A-385-80
A. M. Smith & Company, Limited (Appellant)
(Plaintiff)
v.
The Queen (Respondent) (Defendant)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, October 27, 1980 and February 19, 1981.
Crown — Compensation — Loss of goodwill following
establishment of Canadian Saltfish Corporation — Appeal
from Trial Division's decision that plaintiff's action for com
pensation is time-barred by virtue of s. 2 of The Statute of
Limitations of Nova Scotia — Whether the action is an action
on a specialty — Appeal dismissed — The Statute of Limita
tions, R.S.N.S. 1967, c. 168, s. 2 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 38 — Federal Court Rule 474
Saltfish Act, R.S.C. 1970 (1st Supp.), c. 37, ss. 21, 22 —
Limitations of Actions Act, R.S.N.S. 1873, c. 100, ss. 1, 25
Civil Procedure Act, 1833, 3 & 4 Will. 4, c. 42, s. 3.
Appeal from the decision of the Trial Division that the
plaintiff's claim is time-barred by virtue of section 2 of The
Statute of Limitations of Nova Scotia. The plaintiff brought an
action for a declaration that it was entitled to compensation in
respect of the goodwill of its business which was taken from it
without compensation by operation of the Saltfish Act. The
action was not commenced within six years of the time the
cause of action arose. The issue is whether the action is an
action on a specialty. The plaintiff's first submission is that the
action is for compensation based on an implied term of the
Saltfish Act and is thus an action on a specialty. It is submitted
that it therefore falls within the words "actions upon a bond or
other specialty" in paragraph 2(1)(c) of The Statute of Limi
tations, so that the applicable limitation period is twenty years
after the action arose. The Trial Judge held that there was,
apart from statute, a cause of action for compensation based on
the taking away and appropriation of the goodwill, a cause of
action that was not removed by the Sailfish Act. Accordingly,
the plaintiff's right of action was not on the statute, hence not
on a specialty, but merely flowed from the statute. The plain
tiff's second submission is that even if the action is not on a
specialty, it is not caught by any other provision of The Statute
of Limitations. The Trial Judge found that the action was for
the taking away of property and thus fell within paragraph
2(1)(e).
Held, the appeal is dismissed. Whether the action is on a
specialty depends on two questions. The first is whether the
action is based on a cause of action created by the statute. The
other is whether, even if it is based on a cause of action created
by the Act, it is an action on a specialty since the claim is for
an unliquidated amount, not for a debt or other liquidated sum.
The cause of action is based on a right to compensation implicit
in the statute itself, and not on a distinct cause of action at
common law or in equity. The taking away of the goodwill of
the appellant was a consequence of the operation of the Salt-
fish Act. No wrong was involved either in not granting a licence
or in not providing an exemption. Yet the Crown was under a
duty to compensate, based on an implied term of the statute.
An intention to take away the property of a subject without
giving to him a legal right to compensation for the loss of it is
not to be imputed to the Legislature unless that intention is
expressed in unequivocal terms. With respect to the second
question pertinent to the plaintiff's first submission, the appro
priate form of action for an unascertained sum, under common
law procedure, would have been case. And an action on the case
for an unascertained sum was not regarded historically as an
action on a specialty, though brought on a claim based on a
right created by a statute, because it was "on the case". This
action being one which would have been sued in case is not on a
specialty, though the claim to compensation is based on a right
created by the Saltfish Act. The consequence is that the action
does not fall within the twenty-year limitation period provided
by paragraph 2(1)(c) of The Statute of Limitations. With
respect to the plaintiff's second submission, even if the action
was not caught by the words, "actions for the taking away ...
of property ..." or "actions for direct injuries to real or
personal property", it would fall within the words "and actions
for all other causes which would formerly have been brought in
the form of action called trespass on the case ...".
Manitoba Fisheries Limited v. The Queen [1979] 1 S.C.R.
101, followed. Central Control Board (Liquor Traffic) v.
Cannon Brewery Company Limited [1919] A.C. (H.L.)
744, applied. The Cork and Bandon Railway Company v.
Goode (1853) 13 C.B. 826, distinguished. Thomson v.
Lord Clanmorris [1900] 1 Ch. 718, referred to. Miller v.
The King [1927] Ex.C.R. 52, referred to. Eisener v.
Maxwell [1951] 3 D.L.R. 345, referred to.
APPEAL.
COUNSEL:
K. E. Eaton, Q.C. for appellant (plaintiff).
E. Mitchell Thomas, Q.C. and H. Gordon for
respondent (defendant).
