T-1065-84
P. De Jong P.Z., Richard Zoelner, Demeter Agro
(1977) Limited, C.A. Suy, W. Krauchi Co. and
Humboldt Flour Mills Ltd. (Plaintiffs)
v.
Falcon Maritime Management S.A. (Panama),
Skopos Shipping S.A., Canadian Forest and Navi
gation Company Ltd., The M.V. "Akademos" and
Her Owners and Charterers (Defendants)
and
Wolfe Stevedores Limited (Third Party)
INDEXED AS: DE JONG P.Z. v. FALCON MARITIME MANAGE
MENT S.A. (PANAMA)
Trial Division, Dubé J.—Montréal, September 12;
Ottawa, September 22, 1988.
Civil Code — Limitation of actions — Interruption of
prescription — Appeal from order allowing addition of third
party as defendant — Motion opposed as statute-barred
Prothonotary's finding s. 38 of Federal Court Act requires
reference to Quebec prescription law correct — Central issue
whether added defendant "one of joint and several debtors"
and therefore suffered interruption of prescription under art.
2231 of Civil Code — Caselaw establishes interruption of
prescription against joint and several debtors effected when
one sued in time — Submission French law concept of "imper-
fect solidarity" applicable rejected as contrary to caselaw and
art. 1106 of Code.
This was an appeal against the Associate Senior Prothono-
tary's order allowing the plaintiffs to add the third party, Wolfe
Stevedores Limited as a defendant to this action. Wolfe is being
sued in tort for damages to cargo caused by the mixing of two
kinds of mustard seeds. The motion is opposed on the ground
that the action is statute-barred, having been commenced more
than two years after the event.
Held, the appeal should be dismissed with costs.
The prothonotary properly found that under section 38 of the
Federal Court Act he was required to have reference to the
prescription laws of Quebec. Furthermore, prescription could
not be interrupted by article 2224 of the Civil Code as no
action had been commenced against Wolfe within the two-year
period and Wolfe was not a party to the action within the
limitation period prescribed. The prothonotary was also correct
in his determination that there had been no judicial admission
by Wolfe and therefore no interruption of prescription under
article 2265 of the Code.
The only issue before the Court was whether or not Wolfe
should be considered "one of joint and several debtors" in the
proposed tort action against it and therefore suffer interruption
of prescription under article 2231 of the Code. Caselaw has
established that interruption against all joint and several debt
ors, including tortfeasors, is effected when one of them is sued
in due time.
The Drolet case, which held that the liability in matters of
quasi-offence does not become joint and several until judgment
has been rendered, was to be distinguished. The defendants in
that case had not been brought in until after trial, precluding
the finding that they were joint and several debtors. In the case
at bar, the trial having not yet commenced, Wolfe is therefore
one of joint and several debtors under article 2231.
The submission that imperfect solidarity exists between
Wolfe and the other parties had to be rejected. This French law
concept implies that where the authors of an offence have not
given each other a mandate to act, they cannot suffer the
secondary effects of solidarity, such as the interruption of
prescription. Although the matter of solidarity in solidum has
not been settled, the Supreme Court of Canada's decision in
Martel stands and prescription may be interrupted under
article 2231 where one of the joint and several tortfeasors was
made a party to the action within the two year period. Further
more, adoption of this French law concept cannot be legally
justified in light of the wording used in article 1106.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Civil Code of Lower Canada, art. 1106, 2224, 2231,
2242, 2261(2), 2265.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 38.
Federal Court Rules, C.R.C., c. 663, R. 336(5).
CASES JUDICIALLY CONSIDERED
APPLIED:
Martel v. Hôtel-Dieu St- Vanier, [1969] S.C.R. 745;
(1971) 14 D.L.R. (3d) 445; Grand Trunk Railway Co. of
Canada v. McDonald (1918), 57 S.C.R. 268; Gélinas-
Deschênes c. Damphousse, [1967] C.S. 709; Berthiaume
c. Richer et Lefebvre et Ville de Longueuil, [1975] C.A.
638; Banque Canadienne Nationale c. Gingras, [1973]
C.A. 868.
DISTINGUISHED:
Drolet v. Brien (1987), R.J.Q. 2045 (C.A.); Blumberg et
Consolidated Moulton Trimmings Ltd. v. Wawanesa
Mutual Insurance Company et Desjardins et Giguère,
[1960] B.R. 1165 (Que. C.A.).
AUTHORS CITED
Martineau, Pierre, La Prescription, Montréal: Les
Presses de l'Université de Montréal, 1977.
Baudouin, Jean-Louis, Les obligations, Cowansville: Les
Éditions Yvon Blais, Inc., 1983.
Tancelin, Maurice, Des obligations, contrat et respon-
sabilité, Montréal: Wilson & Lafleur, 1984.
COUNSEL:
M. Gordon Hearn for plaintiffs.
Alain Pilotte for third party.
