CASES DETERMINED BY THE EXCHEQUER COURT OF CANADA ON APPEAL FROM THE QUEBEC ADMIRALTY DISTRICT. 1913 Sept. 17. BETWEEN : THE SYDNEY, CAPE BRETON and MONTREAL. STEAMSHIP COMPANY (PLAINTIFF) APPELLANT AND THE HARBOUR COMMISSIONERS ' OF MONTREAL (DEFENDANTS) RESPONDENT. Construction of Statutes—Shipping—Injury to Ship—Action against ,Harbour Commissioners--Prescription-56-57 Vict. (U.K.) c. 61---Applicability. to Admiralty actions in Exchequer Court of Canada. Held, (reversing the jud g ment Of the Deputy Local Jud ge) that the Public Authorities Protection Act, 1893 (56-57 Vict. U.K. c. 61) does not apply to Admiralty proceedings in the Excheq uer Court of C anada; and that the six.month's prescription mentioned in sec. 1 thereof cannot be set up in b * of an action against a board of Harbour Commissioners char g ing ne g lig ence which resulted in injury to a ship. APPEAL from the following judgment of the Honour able Mr. Justice Dunlop, Deputy Local Judge of the Quebec Admiralty District, pronounced on. the 2nd June, 1913:— DUNLOP, D. Lo. J.:--There is no question but that the action was taken more than six months after the 64654-1
EXCHEQUER COURT REPORTS. 2 [VOL. XV. 1913 accident occurred, and the question to be decided is not THE SYDNEY without difficulty. CAPE BRETON AND The parties, by their counsel, have sent me elaborate MONTREAL STEAMSIIIP Co. factums. The plaintiff contends, first, that the question of THE HARBOUR COMMl$- prescription must be decided by the lex fori, and that sIONERS O$ the only prescription applicable is the prescription of MONTREAL. two years enacted by article 2261 of the Civil Code of Reasons of Trial Judge. this Province; while, on the other hand, the defendants contend that the Imperial statute, Public Authorities Protection Act, 56-57 Viet. cap. 61, applies and that plaintiff's action is barred , also that the six month's prescription mentioned in said Act applies, and that plaintiffs' action was barred and prescribed when it was instituted. In order to elucidate this question, it will be necessary to refer to the different statutues applicable to the present case. The Admiralty Act (54-55 Vict.) (Dom.) cap. 29, sections 3 and 4 is in the following terms: Section 3 reads in Dart as follows : "shall, within " Canada, have and exercise all the jurisdiction, " powers and authority conferred by the said Act and " by this Act." Section 4 reads in part: "shall, as well in such parts " of Canada as have heretofore been beyond the reach " of the, process of any Vice-Admiralty Court, as else-" where therein, have all rights and remedies in all " matters (including cases of contract and tort and " proceedings in rem and in personam), arising out of " or connected with navigation, shipping, trade or " commerce, which may be had or enforced in any " Colonial Court of Admiralty under The Colonial " Courts of Admiralty Act, 1890." Section 2, paragraph 2, of the Colonial Courts of Admiralty Act, 1890, reads: "The jurisdiction of a
VOL. XV.] EXCHEQUER COURT REPORTS. 3 " Colonial. Court of Admiralty shall, subject to the pro-1913 " visions of this Act, be over the like places, pérsons,,WBR Nô. " matters and things, as the :Admiralty jurisdiction Mo,RFAL " of the High Court in England whether existing by BTEC gHIP "virtue of any statute or otherwise, and the Colonial THE "Court of Admiralty may exercise such jurisdiction in HARBOIIR co~~rs " like manner and to as full an extent as the High 8TONTRS OE MONTREAL. " Court in England, and shall have the same regard Reas ons of " as that Court to international law and the comity Trial Judge, ` ̀ of nations." It is evident that the rights and remedies referred to in section 4 of the Admiralty Act, 1891, as being enforceable in any Colonial Court of Admiralty under the Colonial Courts of Admiralty Act, 1890, acording to the terms of this latter Act, can only be enforced in like manner and to as full an extent as the High Court in England. I am of opinion that any statute which, in England, affects the manner or the extent of the exercise of Admiralty jurisdiction in the High Court must affect thé manner and the extent of the exercise of such jurisdiction in any Colonial Court of Admiralty. The Imperial Statute 56 and 57, Viet. cap. 61, entitled the Public Authorities Protection Act, . 1893 is such an enactment. This statute, in part, provides as follows:— " Where after the commencement of this Act any "- action, prosecution or other proceeding is commenced " in. the United Kingdom against any person for. any " act done' in' pursuance, or execution, or intended " execution of any Act of Parliament, or of any public " duty or authority, or in respect of any . alleged neglect " or default in the execution of any such act,, duty or " authority, the following provisions shall bave effect: " (a) The action, prosecution or proceeding shall not 64654-1'