SOLICITORS:
Kitz, Matheson, Green & MacIsaac, Halifax,
for appellant (plaintiff).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an appeal from a judgment of
the Trial Division, dated May 23, 1980, [[1981] 1
F.C. 167] which answered in the affirmative a
question of law set down for determination pursu
ant to Rule 474 of the Federal Court Rules'.
The action is one brought by the appellant ("the
plaintiff') for a declaration that the plaintiff is
entitled to compensation in respect of the goodwill
of the plaintiff's business which, it is alleged, was
taken from the plaintiff without compensation by
operation of the Sailfish Act 2 . It was submitted,
and I take it not disputed, that this case is indistin
guishable in its essentials from Manitoba Fisheries
Limited v. The Queen', in which it was held that a
corporation deprived of its goodwill by operation
of the Freshwater Fish Marketing Act 4 was en
titled to compensation. The question is not whether
there is a right to compensation, but whether the
action for compensation was brought in time. It is
clear that the action was not commenced within
six years of the time the cause of action arose. The
Statute of Limitations of Nova Scotia is appli
cable by virtue of section 38 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10 6 . And the
issue is whether, as the plaintiff claimed, the
' Paragraph (1), subparagraph (a) of Rule 474 of the Feder
al Court Rules provides:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, .. .
and any such determination shall be final and conclusive for
the purposes of the action subject to being varied upon
appeal.
2 R.S.C. 1970 (1st Supp.), c. 37.
3 [1979] 1 S.C.R. 101.
° R.S.C. 1970, c. F-13.
5 R.S.N.S. 1967, c. 168.
6 Section 38 of the Federal Court Act provides:
38. (1) Except as expressly provided by any other Act, the
laws relating to prescription and the limitation of actions in
force in any province between subject and subject apply to
any proceedings in the Court in respect of any cause of
action arising in such province, and a proceeding in the Court
in respect of a cause of action arising otherwise than in a
province shall be taken within and not after six years after
the cause of action arose.
(2) Except as expressly provided by any other Act, the
laws relating to prescription and the limitation of actions
referred to in subsection (1) apply to any proceedings
brought by or against the Crown.
action is an action on a specialty, so that the
twenty-year period applicable, under the Nova
Scotia Act, to actions on specialties is the appro
priate limitation period. If so, the action is not
barred.
The question of law set down for determination
was: "Is the claim of the Plaintiff time-barred by
virtue of the provisions of Section 2 of The Statute
of Limitations R.S.N.S. 1967, Chapter 168?" The
judgment under appeal answered "yes".
It may be as well to set out at once the relevant
paragraphs of section 2 of The Statute of Limita
tions of Nova Scotia.
2 (1) The actions in this Section mentioned shall be com
menced within and not after the times respectively in such
Section mentioned, that is to say:
(b) actions for penalties, damages or sums of money given
to the parties aggrieved by any statute, within two years after
the cause of any such action arose;
(c) actions for rent upon an indenture of demise, actions
upon a bond or other specialty, actions upon any judgment or
recognizance, within twenty years after the cause of any such
action arose, or the recovery of such judgment;
(e) all actions grounded upon any lending, or contract,
expressed or implied, without specialty, or upon any award
where the submission is not by specialty, or for money levied
by execution; all actions for direct injuries to real or personal
property; actions for the taking away or conversion of prop
erty, goods and chattels; actions for libel, malicious prosecu
tion and arrest, seduction, criminal conversation; and actions
for all other causes which would formerly have been brought
in the form of action called trespass on the case, except as
herein excepted, within six years after the cause of any such
action arose;
Before the Trial Judge, the submission of the
plaintiff was that the action is an action for com
pensation based on an implied term of the Sailfish
Act and is thus an action on a specialty; it there
fore, it was submitted, falls within the words
"actions upon a bond or other specialty" appearing
in paragraph 2(1)(c) of The Statute of Limita
tions, so that the applicable limitation period is
twenty years after the cause of action arose. The
Trial Judge rejected this submission. He held, as I
understand his reasons, that there was, apart from
statute, a cause of action for compensation based
on the taking away and appropriation of the good
will, a cause of action that was not removed by the
Saitfish Act. He held that "... the plaintiff's right
of action is not on the statute, hence not on a
specialty, but merely flows from it as the Supreme
Court has found".
