May 28, 1951

CCF

Major James William Coldwell

Co-operative Commonwealth Federation (C.C.F.)

Mr. Coldwell:

Petition of Right Act

apprised of its contents before it was introduced into this house, since it does not involve the expenditure of money. So I would leave it to hon. members who are members of the privy council to tell the hon. member for Greenwood how frequently the interesting formula recited to the house before the introduction of a money bill is actually a statement of fact rather than an interesting fiction.

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Is it possible that it is a statement of fact and no consultation takes place? I do not think so.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

It is with some hesitation that I express an opinion here. I was extremely interested in the quotation read by the Minister of Justice to the effect, as I think he said, that the situation would be cured by making the pronouncement on third reading. I wonder if I might suggest that the quotation does not quite take care of the situation in which we find ourselves here. Surely the situation is that while all the members of the cabinet are members of the House of Commons, they are the king's ministers. As I understand, all legislation is laid before the house in the name of His Majesty: "His Majesty by and with the consent of the house enacts as follows". Ministers who lay legislation before us do so in their capacity as king's ministers. If this bill seeks, as it does, to take away from His Majesty one of his remaining prerogatives, and on the authority of May His Majesty's consent must be obtained before that can be done, how then can his ministers ask this house to give its consent to this legislation unless they are in a position to say "We have it in command to inform the house that His Majesty consents"? They have asked us to give approval in principle on second reading. That approval we have given, though the point was raised by the hon. member for Lake Centre. We are now aisked to pass the bill through the committee stage and give it third reading. The house does not know because the minister has not told us-and from what has transpired I think I would be safe in saying the minister cannot tell us-that His Majesty's representative the governor general is satisfied that this prerogative should be removed.

So if the point has substance, as I think it has, I doubt whether merely making the statement on third reading will validate the proceedings. I take the liberty of expressing doubt whether it is proper for the House of Commons to proceed with this legislation which removes one of His Majesty's prerogatives until we have been- told whether or not

[Mr. Coldwell.l

His Majesty's representative consents. I do not take the position the hon. member for Rosetown-Biggar takes with respect to these formalities or relics or whatever you may call them. They may be legal fictions to a certain extent, but it is quite often the case that

(having due regard to a legal fiction is vital if the result is to have any validity. The fact is that the ministers are here as His Majesty's ministers. If you wish to call it a fiction that they are responsible to the king's representative I would not be prepared to enter into any extensive argument on that point. Admittedly they are members of this house and are responsible to it, but it is a fact, whether you call it a fiction or not, that under our system all authority stems from the -crown. So it seems to me that obtaining the consent of the crown to the removal of this prerogative is not a formality or the mere observance of a fiction, but is something which if ignored might invalidate the whole of the proceedings the government is trying to put through.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

If I am not mistaken the hon. member for Kamloops accompanied other members and myself to the other place when the king's speech was read at the beginning of the present session. In that speech His Majesty's representative indicated that this legislation to do away with the fiat would be placed before hon. members. That is a circumstance I think my hon. friend completely left out of account in the argument he just made.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

No.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

That signification of the king's view in the matter is not without -significance; and the quotation from Sir Erskine May which I read a few minutes a-g-o applies precisely to that state of affairs, where in the speech from the throne there is an indication of legislation. While that reference does not obviate the necessity for a signification of his assent, it does make it proper that the assent should be given on third reading of the bill; and that is the only question involved here. If hon. members are interested I could read a citation from Bourinot to the same effect.

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

I am not going to labour the point, but in regard to the matter raised by the hon. member for Rosetown-Biggar as to the prerogative powers of the king I refer to page 2 of May:

The crown of these realms is hereditary, being subject, however, to special limitations by parliament; and- the king or queen has ever enjoyed, by

prescription, custom and law the chief pk parliament and the sole executive power, right of succession-

I stress the next words particularly.

-and the prerogatives of the crown itself are, however, subject to limitations and change by legislative process with the consent and authority of the sovereign.

The references under that section are to the changes that have taken place in the king's title in recent years. I think the minister will find that in all those cases the representative of the king in the House of Lords and the attorney general, holding the position the Minister of Justice holds in our country, have recognized the prerogatives of the king not as fictions but as actual, existing evidences of the executive power of the king. I raised the point so that no question could be raised in the courts some day as to whether or not parliament had acted properly. Certainly the lord high chancellor of England, Lord Jowitt, one of the greatest authorities oF~our day on constitutional law, and Sir Hartley Shawcross, the attorney general of Britain and one of the greatest lawyers of this generation, did not for amusement only, before introducing the bill in question, point out that the king had specifically agreed to a release of his prerogative rights. If there was no purpose in that, neither of these outstanding representatives in the administration of British justice would have found it necessary to use words that had no purpose but were merely superfluous.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Mr. Chairman, I think possibly I might shed a little light on the analogy drawn by the hon. member for Lake Centre between the Governor General's recommendation of a money bill, and the assent which he is pres-enfly^discussing. I am quoting from Bourinot, page 413, where it says:

A misapprehension has sometimes arisen as to the time when the "consent" of the crown should be given to a bill. The procedure with respect to signifying the consent is different from that in giving the recommendation of the crown. The recommendation precedes every grant of money: "the consent may be given at any stage before final passage, and is always necessary in matters involving the rights of the crown, its patronage, its property, or its prerogatives. .

