The Queen (Plaintiff)
v.
Hochelaga Warehouses Ltd., Treitel Enterprises
Ltd., Frankel Enterprises Ltd. and Canadian
Surety Co. (Defendants)
and
Standard Structural Steel Limited and Hochelaga
Warehouses Ltd. (Third Parties)
Trial Division, Noël A.C.J.—Montreal. P.Q.,
November 27; Ottawa, December 7, 1972.
Practice—Parties—Action by Crown for damages—Claim
over for indemnity by defendants—Whether claim over justi-
ciable by Federal Court.
The Crown sued F and T for damages following the
collapse of a building with damage to the Crown's property.
The defendants, alleging that they were entitled to indemni
ty from H under a lease and from S under a construction
contract, served third party notices on H and S.
Held, on a motion for directions under Rule 1729, the
third party notices should be struck out. The Court had no
jurisdiction over the dispute between defendants and H and
S, which were founded on different causes of action from
that raised in the action between the Crown and defendants.
Those causes of action were justiciable only in a provincial
court.
The Queen v. J.B. & Sons Ltd. [1970] S.C.R. 220; The
King v. Consolidated Distilleries Ltd. [1929] Ex.C.R.
101, referred to.
ACTION for damages.
Gilles Ethier for Standard Structural Steel
Limited.
J. Greenstein for Hochelaga Warehouses Ltd.
J. C. Smyth for Canadian Surety Co.
A. Letourneau for Treitel Enterprises Ltd.
NOEL A.C .J.—Defendants, Frankel Enter
prises Ltd. and Treitel Enterprises Ltd., were
sued by Her Majesty the Queen for the sum of
$83,414.65 damages following the collapse of a
building, or part of a building, belonging to the
said defendants, damaging the butter and skim
milk stored therein.
94s97—.
Notice was given to the third parties, Stand
ard Structural Steel Limited and Hochelaga
Warehouses Ltd., on August 15, 1972 by
defendants, Frankel Enterprises Ltd. and Trei-
tel Enterprises Ltd., alleging that the two afore
mentioned companies should compensate them
for any liability resulting from any loss or
damage which may have been sustained by
plaintiff, for the following reasons:
(A) IN RESPECT OF HOCHELAGA WAREHOUSES
LTD.:
—by virtue of the lease concluded on December
2, 1968, between the aforementioned defend
ants and Hochelaga Warehouses Ltd., the latter
company assumed among other obligations,
without thereby limiting the same and/or limit
ing the obligations to which it is subject under
the law, to
(a) guarantee and ensure that the rent pay
able and/or paid shall constitute net income
to the lessors, and that any charges and/or
obligations concerning the premises shall be
the exclusive responsibility of the lessee;
(b) maintain the premises in good order, as a
reasonably diligent and/or prudent proprietor
would do;
(c) obtain at its own expense an insurance
policy for its own benefit and that of the
lessors, as a means of protecting them against
any claims for damages,
whereas on the contrary it neglected to maintain
the building and/or the said premises, and in
particular, but without any limiting effect, per
mitted an undue accumulation of snow on the
roof, thereby causing and/or contributing to the
collapse of the building;
whereas also at the time the claims were pre
sented it neglected either to contact the insurers
or to require the latter to assist and guarantee
the protection of the said defendants against all
such claims.
(B) IN RESPECT OF STANDARD STRUCTURAL
STEEL LTD.:
—by virtue of a contract concluded between
defendants Frankel and Treitel Enterprises
Ltd., it undertook to erect, and in fact erected,
the portion of the building which collapsed on
or about February 14, 1971, whereas the con
struction work was completed on or about May
1969, and consequently the building collapsed,
partially if not wholly, within five (5) years of
being completed;
—in erecting the steel framework which subse
quently collapsed Standard Structural Steel Ltd.
did not conform to the plans and specifications
submitted, nor to accepted standards, so that
the said framework contained a structural
defect and did not have the required strength,
or that which in any case it ought to have had,
and the said structural defect caused and/or
contributed to causing the aforementioned
collapse.
This motion by defendants is for instructions
by the Court as to how the action between
defendants and the third parties should be
brought in accordance with Rule 1729 of the
Rules of this Court. The third parties, on the
other hand, object to the giving of such instruc
tions and submit that this Court lacks jurisdic
tion to hear and decide the causes of action
presented by this notice, and ask that it be
dismissed.
It is clear that the dispute between defend
ants and the third parties is different from that
raised in the action between plaintiff and
defendants. This dispute is in fact founded on
different causes of action, and is based on
claims between individuals, over which this
Court has no jurisdiction. These causes of
action should and may only be decided by a
provincial court with jurisdiction in such an
action (see The Queen v. J.B. & Sons Ltd.
[1970] S.C.R. 220, at pp. 232 and 233. and The
King v. Consolidated Distilleries Ltd. [1929]
Ex.C.R. 101).
The third party notice is accordingly dis
missed and struck out, and the third parties are
hereby excluded from this action. They will be
entitled to their costs against defendants.
94997-1}
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