The plaintiff had also argued that, even if the
action is not on a specialty, it is, nonetheless, not
caught by any other provision of The Statute of
Limitations. The Trial Judge found, however, that
the action was an action for the taking away of
property and thus fell within the words "actions
for the taking away or conversion of property,
goods and chattels" appearing in paragraph
2(1)(e).
Counsel for the appellant repeated before us the
submissions that had been made to the Trial
Judge.
Whether the action is on a specialty depends, as
I see it, on two questions. The first is whether the
action is based on a cause of action created by the
statute, the Sailfish Act. The other is whether,
even if it is based on a cause of action created by
the Act, it is an action on a specialty, having in
mind that the claim is for an unliquidated amount,
not for a debt or other liquidated sum; the
respondent submitted that, even if the cause of
action is created by the statute, the claim is not on
a specialty because it is for an unliquidated
amount.
The question of law was set down for determina
tion on the basis of an agreement on issues and
facts. These were the facts as set out in the
agreement:
(1) The Plaintiff is a company incorporated in the province of
Nova Scotia with its head office at Halifax in that province.
(2) Until the year 1971 the Plaintiff owned and operated a fish
exporting business, in the course of conducting which the
Plaintiff bought salt cured fish in Newfoundland, stored, pre
pared and processed it in Nova Scotia, from where it was sold
to purchasers located in other parts of Canada and to purchas
ers located outside of Canada.
(3) On the 25th day of March, 1970, the Salt-fish [sic] Act
(hereafter called "the Act") established the Canadian Salt-fish
Corporation (hereafter called "the Corporation") and declared
that the Corporation is for all purposes of that Act an agent of
the Defendant.
(4) Part III of the Act prohibited the Plaintiff from carrying on
its business of buying and conveying cured fish from New-
foundland and delivering it to Nova Scotia unless it was issued
a licence by the Corporation, and no such licence has been
issued to the Plaintiff.
(5) The Act empowered the Governor in Council to exempt the
Plaintiff from the application of Part III of the Act but the
Governor in Council did not so exempt the Plaintiff.
(6) The Act empowered the Minister responsible thereunder,
with the approval of the Governor in Council and on behalf of
the Government of Canada, to enter into an Agreement with
the Government of Nova Scotia providing for the undertaking
by the Province of arrangements for the payment to the owner
of any plant or equipment used in storing, processing or other
wise preparing fish for market, of compensation for any such
plant or equipment that would or might be rendered redundant
by reason of any operations authorized to be carried out by the
Corporation under the said Part III, but the Province of Nova
Scotia declined to enter into any such agreement.
(7) By letter dated the 7th day of September, 1971, the
Minister of Fisheries advised the Plaintiff that the Government
of Canada had approved payment of the sum of $60,000 to the
Plaintiff on an ex gratia basis for the loss of its operations
resulting from the enactment of the Act, and that amount was
subsequently received by the Plaintiff.
(8) By reason of the failure of the Corporation to grant any
licence to the Plaintiff and the failure of the Governor in
Council to exempt the Plaintiff from the application of Part III
of the Act the Plaintiff, by the end of 1971, ceased to carry on
its fish exporting business and lost the goodwill of that business.
(9) On October 3, 1978 the Supreme Court of Canada gave
judgment in Manitoba Fisheries Limited v. The Queen (1978)
23 N.R. 159, and a copy of the reasons for judgment, delivered
by the Honourable Mr. Justice Ritchie for the Court, is
attached to this Agreement.
(10) On 21 December, 1978 the Plaintiff commenced this
action by filing its Statement of Claim.
(11) On 28 February, 1979 the Deputy Attorney General of
Canada, on behalf of the Defendant, filed a Statement of
Defence, pleading section 2 of The Statute of Limitations
R.S.N.S. 1967, Chapter 168.
The appellant submitted, as indicated above,
that the action is based on the Sailfish Act and is,
therefore, an action on a specialty. I have found
persuasive the submission that the cause of action
is based on a right to compensation implicit in the
statute itself, and not on a distinct cause of action
at common law or in equity. The taking away of
the goodwill of the appellant was a consequence of
the operation of the Saltfish Act. The transfer of
the goodwill to the Canadian Saltfish Corporation
and thus to the Crown was not in itself wrongful.