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulion:

I should like to ask a question on the content of the bill. The member for Lake Centre referred to a situation in England where, when they opened very wide the right of the subject to take proceedings against the crown, they made specific reservations of one or two matters of public administration. There was a specific reservation in the case of the post office, and another one in the case 80709-222i

Petition of Right Act

in of the armed forces. It occurs to me, particularly in view of the amendment to the Exchequer Court Act which was passed in 1938, and which had the effect of removing the limitation on the right of the subject to bring actions against the crown for negligence of a public servant. Formerly the limitation was that the negligence must have been in connection with a public work, but now it is the negligence of a servant in the course of his duties.

Although I do wish to see the right of action extended so far as is feasible and practicable, I believe it would be undesirable to go too far. Will the minister say what consideration was given to this question, now that the necessity for a fiat is taken away, and whether it does not open up the possibility of actions of a sort against the military forces of the country which it would not be desirable to establish.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

The hon. member realizes, of course, that the actions to which he refers are those contemplated by the Exchequer Court Act. Section 19 (c) which reads:

Every claim against the crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the crown while acting within the scope of his duties or employment . . .

I rather think that those cases about which the hon. member is apprehensive are not cases in which it would be possible to establish negligence. I think that is the test. For example, there have been cases, in respect of military acts, in which it has been impossible to prove negligence, so the plaintiff has not succeeded. On the other hand, there are provisions under manoeuvre regulations, aviation crash regulations, and gunfire regulation, where consideration is given on an organized basis of compensatory payments ex gratia, even although in a particular case negligence cannot be proven, that is that the damage in question is not caused by the negligence of any person. For example, if you have a loss arising out of concussion from gunfire, in certain circumstances compensation can be made on an ex gratia basis without any negligence being involved.

" I believe the hon, member's apprehension as to any unlimited liability of the crown leaves out of account the fact that in these cases the plaintiff has to prove negligence. That is not always an easy matter to prove, even where it may exist. While I am on that subject, I believe that, in fairness to our own legislation, I should point out that the hon. member for Lake Centre rather tended to leave the impression that the scope of our

Petition of Right Act

act was quite narrow. I believe I should point out what it does cover.

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Narrower than the British act.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Yes, it is narrower than the British act. Yet I believe it would be wise to put on the record what it does cover. Even in relation to the British act it is quite wide. First of all, it says:

The Exchequer Court shall have exclusive original jurisdiction in all cases in which the land, goods or money of the subject are in the possession of the crown, or in which the claim arises out of a contract entered into by or on behalf of the crown.

Those are two cases.

Every claim against the crown for property taken for any public purpose.

That makes three.

Every claim against the crown for damage to property injuriously affected by the construction of any public work.

That makes four.

Every claim against the crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the crown while acting within the scope of his duties or employment.

That makes five.

Every claim against the crown arising under any law of Canada or any regulation made by the governor in council.

That makes six.

Every claim against the crown arising out of any death or injury or loss to the person or to property caused by the negligence of any officer or servant of the crown while acting within the scope of his duties or employment upon, in or about the construction, maintenance or operation of the Intercolonial railway or the Prince Edward Island railway.

That makes seven. There is a similar provision for the Canadian National Railways and all its subsidiaries, as a crown corporation.

The amount to be paid whenever the crown and any person have agreed in writing that the crown or such person shall pay an amount of money to be determined by the exchequer court . . .

That is on a reference to the court. -That makes eight.

The exchequer court has jurisdiction in cases of conflicting application for any patent of invention, or for the registration of any copyright, trade-mark or industrial design. That makes nine.

. . in all cases in which it is sought to impeach or annul any patent of invention, or to have any entry in any register or copyrights, trade-marks or industrial designs made, expunged, varied or rectified.

That makes ten.

. . . in all cases in which a remedy is sought respecting the infringement of any patent of invention, copyright . . .

And so on. That is eleven. Then No. 12 is where an application to the patent office for a patent has been refused, the subject has an appeal to the exchequer court, from the decision of the commissioner of patents. That is twelve.

Again, in fairness to our legislation, it should be pointed out that the hon. member for Lake Centre has already referred to the fact that under the British legislation they provide that the crown shall be subject to all these liabilities in tort as if it were a private person of full age and capacity. But these liabilities are in respect of torts committed by the servants or agents of the crown and not by the crown per se.

