Supreme Court Judgments

Supreme Court of Canada

West v. Corbett, (1913) 47 S.C.R. 596

Date: 1913-05-06

Alfred West (Plaintiff) Appellant;

and

James H. Corbett and Others (Defendants) Respondents.

1913: March 17, 18; 1913: May 6.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.

Negligence—Railway—Prescription—Damage or injury “by reason of construction” — Contractor — Transcontinental Railway Commissioners—“Railway Act,” s. 306.

Section 15 of the “National Transcontinental Railway Act” provides, that “The Commissioners shall have, in respect to the Eastern Division * * * all the rights, powers, remedies and immunities conferred upon a railway company under the ‘Railway Act.’“

Held, Fitzpatrick C.J. and Idington J. dissenting, that the provision in sec. 306 of the “Railway Act” that “all actions or suits for indemnity for any damage or injury sustained by reason of the construction or operation of the railway shall be commenced within one year, etc.,” applies to such an action against the Transcontinental Railway Commissioners, and also against a contractor for construction of any portion of the Eastern division.

Held, per Anglin J., that it applies also to an action against a contractor for constructing a railway for a private railway company incorporated by Act of Parliament.

APPEAL from a decision of the Supreme Court of New Brunswick reversing the judgment at the trial in favour of the plaintiff and dismissing the action.

The plaintiff, West, had a license from the Government to cut timber on Crown lands in New Brunswick. The defendants had been awarded by the Transcontinental Railway Commissioners a contract to build a portion of the Eastern division of the Grand Trunk Pacific Railway and in course of their work a construction

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engine set fire to the plaintiff’s timber. To the plaintiff’s action for damages defendants pleaded that the action was not brought within a year as provided by section 206 of the “Railway Act.” Plaintiff obtained a verdict at the trial which the full court set aside, giving effect to the plea of prescription.

F. R. Taylor for the appellant. Eminent Judges in Ontario have held that section 306 is ultra vires. See McArthur v. Northern and Pacific Junction Railway Co.[1]; Anderson v. Canadian Pacific Railway Co.[2].

It is, at all events, ultra vires as respects all persons except Federal railway companies. The authority of Parliament to pass this section only exists by virtue of its legislative jurisdiction as to railways and its legislation must be essential to the purposes of the “Railway Act.”

A contractor, qua contractor, is not subject to the legislative authority of Parliament, and nowhere in the “Railway Act” is such authority expressly exercised and nowhere impliedly exercised unless it be in this section.

The limitation of the right of action in statute must be clear and express, it will never be implied. Maxwell on Statutes (5 ed.), page 463; Canadian Northern Railway Co. v. Robinson[3]; Canadian Northern Railway Co. v. Anderson[4], per Fitzpatrick C.J. at page 360.

The contractor does not stand in such relation to the company as would extend the latter’s privilege to him by implication. He is not the company’s employee,

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Kearney v. Oakes[5]; nor their agent or servant.

The provision in section 306 as to prescription cannot apply to the Commissioners as no action such as is prescribed could be brought against them. As a consequence it cannot apply to the defendants who only claim through the Commissioners.

Teed K.C. for the respondents. The Commissioners are obliged to construct the railway through contractors and the latter are merely their instruments and under no greater liability than they themselves would be.

The defendants were “persons authorized to construct a railway” under the interpretation section of the “Railway Act.”

In Hendrie v. Onderdonk[6], and Lumsden v. Temiskaming and Northern Ontario Railway Commission[7], contractors were held entitled to plead the prescription provided for in a similar section of the “Ontario Railway Act.”

F. R. Taylor for the appellant

Teed K.C. for the respondents

The Chief Justice (dissenting).—I agree with Mr. Justice Idington.