SOLICITORS:
Beard, Winter, Toronto, for plaintiffs.
Martineau Walker, Montréal, for defendant
Canadian Forest and Navigation Company
Ltd.
Marler, Sproule & Pilotte, Montréal, for
third party.
The following are the reasons for order ren
dered in English by
Dust J.: This is an appeal from an order of the
Associate Senior Prothonotary of the Federal
Court under Rule 336(5). The order of the pro-
thonotary allows the plaintiffs to add the third
party, Wolfe Stevedores Limited (Wolfe), as a
defendant to this action.
The cause of action against Wolfe is in tort for
damages to cargo caused by the mixing of two
kinds of mustard seeds loaded at Trois-Rivières,
Quebec. Wolfe opposed the motion on the ground
that the claim is statute-barred, being pressed
against it more than two years after the event.
The starting point as to prescription is section 38
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10], which reads as follows:
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.
The prothonotary properly rejected all the argu
ments advanced by the plaintiffs to the effect that
the above section 38 does not require reference to
the prescription laws of the Province of Quebec.
He thereafter examined article 2224 of the Civil
Code of Lower Canada and rejected its applicabili
ty as no claim had been filed against Wolfe before
the passage of two years from the date of the
alleged negligence. The article reads:
Art. 2224. The filing of a judicial demand in the office of the
court creates a civil interruption provided that demand is served
within sixty days of the filing in accordance with the Code of
Civil Procedure upon the person whose prescription it is sought
to hinder.
Such interruption shall continue until final judgment and
shall be effective for every party to the action for any right and
recourse arising from the same source as the demand.
I agree with the prothonotary's decision that
prescription could not be interrupted by the
application of article 2224 of the Civil Code. Not
only because no action had been commenced
against Wolfe within the two year period, but also
on the ground that Wolfe was not a "party to the
action" within the limitation period prescribed in
the second paragraph of article 2224 of the Civil
Code (the third party notice was served after two
years from the event).
He also properly held there had been no judicial
admission by Wolfe within the meaning of article
2265 of the Civil Code and thus no interruption of
prescription under that heading. However, he
accepted the plaintiffs' argument based on article
2231 of the Civil Code which reads as follows:
Art. 2231. Every act which interrupts prescription by one of
joint and several debtors, interrupts it with regard to all.
The central issue in this appeal is whether or not
Wolfe may be considered to be "one of joint and
several debtors" in the proposed action in tort
against it and therefore suffer the interruption of
prescription prescribed under article 2231 of the
Civil Code to the benefit of the plaintiffs.
The plaintiffs sued the ship, the owners and the
charterers of the ship ("Canfor") by statement of
claim dated May 18, 1984, well within the two
year period stipulated in article 2261(2) of the
Civil Code. The defendant Canfor served a third
party notice upon the respondent Wolfe on Octo-
ber 18, 1985, outside the two year prescription.
The original suit against the defendants was for
damages arising from their obligations in contract
and in tort. As there is no contractual relationship
between the plaintiffs and Wolfe, only the tortious
aspect of the suit need be addressed in this motion
(under article 2242 of the Civil Code, other
actions not otherwise excepted are prescribed by
thirty years).
The interpretation to be given to article 2231 of
the Civil Code has been frequently addressed by
the Quebec Courts and at least on two occasions
bythe Supreme Court of Canada.
In Martel v. Hôtel-Dieu St-Vallier,' an action
in civil liability had been taken against the hospital
and a Dr. Comtois. It was discovered after the
expiration of the prescription that Dr. Comtois
was the wrong anaesthetist: a Dr. Vigneault should
have been the co-defendant. Justice Pigeon exam
ined article 2231 of the Civil Code and concluded
as follows at pages 753 S.C.R.; 452 D.L.R.:
[TRANSLATION] But in view of the fact that the hospital must
be held liable, it would seem clear to me that the limitation
period, which was interrupted by service of the writ on the
hospital, was also interrupted in so far as the action against the
anaesthetist is concerned ....
According to a well-established line of jurisprudence, there is
joint and several liability among all those responsible for the
same offence or quasi-offence.
In Grand Trunk Railway Co. of Canada v.
McDonald,' it was determined by Sir Charles
Fitzpatrick, then Chief Justice of the Supreme
Court of Canada, that the action in damages for
negligence was taken "en temps utile against the
company, and that was sufficient to interrupt pre
scription against the city ... (articles 1106 & 2231
C.C.)."
' [1969] S.C.R. 745; (1971) 14 D.L.R. (3d) 445.
2 2 (1918), 57 S.C.R. 268, at p. 273.
Cases recognizing the interruption of prescrip
tion against joint and several debtors of an obliga
tion arising from a quasi-offence are numerous in
Quebec law. 3 It has therefore been clearly estab
lished that interruption against all joint and sever
al debtors, including tortfeasors, is effected when
one of them is sued in due time.