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4 EXCHEQTTER COURT REPORTS. (vv L. XV. 1913 " lie or be instituted unless it is commenced within six THE SYDNEY months next after the act, neglect or default com- CAPE BRETON AND " plained of, or, in case of a continuance of injury or MONTREAL STEAMSHIP " co. damage, within six months next after the ceasing v " thereof . " THE HARBOUR COMMiS- This statute affects the manner and extent of the INE OP exercise of Admiralty jurisdiction in England as well as R L. the rights and remedies of persons before the Admiralty Reasons of . 'Trial Judge. Courts. This is evident both from the statute itself and its schedule and from jurisprudence. For instance, the Act repealed section 27 of the Harbours Act, 1814, and section 93 of the Passengers Act, 1855, (now forming part of The Merchants Shipping Act) and section 24 of the Dockyard Ports Regulation Act, 1865. Defendants have cited in their factum several decisions applicable to the present case, namely, The Ydun (1), Williams v. Mersey Docks (2), The Johannes-burg (3) . The fact that section 1 of the Public Authorities Protection Act refers to a prosécution or other proceedings commenced in the United Kingdom does not prevent the application of that Act to, the, jurisdiction of Colonial Courts of Admiralty. The fact that it affects the Admiralty jurisdiction in England is sufficient to make it applicable to the jurisdiction of a Colonial Court of Admiralty. The principle to be, followed is contained in sub-paragraph (a) of the proviso to section 2 of The Colonial Courts of Admiralty Act, 1890, which declares: " Any enactment in an Act of the Imperial Parliament " referring to the Admiralty jurisdiction of. the. High " Court in England, when applied to a Colonial Court " of Admiralty in a British possession, shall be read as (1) (1899) Prob. 236. (2) (1905) 1 K.B. 804. (3) (1907) Prob. 05.
VOL. ÏV.] `ÉXÙHEQUER COURT REPORTS. " if the ` name ôf that possession 'were therein sùb- " stituted for England and `Wales. " At the date' of the passing .of this Act (1890) the -Public Au.thorities'Pro'tection Act had not been enacted; sT but it is quite evident that in 'applying the terms of paragraph 2 of section 2 of Ile Colonial Courts of CA Admiralty Act, 1890, determining the jurisdiction of SION the Colonial Court to be exercised in like manner 'and to as full an extent as the High Court in England, the name of the British Possession is to be read for the term "United Kingdom" in the same manner as for the words "England and Wales", on the principle that, in any event, the 'greater includes the less. The present question, in my judgment, seems to be absolutely disposed of by Rule 228 of this Court which reads as follows "In all cases not provided for by these Rules, the " practice for the time being in force in respect tà " Admiralty proceedings in the High Court of Justice " in England shall be followed." This case is not provided for by our Rules. Therefore, under Rule 228, reference, must be made to the practice, in 'force in England, and that practice is governed by the Public Authorities Protection Act, • which the judges 'in the Ydun case declared to be an enactment affecting the procedure and practice of the Courts. Inasmuch as they applied it in an Admiralty proceeding, it clearly follows that it is to be applied in this Court, under this Rule. The case referred to will be feund reported in the Law Reports, (1) where it was held by the Court of Appeal (A. L. Smith, Vaughan-Williams and Romer, L.JJ., affirming the decision of the president, that the defend= ants were acting in pursuance of their public duties so • (1) (1899) Prob:236. 19 13 TI SYDN T CAP& BRETOM m AN D oNT4., o c D~F s TAE 01 R nsz~rs- 1 E .ON R T 9 RE A o G r . Reasons of Trial Judge.