Davies J.—This was an action brought by the plaintiffs as licensees of certain timber limits in the Province of New Brunswick for damages for loss by fire of many trees upon such limits caused by sparks emitted from a railway locomotive engaged in the work of constructing a part of the National Transcontinental Railway. The defendants, in the statement of claim, were alleged to be

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contractors engaged in certain work in the construction of the National Transcontinental Railway adjacent to and near the plaintiff’s limits and in such construction used a locomotive engine.

The claim was that the defendants were negligent in the operation of the engine and that in consequence of their negligence the sparks from the engine escaped and set fire to plaintiff’s limits.

The statement of claim was also based upon an alleged liability of the defendants for the damages caused by the sparks escaping from the engine, whether there was negligence on the defendants’ part or not.

This last claim was based upon the 298th section of the “Railway Act,” R.S.C. ch. 37, providing in certain cases for the absolute liability of “the company” making use of the locomotive causing the fire whether guilty of negligence or not.

In the case at bar, however, the jury found, and no question was raised before us on the finding, that the damages were caused by the negligence of the defendants in not having the engine equipped with modern and efficient appliances for preventing the escape of sparks, and on that finding the verdict was entered.

The claim, therefore, for a right to recover under the 298th section of the statute for statutory damages, irrespective of negligence, does not arise here.

The important facts that the defendants were contractors for the construction of a part of the National Transcontinental Railway, and that while engaged in such construction they so negligently used and ran one of their locomotive engines as to cause the damages complained of, were conceded at the argument.

The only point upon which the defendants claimed to set aside the judgment was that the action was

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brought against them too late, and was barred by the 306th section of the “Railway Act.”

The single question we have to determine is whether that section can only be invoked by a railway company authorized by Parliament to construct a railway, or whether contractors under the National Transcontinental Railway Commissioners for the construction of the whole or of part of such railway, can also invoke it.

Now, the railway in question was the Eastern branch of the National Transcontinental, and was being constructed pursuant to the powers contained in the statute 3 Edw. VII. ch. 71, and conferred upon three Commissioners appointed by the Governor-in-Council, who were declared to be a body corporate.

These Commissioners had all the necessary powers vested in them to carry out the work of constructing the Eastern section of the road and operating it until completion. They had, by section 15, in addition to the special powers conferred upon them, all the rights, powers, remedies and immunities conferred upon a railway company under the “Railway Act,” and such “Railway Act,” so far as applicable, was declared to be taken and held as incorporated in the Act 3 Edw. VII. ch. 71.

The Commissioners, by section 16, were obliged to let the work of constructing the Eastern division by tender and contract as specified. The defendants in this case were contractors for the construction of part of this Eastern division of the railway, and in the carrying out of such contract negligently caused the damages complained of.

The 306th section of the “Railway Act” provides that

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all actions or suits for indemnity for any damages or injury sustained by reason of the construction or operation of the railway shall be commenced within one year next after the time when such supposed damage is sustained, etc., and not afterwards.

Sub-section 2 provides that in any such action

the defendants may plead the general issue and give this Act and the special Act in evidence, and prove that the damages were done “in pursuance of and by the authority of this Act or of the special Act.”

Sub-section 3 provides that nothing in the section shall apply to actions against “the company” upon any breach of contract relating to the carriage of traffic or for damages respecting tolls.

This limitation upon actions for damages, though in form somewhat different, was contained in the general railway Acts for many years before that of 1903. In the Act consolidated that year, the clause making the railway liable for damages caused by fires from locomotives irrespective of negligence, was first introduced, and the language of the limitation clause was changed from damages sustained “by reason of the railway,” to its present form, “by reason of the construction or operation of the railway,” and the time limit extended from six to twelve months.

The first two clauses of the section 306 are as broad and general apparently as language could make them respecting damages sustained by reason of the construction or operation of the railway, and no words are used shewing any intention to confine their application to “companies” only.

In my opinion they refer to damages the result of negligence in the exercise of statutory powers given for the construction and operation of railways. For damages resulting from the exercise of such statutory powers without negligence no action at all would lie. Canadian Pacific Railway Co. v. Roy[8].