No tort or other legal wrong was involved. More
over, the Canadian Saltfish Corporation was under
no duty to the appellant to issue a licence to it
under section 21 of the Saltfish Act', nor was the
Governor in Council under any duty to enact any
regulation under section 22 of the Act 8 which
would have had the effect of exempting the appel
lant from the application of the Act. Accordingly
no wrong was involved either in not granting a
licence or in not providing an exemption. Yet it is
clear from the Manitoba Fisheries case that the
Crown was under a duty to compensate. It was not
necessary in that case to determine precisely the
source of the obligation. It was enough that there
was an obligation. Here it is necessary. And I am
' Section 21 of the Sailfish Act provides:
21. (1) Except in accordance with the terms and conditions
set forth in any licence that may be issued by the Corpora
tion in that behalf, no person, other than the Corporation or
an agent of the Corporation, shall
(a) export from Canada any cured fish or the by-products
of fish curing;
(b) send, convey or carry from a participating province to
another participating province or to any other province,
any cured fish or the by-products of fish curing;
(c) in a participating province receive for conveyance or
carriage to a destination outside the province, any cured
fish or the by-products of fish curing; or
(d) sell or buy, or agree to sell or buy cured fish or the
by-products of fish curing situated in a participating prov
ince, for delivery in another participating province or any
other province, or outside Canada.
(2) The Board may, for the purposes of this section, make
by-laws providing for the issue of licences by the Corporation
and prescribing the form of and the terms and conditions to
be set forth in such licences.
S Section 22 of the Saltfish Act provides:
22. The Governor in Council may, by regulations, exempt
from the application of all or any of the provisions of this
Part, either conditionally or unconditionally and either in
general terms or for a specified period, any area or region in
a participating province or any class of cured fish or any
by-product of fish curing.
of opinion that the duty to compensate is implicit
in the Act itself; in conventional terms, it is based
on an implied term of the statute.
I find support for this view in a passage from the
speech of Lord Atkinson in Central Control Board
(Liquor Traffic) v. Cannon Brewery Company
Limited 9 . The Central Control Board (Liquor
Traffic) had acquired compulsorily certain li
censed premises. In so doing, it acted under the
Defence of the Realm (Amendment) (No. 3) Act,
1915 and the Defence of the Realm (Liquor Con
trol) Regulations, 1915. It was held that the own
er's claim to compensation was not limited to
compensation granted to him as a matter of grace,
but that he was entitled to claim compensation as
of right under the Lands Clauses Consolidation
Act, 1845. The passage which I find significant for
present purposes appears at page 752:
It was not suggested that the above-mentioned Regulations
were not intra vires; nor was it contended that the principle
recognized as a canon of construction of statutes by many
authorities, such as Attorney-General v. Horner ((1884) 14 Q.
B. D. 245, 257), Commissioner of Public Works (Cape Colony)
v. Logan ([1903] A. C. 355, 363), Western Counties Ry. Co. v.
Windsor and Annapolis Ry. Co. (0882) 7 App. Cas. 178, 188),
did not apply to the body of legislation under which the board
purported to act. That canon is this: that an intention to take
away the property of a subject without giving to him a legal
right to compensation for the loss of it is not to be imputed to
the Legislature unless that intention is expressed in unequivocal
terms. I used the words "legal right to compensation" advised
ly, as I think these authorities establish that, in the absence of
unequivocal language confining the compensation payable to
the subject to a sum given ex gratia, it cannot be so confined. I
do not think that the Attorney-General really contested this,
nor, as I understood him, did he contest the principle that
where the statute authorizing the taking away of, or causing
damage to, the subject's property, either does not provide a
special tribunal to assess the amount of the compensation the
subject is to receive, or only provides a tribunal which has
become non-existent, the subject is entitled to have that amount
assessed in the High Court of Justice: Bentley v. Manchester,
Sheffield, and Lincolnshire Ry. Co. ([1891] 3 Ch. 222).
I find particularly significant the words "...
without giving to him a legal right to compensa
tion for it ...". It is also, of course, significant that
the subject has the right to have the amount
9 [1919] A.C. (H:L.) 744.
assessed in the courts if no special tribunal is
provided by the statute for that purpose.
The present action is, in my view, an action for
statutory compensation").
The next question is, however, whether the
action, based on a right to compensation provided
by the statute, is an action on a specialty within
the meaning of that term as it is used in paragraph
2(1)(c) of The Statute of Limitations of Nova
Scotia, having in mind that the claim, though
expressed in the statement of claim as a claim for
$500,000, is nonetheless a claim for an unascer-
tained amount, the value of the goodwill appro
priated by the Crown.