Counsel for Wolfe raised two arguments against
the interruption of prescription in this instance.
First, the liability in matters of quasi-offence does
not become joint and several until judgment has
been rendered. Second, the obligation arising from
a quasi-offence is in solidum and therefore pre
cludes the interruption of prescription.
On the first argument, Wolfe's solicitors submit
ted a recent Quebec Court of Appeal decision
Drolet v. Brien." In that case there had been a
head-on collision between two vehicles. A passen
ger sued the driver and the owner of the other
vehicle. After the hearing of the case and while the
Trial Judge was deliberating, the passenger in
question amended his statement of claim to
include two new defendants. The Trial Judge
allowed the amendment and found the new
defendants to be liable. The Quebec Court of
Appeal overturned this particular aspect of the
decision stating that the liability of the defendants
had not been proven at trial and therefore joint
and several liability could not be adjudged.
Wolfe relies on that decision to submit that
liability in matters of quasi-offence does not
become joint and several until judgment has been
rendered. That argument must be rejected. In both
the Grand Trunk Railway and the Martel deci
sions mentioned earlier, the Supreme Court of
Canada held that there had been interruption of
prescription under articles 1106 and 2231 of the
Civil Code before judgment and before the cases
had even gone to trial. The Drolet case, relied
upon by Wolfe, is a specific case, a "cas d'espèce"
' Gélinas-Deschênes c. Damphousse, [ 1967] C. S. 709; Ber-
thiaume c. Richer et Lefebvre et Ville de Longueuil, [1975]
C.A. 638; Banque Canadienne Nationale c. Gingras, [1973]
C.A. 868; and see also Martineau, Pierre, La Prescription,
P.U.M. 1977, at p. 346.
4 (1987), R.J.Q. 2045.
(at pages 2051 and 2052) and obviously differs
substantially from the case at bar. In the Drolet
case, the new defendants had not been brought in
until after the trial and, therefore, could not be
found to be joint and several debtors. Further
more, article 2224 of the Civil Code did not inter
rupt the prescreption as the new defendants had
not been "party to the action". In the present
instance, trial has not yet commenced and I must
conclude that Wolfe is one of joint and several
debtors under article 2231 of the Civil Code.
Counsel for Wolfe also submitted another
Quebec Court of Appeal decision, Blumberg et
Consolidated Moulton Trimmings Ltd. v.
Wawanesa Mutual Insurance Company et Desjar-
dins et Giguère, 5 affirmed by the Supreme Court
of Canada. In that particular case, judgment had
been rendered against the parties to the original
action. The judgment damages were paid by
Blumberg, one of the defendants, who thereafter
sought to recover from the other defendants and
from his insurers, the third party Wawanesa, by
way of execution. Bissonnette J. stated that the
Superior Court had not established the degree of
liability between the parties and that, therefore,
Blumberg could not, at that stage, recover by way
of execution.
Counsel relies on that case to assert that the
obligation arising from a quasi-offence is in soli-
dum, that is to say imperfect solidarity would exist
between Wolfe and the other parties. Imperfect
solidarity is a concept of French law (not Quebec
law). The French concept (based on doctrine and
jurisprudence) implies that where the authors of
an offence have not given each other a mandate to
act, there is no ground to impose upon them the
secondary effects of solidarity, such as the inter
ruption of prescription. Article 1106 of the Civil
Code does not say that. It reads:
Art. 1106. The obligation arising from the common offence
or quasi-offence of two or more persons is joint and several.
Although the Blumberg decision has created
jurisprudential waves, legal scholars are of the
opinion that such an adoption of French law
cannot be legally justified in light of the wording
5 [l960] B.R. 1165.
used in article 1106. 6 Professor J.L. Baudouin goes
so far as to declare that the importation would be
"brutal" [at page 4601:
Il faut bien avouer que l'on comprend mal au niveau des
principes cette importation brutale, non justifiée par les textes,
d'une théorie étrangère au droit québécois ... .
In the Martel decision, Pigeon J. considered
Blumberg and held that it did not preclude the
interruption of prescription against a joint and
several debtor. The Canadian jurisprudence in the
matter of solidarity in solidum is not yet settled.
Therefore, the Martel decision still stands: pre
scription may be interrupted under article 2231
where one of the joint and several tortfeasors was
made a party to the action within the two year
period.
Consequently, the decision of the prothonotary
is confirmed and the appeal is dismissed with
costs.
6 Baudouin Jean-Louis, Les obligations, Les Éditions Yvon
Biais Inc. Cowansville, 1983, p. 459 and 460: this concept does
not exist in delictual matters in Quebec law; Tancelin, Maurice,
Des obligations, contrat et responsabilité, Wilson & Lafleur,
Montréal, 1984, pp. 493 and 494: the notion is not applicable in
delictual matters because of article 1106, but there is nothing
precluding its application to contractual matters.
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.