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Are they confined to “the company” authorized to construct and operate a railway, or do they extend to a contractor under such company who does such work of construction? In the case of the Eastern branch of the National Transcontinental the Commissioners were not authorized to do the work of construction themselves or by their employees. They were obliged by section 16 to let the work of construction by tender and contract and the defendants in this case were contractors under the Commissioners for the construction of part of the road.

I cannot see why a construction should be put upon the broad general language of the section in question excluding the contractors from the benefit of it. It must be remembered that the Eastern division could only be built by contractors. If the section does not apply to contractors then it would not be applicable at all to any one constructing such Eastern division, for I do not see how the Commissioners could be held liable for such damages as were recovered in this action. If this was an action to recover the statutory damages, liability for which was created by section 298, then it would seem the question would have to be determined whether “the company” declared in that section to be liable for the damages included a contractor under the company, and that would probably be solved by the construction put upon the words of sub-section 4 of section 2, the interpretation clause, which declares that company means

a railway company and includes any person having authority to construct or operate a railway.

Do those words include persons having contractual authority to construct or operate, or are they confined to those who have legislative authority to do so?

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In this case it is not necessary that we should decide upon the point because the action does not involve any question of statutory damages, but damages for negligence only, and the limitation clause does not use the word “company” at all either in the first section or in its second sub-section, but speaks of the persons sued as defendants.

I am of opinion that these damages sued for in this action were damages sustained by reason of the negligent construction of the railway, and are, therefore, within the Act. In the absence of any language restraining the privilege or benefit of the section to the company only and excluding contractors, I think the contractor who, in this case, alone could construct the railway has the right to invoke the benefit of the section.

In sub-section 3 certain actions against “the company” upon any breach of contract or respecting tolls are excepted out of the section, but this is the only reference direct to “the company.”

While, therefore, the section doubtless includes a “company” which builds the road itself, it also includes a contractor who alone, under the Act for the construction of the Eastern branch of the National Transcontinental Railway, was authorized to do the work of construction.

For these reasons I think the appeal must be dismissed with costs.

Idington J. (dissenting).—The broad question raised by this appeal is whether or not contractors engaged in the construction of part of the National Transcontinental Railway, pursuant to the contract said to have been let by the Commissioners appointed

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under 3 Edw. VII. ch. 71, are entitled to plead section 306 of the “Railway Act” in bar to an action for damages resulting from the contractors’ own negligence in course of their execution of the work so let to them.

The respondents, as such contractors, had in their service a railway locomotive so defective that fire spreading therefrom burned appellant’s timber.

The 15th section of the said 3 Edw. VII. ch. 71, is as follows:—

15. The Commissioners shall have in respect to the Eastern Division, in addition to all the rights and powers conferred by this Act, all the rights, powers, remedies and immunities conferred upon a railway company under the “Railway Act” and amendments thereto, or under any general railway Act for the time being in force, and the said Act and amendments thereto, or such general railway Act, in so far as they are applicable to the said railway, and in so far as they are not inconsistent with or contrary to the provisions of this Act, shall be taken and held to be incorporated in this Act.

In order to comprehend accurately the bearing of this section in relation to the matters respecting which section 306 of the “Railway Act” provides for a limited immunity, we must see who or what these Commissioners are and what acts they are authorized to do in respect of which such immunity may possibly serve them.

They are created a corporation. So are other public officers occasionally. It is here as in such other cases a convenient method of creating and providing a continuity of official life and action which need not depend upon or be interfered with by the accidents of death, removal or resignation of any of its members.

So far as the commission or its members may be enabled by the Act creating, or providing for its creation, to do anything that in the ordinary course of events might give rise to an action against it or them or any of them, I will assume for the present this section may entitle it or them to plead this limitation.