6 EXCHEQUER COURT REPORTS. [VOL. XV. 191.3 that sec. 1 of the Public Authorities Protection Act, 1893, THE SYDNEY. applied, and as that statute, dealing with procedure CAPE BRETON AND only, was retrospective, the action was barred after the MONTREAL STEAMSHIP Co. expiration of six months from the default complained of. v. It has not been established, in my opinion, that THE HARBOUR article 2261 of the Civil Code ever applied to a case COMMIS- SIONERS OF like the present, even prior to the passing of the Public MONTREAL. Authorities Protection Act, Reasons of 1893, and if it ever did Trial Judge. apply, the effect of the passing of that statute would alter the law and enact a prescription of six months. Diligence must be used in proceedings. I do not find that in England, prior to the passing of that Act, there was any limitation of time under which an action, such as the present, should be brought. The authors say : "should be brought in a reasonable time, " taking into consideration the facts and circumstances of the case."(1) In the case of Williams v. Mersey Docks and Harbour Board, above referred to (2) it was held that the action could not be maintained, inasmuch as the right of action of the deceased, if alive, would have been barred by the Public Authorities Protection Act, 1893 section 1 (a), that is, by six months, by the prescription under the Fatal Accidents Acts, 1846 referred to in the report of said case. The prescription would have been much longer. No precedents applicable to the present case have been cited by the parties, and I do not think that the question has before been raised in Canada. After a most careful consideration of the present case and of the factums filed by the parties, I have come to the conclusion that plaintiff's action is barred and prescribed, more than six months having elapsed (1) See Maclachlan on Shipping, 5th .ed. 72, 785, and 1044; Marsden on Collisions, 6 ed. p. 74. (2) (1905) 1 K. B. 804.
VOL. XV.] EXOHEQUER. COURT. REPORTS. between the date of the accident and the institution of the present action. . I am therefore of opinion that the demurrer filed by the defendants must be maintained, and that plaintiff's action be dismissed, with costs, and judgment is given accordingly. From this judgment an appeal was taken by the plaintiff to the Exchequer Court of Canada. September 9th, 1913. The appeal was now heard before the Honourable Mr. Justice Cassels. A. R. Holden, K.C., for the appellant, submitted that the Public Authorities Protection Act is not in force in Canada ex proprio 228 of . the general rules and orders regulating the ' practice -*and procedure in Admiralty cases in the Exchequer Court cannot be held to invoke visions. The subject-matter of the Imperial Act is a right and does not fall within the domain of "practice." (See Bouvier's Law Dictionary, Stroud's Judicial Dictionary, Encyclopaedia of The Laws of England;(1) Re Osler;(2) Attorney-General v. Sillem; (3) Beal's Legal Interpretation (4) . Sir A. R. Angers, K.C., and K.C., for the respondent, contended that under section 2 of The Colonial Courts of Admiralty Act, jurisdiction of the Exchequer Court of Canada was the same as that of * the High Court in England. That the Public Authorities Protection Act, to Admiralty proceedings in the High Court is apparent from the language of that statute itself, and is estab- (1) Vol. 10 p. 284. (3) 10 H.L. c. 704. (2) 7 Ont. P.R. 80. (4) 2nd Ed. p. 392. 7 1 913 THE SYDNEY, CAPE BRETON MONTREAL STEACoMSHPI VT. E HARBOUR COMMIS- 81 OF MONTREAL: argument o • Counsel (U.K.) 1893, vigore, and Rule . its proverbo "Practice"; verbo "Practice"; Cardinal Rules of Arnold Wainwright; 1890, the 1893, (U.K.) applied
8 EXCIEQUER COURT REPORTS. "VOL. XV. 11► 13 lished by cases decided in England. (The Ydun;(1) T HR S DNEY, ETO Williams v. Mersey Docks ;(2) The Johann'esburg(3). • C APE .BR N AND The point is • absolutely disposed of by the MONTREAL STZ/fM9HlP Co. provisions of Rule 228 of the Admiralty practice in v. the Exchequer Court of Canada:—"In all cases not THE HARBOUR Q t provided for by these Rules, the practice• for the COMMIS- STONERS or "time being in force in respect to Admiralty pro- MONTREAL. Argument o f " ceedings in the High Court of Justice in England Counsel. " shall be followed." This case is not provided for by the Canadian rules, and the English practice comprehends the provisions of the Public Authorities Protection Act, 1893. There is no question that the subject-matter of that statute is procedure; and "practice" and "procedure" are interchangeable terms in the law. See Webster's International Dictionary, verbo "Practice. " CASSELS, J. now (September 17th, 1913) delivered judgment.. This is an appeal from the judgment of Mr. Justice Dunlop, Deputy Local Judge, allowing the demurrer of the defendants and dismissing the action with costs. Since the hearing of the appeal I have carefully considered the arguments of the counsel, both oral and written, the statutes relating to the case, and the reasons for judgment of the learned Judge below. As the learned Judge states, the question to be decided is not without difficulty. Having the greatest respect for the opinion of the learned Judge I am reluctantly unable to bring my mind to the same conclusion that he has arrived at. The Colonial Courts of Admiralty Act, 1890, (53-54 V. (U.K.), cap. 27), is intituled "An Act to amend the (1) (1899) Prob. 236. (2) (1905) 1 K.B. 804. (3) (1907) Prob. 65.
