonable and simple application without extending them to subjects specificially dealt with by earlier legislation, you are not to hold that earlier and specific legislation indirectly repealed, altered, or derogated from merely by force of such general words, .without any indication of a particular intention to do so. See also McColl v. Cana-dian Pacific Railway Co.1 The second point relied upon by the appellant is, that if there was jurisdiction in this court to hear this action, it could be maintained only by virtue of the Families' Compensation Act, and in that case the appellant's submission is, that the right of action has been taken away by the operation of the Workmen's Compensation Act of British Columbia. This Act applies to certain enumerated Indus- , tries such as the fisheries, shipping, transportation, etc. The Act makes provision for a fund maintained by contributions, from which compensation is to be paid to work- (1) (1923) A.C. 126, at p. 128.
Ex. C.R. EXCHEQUER COURT OF CANADA 93 men injured by accident, arising out of and in the course 1928 of their employment, and to their dependents where such TEE SHIP injury results in death; and it creates a Board, known as Catala v the Workmen's Compensation Board, for its administra- D nasLAND. tion. By s. 11 (1) it is enacted that when an accident hap- Maclean J. pens to a workman in the course of his employment in such circumstances as entitles him or his dependents to an action against some person, other than the employer, the workmen or his dependents are entitled to compensation under Part 1 of the Act. That is to say they " may claim such compensation or may bring such action." An im- portant qualification of s. 11 (1) is introduced by s. 11 (4). it is as follows:- 8. 11 (4) In any case within the provisions of subsection (1) neither the workmen nor his dependents nor the employer of such workmen shall have any right of action in respect of such accident against an employer in any industry within the scope of this Part; and in any such case where it appears to the satisfaction of the Board that a workman of an employer in any class is injured owing to the negligence of an employer or of the workman of an employer in another class within the scope of this Part, the Board may direct that the compensation awarded in such case shall be charged against the last mentioned class. S. 11 (3) provides that if the workman or dependent makes an application to the Board claiming compensation under Part 1 of the Act, the Board shall be subrogated to the rights of the workmen or dependent, etc. By s. 12 (3) it is provided:— Where an action in respect of an injury is brought against an employer by a workman of a dependent, the Board shall have jurisdiction upon the application of any party to the action to adjudicate and determine whether the action is one the right to bring which is taken away by this Part, and such adjudication and determination shall be final and conclusive; and if the Board determines that the action is one the right to bring which is taken away by this Part the action shall be forever stayed. The Board is given exclusive jurisdiction by s. 74 to inquire into, hear and determine all matters of fact and law arising under Part 1 of the Act, and provides that the decision of the Board shall be final and not open to review. The section adds:— And without restricting the generality of the foregoing the Board shall have exclusive jurisdiction to inquire into, hear, and determine: among other questions:- 0) Whether or not any workman in any industry within the scope of this Part is within the scope of this Part and entitled to compensation thereunder;
94 EXCHEQUER COURT OF CANADA [1928] 1928 (j) Whether or not any person, firm or body corporate is an employer within the scope of this Part. THE SHIP Catala In due' course the respondent applied to the Board for V. DAGSLAND. compensation, and payments were made from the date of the death of her husband, until about the time of the trial Maclean J. of this action, or for substantially a year. It appears that the Board ceased making payments after judgment by the learned trial judge, and pending the final result of these proceedings. The Board, on November 22, 1926, upon the application of the owners of the Catala under the provisions of s. 12 (3) ; " adjudicated and determined " that the said owners were employers in an industry within the scope of Part 1 of the Act; that the deceased was a workman in an industry covered by or within the scope of the Act, and that the accident arose out of and in the course of his employment; that the death of the deceased was one in respect of which the respondent, on behalf of herself and the infant children of the deceased, had a right of compensation under the Act; and that the action was one which the right to bring was taken away by Part 1 of the Workmen's Compensation Act. The learned trial judge in his reasons for judgment said it must be conceded that if the Board had the power to make the adjudication mentioned, this Court could not exercise any further consideration in the action because, it is not only "forever stayed " but the " right to bring " the action itself is taken away by the Workmen's Compensation Act. Even if it could be said that the Maritime Conventions Act, and the Admiralty Court Act, 1861, together give jurisdiction to entertain an action, under the provisions of the Families' Compensation Act, then in that view, I think the issue is concluded by Peter v. Yorkshire Estate Co., Ltd. (1), and the right of action if existent at all, is taken away. In that case the Judicial Committee of the Privy Council held that the decision of the Workmen's Compensation Board, that an employee who had brought an action was a workman to whom the British Columbia Workmen's Compensation Act applied, and that the defendant was an employer within the scope of the Act so as to fall within the provisions of s. 12 (3), which (1) (1926) 2 W.W. Rep. 545.