The twenty-year limitation period for actions on
bonds and other specialties provided by paragraph
2(1)(c) goes back at least to section 25 of the
Limitations of Actions Act appearing as chapter
100 of the Revised Statutes of Nova Scotia,
1873 11 . But its original inspiration appears to have
been section 3 of the English Civil Procedure Act,
1833 12 , which provided a twenty-year limitation
period for ".. . all Actions of Covenant or Debt
upon any Bond or other Specialty ...".
1° See Glanville Williams and B. A. Hepple, Foundations of
the Law of Tort (1976), at pages 20-22.
11 Section 25 provided:
25. All actions for rent upon an indenture of demise, all
actions upon any bond or other specialty, and all actions of
scire facias upon any recognizance, or actions for an escape,
or for money levied on any execution, and all actions for
penalties, damages, or sums of money given to the party
grieved, by any statute now or hereafter to be in force, shall
be commenced and sued within the time and limitation
hereinafter expressed, and not after: that is to say, the said
actions for rent upon an indenture of demise, or upon any
bond or other specialty, actions of scire facias upon recogni
zance before the seventh day of May, A. D. 1876, or within
twenty years after the cause of such actions or suits, but not
after; the said actions by the party grieved, within two years
after the cause of such actions or suits, but not after; and the
said other actions within six years after the cause of such
actions or suits, but not after: provided that nothing herein
contained shall extend to any action given by any statute
where the time for bringing such action is or shall be by any
statute specially limited.
12 3 & 4 Will. 4, c. 42.
It was held in England that this provision of the
Civil Procedure Act, 1833 applied to an action of
debt on a statute. The Cork and Bandon Railway
Company v. Goode" was an action in debt
brought by a railway company against one of its
members for calls on his shares. The action was
brought under the Companies Clauses Consolida
tion Act" and the special Act incorporating the
company. The defendant pleaded that the action
was founded "upon contracts without specialty"
and was thus caught by the limitation period of six
years provided by the Limitation Act, 1623 15 . The
plaintiff demurred to the plea and succeeded. It
may be as well to set out in full the reasons for
judgment of Mr. Justice Maule 16 :
I also am of opinion that this is a bad plea. It states that the
action is upon contracts without specialty, and that the alleged
causes of action did not, nor did any or either of them, accrue
within six years before this suit. When we look at the declara
tion, we find that the action is brought upon two statutes,—the
companies clauses consolidation act, 8 & 9 Vict. c. 16, and the
Cork and Bandon Railway Act, 8 & 9 Vict. c. cxxii. It is
manifest, upon reading the declaration, that it is a declaration
in debt upon these two statutes. Now, a declaration in debt
upon a statute, is a declaration upon a specialty; and it is not
the less so because the facts which bring the defendant within
the liability, are facts dehors the statute: that must constantly
arise in actions for liabilities arising out of statutes. That
appearing to be so, the allegation in the plea, that the action is
upon contracts without specialty, is a false allegation of a
matter of law. There may, undoubtedly, be cases where a
statute enables an action to be brought, which nevertheless is
not an action on the act of parliament. But the question is,
whether that state of things exists here. I think it manifestly
appears that this is an action of debt, and upon the statute, and
therefore an action upon a specialty. Whether assumpsit or case
would lie, leaves altogether untouched the question whether this
plea is an answer to this action. The case seems to me to be
abundantly clear. The proper limitation is that prescribed by
the 3 & 4 W. 4, c. 42, s. 3, viz. twenty years: an action upon
statute is an action upon a specialty, and is clearly comprehend
ed within the words of that section,—"debt upon any bond or
other specialty," though a bond is the plainest and simplest
kind of specialty, and a statute the highest. Upon the whole, I
concur with the Lord Chief Justice in thinking that the plaintiff
is entitled to the judgment of the court upon this demurrer.
13 (1853) 13 C.B. 826; 138 E.R. 1427.
14 8 & 9 Vict., c. 16 (Imp.).
15 21 Jac. I, c. 16.
16 (1853) 13 C.B. 826, at pp. 835 and 836; 138 E.R. 1427, at
p. 1431.
It is, in my view, clear that the present action
would not be within section 3 of the English Civil
Procedure Act, 1833. It is, unlike the action in
Cork and Bandon Railway, an action for an unas-
certained sum, and thus, under common law proce
dure, could not have been brought by way of debt;
the appropriate form of action would have been
case. In Chitty's Practice of the Law (3d ed.,
1837), this passage appears at pages 24 and 25a:
It will be observed that the antient common law rights and
remedies were comparatively few and simple and readily divid
ed and enumerated; but, in the progress of time, the occasions
of society have led, especially of late, to an accumulation of
new statutory regulations, which have either better defined, or
modified or regulated, what were previously partially recog
nised by the common law, or have actually created new rights
or imposed new duties and penalties for their non-observance;
we speak not merely of public regulations of police, but refer
also to those of a private nature.