VOL -=XV.] ÉX613Eqt3È : 11 C :ÔQRT. `REPORTS. " Law respecting the exercisé of A miralty=Jurisdictiôn - 'in Her Majesty's Dominions and °elsewhere 'out of TIïE " the United 'Kingdom. ~ ~ Section 2, sub-sec. 1'ôf this-statute"reads as follows:— sT "Every Court of law, in a British possession, " which is for the time being declared in pursuance coxM sr " of this Act to be a Court of Admiralty, or which, " if no such declaration is in force in the possession, " has therein original unlimited civil jurisdiction shall be a Court.of Admiralty, with the jurisdiction " in this Act mentiôned,. and may, for the purpose " of that jurisdiction, exercise all the 'powers which . " it possesses for the purpose of its other civil " jurisdiction; and such court, in reference to the " jurisdiction conferred by this Act, is in this Act " referred to as a Colonial Court of Admiralty. " Where in a British possession the Governor is " the sole judicial authority,, the expression "court . " of law" for the purposes of this section includes' such Governor. Section 2, sub-sec. 2 is as follows: • " The jurisdiction of a. Colonial Court of Admiralty " shall, subject to the provisions of this Act, be " over the like, places, persons, matters and things, " as the Admiralty Jurisdiction of the High Court in England, whether existing by virtue of any " statute or otherwise, and the Colonial Court of " Admiralty may exercise such jurisdiction in like " manner and to as full an extent as the High, Court " in England, and shall have the same regard as that " court to international law and . the comity of. " nations." The statute provided (section 7) for making of 'rules of Court "for regulating the 'procedure and practice - (including fees and costs) in a Court in a British ~ ~J 1918 CA s P v E n BR N E i T ~ Ü i N , AND MONTREAL EAMBHIP eo. THE M E L" Reasons for Judgment.
10 EXCHEQUER COURT REPORTS. [VOL. XV. 1913 possession in the exercise of the jurisdiction conferred by THE SYDNEYP this CAPE BRETON Act." Subsequent to the passage of this Act AND MONTREAL Admiralty rules were drafted and after being approved STE AM SS of by Her Majesty in Council came into force on 10th v. June, 1893. THE HARBOUR The Dominion statute, cap. 29, 54-55 Vict. was COMMIS- SIONERS OF assented to 31st July, 1891. MONTREAL. Reasons for It is conceded by the learned Judge in his reasons Judgment. that at the time of the passing of The Colonial Courts of Admiralty Act, 1890, and until the first of January, 1894, there was no limitation of time within which an action such as the present should be brought. It is in each case a question of diligence. The plaintiffs on the other hand invoke the limitation in the Civil Code of Quebec. This is a question to be determined at the trial. if the Code governs, the action is commenced in time. It is a question of diligence. Then the facts will appear at the trial. I do not give any decision on this question. The learned Judge's decision rests upon the ground that an Imperial Statute, cap. 61, 56-57 Vict., is applicable to Admiralty proceedings in Canada, and bars the action after a lapse of six months. This statute is intituled "An Act to generalize and " amend certain Statutory provisions for the protection " of Persons acting in execution of statutory and other "'public Duties." At the time of the enactment it would have been easy to have made it applicable to Canada, had Parliament so intended. Instead of so enacting it is limited to actions, prosecutions and proceedings commenced in the United Kingdom; and it enacts that the action shall not lie or be instituted unless it is commenced within six months.