Ex. C.R. EXCHEQUER COURT OF CANADA 95 took away the right of action, was final and not open to 1928 review. In the judgment of their Lordships delivered by THE SHIP the Lord Chancellor, the matter of the construction of the Catala V. Workmen's Compensation Act (British Columbia) s. 12 DAGSLAND. (3) is discussed as follows:— Maclean J. There remains the third question, as to the construction of sec. 12, subsec. (3). It is argued on behalf of the appellant that the words " an employer" contained in that subsection refer only to the employer of the workman there mentioned and not to a third person, that is to say, to another employer, although that other employer falls within the definition of an " employer " within the meaning of the Act. It might have been an answer to that contention that the Board have jurisdiction to decide questions of law as well as questions of fact; but it appeared to their Lordships more satisfactory to come to a conclusion themselves upon the point of law, and they are of opinion that the contention cannot prevail. Throughout secs. 11 and 12 of the Act a distinction is drawn between " the employer " of a workman, who is from time to time referred to, and " an employer " within the meaning of the Act. It has been pointed out that in three expressions contained in the two sections " the employer " of the workman is clearly pointed to, and that in three other instances the word " employer " is used with reference to any employer under the Act. The seventh instance which occurs in the Act is the one in sec. 12, subsec. (3), which has to be dealt with. Upon the whole their Lordships are of opinion that the words " an employer " there occurring include any employer who falls within the purview of the Act. That view is supported by the circumstances that the Board is by the same subsection authorized to determine whether an action is one the right to bring which is taken away " by this part," that is to say, by any section of this Part of the Act, including sec. 11, subsec. (4). That is the view which was taken by the Court of Appeal of British Columbia, and their Lordships do not see their way to differ from the conclusion of the Court. It follows that this appeal must be dismissed with costs, and their Lordships will humbly advise His Majesty to that effect. Upon the hypothesis that this court has jurisdiction to entertain this action under the Families' Compensation Act, then I think it is reasonably clear that such right of action has been taken away by the adjudication of the Board under the Workmen's Compensation Act. While it is not necessary to the decision of this appeal, the point has been raised and it is therefore proper for me to say, that under the provisions of the Workmen's Compensation Act of British Columbia, and the principles of common law, it would appear that the respondent is bound by her election to claim compensation under that Act. The Act itself is remedial legislation and as such must receive such a beneficient interpretation by the courts as will enable the intention of the legislation to be effectively attained, and I do not think it was the intention of
96 EXCHEQUER COURT OF CANADA [1928] 1928 the legislature that a dependent could elect to apply THE IP for and receive compensation under the Act, and at the Catala v. same time pursue a common law remedy. The remedies DAGSLAND. are alternative and not cumulative. The dependent I Maclean J. think is burdened with a duty of making an election, between the remedy provided in the Workmen's Compensation Act, and his or her common law remedy, and the respondent in this case having elected to claim compensation under that Act and accepted it, cannot now renounce it and resort to an alternative remedy, which once was open to her. There is the consideration inhering in the common law rule " Interest rei publicae ut sit finis litium," i.e., it is the interest of the State that there should be an end of litigation. In the early history of the Common Law it will be found that the minds of judges and lawyers were impressed with the desirability of adhering to the rule that a man should not be vexed twice for the same cause of action. This is the doctrine of the maxim, nemo debit bis vexari si constat curiae quod sit pro una et eadem causa, and in Sparry's case (1), it is regarded as a fundamental principle of the common law. This doctrine may be paraphrased as follows: If there has been a final decision of a competent court there should be no further proceedings allowed in another court, between the same parties for the same cause of action. See Broom's Legal Maxims 9th ed., p. 228; Elliott on Workmen's Compensation Act (9th ed.), p. 400-413; Black Lake Asbestos and Chrome Co. v. Marquis (2); Bonham v. The Sarnor (3). Resting my views on that point on what has been said above, I may say here that it is conceivable that a distinction might be drawn between a statute which imposes upon a litigant the obligation of making a choice—an election or option as the books say—between two remedies, and a statute which ousts the jurisdiction formerly vested in one tribunal, by providing a new and exclusive jurisdiction in another. In other words, to prevent a litigant who undertakes to pursue his remedy in one tribunal from seeking relief in another for the same cause, does not necessarily disturb the jurisdiction of one or the other of the two (1) (1826) 3 Coke's Rep. 123. (2) (1922) Q.O.R. 33, K.B. 390. (3) (1922) 21 Ex. C.R. 183.