It follows that, from the introduction of these new rights and
duties by numerous statutes, a great variety of new injuries and
offences must arise from the infraction or non-observance of
such new rights and duties; these require new remedies, to
prevent, or remove, or compensate, or punish.
In some cases, where new rights or duties have been created,
the statutes introducing them have been silent with regard to
the remedies for their infraction. When this is the case, the law
impliedly gives an appropriate remedy, for it is a maxim, that
whenever a statute gives a right, it means a legal right, and not
to put the party to the extraordinary remedy of a Court of
Equity. Thus, if a new private right be created or recognised,
the law implies a remedy, as by action on the case, where the
damages for the infraction of the right are uncertain; as for
removing goods under an execution without paying a year's
rent; and by action of debt where the sum is in its nature
certain or readily ascertained.
As I have indicated, section 25 of the Nova
Scotia Limitations of Actions Act of 1873 appears
to have been inspired by section 3 of the English
Civil Procedure Act, 1833. Section 25 of the Nova
Scotia Act established a limitation period of
twenty years for "... all actions upon any bond or
other specialty ...". There is an obvious difference
between this wording and the wording of the corre
sponding provision in section 3 of the English Civil
Procedure Act, 1833: the words "of Covenant or
Debt" have been dropped. This raises the question
whether the 1873 Nova Scotia provision broad
ened the scope of the provision in the 1833 English
Act so as to include causes of action provided by
statute that, in the days of common law procedure,
would have been brought in case, that is to say
actions for unliquidated amounts.
It may be helpful to consider the reason for
enacting section 3 of the Civil Procedure Act,
1833, and thus (possibly) for section 25 of the
Nova Scotia Limitations of Actions Act of 1873.
In Thomson v. Lord Clanmorris 17 , the English
Court of Appeal was called upon to construe that
part of section 3 of the Civil Procedure Act, 1833,
which established a two-year limitation period in
respect of "... all Actions for Penalties, Damages,
or Sums of Money given to the Party grieved, by
any Statute now or hereafter to be in force ...",
the provision which finds its counterpart in para
graph 2(1)(b) of the Nova Scotia Statute of Limi
tations, 1967. Lord Lindley M.R. said at page
725:
The point raised on this appeal is a new one to us all, and no
doubt there is some difficulty about it.
In construing s. 3 of the Act of 1833, as indeed in construing
any other statutory enactment, regard must be had not only to
the words used, but to the history of the Act, and the reasons
which led to its being passed. You must look at the mischief
which had to be cured as well as at the cure provided. And
when we look at the state of the law before the Act of 1833 we
can see pretty plainly what was the mischief at which it was
aimed. There were certain causes of action as to which there
was no defined time of limitation. Some of them are enumerat
ed in the earlier part of s. 3; for instance, "actions of debt upon
any bond or other specialty," and others which are there
mentioned. They were not provided for by the then existing
Statutes of Limitations, and they are brought in. That was the
first defect. There was another class of actions as to which
there was no definite limitation of time, namely, "actions for
penalties, damages or sums of money given to the party
grieved" by various Acts of Parliament, by way of penalty or
17 [1900] 1 Ch. 718.
punishment; not by way of compensation to the person injured,
but where, as was pointed out by Lord Esher M.R. when
commenting in Saunders v. Wiel ([1892] 2 Q. B. 321) upon
Adams v. Batley (18 Q. B. D. 625), punishment was the object;
and where the money to be paid, whether it was called penalty,
or damage or sum of money, was not assessed with the view of
compensating the plaintiff, although he might put some of it in
his pocket. That is the class of action which was contemplated
by the latter part of s. 3. In other words, they were what are
popularly called "penal actions." We arrive at this from the
history of the Act, and from a knowledge of the then state of
the law and the defect which was to be cured.
I cite this passage principally because of its
observations on the background of the provision
for actions in debt on bonds or other specialties.
But I have quoted it in full because it, as does the
judgment of the Court, disposes, in my view, of the
submission made during argument in the present
appeal by counsel for the respondent to the effect
that the action in this case is caught by paragraph
2(1)(b) of the Nova Scotia Act.