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But when we find that neither the commission nor any of its members are given power to construct a foot of the railway in question or do anything bearing on such a question except the mere getting of tenders and letting to the lowest tenderer a contract and reporting upon tenders for the work (for the large contracts like this one were let only, I believe, by the Crown, which is not liable, or by the sanction of the Governor-in-Council), and supervising the officers, such as engineers or others employed in the work of making the contractors live up to their contracts and similar service of supervision, and reporting upon the progress and financial matters connected therewith to the Government of the day as it may require, it seems difficult to imagine how this statutory limitation in said section 306 could serve the commission or its members in relation to a fire caused by the negligence of some one over whom neither had control in relation thereto.

The letting of a contract could involve no such responsibility as in question herein.

The section 306 in question is as follows in its first two sub-sections relied upon:—

306. All actions or suits for indemnity for any damages or injury sustained by reason of the construction or operation of the railway shall (be commenced within one year next after the time when such supposed damage is sustained, or, if there is continuation of damage, within one year next after the doing or committing of such damage ceases, and not afterwards.

2. In any such action or suit the defendants may plead the general issue, and may give this Act and the special Act and the special matter in evidence at the trial, and may prove that the said damages or injury alleged were done in pursuance of and by the authority of this Act or of the special Act.

How can the Commissioners under their limited powers relative to construction ever fall within these

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provisions by means of any act they may have done as regards construction?

The second sub-section clearly indicates by its language that the thing had in view which is to be barred is something done “in pursuance of and by the authority of this Act or of the special Act.”

Statutory limitations are personal and confined to the person or body acting and cannot as a matter of course be extended to some one else. Indeed they may be applicable in one forum yet not in another in such peculiar cases as The Metropolitan Water Board v. Bunn[9].

The matter seems so clear I need not pursue it. The commission has in certain cases been enabled when the Government should see fit to operate the road or part of it, and then the second part of subsection 1 of section 306 might become in such cases operative and applicable. The difficulty in this case seems to have arisen from the statement of claim being partly founded on section 298 relative to fires from locomotives.

The appellant in that regard, I think, misconceived his right of action. If it had rested on section 298 alone it ought to have been dismissed, for the obvious purpose of this section was to provide for the cases of operating a railway. It was first enacted in 1903 after the decision of Canadian Pacific Railway Co. v. Roy[10], as a mode of solving a well known grievance. It never was intended to apply to contractors for mere construction work.

I think the possibility of applying this statutory provision to the facts here is much more remote than it was to the facts respectively presented in the cases

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of Canadian Northern Railway Co. v. Robinson[11]; and Canadian Northern Railway Co. v. Anderson[12]. In the latter case leave to appeal was refused by the Privy Council. The former presented a case of operation, it was claimed. The latter it was suggested fell under construction.

The appeal should be allowed with costs here and in the court below and the judgment of the learned trial judge be restored.

Duff J.—The only point requiring specific mention, in my judgment, is whether the first sub-section of section 306 of the “Railway Act” applies.

I think that by force of section 15 of the “National Transcontinental Railway Act” that enactment is pleadable by the respondents in defence to this action.

Anglin J.—The appeal in this case is taken upon three grounds, two of which involve the construction of section 306 of the Dominion “Railway Act,” R.S.C. ch. 37. For the appellant it is contended (a) that section 306 does not apply to actions for damages for injuries such as that which is the subject of this action; (b) that it does not apply to the National Transcontinental Railway; (c) that, if applicable to that railway, it protects only the Commissioners and not contractors for construction under them.

The plaintiff sues to recover damages for injuries caused to his timber limits by fire which originated from sparks emitted from a locomotive in use by the defendants in the course of constructing a section of the Transcontinental Railway. The defendant contractors

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were employed by the Transcontinental Railway Commissioners, but contracted with the Government of Canada for the construction of a portion of the railway.

The jury found, and the present appeal proceeded on the basis, that the locomotive was defectively equipped and that the sparks that caused the fire which injured the plaintiff’s premises were emitted owing to such defective equipment.