Ex. C.R. EXCHEQUER COURT OF CANADA 97 tribunals. It is perhaps a matter affecting the litigant per- 1928 sonally, and not the tribunals. However, as I have already THE lr mentioned, it is not necessary for me to make this point, a Catala v. ground of my decision to allow this appeal. DAasr.AN~n. With great respect, therefore, I am of the opinion for reasons given that the appeal must be allowed with costs. Judgment accordingly. Judgment of Martin L.J.A. delivered May 27, 1927. This is an action for damages its supposed powers under sec. 12 against the SS. Catala by the (3) of the Women's Compensa-widow and two infant children of tion Act of this province, being Erik Dagsland, whose death was cap. 278, R.S.B.C., said section be-brought about by a collision be- ing: (See text in foregoing judg-tween that vessel and a fishing ment, p. 93.) boat in which were the deceased The said adjudication was made working as a boat puller and one upon the application of the Union Albert Carlson (the licensee and Steamships Limited person in authority thereof) on thebe pi to the owners of the defendant 3 n 1 e s a t r J u th ly e , m 19 o 2 u 5 t , h in o M f i t d h d e l e S P k a e s e s n ag a e s hip herein, and after reciting the river in the territorial waters of pro c c o e nc e l d u i d n e g s: s the adjudication thus Canada on the Pacific Ocean. • With respect to the cause of the " And this Board does further death of Dagaland I find that it find and declare that the said ac-was due to the negligence of the tion is one the right to bring which ship and I award damages against is taken away by Part 1 of the said her to the amount of twenty thou- Workmen's Compensation Act." sand dollars, bearing in mind the It must be conceded that if the increased cost of living and conse- Board had the power to make that quent reduction in the pre-war adjudication this Court cannot ex-value of money as pointed out excise any further jurisdiction in in Wand y. Mainland Transfer this action because it is not only Co. (1). "for ever stayed" but the "right Apart from the questions of fact to bung" the action itself is the following objections in law "taken away" by the Provincial were taken to the jurisdiction of Act. I am, however, of opinion this Court, and otherwise, Viz., that the submission of the plaintiff First: It was submitted that the that the Provincial Board has no pending proceedings in this action jurisdiction over rights of action or could not be further entertained proceedings in this Court is car-because of an "adjudication and rest, and therefore the adjudica-determination" made after their tion is, speaking with all respect, inception by the Workmen's Cori- wholly null and void with the pensation Board on the 22nd of principles and authorities cited in November last in the exercise of The Leonor (2). (1) (1919) 27 B.C. 340 and 345. (2) (1916) 3 Brit. and Col. Prize Cases, 91; (Grant.); (1917) 3 W.W.R. 861. 59319-2a
98 EXCHEQUER COURT OF CANADA [1928] 1928 There was much learned and in-"Any enactment which confers structive argument upon this in- on any court Admiralty jurisdiction THE SHIP Catala teresting and important question in respect of damages shall have v. but I may summarize my conclu- effect as though references to such DAGSLAND. sion thereupon by saying that as damages included references to the jurisdiction exercised and rem- damages for loss of life or personal Martin L.J.A. edies afforded by this Court injury, and accordingly proceed-(through the Vice-Admiralty Court ing in respect of such damages the lineal descendant of the Court may be brought in rem or per-of the Lord High Admiral and of sonam." the High Court of Admiralty) (1), The new Federal right thus con- pursuant to Imperial and Federal ferred would, in my opinion, con-legislation, are in no way based time to exist throughout Canada upon common law rights but exist (save as excepted by sec. 10) if "to deal with matters arising at the Provincial Families' Compensa sea outside the purview of other tion Act, cap. 85, R.S.B:C., con-Courts" (Anson on the Constitu- ferring certain causes of action for tion, 3rd ed. 283), the invocation death occasioned by tortious acts, of principles founded upon the or similar acts in other provinces common law does not advance this were repealed, and the only limi-matter, and just as it is impossible tation upon it is that the action for this Court to expand its juris- must be commenced within two diction by provincial laws so it is years