The reason for dropping the words "... of Cove
nant or Debt ..." in section 25 of the Nova Scotia
Limitations of Actions Act of 1873 may well be
explained by an important change in the law of
practice in Nova Scotia effected by the New Prac
tice Act, 1853's. The Act contained these
provisions:
2. All personal actions shall be commenced by writ of
summons or replevin.....
3. It shall not be necessary to mention any form of action in
the writ or other proceedings.
5. The writ shall contain the declaration according to the
practice now adopted in summary causes, and to the forms in
appendix B, except in very special cases, where the declaration
may be annexed or served separately.....
54. Every declaration, whether in the body of the writ or
annexed, and subsequent pleadings which shall clearly and
distinctly state all such matters of fact as are necessary to
sustain the action, defence, or reply, as the case may be, shall
be sufficient, and it shall not be necessary that such matters
should be stated in any technical or formal language or
manner, or that any technical or formal statements should be
used.
The effect appears to have been (and I put the
matter very broadly) to substitute, for the tech
nicalities of common law practice and pleadings, a
18 S.N.S. 1853, c. 4.
writ of summons as a means of beginning most
actions and a declaration and later pleadings
which were to state matters of fact necessary to
sustain the action, defence or reply, while avoiding
technical or formal language. By 1873, it may well
have been considered expedient to drop the refer
ence to covenant and debt. It may also be signifi
cant that, going back to the Limitation of Actions
Act, 1758, a six-year limitation period had been
made applicable to actions on the case 19 including,
as I understand it, actions for unliquidated sums
based on causes of action provided by statute. It
seems unlikely that, by the 1873 provision in
respect of actions on deeds and other specialties, it
was intended not only to capture (among other
things) actions for debt on a statute, but also to
extend the then existing limitation period from six
years to twenty years in respect of actions for
unliquidated sums on statutory causes of action 20 .
But there is another reason for construing the
words "all actions upon any bond or other special
ty" as being limited, in respect of actions on
statutes, to actions for debts or other ascertained
sums. This reason is suggested by a passage
appearing in the judgment of Lord Justice
Vaughan Williams in Thomson v. Lord Clanmor-
ris cited above. The action in that case was
brought by a shareholder against directors of a
company claiming compensation under the English
Directors Liability Act, 1890, and damages, "...
[upon] the ground that untrue statements were
19 Section 1 of the 1873 Act provided:
1. No action of assumpsit, trespass quare clausum fregit,
detinue, trover, replevin, debt grounded upon any lending or
contract without specialty or for rent, account, or upon the
case shall be brought but within six years next after the
cause of action.
There is similar, though not identical, provision in section 4 of
the Limitation of Actions Act, 1758 and in subsequent limita
tions statutes. Section 1 of the 1873 statute is, for example,
identical to section 1 of c. 153 of the Revised Statutes of Nova
Scotia, 1851.
20 See Miller v. The King [1927] Ex.C.R. 52, at pp. 64 and
65, rejecting a submission that a claim for compensation given
by the Dominion Expropriation Act was a claim for "debt on a
statute".
contained in the prospectus of the company, on the
faith of which the plaintiff had subscribed for
shares". Lord Justice Vaughan Williams said at
pages 727 and 728:
One must consider what is really the nature of the enactment
contained in s. 3 of the Directors Liability Act, 1890. And it
seems to me that, though that section does not in form give a
new action, though it only says that directors and others "shall
be liable to pay compensation to all persons who shall subscribe
for any shares on the faith of the prospectus for the loss or
damage they may have sustained by reason of any untrue
statement in the prospectus," yet what the section really does is
to give a new action on the case. It creates a new negative duty.
The directors or promoters, or whatever other class is included
in this section, have cast upon them a new duty in respect of
prospectuses and similar documents. Speaking generally, one
may say that the Act creates a new statutory duty of accura-
cy—a new statutory duty to abstain from inaccurate and
untrue statements, and then in effect gives a new action on the
case to those persons who may have been injured by the neglect
of that statutory duty. It seems to me, therefore, that this case
is provided for by the statute 21 Jac. 1, c. 16. The action is an
action on the case, and if so of course the six years' limitation
would apply.
But it is said that this is not an action on the case, but an
action on the statute, and Cork and Bandon Ry. Co. v. Goode
(13 C. B. 826) is relied on. But it must be remembered that
there the action was for a statutory debt, and the sole question
was whether that debt was, within the terms of s. 3 of the
statute of James, "grounded on a contract without specialty." It
does not seem to me that that decision is really material to the
case now before us. Maule J. pointed out that there is a
difference between an action which is given by a statute and an
action on the statute. Cork and Bandon Ry. Co. v. Goode was
an action of debt on the statute. And, as I have already said,
the only question there really was whether the action came
within the words of s. 3 of the statute of James. In the present
case it seems to me that a new duty of accuracy in respect of
the preparation and issue of prospectuses is created, and an
action on the case is given to those persons who are injured by
the breach of that duty.
