T-1070-78
La Société d'assurance des Caisses populaires
(Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Quebec City, January
17; Ottawa, January 22, 1979.
Practice — Motion to strike out for no reasonable cause of
action and motion for leave to amend statement of claim —
Packages deposited and registered for delivery containing bank
notes belonging to plaintiff stolen from post office — Plain
tiffs allegation that theft made possible by gross negligence of
postal employees — Liability of Crown not applicable in view
of s. 42 of Post Office Act — Court without jurisdiction to
rule on proposed amendment to introduce direct action against
employees — Crown Liability Act, R.S.C. 1970, c. C-38, s.
3(1)(a) — Post Office Act, R.S.C. 1970, c. P-14, s. 42.
ACTION.
COUNSEL:
Edouard Martin for plaintiff.
Jean-Marc Aubry for defendant.
SOLICITORS:
Gagnon, de Billy, Cantin, Martin, Beaudoin
& Lesage, Quebec City, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: The Court has before it two relat
ed motions, each submitted by the parties at the
same time. The first asks that the statement of
claim be dismissed on the ground that it discloses
no cause of action: this is the primary motion
which the Court is convened to hear. The second
(submitted without adequate notice but by con
sent) asks leave to amend the statement of claim,
specifically in order to implead certain additional
defendants: obviously prompted by the first, it is
apparently intended to make the basis of the
action more apparent. The issue before the Court
is as follows.
Plaintiff is claiming the sum of $341,492.70
from defendant. This amount represents the value
of packages containing bank notes which allegedly
disappeared as the result of a theft; this occurred
at the post office where they had been deposited
and registered for delivery. Plaintiff contends that
the theft was made possible by the serious fault,
the gross negligence, of postal employees, and that
defendant is accordingly obliged to compensate it
for the loss it sustained as a result. The question to
be answered is, assuming the facts alleged to be
proven, is such an action admissible?
It is well established that the Crown may only
be held liable, in any area, on the basis of a formal
legislative enactment creating such liability. Plain
tiff argues, quite simply, that such a provision is to
be found in paragraph 3(1)(a) of the Crown Lia
bility Act, R.S.C. 1970, c. C-38, which since 1953
has made the Crown liable in principle for torts
committed by its servants. Further, in an effort to
demonstrate the basis of this liability more clearly
plaintiff seeks to join as co-defendants the
employees who were allegedly guilty of serious
fault, and against whom its initial remedy alleged
ly lies. Defendant maintains, however, that the
Crown Liability Act does not apply in the case at
bar, regardless of whether defendant is sued alone
or jointly with her employees, assuming that such
a joint action could be brought in this Court. She
relies on section 42 of the Post Office Act, R.S.C.
1970, c. P-14, according to which:
42. Neither Her Majesty nor the Postmaster General is
liable to any person for any claim arising from the loss, delay or
mishandling of anything deposited in a post office, except as
provided in this Act or the regulations.
The Regulations adopted under the Post Office
Act contain no provision relating to any liability,
and in the event of the loss of "money packets"
provide only for the payment of a fixed indemnity
(Special Services and Fees Regulations, Parts II
and III, especially section 8), which has been paid.
It is thus clear that if section 42 of the Act applies,
it raises a peremptory bar to the action; but the
question is, should the provision be applied in a
case where the facts are as described?.
Defendant contended that section 42, enacted as
part of a special Act which is in no way affected
by the general law on Crown liability (Maxwell,
The Interpretation of Statutes, 12th ed., pp. 196 et
seq.), is absolute in scope, and this emerges
unequivocally from the very words used by the
provision; moreover, it has been recognized by a
long line of authorities (The Queen v. Randolph
[1966] S.C.R. 260; Bank of Montreal v. Bay Bus
Terminal (North Bay) Ltd. [1963] 1 O.R. 561;
Lendoiro v. The Queen [ 1962] Ex.C.R. 58; La
Caisse Populaire de St -Calixte de Kilkenny v.
The Queen [1968] S.C.R. 955). Plaintiff argued
that the provision has no such absolute scope.
Relying on an isolated decision of this Court
(Simons v. The Queen [1974] 2 F.C. 549) and on
the succinct reasoning of a commentator (Immari-
geon, La responsabilité extra -contractuelle de la
Couronne au Canada, Montreal, 1965, pp. 212 et
seq.), it argued that section 42 should be given a
strict and limiting interpretation, arrived at in
light of the rule recognized by the courts that an
exclusionary clause in a contract may not cover
serious fault.
In my view, plaintiff's argument is untenable.
First, contractual liability is not in question here
(Bank of Montreal v. Bay Bus Terminal (North
Bay) Ltd. cited above). Second, the rule of prece
dent that an exclusionary clause covering serious
fault would be contrary to public policy obviously
could not give rise to a pseudo-rule limiting the
legislative authority of Parliament. Third, the
meaning of a legislative enactment cannot be dis
torted under cover of strict interpretation, and I do
not see how it is possible, from the wording used
by the legislator in section 42, to classify cases of
loss according to their "source", and to treat as
covered by the exclusion only those in which the
loss only resulted from the minor fault of the
postal employees.
In my view, section 42 of the Post Office Act
can only be given the general scope suggested by
its wording and recognized by precedent. It does
not matter whether the Crown is sued alone or
jointly with its servants, whether it is impleaded as
the employer or otherwise, or whether the loss
complained of resulted from slight or serious fault:
the provision raises a peremptory bar to any action
based on liability. The action against defendant
cannot be allowed.
Viewed in isolation, the motion to amend does
not require any particular comment. The purpose
of the amendment is to introduce a direct action
against the employees who were presumably at
fault. Such an action may exist under the Civil
Code of the Province of Quebec, despite section 42
of the Post Office Act, but this Court in any case
has no jurisdiction to decide it (McNamara Con
struction (Western) Limited v. The Queen [1977]
2 S.C.R. 654; Quebec North Shore Paper Com
pany v. Canadian Pacific Limited [ 1977] 2 S.C.R.
1054).
ORDER
The motion for leave to amend submitted by
plaintiff is denied.
The motion of defendant to dismiss the state
ment of claim is allowed with costs. The action is
accordingly dismissed with costs.
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