unless the time is extended impossible for such laws to curtail by the court having jurisdiction— its jurisdiction in any degree, any sec. 9. In coming to this conclu-more than they could that of an- sicn I have not overlooked the de-other tribunal established by Fed- cision of the English Courts in eral legislation, i.e., the Supreme The Kwasind (3) and The Moliere Court of Canada. Crown Grain (4), which are based upon very Co. Ltd. v. Day (2), wherein the different circumstances in the con-Privy Council said (there being an stitution of the Admiralty Court attempt by the Province of Mani- as a division of the High Court of toba to deprive the Supreme Court Justice which exercises all ordinary of Canada of jurisdiction), p. 507: civil jurisdictions, and on the "But further, let it be assumed existence of one British Legisla-that the subject-matter is open to ture only with undivided and corn-both legislative bodies; if the plete jurisdiction over all subject-powers thus overlap, the enact- matters. Furthermore, I do not, ment of the Dominion Parliament with respect follow the grounds or must prevail." the object of the reasoning of By sec. 6 of the Maritime Con- Buckley L.J., in the former case ventions Act, cap. 13, Stat. Can. respecting Lord Campbell's Act, 1914, it is enacted: because the decision really turned (1) Note.—" The jurisdiction of the Lord Admirall is verie antient and long before the reign of Edward the third, as some have supposed, as may appear by the laws of Oleron (so-called) for that they were made by King Richard the first when he was there) that there had been an admirall time out of minde, and by many other antient records in the reignes of Henrie the third, Edward the first, and Edward the second, is most manifest. No. 2 Co. Litt. 260 b./ A.M. (2) (1908) A.C. 504. (3) (1915) 84 L.J. Adm. 102. (4) (1925) P. 27.
Ex. C.R. EXCHEQUER COURT OF CANADA 99 upon the proper exercise of judi- m.iralty Act, 1861, cap. 10, " juris-1928 cial discretion in ordering the as- diction over any claim for damage THE SHIP sessment of damages by a jury in- done by any ship" I regard the Catala stead of assessors under English effect of said sec. 6 of 1914 as now V. High Court Rule 2 of Order XXIV conferring in a clear, simple and DAGSLAND. —1, giving the judge power to order full way one and the same mari-Martin the trial of the cause, matter or time lien and remedy for damage L.JA. issue to be had with a jury, or as- to the person or property "done sessors, or referee as therein di- by any ship" and the two jurisdic-rected, whereas by our Admiralty tional sections should now be read Rule 124 the most that the judge together in their amplitude, speak-can do is to "refer the assessment Mg and operating as though origin-of damages and the taking of any ally so enacted, and hence it is account to the registrar either just as impossible to deprive a liti-alone or assisted by one or more gant in this Court of the later as merchants as assessors." In the of the earlier right he has become note upon the decision in Roscoe's entitled to: in other words, as ap-Admiralty Practice, 4th ed. 1920, plicable to this case, sec. 7 of 1861 p. 356,, it is said that the order for is, by sec. 6 of 1914, simply re- a jury thereby authorized was written and re-enacted to include "never acted upon as the case was "jurisdiction in respect of clam-subsequently settled by agree- ages . . . for loss of life or ment." I can only regard the de- personal injury "; the decision of cision as obiter and inapplicable the Privy Council in McColl v. to the said radically different con , Can. Pac. Ry. (1), though relied litions in Canada both curial and upon by the defendant really sup-legislative. To place them on a ports the plaintiff, and is in accord parity as regards the case at bar, with Grain Co. v. Day, supra. there should at least be a general It follows that the objection to Federal Act in Canada similar to the jurisdiction of this Court is Lord Campbell's in England and ever-ruled. one Court entertaining all actions Then, second, it is submitted for damages for personal injuries that the plaintiff has barred her founded upon the common law or right of recovery because she has special statute. As to The Moliere, accepted benefits under the said the same observations as to dif- Workmen's Compensation Act, the ferent conditions apply, and more- result of which is that she has over, it does not touch the exact " elected," under sec. 10 thereof, point raised here. I