VOL. XV.] EXCHEQUER COURT REPORTS. It is not correct to state that sec. 27 of the Harbours, Act 1814, is repealed. Section 2 of • cap. 61 states: " Th " repealed as to the United Kingdom, This sub-section 2 clearly indicates, • if it were not otherwisè clear, that the enactment was only intended to apply to the United Kingdom. Therefore unless there is other ground for making it applicable to Admiralty proceedings in Canada it duaQment• clearly does not apply. Proviso (a) to sub-section 3 of section 2 of the Colonial Courts of Admiralty, drawing in the provision of the Protection Act, 1893. This proviso (a) is as follows: " Any enactment in an Act of V " Parliament referring to the Admiralty jurisdiction " of the High Court in England, when applied to a " Colonial Court of Admiralty in a British possession " shall be read as if the name of that possession were " therein substituted for England and Wales." It is unnecessary to consider the question whether this section applies to future legislation or merely to legislation existing at the time of the coming into force of the Colonial Courts of Admiralty Act, The words "United Kingdom" in the rities Protection Act, 1893, are- not the same as "England and Wales", referred to in proviso (a) ; and I cannot bring my mind to the conclusion that a statute can be construed on the theory that the greater includes the less. I am of the opinion that the Protection Act, 1893, is not in force here this proviso (a). 11 Imperial 1 .913 THE synxEŸ, CAPE BRETON • e AxD re shall be MOxTREAL etc." area sna rF . THE HARBOIIR COMMIS- SIoxERS of MorrrnEAL. Reasons for 1890, is invoked as Public Authorities the' Imperial 1890. Public AuthoPublic Authorities • by virtue of
12 EXCHEQUER COURT REPORTS. [VOL. XV. 1913 It is said further that under Rule 228 of the Ad- THE SYDNEY, CAPE BRETON miralty Rules this statute (the Public Authorities` AND Protection Act, MONTREAL 1913, is in force. STEAMSHIP Rule 228 reads as follows : Co. z . THE " In all cases not provided for by these Rules the HARBOUR practice for the time being in force in respect to COMMIS-. SIGNERS OF " Admiralty proceedings in the High Court of MONTREAL. Reasons for " Justice in England shall be followed." Judgment. The Colonial Courts of Admiralty Act, 1890, by section 7, provided, as I have pointed out, for the. making of Rules regulating the procedure and practice-in the exercise of the jurisdiction conferred. It will be noticed that Rule 228 only refers to the-"practice. " In the Ydun case (1) it was hardly in contest that the provisions of the Public Authorities Protection Act were applicable as a defence to an action commenced in the United Kingdom. The qùestion involved was. whether it was retroactive, and. the Court there held it was, being a matter of procedure. If under the word "practice " in Rule 228 this statute can be brought in, a plaintiff who had a good cause of action on the 1st of June, 1893, and entitled under the jurisdiction conferred to invoke the aid of the Court say on the 2nd January, 1894, would have. found his claim absolutely taken away. I cannot bring my mind to the conclusion that any such effect can be given to Rule 228. In the House of Lords in Attorney-General v. Sillem (2) Lord Westbury remarks : " A power to regulate the practice of a Court does " not involve or imply any power to alter the extent or nature of its jurisdiction." " Here the word `practice' is used in the common and ordinary (1) (1890) P. 236. (2) IO H.L. at pp. 720, 723, 724.
• VOL., XV.]. EXOHEQIIER. COURT REPORTS. " sense, as denoting the rules that make or guide " the "cursus curiae" and regulate the proceedingsT " in a cause within the walls or limits of the Court " itself . " " The right . to bring an action is " very distinct' from the regulations that apply to " the action when brought, and which constitute H " the practice of the Court in which it is instituted." SLO On the whole case after the best consideration I can give to it, I am of opinion that the demurrer fails. The appeal is allowed with costs including the costs in the Court below. Judgment accordingly. Solicitors for appellant: Meredith, MacPherson, Hague, Holden & Shaugnessy. Solicitor for respondent :• A. R. Angers. (I) This judgment was unanimously affirmed on appeal to the Supreme Court or Canada. 13 1 913 SBR DNE N C HAPE E B PuTON MON%AL. EAM mP ,;HE ARBOUR C o~►insis-M N RSOF O N E TEEA L. Reasons for Judgment. (1)
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.