(a) Assuming that section 306 applies to the National Transcontinental Railway and that the defendants are entitled to the benefit of it, I think the injury sued for was “sustained by reason of the construction of the railway.” I am of the opinion that, applying the principles which underlie the decisions in such cases as Poulsum v. Thirst[13] and Newton v. Ellis[14], injury caused by negligence in carrying out the work of construction is within the purview of the section. “There was no evidence of a want of bona fides, that is to say, of any indirect motive for the defendants’ conduct.” Their work was being done under the powers conferred by the “National Transcontinental Railway Act.” “The action is brought for an improper mode of performing the work” — for “doing unlawfully what might be done lawfully.”

(b) By section 15 of the “National Transcontinental Railway Act” (3 Edw. VII. ch. 71), it is provided that,

the “Railway Act” and amendments thereto * * * in so far as they are applicable to the said (National Transcontinental) railway and in so far as they are not inconsistent with or contrary to the provisions of this Act shall be taken and held to be incorporated in this Act.

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I find nothing in sub-section 1 of section 306 of the “Railway Act” “inconsistent with or contrary to” any of the provisions of the “National Transcontinental Railway Act.” I, therefore, think that by virtue of section 15 of the latter statute, section 306 of the “Railway Act,” so far as applicable, is incorporated in the “National Transcontinental Railway Act.”

(c) The remaining question has occasioned me rather more difficulty. Upon an examination of section 306 of the “Railway Act” a feature of it which immediately strikes one is that sub-sections 1 and 2 are general in their terms, while sub-sections 3 and 4 are restricted in their application to railway companies themselves. This difference in language indicates an intention on the part of Parliament that the application of the two earlier sub-sections should not be confined to actions in which the railway company itself is defendant. We are asked by counsel for the appellant to read into sub-section 1 after the word “suits,” the words “against the company.” I see no justification for doing so. On the contrary, I think that to insert these words would be to place upon the operation of sub-section 1 a restriction which Parliament obviously did not intend. When the purpose was to confine the application of certain provisions of the Act to railway companies, Parliament has expressed its intention to do so by using the word “company.” The reason for giving to railway companies the benefit of such protection as sub-sections 1 and 2 of section 306 afford applies with equal force to the case of contractors engaged in railway construction authorized by Parliament. We cannot ignore the fact that probably nine-tenths of the entire railway construction work of Canada is done not by railway companies

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themselves, but by independent contractors to whom it has been let. If sub-sections 1 and 2 of section 306 apply only where a railway company itself undertakes the work of construction the great bulk of railway construction work in this country would not come within them. That contractors constructing a railway under contract from a railway company were entitled to the benefit of the similar provision in the Ontario “Railway Act” was held by a strong Divisional Court (Armour C.J., Falconbridge J. and Street J.) in Hendrie v. Onderdonk[15]. I have seen a copy of the judgment delivered in that case by Street J., and while the applicability of the limitation provision to the contractors, who were there defendants, appears rather to have been taken for granted, it is scarcely conceivable that the question now under consideration escaped the notice of these distinguished judges.

Having regard to the provisions of section 16 of the “National Transcontinental Railway Act,” which oblige the National Transcontinental Railway Commissioners to “let the work of constructing the Eastern division by tender and contract,” contractors under that Commission certainly do not occupy in regard to section 306 of the “Railway Act” a less favourable position than that of contractors under companies constructing railways under the “Railway Act.” The principle underlying the decision in Michigan Central Railroad Co. v. Wealleans[16], may be applied in this case.

The constitutionality of section 306 of the “Railway Act” was not questioned in the pleadings, or factums, or at bar.

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For the foregoing reasons I am of opinion that the defendants are entitled to the benefit of the limitation conferred by section 306 of the “Railway Act.”

It follows that this appeal fails and should be dismissed with costs.

Brodeur J. agreed with Davies J.

Appeal dismissed with costs.

Solicitor for the appellant: F. R. Taylor.

Solicitor for the respondents: E. A. Reilly.