cannot bring to resort to that act for relief, and myself to the conclusion, in the further, that the effect of such ac-absence of express authority upon ceptance is to deprive her, apart the point, that said Federal sec. 6 from the act, of a right to recover has conferred no additional Federal more than one sort of compensa-rights or benefits upon litigants of tion, and reliance is placed upon this class in Canada unless there the cases of Scarf v. Jardine (2) ; happens to be a statute of the Wright v. London General Omni-nature of Lord Campbell's Act in bus Co. (3) ; and McClenaghan v. existence in the province wherein Edmonton (4) ; to which I add the damage was suffered. Birmingham Corporation v. S. All- Since this Court had already sopp & Sons Ltd. (5), which is an under sec. 7 of the Imperial Ad- exact application of the principle (1) (1923) A.C. 126. (3) (1876) 2 Q.B.D. 271. (2) (1882) 7 A.C. 360. (4) (1926) 1 W.W.R. 449. (5) (1919) 88 L.J., K.B. 549. 59319-21a
100 EXCHEQUER COURT OF CANADA [1928] 1928 of the Wright case, and the Mc- aforesaid a sum not exceeding ten Clenaghan THE Sam case is likewise based pounds." Catala thereupon and on Scarf v. Jardine The cab-driver was prosecuted by v. (an action by a creditor of a part- the police and convicted, and the DAGSLAND. nership), the general, principle of magistrate awarded the 'plaintiff, Martin which is thus laid down by Lard who wasa witness at the hearing, L.J.A. Blackburn, pp. 360-1: the sum of £10 for compensation to "The principle, I take it, running his cab which the plaintiff received through all the cases as to what is though stating it was an Macle-an election is this, that where a quate sum. The view taken by party in his own mind has thought the Court of the statute and its that he would choose one or two effect is best stated by Mellor J., remedies, even though he has written p. 275, thus: it down on a memorandum or has indicated it in some other way, «The provision appears to me that alone will not bind him.; but to be a very advantageous one so soon as he has not only deter- with regard to the cases it was in-mined to follow one of his remedies tended to meet, though in the but has •communicated it to the present case the plaintiff seems to other side in such a way to lead have •availed himself of it in ignor- the opposite party to believe that once of the legal effect of what he he has made that choice, he has was doing. It is intended to give completed his election and can go to the party aggrieved a speedy no further; and whether he in- and convenient mode of recovering tended it or not, if he has done an in respect of slight injuries by unequivocal act—I mean an act means of the summary jurisdiction which would be justifiable if he of the magistrate, so that when had elected one way and would the complaint is brought before not be justifiable if he had elected the magistrate with regard to the the other way—the fact of his driver's misconduct, the whole having done that unequivocal act matter may be settled, and the to the knowledge of the persons party injured may recover his concerned is an election." compensation without being sent If I am right in my view that to the county court or compelled the Workmen's Compensation Act to engage in further litigation. It does not apply to the right the appears to me that there is no plaintiff is seeking to establish, its reservation of any further right of provisions do not bar her, and compensation, and that if the otherwise the evidence does not party aggrieved avails himself of bring the plaintiff within Lord the summary remedy given by the Blackburn's principle, nor does, I section he cannot afterwards pro-think, the Wright case support the 'ceed elsewhere. The plaintiff in defendant. That decision was the present case submitted himself based upon a statute which pro- to the magistrate's jurisdiction, in vided that where a cab-driver was my opinion, by accepting the convicted of "wanton or furious amount of compensation awarded. driving," etc. . . . he should be The matter thus became res judicata fined three pounds and, in addi- and cannot be re-opened." tion— I am unable to see how a mari- " Where any such hurt or damage time lien upon, and a right in rem shall have been caused the justice against a ship in a Court of Ad upon hearing of the complaint, miralty can be compared to the may adjudge as and for compensa- special statutory ciroumstanoes up-tion to any pasty aggrieved as on which that decision was based.