The distinction between an action which is given
by a statute and an action on a statute seems
technical, but unfortunately we do find ourselves
in the realm of technicality. And I take it that an
action on the case for an unascertained sum was
not regarded as an action on a specialty, though
brought on a claim based on a right created by a
statute, because it was "on the case". And, for this
reason, I would conclude that, in the present case,
the action, being one which would have been sued
in case, is not on a specialty, though the claim to
compensation is based on a right created by the
Saltfïsh Act. The consequence is that the action
does not fall within the twenty-year limitation
period provided by paragraph 2(1)(c) of The Stat
ute of Limitations in respect of actions on
specialties.
An alternative submission was that the action is
not caught by any provision of The Statute of
Limitations of Nova Scotia, and is thus not stat-
ute-barred. It was submitted in particular that the
action is not an action for the taking away of
property within the meaning of the words "...
actions for the taking away or conversion of prop
erty, goods and chattels ...", the provision relied
on by the Trial Judge. The submission was that the
legislative history of the provision shows that the
words used were not intended to apply to an action
for the loss of goodwill caused by statutory inter
ference with marketing arrangements. It was sub
mitted that the first limitations statute of Nova
Scotia, the Limitation of Actions Act, 1758, pro
vided a limitation period for "... all actions of
trespass, detinue, action of trover, and replevin for
taking away of goods and cattle", a provision
which was based on a similar provision in the
English Limitation Act, 1623. Similar wording
appeared in revisions of the Nova Scotia limitation
legislation down to and including chapter 112 of
the Revised Statutes of Nova Scotia, 1884. In
chapter 167 of the 1900 revision, however, refer
ence to "detinue, trover and replevin" was
replaced by the reference to "actions for the taking
away or conversion of property". It was argued
that the change was made to reflect the changes
brought about by The Nova Scotia Judicature
Act, 1884 in respect of the forms of action, the
intention being (it was submitted) to cover the
subject-matter of detinue and replevin by the
words "actions for the taking away ... of proper
ty" and to substitute the more modern term "con-
version" for "trover". The present provision should
thus, it was argued, be limited to actions based on
a physical taking away or removal.
It was also submitted that the words in para
graph 2(1) (e), "all actions for direct injuries to
real or personal property" are limited to physical
damage and do not extend to injuries done to
intangibles. Here, again, reliance was placed, at
least in part, on the legislative history of the
provision, going back to the provision in the Nova
Scotia Limitation of Actions Act, 1758, which
established a six-year limitation period for actions
of trespass and trespass quare clausum fregit. I
would add that, in the perspective of trespass, the
use of the term "direct injuries" may have special
significance 21 .
The submissions in respect of these particular
provisions in paragraph 2(1)(e) seem to me to
have considerable merit, but I do not find it neces
sary to decide whether this action is caught by
either of them. Even if it were not, it would, in my
view, nevertheless fall within the closing words of
the paragraph: "and actions for all other causes
which would formerly have been brought in the
form of action called trespass on the case ..." 22.
In Eisener v. Maxwell 23 , Mr. Justice Mac-
Donald held that the relevant time for determining
whether an action "would formerly have been
brought in the form of action called trespass on the
case" would, in Nova Scotia, be immediately
before The Nova Scotia Judicature Act, 1884 24 .
At that time an action of this kind would have
been brought in case, or, more accurately, by way
of trespass on the case, though by then it would
appear not to have been necessary to mention
specifically the form of action in the writ or other
proceedings. I have already given my reasons for
so concluding.
The appellant also submitted that its cause of
action did not arise until the day of the judgment
of the Supreme Court of Canada in the Manitoba
21 But see Miller v. The King [1927] Ex.C.R. 52, at pp. 67
and 68.
22 Ibid., at p. 68.
23 [1951] 3 D.L.R. 345 (N.S. Sup. Ct.), at p. 354.
24 S.N.S. 1884, c. 25; R.S.N.S. 1884, c. 104.
Fisheries case. This submission is clearly unsus-
tainable.
I would dismiss the appeal with costs.
* * *
PRATTE J.: I agree.
* * *
LE DAIN J.: I agree.
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.