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

The crown could not commit a tort.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

I will grant that the torts that are committed by the crown, in the nature of things, are usually only committed by its servants or agents. But I also say it leaves quite a wrong impression to indicate or to imply that when we in Canada have taken care of the tort of negligence we have not taken care of by far the greater number of torts that the crown through its servants or agents can commit. I do suggest that with respect to such other torts as trespass, assault, false arrest, false imprisonment, malicious prosecution, libel and slander, deceit, trover and conversion, and slander of title, it is not likely the average servant of the crown, in the course of his duties, would ever 'commit these torts. Therefore it does not leave an entirely correct impression to say that the British act is of much wider scope than our own; because in taking care of the tort of negligence, which accounts for the vast majority of the claims that are made against the crown, we are taking care of the great bulk of the foundations of legal liability against the crown.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulion:

I appreciate the argument of the Minister of Justice (Mr. Garson) with respect to the difficulty of proving negligence in those cases to which I referred arising particularly within the armed forces. I agree that that would be exceedingly difficult on occasion. But I should imagine that there are other cases where it would not be impossible by any means to establish negligence.

They might be cases of a type where, in the general interest of the forces themselves, it should not be contemplated that a member of the forces can bring an action against the crown for the legal negligence of another member of the forces. For instance, I have in mind the type of thing arising out of

accidents in preparation for actual war, in time of actual war or time of apprehended war when safety precautions are to an extent relaxed, and when what are in military eyes practically inevitable accidents occur, but in terms of legal liability it may well be possible to establish that there was negligence on somebody's part.

It is an exceedingly difficult matter and one involving public policy but I suggest, with respect, that the minister's answer that there are cases where it is almost impossible to establish negligence, nevertheless does not dispose of the whole field. I suggest to him seriously that it might be desirable, in order to deal with those particular cases, to consider whether some particular amendment-I think probably to the Exchequer Court Act-should not be introduced. I am reinforced in that view by an article which I saw in the press recently. I meant to bring the clipping down, and I regret that I did not do so. It was an article reporting a recent decision of the exchequer court awarding $30,000 damages to, my recollection is, an airman who was injured while being driven in a jeep by another airman.

The judge of the court who delivered the judgment, according to the report as I recall it, concluded by saying that this may have very important implications, particularly with respect to the payment of pensions in the future, and that it may be something which calls for legislative action. "But", he said, "that is for parliament to decide, not for me. I am interpreting the law as it exists today." I wish I had brought the clipping down with me, because it would be much more satisfactory to read it than to refer to it generally. But it seems to me to indicate that there are possibilities which should be considered.

Having removed, as I say, that former limitation that the negligence of the crown's servant must be upon a public work, it seems to me that now to take away the necessity for a fiat opens up further considerations. In Britain it was felt necessary to provide for a specific provision in their bill, to the effect that members of the armed forces and certain other people in the public service could not sue the crown for negligence of their fellow employees on the same sort of duty. I should like strongly to urge on the minister that further consideration should be given to that matter here.

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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

I should be glad to give

consideration to my hon. friend's point. But when one takes into account the fact that one must prove negligence, and that one

Petition of Right Act

must prove that that negligence was committed by the servant of the crown within the scope of his duties, it narrows the field considerably. For example, once in a while there are actions brought against the crown in respect of a motor vehicle accident involving servants of the crown using public motor vehicles not in the course of their duty but after hours and the like. That is not negligence in the course of duty.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

No. But may I refer the

minister to an illustration of the difficulty which was given in this case by Viscount Simon in discussing the bill in the House of Lords. He was approving of the fact that there a limitation had been put in the bill making it clearly impossible for one member of the armed forces to sue the crown for the negligence of a fellow member. He said:

To take a simple example, if a government aeroplane crashes-

I think for my purpose I should substitute "if an R.C.A.F. aeroplane crashes."

-and it is found that the crash is due to the negligence of the pilot in landing, no member of the crew can bring any action against the pilot for damages, and, what is more, no action can be brought against the crown.

Then he goes on. It seems to me it is perfectly easy to visualize that sort of action taking place. I do not want to theorize here, but I would imagine that the approach there would be that pensions for loss of life while on service were provided to take care of hazards of the service. That is exactly what the judge of the exchequer court had in mind in the recent case to which I have referred when he said that this matter may have some important bearing in connection with pensions. "But," he said, "if legislative action is necessary, that is for parliament to concern itself with, not for me. I am interpreting the law as it exists."

I do not want to labour the point, but I think it is something that should be looked into further.

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LIB

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Shall the clause carry?

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?

Some hon. Members:

Carried.

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?

Some hon. Members:

No.

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May 28, 1951