Ex. C.R. EXCHEQUER COURT OF CANADA 101 In the latest edition of Mac- it and the Bengal is, that that is a 1928 Lachlan on Shipping (1923), pp. suit for wages and this is a cause 238-9, it is said, after noting the of damage. In this case an action THE Sat' Catala said section of the Maritime Con- was brought at common law, but v. ventions Act, and the leading cases the parties could not realize the DAGSLAND. on the point: fruits of their judgment. It quite "In addition to the jurisdiction comes within the decision of the Martin in rem possessed by the Admir- case in Douglas' Reports (Burnell L.J A. alty Court for damage done or re- v. Martin (1780) 2 Doug. 417). ceived by a ship, which was corre- Where a party suffers damage by lative with a maritime lien over collision, he is entitled to recover the vessel which was the instru- at common law, or to avail him-ment of mischief, the Legislature self of the lien he has, for the loss has given certain powers for the he has sustained. If there had been detention of vessels in any part of a /is pendens, it would have been the territorial waters of the United a different thing; for I certainly Kingdom. . . . A maritime lien would not allow, where an action for damage done by a ship at- was pending at common law, a suit taches that instant upon the vessel to be promoted in this court to a doing it, and notwithstanding any precisely similar effect. I would change of possession„ travels with not allow both suits to go on at her into the hands of a bona fide the same time, because, in the ac-purchaser though without notice, tion originally commenced there and being afterwards perfected by might be full and complete indem-proceedings in rem, relates back to nity for the injuries suffered; but the moment when it first attached. if it so happened that in the court . . . Before the Maritime Con- of common law the party could by ventions Act, 1911, the lien re- no means obtain full compensa-mained inchoate for an indefinite tion, I would then allow him to period, provided proceedings were proceed against the ship in this taken with reasonable diligence court. I see no substantial dif-and followed up in good faith. The ference between this and the case Maritime Conventions Act has al- of The Bengal; and therefore my tered the law in this respect, in judgment muse be to allow the that it has set up a period of limi- parties to proceed in this case as Cation within which actions for in the other, and I give them their damage must be brought." costs." But fortunately there is a clear The judgment in the former case authority upon both the principle points out, citing The Bold Buc-and the practice of this Court in cleugh (2), that: cases of maritime liens arising out " We have already explained, that of wages and damage by collision: in our judgment a proceeding in I refer to the two decisions of Dr. rem differs from one in personam; Lushington in The Bengal and and it follows that, the two suits The John and Mary (1), the being in their nature different, the former being a joint report from pendency of the one cannot be which I quote the judgment in the pleaded in suspension of the other." latter case, p. 1086, though both re- In the former case the master had ports should be considered: recovered a personal judgment in " With respect to The John and the Court of Exchequer against the Mary, the only difference between owner for his wages but could not (1) (1859) 5 Jur., N.S. 1085; (2) (1851) 7 Moore P.C., 267, Swabey, 468, 471. 286.
102 EXCHEQUER COURT OF CANADA 1928 realize it because of the defend- THE SHIP ant's bankruptcy though he had ready cited I add an instructive Catala filed a proper claim with the as- later one in the Court of Common v. signee against the bankrupt's estate Pleas, Nelson v. Couch (1), DAGBLAND. based on his judgment; in the lot- in they were unanimously approved Martin ter the plaintiff had recovered in and applied in principle by per-L.J.A. the same court a personal judg- mitting proceedings to be taken at nient against the owners of the common law for damages for col-ship for damages for collision but lision after those in Admiralty had further proceedings arising there- proved insufficient to satisfy the from were pending in that Court injured party—as Willes J., puts it, respecting the ownership of the p. 48, the plaintiff is entitled to vessel, and the same question of recover at law in barring a remedy by " election " excess of damage which the ship was raised by counsel (Swab. p. is insufficient to satisfy "; and he 472) as is raised here. It follows from these cases that unless the actions are to a "pre- cisely similar effect and "full and in c co o m ve p re le d t e i n in t d h e e m o n th it e y r c tr a i n b u b n e a r l e t h Court will not refuse the appro- And priate, distinct and complete rem- edy it can afford. In the oase at bar the amount awarded by the ficient, in my opinion, to support Workmen's Compensation Board this 'action I do not deem it neoes-is in any event so inadequate that sary to consider the other answers it 'cannot be regarded, in my advanced by the plaintiff to the opinion, as anything approaching said objections, 'but will content that "full compensation" contera- plated by the learned Doctor Lush- the Court of Appeal in ington, but as plaintiff's counsel has very properly offered to ac- tion of action not barring "actions" cept a reduction of all sums already in Admiralty received by her from the said titular the observations of Lord Board from my said award of Collins M.R. on pp. 146-7 which $20,000, judgment will be entered support the submission of plain-for that reduced amount after as- tiff's counsel on the meaning of certainment by the Registrar if " action" in secs. 11 and 12 of said not agreed upon. (1) (1863) 33 L.J. C.P. 46. (3) (1907) P. 137. [1928] To the Admiralty decisions sl- where-personam "the concludes: "It is clear from the case of The John and Mary that a proceeding rem in the Admiralty Court i m s a o y w f n o e l r lo s w in p a r o c c o e u e r d t i o n f g l s a w ag ." a inst the cf. The Chieftain (2). These above reasons being suf- myself 'by citing the decision of The Burns (3), on general statutes of limita- in rem; and in par-Workmen's Compensation Act. Judgment accordingly. (2) (1863) Br. & Lush. 212.
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.